2007 Oregon Code - Chapter 94 :: Chapter 94 - Real Property Development
Chapter 94 — Real
Property Development
2007 EDITION
REAL PROPERTY DEVELOPMENT
PROPERTY RIGHTS AND TRANSACTIONS
DEVELOPMENT AGREEMENTS
94.504Â Â Â Â Â Â Development
agreements; contents; duration; effect on affordable housing covenants
94.508Â Â Â Â Â Â Approval
by governing body; findings; adoption
94.513Â Â Â Â Â Â Procedures
on consideration and approval
94.518Â Â Â Â Â Â Application
of local government law and policies to agreement
94.522Â Â Â Â Â Â Amendment
or cancellation of agreement; enforceability
94.528Â Â Â Â Â Â Recording
TRANSFERABLE DEVELOPMENT CREDITS
94.531Â Â Â Â Â Â Severable
development interest in real property; transferable development credit
PLANNED COMMUNITIES
(General Provisions)
94.550Â Â Â Â Â Â Definitions
for ORS 94.550 to 94.783
94.560Â Â Â Â Â Â Legislative
findings
(Creation of Planned Community)
94.565Â Â Â Â Â Â Planned
community to be created under ORS 94.550 to 94.783; exception; conveyance of
lot or unit prohibited until declaration recorded
94.570Â Â Â Â Â Â Applicability
of ORS 94.550 to 94.783
94.572Â Â Â Â Â Â Applicability
of certain provisions of ORS 94.550 to 94.783 to Class I or Class II planned
communities
94.575Â Â Â Â Â Â Applicability
of subdivision law
94.580Â Â Â Â Â Â Declaration;
recordation; contents
94.585Â Â Â Â Â Â Authority
to amend declaration and initial bylaws to comply with federal or state laws
94.590Â Â Â Â Â Â Amendment
of declaration by owners
94.595Â Â Â Â Â Â Reserve
account for maintaining, repairing and replacing common property; reserve
study; maintenance plan
(Declarant Control; Turnover of Administrative
Control)
94.600Â Â Â Â Â Â Declarant
control of association
94.604Â Â Â Â Â Â Transitional
advisory committee
94.609Â Â Â Â Â Â Notice
of meeting to turn over administrative responsibility
94.616Â Â Â Â Â Â Turnover
meeting; transfer of administration; receivership
94.621Â Â Â Â Â Â Rights
of declarant following turnover meeting
94.622Â Â Â Â Â Â Obligations
and liabilities arising from transfer of special declarant rights
94.623Â Â Â Â Â Â Acquisition
of special declarant rights by successor declarant; exceptions
(Homeowners Association; Management of
Planned Community)
94.625Â Â Â Â Â Â Formation
of homeowners association; adoption of initial bylaws; amendment of bylaws
94.630Â Â Â Â Â Â Powers
of association
94.635Â Â Â Â Â Â Association
bylaws
94.640Â Â Â Â Â Â Association
board of directors; powers and duties; removal of member; meetings; executive
sessions
94.641Â Â Â Â Â Â Assent
of director to board action
94.642Â Â Â Â Â Â Receivership
for failure of homeowners association to fill vacancies on board of directors
94.645Â Â Â Â Â Â Adoption
of annual budget
94.647Â Â Â Â Â Â Use
of written ballot for approving or rejecting matters subject to meeting of
association members; procedures; exceptions
94.650Â Â Â Â Â Â Meetings
of lot owners; notice
94.652Â Â Â Â Â Â Electronic
notice to owner or director
94.655Â Â Â Â Â Â Quorum
for association meetings
94.657Â Â Â Â Â Â Rules
of order
94.658Â Â Â Â Â Â Voting
or granting consent
94.660Â Â Â Â Â Â Method
of voting or consenting
94.661Â Â Â Â Â Â Electronic
ballot
94.662Â Â Â Â Â Â Notice
to lot owners of intent of association to commence judicial or administrative
proceeding; contents of notice; right of lot owner to opt out
94.665Â Â Â Â Â Â Authority
of association to sell or transfer common property
94.667Â Â Â Â Â Â Recording
association information with county clerk
94.670Â Â Â Â Â Â Association
duty to keep documents and records; payment of association expenses; review of
financial statement by certified public accountant; examination of records by
owner
94.673Â Â Â Â Â Â When
compliance with specified provisions of ORS 94.640 and 94.670 required
94.675Â Â Â Â Â Â Insurance
for common property
94.676Â Â Â Â Â Â Insurance
deductible for certain planned communities
94.677Â Â Â Â Â Â Election
to have ORS 94.645, 94.655 and 94.675 apply
94.680Â Â Â Â Â Â Blanket
all-risk insurance
94.685Â Â Â Â Â Â Specification
of insurance for individual lots
94.690Â Â Â Â Â Â Terms
of insurance under ORS 94.680
94.695Â Â Â Â Â Â Authority
to delegate association powers to master association
94.700Â Â Â Â Â Â Duration
and termination of initial management agreements and service and employment
contracts
(Assessments and Liens Against Lots;
Easements)
94.704Â Â Â Â Â Â Assessment
and payment of common expenses
94.709Â Â Â Â Â Â Liens
against lots; priority; duration; record notice of claim of unpaid assessment;
foreclosure procedure
94.712Â Â Â Â Â Â Lot
owner personally liable for assessment; joint liability of grantor and grantee
following conveyance; limitation
94.716Â Â Â Â Â Â Lien
against two or more lots; release
94.719Â Â Â Â Â Â Lien
foreclosure; other legal action by declarant, association or owner; attorney
fees
94.723Â Â Â Â Â Â Common
expenses; liability of first mortgagee
94.728Â Â Â Â Â Â Taxation
of lots and common property
94.733Â Â Â Â Â Â Easements
held by owner of lot and by declarant
(Miscellaneous)
94.760Â Â Â Â Â Â Promotional
material showing possible improvements
94.770Â Â Â Â Â Â Application
of rule against perpetuities; conflict between declaration and bylaws; effect
on title of declarationÂ’s noncompliance with Oregon Planned Community Act;
conflict between Oregon Planned Community Act and ORS chapter 65
94.775Â Â Â Â Â Â Judicial
partition prohibited
94.777Â Â Â Â Â Â Compliance
with bylaws and other restrictions required; effect of noncompliance
94.780Â Â Â Â Â Â Remedies
94.783Â Â Â Â Â Â When
certain administrative provisions apply
94.785Â Â Â Â Â Â Short
title
TIMESHARE ESTATES
(General Provisions)
94.803Â Â Â Â Â Â Definitions
for ORS 94.803 and 94.807 to 94.945
94.806Â Â Â Â Â Â Legislative
finding
94.807Â Â Â Â Â Â Application
94.808Â Â Â Â Â Â Managing
entity as taxpayer
94.809Â Â Â Â Â Â Valuation
of timeshare property; exclusions from value
94.811Â Â Â Â Â Â When
owners of planned community, condominium or subdivision may prohibit timeshare
plan
(Creation of Timeshare Estates)
94.813Â Â Â Â Â Â Character
of timeshare estates
94.816Â Â Â Â Â Â Partition
prohibited; exception
94.818Â Â Â Â Â Â Recording
of timeshare instrument; payments required
94.821Â Â Â Â Â Â Content
of timeshare instrument
94.823Â Â Â Â Â Â Notice
of intent to sell timeshares; form and content; rules
94.826Â Â Â Â Â Â Information
on exchange program; content; rules
94.828Â Â Â Â Â Â Public
report on plan
94.829Â Â Â Â Â Â
94.831Â Â Â Â Â Â Filing
fees; inspection advance payment; disposition of moneys
94.833Â Â Â Â Â Â
(PurchaserÂ’s Rights)
94.836Â Â Â Â Â Â Cancellation
of purchase within five days
94.839Â Â Â Â Â Â Notice
of cancellation right
94.841Â Â Â Â Â Â Waiver
of rights void
94.843Â Â Â Â Â Â Limits
on developer right to transfer
(Association of Owners; Management)
94.846Â Â Â Â Â Â Designation
of managing entity; duties and powers of entity
94.848Â Â Â Â Â Â How
managing entity of developer terminated
94.853Â Â Â Â Â Â Payment
of common expenses
94.856Â Â Â Â Â Â Assessment
of common expenses as lien; recording; foreclosure; fees; remedies; exception
94.858Â Â Â Â Â Â OwnersÂ’
association; powers and duties
94.863Â Â Â Â Â Â DeveloperÂ’s
duty to managing entity
94.867Â Â Â Â Â Â Judicial
declaration of failure in management
94.869Â Â Â Â Â Â Insurance
coverage
(Escrow)
94.871Â Â Â Â Â Â When
purchase money agreement prohibited; escrow requirements
94.873Â Â Â Â Â Â Escrow
account; closing; release
94.876Â Â Â Â Â Â Requirements
for closing escrow
94.878Â Â Â Â Â Â Duties
of escrow agent
94.881Â Â Â Â Â Â Who
may serve as escrow agent
(Lien Payment)
94.885Â Â Â Â Â Â Rights
of lienholder
94.890Â Â Â Â Â Â Lien
payment trust; payments; delinquencies
94.895Â Â Â Â Â Â Trust
irrevocable without alternative arrangement
94.900Â Â Â Â Â Â Alternative
to lien payment trust
94.905Â Â Â Â Â Â Surety
bond
(Enforcement)
94.915Â Â Â Â Â Â Inspection
of records; rules; uniform standards
94.920Â Â Â Â Â Â Consent
to service by out-of-state developer
94.925Â Â Â Â Â Â Civil
penalty
94.930Â Â Â Â Â Â Commissioner
order; injunctive relief
(Prohibited Practices)
94.940Â Â Â Â Â Â False
practices prohibited
94.945Â Â Â Â Â Â Advertising
regulation
MEMBERSHIP CAMPGROUNDS
94.953Â Â Â Â Â Â Definitions
for ORS 94.953 to 94.989
94.956Â Â Â Â Â Â Registration
required to sell membership camping contract
94.959Â Â Â Â Â Â Application
for registration
94.962Â Â Â Â Â Â Exemptions
from registration
94.965Â Â Â Â Â Â Effective
date of registration
94.968Â Â Â Â Â Â Denial,
suspension and revocation of registration; other sanctions
94.971Â Â Â Â Â Â Fee
for registration or amendment of an offer or sale of membership camping
contract
94.974Â Â Â Â Â Â Written
disclosures required; procedures; inspection of records
94.975Â Â Â Â Â Â False
practices prohibited
94.976Â Â Â Â Â Â Advertising
regulation
94.977Â Â Â Â Â Â Registration
as salesperson or broker
94.980Â Â Â Â Â Â Application
for registration; fee
94.983Â Â Â Â Â Â Cancellation
of contract by purchaser; notice of right to cancel
94.986Â Â Â Â Â Â Requirements
for sale of membership camping contract; nondisturbance agreements
94.987Â Â Â Â Â Â Judicial
declaration of failure in management
94.989Â Â Â Â Â Â Interpretation
of membership camping contracts; application of Unlawful Trade Practices Act
     94.004 [Formerly 91.500; 1983 c.530 §48; 1987 c.459 §1; 1989 c.595 §1;
renumbered
100.005 in 1989]
     94.005 [Repealed by 1971 c.478 §1]
     94.010 [Repealed by 1971 c.478 §1]
     94.011 [Formerly 91.503; renumbered 100.010 in
1989]
     94.013 [1987 c.459 §6; 1989 c.595 §2; renumbered
100.020 in 1989]
     94.015 [Repealed by 1971 c.478 §1]
     94.016 [1987 c.459 §39; renumbered 100.025 in 1989]
     94.017 [Formerly 91.504; 1987 c.459 §37; 1989 c.595
§3; renumbered 100.185 in 1989]
     94.020 [Repealed by 1971 c.478 §1]
     94.021 [1987 c.459 §3; 1989 c.595 §4; renumbered
100.150 in 1989]
     94.022 [1987 c.459 §4; 1989 c.595 §5; renumbered
100.155 in 1989]
     94.023 [Formerly 91.506; 1987 c.459 §7; 1989 c.595 §6;
renumbered 100.100 in 1989]
     94.025 [Repealed by 1971 c.478 §1]
     94.029 [Formerly 91.509; 1983 c.530 §49; 1983 c.615
§1; 1987 c.459 §8; 1989 c.595 §7; renumbered 100.105 in 1989]
     94.030 [Repealed by 1971 c.478 §1]
     94.035 [Repealed by 1971 c.478 §1]
     94.036 [Formerly 91.512; 1983 c.615 §2; 1983 c.740 §7a;
1987 c.459 §9; renumbered 100.110 in 1989]
     94.040 [Repealed by 1971 c.478 §1]
     94.042 [Formerly 91.515; 1983 c.309 §8; 1985 c.582 §2;
1987 c.459 §10; 1989 c.595 §8; renumbered 100.115 in 1989]
     94.045 [Repealed by 1971 c.478 §1]
     94.047 [Formerly 91.518; 1983 c.309 §8a; 1987 c.459
§11; 1989 c.595 §9; renumbered 100.120 in 1989]
     94.048 [1987 c.459 §3a; renumbered 100.125 in 1989]
     94.050 [Repealed by 1971 c.478 §1]
     94.053 [Formerly 91.519; 1983 c.309 §8b; renumbered
100.130 in 1989]
     94.055 [Repealed by 1971 c.478 §1]
     94.059 [Formerly 91.521; 1983 c.615 §3; 1987 c.459 §12;
renumbered 100.135 in 1989]
     94.060 [Repealed by 1971 c.478 §1]
     94.065 [Repealed by 1971 c.478 §1]
     94.066 [1981 c.647 §30; renumbered 100.170 in 1989]
     94.070 [Repealed by 1971 c.478 §1]
     94.072 [1981 c.647 §33; renumbered 100.175 in 1989]
     94.075 [Repealed by 1971 c.478 §1]
     94.078 [1981 c.647 §25; 1983 c.206 §1; 1983 c.530 §50;
1987 c.459 §13; 1989 c.595 §10; renumbered 100.200 in 1989]
     94.080 [Repealed by 1971 c.478 §1]
     94.084 [1981 c.647 §26; 1987 c.459 §14; renumbered
100.205 in 1989]
     94.085 [Repealed by 1971 c.478 §1]
     94.090 [Repealed by 1971 c.478 §1]
     94.091 [1981 c.647 §27; 1983 c.206 §2; 1987 c.459 §15;
renumbered 100.210 in 1989]
     94.095 [Repealed by 1971 c.478 §1]
     94.097 [1981 c.647 §29; 1989 c.595 §11; renumbered
100.220 in 1989]
     94.100 [Repealed by 1971 c.478 §1]
     94.103 [1981 c.647 §28; 1989 c.595 §12; renumbered
100.225 in 1989]
     94.105 [Repealed by 1971 c.478 §1]
     94.109 [Formerly 91.523; renumbered 100.300 in
1989]
     94.110 [Repealed by 1971 c.478 §1]
     94.115 [Repealed by 1971 c.478 §1]
     94.116 [Formerly 91.524; renumbered 100.305 in
1989]
     94.120 [Repealed by 1971 c.478 §1]
     94.122 [Formerly 91.526; 1989 c.595 §13; renumbered
100.310 in 1989]
     94.125 [Repealed by 1971 c.478 §1]
     94.128 [1981 c.886 §5; 1989 c.595 §14; renumbered
100.315 in 1989]
     94.130 [Repealed by 1971 c.478 §1]
     94.134 [1981 c.886 §6; 1989 c.595 §15; renumbered
100.320 in 1989]
     94.135 [Repealed by 1971 c.478 §1]
     94.140 [Repealed by 1971 c.478 §1]
     94.145 [Repealed by 1971 c.478 §1]
     94.146 [Formerly 91.527; 1989 c.595 §16; renumbered
100.405 in 1989]
     94.150 [Repealed by 1971 c.478 §1]
     94.152 [Formerly 91.531; 1983 c.615 §4; 1987 c.459 §16;
1989 c.595 §48; renumbered 100.410 in 1989]
     94.155 [Repealed by 1971 c.478 §1]
     94.158 [Formerly 91.533; 1987 c.459 §17; 1989 c.595
§17; renumbered 100.415 in 1989]
     94.160 [Repealed by 1971 c.478 §1]
     94.164 [Formerly 91.534; renumbered 100.420 in
1989]
     94.165 [Repealed by 1971 c.478 §1]
     94.170 [Repealed by 1971 c.478 §1]
     94.171 [Formerly 91.536; 1987 c.459 §18; renumbered
100.430 in 1989]
     94.175 [Repealed by 1971 c.478 §1]
     94.177 [1981 c.647 §32; renumbered 100.435 in 1989]
     94.180 [Repealed by 1971 c.478 §1]
     94.185 [Formerly 91.539; 1989 c.595 §18; renumbered
100.440 in 1989]
     94.190 [Formerly 91.542; renumbered 100.445 in
1989]
     94.195 [Formerly 91.546; 1983 c.530 §51; 1989 c.595
§19; renumbered 100.450 in 1989]
     94.202 [Formerly 91.548; 1989 c.595 §20; renumbered
100.460 in 1989]
     94.205 [Repealed by 1971 c.478 §1]
     94.208 [Formerly 91.551; 1989 c.595 §21; renumbered
100.475 in 1989]
     94.210 [Repealed by 1971 c.478 §1]
     94.214 [Formerly 91.554; renumbered 100.480 in
1989]
     94.215 [Repealed by 1971 c.478 §1]
     94.220 [Repealed by 1971 c.478 §1]
     94.221 [Formerly 91.557; renumbered 100.485 in
1989]
     94.225 [Repealed by 1971 c.478 §1]
     94.230 [Repealed by 1971 c.478 §1]
     94.231 [Formerly 91.561; renumbered 100.505 in
1989]
     94.235 [Repealed by 1971 c.478 §1]
     94.237 [Formerly 91.562; renumbered 100.510 in
1989]
     94.240 [Repealed by 1971 c.478 §1]
     94.243 [Formerly 91.563; 1983 c.309 §8c; 1983 c.615
§5; renumbered 100.515 in 1989]
     94.245 [Repealed by 1971 c.478 §1]
     94.250 [1981 c.647 §31; 1983 c.309 §8d; renumbered
100.520 in 1989]
     94.255 [Formerly 91.564; renumbered 100.525 in
1989]
     94.260 [Formerly 91.566; 1987 c.459 §19; 1989 c.595
§22; renumbered 100.530 in 1989]
     94.265 [Formerly 91.569; renumbered 100.535 in
1989]
     94.270 [Formerly 91.572; renumbered 100.540 in
1989]
     94.275 [Formerly 91.576; renumbered 100.545 in
1989]
     94.280 [Formerly 91.578; 1983 c.615 §6; 1989 c.595 §23;
renumbered 100.550 in 1989]
     94.285 [Formerly 91.581; renumbered 100.555 in
1989]
     94.295 [Formerly 91.584; 1989 c.595 §24; renumbered
100.600 in 1989]
     94.300 [Formerly 91.587; 1989 c.595 §25; renumbered
100.605 in 1989]
     94.305 [Repealed by 1971 c.478 §1]
     94.306 [Formerly 91.591; 1989 c.595 §26; renumbered
100.610 in 1989]
     94.310 [Repealed by 1971 c.478 §1]
     94.312 [Formerly 91.593; 1989 c.595 §27; renumbered
100.615 in 1989]
     94.315 [Repealed by 1971 c.478 §1]
     94.318 [Formerly 91.596; 1989 c.595 §28; renumbered
100.620 in 1989]
     94.320 [Repealed by 1971 c.478 §1]
     94.322 [1983 c.615 §8; renumbered 100.625 in 1989]
     94.324 [Formerly 91.599; 1985 c.760 §1; repealed by
1987 c.459 §41]
     94.325 [Repealed by 1971 c.478 §1]
     94.330 [Amended by 1969 c.591 §278; repealed by
1971 c.478 §1]
     94.331 [Formerly 91.602; 1987 c.459 §20; 1989 c.595
§29; renumbered 100.635 in 1989]
     94.333 [1987 c.459 §22; renumbered 100.015 in 1989]
     94.335 [Repealed by 1971 c.478 §1]
     94.336 [Formerly 91.606; repealed by 1987 c.459 §41]
     94.340 [Repealed by 1971 c.478 §1]
     94.342 [Formerly 91.608; 1987 c.459 §29; renumbered
100.645 in 1989]
     94.345 [Repealed by 1971 c.478 §1]
     94.348 [Formerly 91.611; 1987 c.459 §30; renumbered
100.650 in 1989]
     94.350 [Repealed by 1971 c.478 §1]
     94.351 [1987 c.459 §24; 1989 c.595 §30; renumbered
100.655 in 1989]
     94.353 [1987 c.459 §25; renumbered 100.640 in 1989]
     94.354 [1987 c.459 §23; renumbered 100.670 in 1989]
     94.355 [Repealed by 1971 c.478 §1]
     94.356 [1987 c.459 §26; renumbered 100.660 in 1989]
     94.357 [1987 c.459 §27; renumbered 100.675 in 1989]
     94.358 [1987 c.459 §28; renumbered 100.680 in 1989]
     94.359 [Formerly 91.614; 1987 c.459 §31; renumbered
100.700 in 1989]
     94.360 [Repealed by 1971 c.478 §1]
     94.365 [Repealed by 1971 c.478 §1]
     94.366 [Formerly 91.617; repealed by 1987 c.459 §41]
     94.370 [Repealed by 1971 c.478 §1]
     94.372 [Formerly 91.621; repealed by 1987 c.459 §41]
     94.375 [Repealed by 1971 c.478 §1]
     94.378 [Formerly 91.623; repealed by 1987 c.459 §41]
     94.380 [Repealed by 1971 c.478 §1]
     94.384 [Formerly 91.626; 1987 c.459 §32; 1989 c.171
§12; 1989 c.595 §31; renumbered 100.705 in 1989]
     94.385 [Repealed by 1971 c.478 §1]
     94.390 [Repealed by 1971 c.478 §1]
     94.391 [Formerly 91.629; 1987 c.459 §35; renumbered
100.710 in 1989]
     94.395 [Repealed by 1971 c.478 §1]
     94.400 [Formerly 91.631; renumbered 100.720 in
1989]
     94.405 [Repealed by 1971 c.478 §1]
     94.406 [Formerly 91.634; renumbered 100.725 in
1989]
     94.410 [Repealed by 1971 c.478 §1]
     94.412 [Formerly 91.637; 1989 c.595 §47; renumbered
100.730 in 1989]
     94.415 [Repealed by 1971 c.478 §1]
     94.418 [1981 c.647 §24; renumbered 100.735 in 1989]
     94.420 [Repealed by 1971 c.478 §1]
     94.424 [Formerly 91.641; 1989 c.595 §32; renumbered
100.740 in 1989]
     94.425 [Repealed by 1971 c.478 §1]
     94.430 [Repealed by 1971 c.478 §1]
     94.431 [Formerly 91.646; 1987 c.459 §36; renumbered
100.745 in 1989]
     94.435 [Repealed by 1971 c.478 §1]
     94.437 [Formerly 91.649; renumbered 100.750 in
1989]
     94.440 [Repealed by 1971 c.478 §1]
     94.445 [Repealed by 1971 c.478 §1]
     94.448 [Formerly 91.652; renumbered 100.770 in
1989]
     94.454 [Formerly 91.656; renumbered 100.775 in
1989]
     94.460 [Formerly 91.658; renumbered 100.780 in
1989]
     94.465 [Formerly 91.661; 1989 c.595 §33; renumbered
100.785 in 1989]
     94.470 [Formerly 91.664; 1983 c.696 §7b; 1989 c.706
§7; renumbered 100.900 in 1989]
     94.475 [Formerly 91.667; renumbered 100.905 in
1989]
     94.480 [Formerly 91.671; renumbered 100.910 in
1989]
DEVELOPMENT
AGREEMENTS
     94.504
Development agreements; contents; duration; effect on affordable housing
covenants. (1) A city or
county may enter into a development agreement as provided in ORS 94.504 to
94.528 with any person having a legal or equitable interest in real property
for the development of that property.
     (2) A development agreement shall specify:
     (a) The duration of the agreement;
     (b) The permitted uses of the property;
     (c) The density or intensity of use;
     (d) The maximum height and size of
proposed structures;
     (e) Provisions for reservation or
dedication of land for public purposes;
     (f) A schedule of fees and charges;
     (g) A schedule and procedure for
compliance review;
     (h) Responsibility for providing
infrastructure and services;
     (i) The effect on the agreement when
changes in regional policy or federal or state law or rules render compliance
with the agreement impossible, unlawful or inconsistent with such laws, rules
or policy;
     (j) Remedies available to the parties upon
a breach of the agreement;
     (k) The extent to which the agreement is
assignable; and
     (L) The effect on the applicability or
implementation of the agreement when a city annexes all or part of the property
subject to a development agreement.
     (3) A development agreement shall set
forth all future discretionary approvals required for the development specified
in the agreement and shall specify the conditions, terms, restrictions and
requirements for those discretionary approvals.
     (4) A development agreement shall also
provide that construction shall be commenced within a specified period of time
and that the entire project or any phase of the project be completed by a
specified time.
     (5) A development agreement shall contain
a provision that makes all city or county obligations to expend moneys under
the development agreement contingent upon future appropriations as part of the
local budget process. The development agreement shall further provide that
nothing in the agreement requires a city or county to appropriate any such
moneys.
     (6) A development agreement must state the
assumptions underlying the agreement that relate to the ability of the city or
county to serve the development. The development agreement must also specify
the procedures to be followed when there is a change in circumstances that
affects compliance with the agreement.
     (7) A development agreement is binding
upon a city or county pursuant to its terms and for the duration specified in
the agreement.
     (8) The maximum duration of a development
agreement entered into with:
     (a) A city is 15 years; and
     (b) A county is seven years.
     (9) ORS 94.504 to 94.528 do not limit the
authority of a city or county to take action pursuant to ORS 456.270 to
456.295. [1993 c.780 §1; 2005 c.315 §1; 2007 c.691 §7]
     Note: 94.504 to 94.528 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter 94
or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     94.505 [Repealed by 1971 c.478 §1]
     94.508
Approval by governing body; findings; adoption. (1) A development agreement shall not be
approved by the governing body of a city or county unless the governing body
finds that the agreement is consistent with local regulations then in place for
the city or county.
     (2) The governing body of a city or county
shall approve a development agreement or amend a development agreement by
adoption of an ordinance declaring approval or setting forth the amendments to
the agreement. Notwithstanding ORS 197.015 (10)(b), the approval or amendment
of a development agreement is a land use decision under ORS chapter 197. [1993
c.780 §2; 2005 c.22 §74; 2007 c.354 §27]
     Note: See note under 94.504.
     94.510 [Repealed by 1971 c.478 §1]
     94.513
Procedures on consideration and approval. (1) A city or county may, by ordinance, establish procedures and requirements
for the consideration of development agreements upon application by, or on
behalf of, the owner of property on which development is sought or another
person having a legal or equitable interest in that property.
     (2) Approval of a development agreement
requires compliance with local regulations and the approval of the city or
county governing body after notice and hearing. The notice of the hearing
shall, in addition to any other requirements, state the time and place of the
public hearing and contain a brief statement of the major terms of the proposed
development agreement, including a description of the area within the city or
county that will be affected by the proposed development agreement. [1993 c.780
§3]
     Note: See note under 94.504.
     94.515 [Repealed by 1971 c.478 §1]
     94.518
Application of local government law and policies to agreement. Unless otherwise provided by the development
agreement, the comprehensive plan, zoning ordinances and other rules and
policies of the jurisdiction governing permitted uses of land, density and
design applicable to the development of the property subject to a development
agreement shall be the comprehensive plan and those ordinances, rules and
policies of the jurisdiction in effect at the time of approval of the
development agreement. [1993 c.780 §4]
     Note: See note under 94.504.
     94.520 [Repealed by 1971 c.478 §1]
     94.522
Amendment or cancellation of agreement; enforceability. (1) A development agreement may be amended
or canceled by mutual consent of the parties to the agreement or their
successors in interest. The governing body of a city or county shall amend or
cancel a development agreement by adoption of an ordinance declaring
cancellation of the agreement or setting forth the amendments to the agreement.
     (2) Until a development agreement is
canceled under this section, the terms of the development agreement are
enforceable by any party to the agreement. [1993 c.780 §5]
     Note: See note under 94.504.
     94.525 [Repealed by 1971 c.478 §1]
     94.528
Recording. Not later than 10
days after the execution of a development agreement under ORS 94.504 to 94.528,
the governing body of the city or county shall cause the development agreement
to be presented for recording in the office of the county clerk of the county
in which the property subject to the agreement is situated. In addition to
other provisions required by ORS 94.504 to 94.528, the development agreement
shall contain a legal description of the property subject to the agreement. [1993
c.780 §6]
     Note: See note under 94.504.
     94.530 [Repealed by 1971 c.478 §1]
TRANSFERABLE
DEVELOPMENT CREDITS
     94.531
Severable development interest in real property; transferable development
credit. (1) The governing
body of a city or county is authorized to recognize a severable development
interest in real property. The governing body of the city or county may
establish a system for the purchase and sale of development interests. The
interest transferred shall be known as a transferable development credit. A transferable
development credit shall include the ability to establish in a location in the
city or county a specified amount of residential or nonresidential development
that is different from development types or exceeds development limitations
provided in the applicable land use regulations for the location. All
development authorized or approved using transferable development credits shall
comply with the land use planning goals adopted under ORS 197.225 and the
acknowledged comprehensive plan.
     (2) The ability to develop land from which
credits are transferred shall be reduced by the amount of the development
credits transferred, and development on the land to which credits are
transferred may be increased in accordance with a transfer system formally adopted
by the governing body of the city or county.
     (3) The holder of a recorded mortgage
encumbering land from which credits are transferred shall be given prior
written notice of the proposed conveyance by the record owner of the property
and must consent to the conveyance before any development credits may be
transferred from the property.
     (4) A city or county with a transferable
development credit system shall maintain a registry of all lots or parcels from
which credits have been transferred, the lots or parcels to which credits have
been transferred and the allowable development level for each lot or parcel
following transfer.
     (5) A city or county, or an elected
official, appointed official, employee or agent of a city or county, shall not
be found liable for damages resulting from any error made in:
     (a) Allowing the use of a transferable
development credit that complies with an adopted transferable development
credit system and the acknowledged comprehensive plan; or
     (b) Maintaining the registry required
under subsection (4) of this section. [1999 c.573 §1]
     Note: 94.531 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 94 or
any series therein by legislative action. See Preface to Oregon Revised Statutes
for further explanation.
     94.540 [Repealed by 1971 c.478 §1]
PLANNED
COMMUNITIES
(General
Provisions)
     94.550
Definitions for ORS 94.550 to 94.783. As used in ORS 94.550 to 94.783:
     (1) “Assessment” means any charge imposed
or levied by a homeowners association on or against an owner or lot pursuant to
the provisions of the declaration or the bylaws of the planned community or
provisions of ORS 94.550 to 94.783.
     (2) “Blanket encumbrance” means a trust
deed or mortgage or any other lien or encumbrance, mechanicÂ’s lien or
otherwise, securing or evidencing the payment of money and affecting more than
one lot in a planned community, or an agreement affecting more than one lot by
which the developer holds such planned community under an option, contract to
sell or trust agreement.
     (3) “Class I planned community” means a
planned community that:
     (a) Contains at least 13 lots or in which
the declarant has reserved the right to increase the total number of lots
beyond 12; and
     (b) Has an estimated annual assessment,
including an amount required for reserves under ORS 94.595, exceeding $10,000
for all lots or $100 per lot, whichever is greater, based on:
     (A) For a planned community created on or
after January 1, 2002, the initial estimated annual assessment, including a
constructive assessment based on a subsidy of the association through a
contribution of funds, goods or services by the declarant; or
     (B) For a planned community created before
January 1, 2002, a reasonable estimate of the cost of fulfilling existing
obligations imposed by the declaration, bylaws or other governing document as
of January 1, 2002.
     (4) “Class II planned community” means a
planned community that:
     (a) Is not a Class I planned community;
     (b) Contains at least five lots; and
     (c) Has an estimated annual assessment
exceeding $1,000 for all lots based on:
     (A) For a planned community created on or
after January 1, 2002, the initial estimated annual assessment, including a
constructive assessment based on a subsidy of the association through a
contribution of funds, goods or services by the declarant; or
     (B) For a planned community created before
January 1, 2002, a reasonable estimate of the cost of fulfilling existing
obligations imposed by the declaration, bylaws or other governing document as
of January 1, 2002.
     (5) “Class III planned community” means a
planned community that is not a Class I or II planned community.
     (6) “Common expenses” means expenditures
made by or financial liabilities incurred by the homeowners association and
includes any allocations to the reserve account under ORS 94.595.
     (7) “Common property” means any real
property or interest in real property within a planned community which is
owned, held or leased by the homeowners association or owned as tenants in common
by the lot owners, or designated in the declaration or the plat for transfer to
the association.
     (8) “Condominium” means property submitted
to the provisions of ORS chapter 100.
     (9) “Declarant” means any person who
creates a planned community under ORS 94.550 to 94.785.
     (10) “Declarant control” means any special
declarant right relating to administrative control of a homeowners association,
including but not limited to:
     (a) The right of the declarant or person
designated by the declarant to appoint or remove an officer or a member of the
board of directors;
     (b) Any weighted vote or special voting
right granted to a declarant or to units owned by the declarant so that the
declarant will hold a majority of the voting rights in the association by virtue
of such weighted vote or special voting right; and
     (c) The right of the declarant to exercise
powers and responsibilities otherwise assigned by the declaration or bylaws or
by the provisions of ORS 94.550 to 94.783 to the association, officers of the
association or board of directors of the association.
     (11) “Declaration” means the instrument
described in ORS 94.580 which establishes a planned community, and any
amendments to the instrument.
     (12) “Governing document” means an
instrument or plat relating to common ownership or common maintenance of a
portion of a planned community and that is binding upon lots within the planned
community.
     (13) “Homeowners association” or “association”
means the organization of owners of lots in a planned community, created under
ORS 94.625, required by a governing document or formed under ORS 94.572.
     (14) “Majority” or “majority of votes” or “majority
of owners” means more than 50 percent of the votes in the planned community.
     (15) “Mortgagee” means any person who is:
     (a) A mortgagee under a mortgage;
     (b) A beneficiary under a trust deed; or
     (c) The vendor under a land sale contract.
     (16) “Owner” means the owner of any lot in
a planned community, unless otherwise specified, but does not include a person
holding only a security interest in a lot.
     (17) “Percent of owners” or “percentage of
owners” means the owners representing the specified voting rights as determined
under ORS 94.658.
     (18)(a) “Planned community” means any
subdivision under ORS 92.010 to 92.190 that results in a pattern of ownership
of real property and all the buildings, improvements and rights located on or
belonging to the real property, in which the owners collectively are
responsible for the maintenance, operation, insurance or other expenses
relating to any property within the planned community, including common
property, if any, or for the exterior maintenance of any property that is
individually owned.
     (b) “Planned community” does not mean:
     (A) A condominium under ORS chapter 100;
     (B) A planned community that is
exclusively commercial or industrial; or
     (C) A timeshare plan under ORS 94.803 to
94.945.
     (19) “Purchaser” means any person other
than a declarant who, by means of a voluntary transfer, acquires a legal or
equitable interest in a lot, other than as security for an obligation.
     (20) “Purchaser for resale” means any
person who purchases from the declarant more than two lots for the purpose of
resale whether or not the purchaser for resale makes improvements to the lots
before reselling them.
     (21) “Special declarant rights” means any
rights, in addition to the rights of the declarant as a lot owner, reserved for
the benefit of the declarant under the declaration or ORS 94.550 to 94.783,
including but not limited to:
     (a) Constructing or completing
construction of improvements in the planned community which are described in
the declaration;
     (b) Expanding the planned community or
withdrawing property from the planned community under ORS 94.580 (3) and (4);
     (c) Converting lots into common property;
     (d) Making the planned community subject
to a master association under ORS 94.695; or
     (e) Exercising any right of declarant
control reserved under ORS 94.600.
     (22) “Successor declarant” means the
transferee of any special declarant right.
     (23) “Turn over” means the act of turning
over administrative responsibility pursuant to ORS 94.609 and 94.616.
     (24) “Unit” means a building or portion of
a building located upon a lot in a planned community and designated for
separate occupancy or ownership, but does not include any building or portion
of a building located on common property.
     (25) “Votes” means the votes allocated to
lots in the declaration under ORS 94.580 (2). [1981 c.782 §3; 1999 c.677 §1;
2001 c.756 §5; 2003 c.569 §3; 2007 c.410 §1]
     94.560
Legislative findings. The
Legislative Assembly finds that:
     (1) In the State of
     (2) These homeowners associations have established
a pattern of ownership in which ownership of a single unit makes the owner
automatically a member of a homeowners association with responsibilities for
management and maintenance.
     (3) Many of these homeowners associations
as associations and their members as individuals have experienced problems from
the lack of statutory provisions. These problems which have arisen are usually
the result of inexperience with this kind of ownership. This inexperience often
leads to difficulties for the association when it assumes responsibility for
the administration of the planned development because usually neither the
developer who drafted the documents nor the local jurisdiction which may have
reviewed them has realized the long term management implications of the
restrictions imposed by the documents. The most serious and frequent error is
imposing excessive voting requirements for any changes in the documents, a
basic error that makes it and other errors unnecessarily difficult, if not
impossible, to correct. Of almost equal importance is the lack of disclosure of
significant differences this pattern of ownership imposes on the homeowner and
the restrictions on choice that must be accepted.
     (4)
     (5) It is a matter of statewide concern
that the Legislative Assembly address problems associated with homeowners
associations in order to make this kind of homeownership pattern an acceptable
choice and in order to assure proper maintenance of the projects so that the
investment of the owners and the appearance of
     (6) It is essential that the Legislative
Assembly establish basic statutory requirements for disclosure to first and
subsequent buyers, for the organization of the homeowners association, and for
a process by which administrative responsibility for the planned community is
transferred from the developer to the association of individual owners.
     (7) ORS 94.550 to 94.783 are intended to
make developers, their legal counsel and homeowners in Oregon homeowners
associations the beneficiaries of experience accumulated under OregonÂ’s
condominium law and gathered from members of existing Oregon homeowners
associations and associations in parts of the country where the record of
experience is longer than that in Oregon. [1981 c.782 §3a]
(Creation of
Planned Community)
     94.565
Planned community to be created under ORS 94.550 to 94.783; exception; conveyance
of lot or unit prohibited until declaration recorded. (1) Except as provided in ORS 94.570, a
person may not create a planned community in this state except as provided in
ORS 94.550 to 94.783.
     (2) A person may not convey any lot or
unit in a planned community until the planned community is created by the
recording of the declaration for the planned community with the county
recording officer of each county in which the planned community is located. [1981
c.782 §5; 1999 c.677 §2; 2001 c.756 §6]
     94.570
Applicability of ORS 94.550 to 94.783. (1) ORS 94.550 to 94.783 apply to a planned community created before
January 1, 2002, under ORS 94.550 to 94.783 and to a Class I planned community
created on or after January 1, 2002.
     (2) ORS 94.550 to 94.783, except for ORS
94.595 and 94.604, apply to a Class II planned community created on or after
January 1, 2002.
     (3) Notwithstanding any other provision of
ORS 94.550 to 94.783, ORS 94.550 to 94.783 apply to a Class III planned
community or a planned community that is exclusively commercial or industrial
and that is created on or after January 1, 2002, if the declaration of the
planned community so provides.
     (4) Nothing in ORS 94.550 to 94.783
prohibits the establishment of a condominium subject to ORS chapter 100 or a
timeshare plan subject to ORS 94.803 to 94.945 within a planned community. [1981
c.782 §6; 1983 c.530 §52; 1985 c.76 §3; 1999 c.677 §3; 2001 c.756 §7; 2003
c.569 §4]
     94.572
Applicability of certain provisions of ORS 94.550 to 94.783 to Class I or Class
II planned communities.
(1)(a) A Class I or Class II planned community created before January 1, 2002,
that was not created under ORS 94.550 to 94.783 is subject to this section and
ORS 94.550, 94.590, 94.595 (5) to (9), 94.625, 94.630 (1), (3) and (4), 94.640,
94.641, 94.642, 94.645, 94.647, 94.650, 94.652, 94.655, 94.657, 94.658, 94.660,
94.661, 94.662, 94.665, 94.670, 94.675, 94.676, 94.680, 94.690, 94.695, 94.704,
94.709, 94.712, 94.716, 94.719, 94.723, 94.728, 94.733, 94.770, 94.775, 94.777
and 94.780 to the extent that those statutes are consistent with any governing
documents. If the governing documents do not provide for the formation of an
association, the requirements of this subsection are not effective until the
formation of an association in accordance with paragraph (b) of this
subsection. If a provision of the governing documents is inconsistent with this
subsection, the owners may amend the governing documents using the procedures
in this subsection:
     (A) In accordance with the procedures for
the adoption of amendments in the governing documents and subject to any
limitations in the governing documents, the owners may amend the inconsistent
provisions of the governing documents to conform to the extent feasible with
this section and ORS 94.550, 94.590, 94.595 (5) to (9), 94.625, 94.630 (1), (3)
and (4), 94.640, 94.641, 94.642, 94.645, 94.647, 94.650, 94.652, 94.655,
94.657, 94.658, 94.660, 94.661, 94.662, 94.665, 94.670, 94.675, 94.676, 94.680,
94.690, 94.695, 94.704, 94.709, 94.712, 94.716, 94.719, 94.723, 94.728, 94.733,
94.770, 94.775, 94.777 and 94.780. Nothing in this paragraph requires the
owners to amend a declaration or bylaws to include the information required by
ORS 94.580 or 94.635.
     (B) If there are no procedures for
amendment in the governing documents:
     (i) For an amendment to a recorded
governing document other than bylaws, the owners may amend the inconsistent
provisions of the document to conform to this section and ORS 94.550, 94.590,
94.595 (5) to (9), 94.625, 94.630 (1), (3) and (4), 94.640, 94.641, 94.642,
94.645, 94.647, 94.650, 94.652, 94.655, 94.657, 94.658, 94.660, 94.661, 94.662,
94.665, 94.670, 94.675, 94.676, 94.680, 94.690, 94.695, 94.704, 94.709, 94.712,
94.716, 94.719, 94.723, 94.728, 94.733, 94.770, 94.775, 94.777 and 94.780 by a
vote of at least 75 percent of the owners in the planned community.
     (ii) For an amendment to the bylaws, the
owners may amend the inconsistent provisions of the bylaws to conform to this
section and ORS 94.550, 94.590, 94.595 (5) to (9), 94.625, 94.630 (1), (3) and
(4), 94.640, 94.641, 94.642, 94.645, 94.647, 94.650, 94.652, 94.655, 94.657,
94.658, 94.660, 94.661, 94.662, 94.665, 94.670, 94.675, 94.676, 94.680, 94.690,
94.695, 94.704, 94.709, 94.712, 94.716, 94.719, 94.723, 94.728, 94.733, 94.770,
94.775, 94.777 and 94.780 by a vote of at least a majority of the owners in the
planned community.
     (iii) An amendment may be adopted at a
meeting held in accordance with the governing documents or by another procedure
permitted by the governing documents following the procedures prescribed in ORS
94.647, 94.650 or 94.660.
     (iv) An amendment to a recorded
declaration shall be executed, certified and recorded as provided in ORS 94.590
(2) and (3) and shall be subject to ORS 94.590 (5). An amendment to the bylaws
and any other governing document shall be executed and certified as provided in
ORS 94.590 (3) and shall be recorded in the office of the recording officer of
every county in which the planned community is located if the bylaws or other governing
document to which the amendment relates were recorded.
     (C) An amendment adopted pursuant to this
paragraph shall include:
     (i) A reference to the recording index
numbers and date of recording of the declaration or other governing document,
if recorded, to which the amendment relates; and
     (ii) A statement that the amendment is
adopted pursuant to the applicable subparagraph of this paragraph.
     (b)(A) If the governing documents do not
provide for the formation of an association of owners, at least 10 percent of
the owners in the planned community or any governing entity may initiate the
formation of an association as provided in this paragraph. The owners or the
governing entity initiating the association formation shall call an
organizational meeting for the purpose of voting whether to form an association
described in ORS 94.625. The notice of the meeting shall:
     (i) Name the initiating owners or
governing entity;
     (ii) State that the organizational meeting
is for the purpose of voting whether to form an association in accordance with
the proposed articles of incorporation;
     (iii) State that if the owners vote to
form an association, the owners may elect the initial board of directors
provided for in the articles of incorporation and may adopt the initial bylaws;
     (iv) State that to form an association
requires an affirmative vote of at least a majority of the owners in the
planned community, or, if a larger percentage is specified in the applicable
governing document, the larger percentage;
     (v) State that to adopt articles of
incorporation, to elect the initial board of directors pursuant to the articles
of incorporation or to adopt the initial bylaws requires an affirmative vote of
at least a majority of the owners present;
     (vi) State that if the initial board of
directors is not elected, an interim board of directors shall be elected
pursuant to bylaws adopted as provided in subparagraph (C) of this paragraph;
     (vii) State that a copy of the proposed
articles of incorporation and bylaws will be available at least five business
days before the meeting and state the method of requesting a copy; and
     (viii) Be delivered in accordance with the
declaration and bylaws. If there is no governing document or the document does
not include applicable provisions, the owners or governing entity shall follow
the procedures prescribed in ORS 94.650 (4).
     (B) At least five business days before the
organizational meeting, the initiating owners or governing entity shall cause
articles of incorporation and bylaws to be drafted. The bylaws shall include,
to the extent applicable, the information required by ORS 94.635.
     (C) At the organizational meeting:
     (i) Representatives of the initiating
owners or governing entity shall, to the extent not inconsistent with the governing
documents, conduct the meeting according to RobertÂ’s Rules of Order as provided
in ORS 94.657.
     (ii) The initiating owners or governing
entity shall make available copies of the proposed articles of incorporation
and the proposed bylaws.
     (iii) The affirmative vote of at least a
majority of the owners of a planned community, or, if a larger percentage is
specified in the applicable governing document, the larger percentage, is
required to form an association under this paragraph.
     (iv) If the owners vote to form an
association, the owners shall adopt articles of incorporation and may elect the
initial board of directors as provided in the articles of incorporation, adopt
bylaws and conduct any other authorized business by an affirmative vote of at least
a majority of the owners present. If the owners do not elect the initial board
of directors, owners shall elect an interim board of directors by an
affirmative vote of at least a majority of the owners present to serve until
the initial board of directors is elected.
     (v) An owner may vote by proxy, or by
written ballot, if approved, in the discretion of a majority of the initiating
owners or governing entity.
     (D) Not later than 10 business days after
the organizational meeting, the board of directors shall:
     (i) Cause the articles of incorporation to
be filed with the Secretary of State under ORS chapter 65;
     (ii) Cause the notice of planned community
described in subsection (4) of this section to be prepared, executed and
recorded in accordance with subsection (4) of this section;
     (iii) Provide a copy of the notice of
planned community to each owner, together with a copy of the adopted articles
of incorporation and bylaws, if any, or a statement of the procedure and method
for adoption of bylaws described in subparagraph (C) of this paragraph. The
copies and any statement shall be delivered to each lot, mailed to the mailing
address of each lot or mailed to the mailing addresses designated by the owners
in writing; and
     (iv) Cause a statement of association
information to be prepared, executed and recorded in accordance with ORS
94.667.
     (E) If the owners vote to form an
association, all costs incurred under this paragraph, including but not limited
to the preparation and filing of the articles of incorporation, drafting of
bylaws, preparation of notice of meeting and the drafting, delivery and
recording of all notices and statements shall be a common expense of the owners
and shall be allocated as provided in the appropriate governing document or any
amendment thereto.
     (2)(a) The owners of lots in a Class I or
Class II planned community that are subject to the provisions of ORS chapter 94
specified in subsection (1) of this section may elect to be subject to any
other provisions of ORS 94.550 to 94.783 upon compliance with the procedures
prescribed in subsection (1) of this section.
     (b) If the owners of lots in a Class I or
Class II planned community elect to be subject to additional provisions of ORS
94.550 to 94.783, unless the notice of planned community otherwise required or
permitted under subsection (4) of this section includes a statement of the
election pursuant to this paragraph, the board of directors of the association
shall cause the notice of planned community described in subsection (4) of this
section to be prepared, executed and recorded in accordance with subsection (4)
of this section.
     (3)(a) The owners of lots in a Class III
planned community created before January 1, 2002, may elect to be subject to
provisions of ORS 94.550 to 94.783 upon compliance with the applicable
procedures in subsection (1) of this section.
     (b) If the owners of lots in a Class III
planned community elect to be subject to provisions of ORS 94.550 to 94.783,
the board of directors of the association shall cause the notice of planned
community described in subsection (4) of this section to be prepared, executed
and recorded in accordance with subsection (4) of this section.
     (4) The notice of planned community
required or permitted by this section shall be:
     (a) Titled “Notice of Planned Community
under ORS 94.572”;
     (b) Executed by the president and
secretary of the association; and
     (c) Recorded in the office of the
recording officer of every county in which the property is located.
     (5) The notice of planned community shall
include:
     (a) The name of the planned community and
association as identified in the recorded declaration, conditions, covenants
and restrictions or other governing document and, if different, the current
name of the association;
     (b) A list of the properties, described as
required for recordation in ORS 93.600, within the jurisdiction of the
association;
     (c) Information identifying the recorded
declaration, conditions, covenants and restrictions or other governing
documents and a reference to the recording index numbers and date of recording
of the governing documents;
     (d) A statement that the property
described in accordance with paragraph (b) of this subsection is subject to
specific provisions of the Oregon Planned Community Act;
     (e) A reference to the specific provisions
of the Oregon Planned Community Act that apply to the subject property and a
reference to the subsection of this section under which the application is
made; and
     (f) If an association is formed under
subsection (1)(b)(A) of this section, a statement to that effect.
     (6) An amended statement shall include a
reference to the recording index numbers and the date of recording of prior
statements.
     (7) The county clerk may charge a fee for
recording a statement under this section according to the provisions of ORS
205.320 (4).
     (8) The board of directors of an
association not otherwise required to cause a notice of planned community
described in subsection (4) of this section to be prepared and recorded under
this section may cause a notice of planned community to be prepared, executed
and recorded as provided in subsection (4) of this section.
     (9) Title to a unit, lot or common
property in a Class I or Class II planned community created before January 1,
2002, may not be rendered unmarketable or otherwise affected by a failure of
the planned community to be in compliance with a requirement of this section.
     (10) As used in this section:
     (a) “Governing entity” means an
incorporated or unincorporated association, committee, person or any other
entity that has authority, under a governing document, to maintain commonly
maintained property, impose assessments on lots or to act on behalf of lot
owners within the planned community on matters of common concern.
     (b) “Recorded declaration” means an
instrument recorded with the county recording officer of the county in which
the planned community is located that contains conditions, covenants and
restrictions binding lots in the planned community or imposes servitudes upon
the real property. [2001 c.756 §3; 2003 c.569 §5; 2005 c.543 §3; 2007 c.409 §33]
     94.575
Applicability of subdivision law. ORS 92.010 to 92.170 apply to a planned community established under
ORS 94.550 to 94.783. [1981 c.782 §4]
     94.580
Declaration; recordation; contents. (1) A declarant shall record, in accordance with ORS 94.565, the
declaration for a planned community in the office of the recording officer of
each county in which the planned community is located.
     (2) The declaration shall include:
     (a) The name and classification of the
planned community;
     (b) The name of the association and the
type of entity formed in accordance with ORS 94.625;
     (c) A statement that the planned community
is subject to ORS 94.550 to 94.783;
     (d) A statement that the bylaws adopted under
ORS 94.625 must be recorded;
     (e) A legal description, as required under
ORS 93.600, of the real property included in the planned community;
     (f) A legal description, as required under
ORS 93.600, of any real property included in the planned community which is or
must become a common property;
     (g) A description of any special declarant
rights other than the rights described under subsections (3) and (4) of this
section;
     (h) A statement of the number of votes
allocated to each lot in accordance with ORS 94.658;
     (i) A method of determining the liability
of each lot for common expenses and the right of each lot to any common profits
of the association;
     (j) A statement of when the lots,
including lots owned by the declarant, become subject to assessment;
     (k) If a Class I planned community,
provisions for establishing a reserve account and for the preparation, review
and update of the reserve study and the maintenance plan as required by ORS
94.595;
     (L) Any restrictions on the alienation of
lots. Any such restriction created by any document other than the declaration
may be incorporated by reference to the official records of the county where
the property is located;
     (m) A statement of the use, residential or
otherwise, for which each lot is intended;
     (n) A statement as to whether or not the
association pursuant to ORS 94.665 may sell, convey or subject to a security
interest any portion of the common property and any limitation on such
authority;
     (o) A statement of any restriction on the
use, maintenance or occupancy of lots or units;
     (p) The method of amending the declaration
and a statement of the percentage of votes required to approve an amendment of
the declaration in accordance with ORS 94.590;
     (q) A description of any contemplated
improvements which the declarant agrees to build, or a statement that the
declarant does not agree to build any improvement or does not choose to limit
declarantÂ’s rights to add improvements not described in the declaration;
     (r) A statement of any period of declarant
control or other special declarant rights reserved by the declarant under ORS
94.600;
     (s) A statement of the time at which the
deed to the common property is to be delivered, whether by date or upon the
occurrence of a stipulated event; and
     (t) Any provisions restricting a right of
the association with respect to the common property, or an individual lot owner
with respect to the lot or improvements on the lot, including but not limited
to:
     (A) A right to divide the lot or to
combine it with other lots;
     (B) A right to repair or restore
improvements on the lot at the ownerÂ’s discretion in the event of damage or
destruction;
     (C) The requirement for architectural
controls, including but not limited to fencing, landscaping or choice of
exterior colors and materials of structures to be placed on the common property
or on a lot; and
     (D) The requirement of review of any plans
of any structure to be placed on the common property or a lot.
     (3) If the declarant reserves the right to
expand the planned community by annexing lots or common property or by creating
additional lots or common property by developing existing property in the
planned community, the declaration shall contain, in addition to the provisions
required under subsections (1) and (2) of this section, a general description
of the plan of development including:
     (a) The procedure by which the planned
community will be expanded;
     (b) The maximum number of lots and units
to be included in the planned community or a statement that there is no
limitation on the number of lots or units which the declarant may create or
annex to the planned community;
     (c) A general description of the nature
and proposed use of any common property which the declarant agrees to create or
annex to the planned community or a statement that there is no limitation on
the right of the declarant to create or annex common property;
     (d) The method of allocation of votes if
additional lots are to be created or annexed to the planned community; and
     (e) The formula to be used for reallocating
the common expenses if additional lots are to be created or annexed to the
planned community, and the manner of reapportioning the common expenses if lots
are created or annexed during the fiscal year.
     (4) If the declarant may withdraw property
from the planned community, the declaration shall include in addition to the
provisions required under subsections (1), (2) and (3) of this section:
     (a) The procedure by which property will
be withdrawn;
     (b) A general description of the property
which may be withdrawn from the planned community;
     (c) The method of allocation of votes if
lots are withdrawn from the planned community;
     (d) The formula to be used for
reallocating the common expenses if the property to be withdrawn has been
assessed for common expenses prior to withdrawal; and
     (e) The date after which the right to
withdraw property from the planned community shall expire or a statement that
such a right shall not expire. [1981 c.782 §12; 1999 c.677 §4; 2001 c.756 §8;
2003 c.569 §6; 2007 c.409 §6a]
     94.585
Authority to amend declaration and initial bylaws to comply with federal or
state laws. A declarant may
amend the declaration or initial bylaws in order to comply with requirements of
the Federal Housing Administration, the United States Department of Veterans
Affairs, Rural Development or the Farm Service Agency of the United States
Department of Agriculture, the Federal National Mortgage Association, the
Government National Mortgage Association, the Federal Home Loan Mortgage
Corporation, any department, bureau, board, commission or agency of the United
States or the State of Oregon or any corporation wholly owned, directly or
indirectly, by the United States or the State of Oregon that insures,
guarantees or provides financing for a planned community or lots in a planned
community. However, if the need to amend the declaration or the initial bylaws
occurs after the turnover to the homeowners association has occurred, the
amendment must be approved by the association in accordance with the approval
provisions of the declaration or bylaws. [1981 c.782 §19; 1991 c.67 §18; 1999
c.677 §6; 2007 c.71 §26]
     94.590
Amendment of declaration by owners. (1)(a) The declaration may be amended only with the approval of owners
representing at least 75 percent of the total votes in the planned community or
any larger percentage specified in the declaration.
     (b) An amendment under this section may
not:
     (A) Limit or diminish any right of a
declarant reserved under ORS 94.580 (3) or (4) or any other special declarant
right without the consent of the declarant. A declarant may waive the declarantÂ’s
right of consent.
     (B) Change the boundaries of any lot or
any uses to which any lot or unit is restricted as stated in the declaration
under ORS 94.580 (2)(m) or change the method of determining liability for
common expenses, the method of determining the right to common profits or the
method of determining voting rights of any lot or unit unless the owners of the
affected lots or units unanimously consent to the amendment.
     (c) Any changes to the plat, including
required approvals or consents of owners or others, are governed by the
applicable provisions of ORS 92.010 to 92.190.
     (2)(a) Unless otherwise provided in the
declaration, an amendment to the declaration may be proposed by a majority of
the board of directors or by at least 30 percent of the owners in the planned
community.
     (b) When the association adopts an
amendment to the declaration, the association shall record the amendment in the
office of the recording officer in each county in which the planned community
is located. An amendment of the declaration is effective only upon recordation.
     (3) Notwithstanding a provision in a
declaration that requires amendments to be executed and acknowledged by all
owners approving the amendment, amendments to a declaration under this section
shall be executed and certified on behalf of the association by the president
and secretary as being adopted in accordance with the declaration and the
provisions of this section and acknowledged in the manner provided for
acknowledgment of deeds.
     (4) An amendment to a declaration or plat
shall be conclusively presumed to have been regularly adopted in compliance
with all applicable procedures relating to such amendment unless an action is
brought within one year after the date such amendment was recorded or the face
of the recorded amendment indicates that the amendment received the approval of
fewer votes than required for such approval. However, nothing in this
subsection shall prevent the further amendment of an amended declaration or
plat.
     (5) During any period of declarant
control, voting on an amendment under subsection (1) of this section shall be
without regard to any weighted vote or special voting right reserved by the
declarant except as otherwise provided under ORS 94.585. Nothing in this
subsection is intended to prohibit a declarant from reserving the right to
require the declarantÂ’s consent to an amendment during the period reserved in
the declaration for declarant control.
     (6) The board of directors, upon the
adoption of a resolution, may cause a restated declaration to be prepared and
recorded to codify individual amendments that have been adopted in accordance
with this section or ORS 94.585 without the further approval of owners. A
declaration restated under this subsection must:
     (a) Include all previously adopted
amendments in effect and may not include any other changes except to correct
scrivenersÂ’ errors or to conform format and style;
     (b) Include a statement that the board of
directors has adopted a resolution in accordance with this subsection and is
causing the declaration to be restated and recorded under this subsection;
     (c) Include a reference to the recording
index numbers and date of recording of the initial declaration and all
previously recorded amendments in effect being codified;
     (d) Include a certification by the
president and secretary of the association that the restated declaration
includes all previously adopted amendments in effect and no other changes
except, if applicable, to correct scrivenersÂ’ errors or to conform format and
style; and
     (e) Be executed and acknowledged by the
president and secretary of the association and recorded in the deed records of
each county in which the planned community is located. [1981 c.782 §21; 1999
c.677 §5; 2001 c.756 §9; 2003 c.569 §7; 2007 c.410 §22]
     94.595
Reserve account for maintaining, repairing and replacing common property;
reserve study; maintenance plan. (1) The declarant, on behalf of a homeowners association, shall:
     (a) Conduct an initial reserve study as
described in subsection (3) of this section;
     (b) Prepare an initial maintenance plan as
described in subsection (4) of this section; and
     (c) Establish a reserve account as
provided in subsection (2) of this section.
     (2)(a) A reserve account shall be
established to fund major maintenance, repair or replacement of all items of
common property which will normally require major maintenance, repair or
replacement, in whole or in part, in more than one and less than 30 years, for
exterior painting if the common property includes exterior painted surfaces,
for other items, whether or not involving common property, if the association
has responsibility to maintain the items and for other items required by the
declaration or bylaws. The reserve account need not include reserves for those
items:
     (A) That can reasonably be funded from the
general budget or other funds or accounts of the association; or
     (B) For which one or more, but less than
all, owners are responsible for maintenance and replacement under the
provisions of the declaration or bylaws.
     (b) The reserve account shall be
established in the name of the homeowners association. The association is
responsible for administering the account and for making periodic payments into
the account.
     (c) The reserve portion of the initial
assessment determined by the declarant shall be based on:
     (A) The reserve study described in
subsection (3) of this section; or
     (B) Other reliable information.
     (d) A reserve account established under
this section must be funded by assessments against the individual lots for
which the reserves are established.
     (e) Unless the declaration provides
otherwise, the assessments under this subsection begin accruing for all lots
from the date the first lot is conveyed.
     (3)(a) The board of directors of the
association annually shall conduct a reserve study or review and update an
existing study to determine the reserve account requirements and may:
     (A) Adjust the amount of payments as
indicated by the study or update; and
     (B) Provide for other reserve items that
the board of directors, in its discretion, may deem appropriate.
     (b) The reserve study shall:
     (A) Identify all items for which reserves
are or will be established;
     (B) Include the estimated remaining useful
life of each item as of the date of the reserve study; and
     (C) Include for each item, as applicable,
an estimated cost of maintenance and repair and replacement at the end of the
itemÂ’s useful life.
     (4)(a) The board of directors shall
prepare a maintenance plan for the maintenance, repair and replacement of all
property for which the association has maintenance, repair or replacement
responsibility under the declaration or bylaws or ORS 94.550 to 94.783. The
maintenance plan shall:
     (A) Describe the maintenance, repair and
replacement to be conducted;
     (B) Include a schedule for the
maintenance, repair and replacement;
     (C) Be appropriate for the size and
complexity of the maintenance, repair and replacement responsibility of the
association; and
     (D) Address issues that include but are
not limited to warranties and the useful life of the items for which the
association has maintenance, repair and replacement responsibility.
     (b) The board of directors shall review and
update the maintenance plan described under this subsection as necessary.
     (5)(a) If the declaration or bylaws
require a reserve account, the reserve study requirements of subsection (3) of
this section and the maintenance plan requirements of subsection (4) of this
section first apply to the association of a subdivision that meets the
definition of a planned community under ORS 94.550 and is recorded prior to
October 23, 1999, when:
     (A) The board of directors adopts a
resolution in compliance with the bylaws that applies the requirements of
subsections (3) and (4) of this section to the association; or
     (B) A petition signed by a majority of
owners is submitted to the board of directors mandating that the requirements
of subsections (3) and (4) of this section apply to the association.
     (b) A reserve study and maintenance plan
shall be completed within one year of adoption of the resolution or submission
of the petition to the board of directors.
     (6)(a) Except as provided in paragraph (b)
of this subsection, the reserve account may be used only for the purposes for
which reserves have been established and is to be kept separate from other
funds.
     (b) After the individual lot owners have
assumed responsibility for administration of the planned community under ORS
94.616, if the board of directors has adopted a resolution, which may be an
annual continuing resolution, authorizing the borrowing of funds:
     (A) The board of directors may borrow
funds from the reserve account to meet high seasonal demands on the regular
operating funds or to meet unexpected increases in expenses.
     (B) Not later than the adoption of the
budget for the following year, the board of directors shall adopt by resolution
a written payment plan providing for repayment of the borrowed funds within a
reasonable period.
     (7) Nothing in this section prohibits
prudent investment of reserve account funds subject to any constraints imposed
by the declaration, bylaws or rules of the association.
     (8) In addition to the authority of the
board of directors under subsection (3)(a) of this section, following the
second year after the association has assumed administrative responsibility for
the planned community under ORS 94.616:
     (a) By an affirmative vote of at least 75
percent of the owners of the planned community, the association may elect to
reduce or increase future assessments for the reserve account; and
     (b) The association may, on an annual
basis by a unanimous vote, elect not to fund the reserve account.
     (9) Assessments paid into the reserve
account are the property of the association and are not refundable to sellers
or owners of lots. [1981 c.782 §15; 1999 c.677 §7; 2001 c.756 §10; 2003 c.569 §8;
2005 c.543 §1; 2007 c.409 §7]
(Declarant
Control; Turnover of Administrative Control)
     94.600
Declarant control of association. (1) Subject to ORS 94.604 to 94.621, a declaration may reserve special
declarant rights including, without limitation, the right to a period of
declarant control that may be of limited or unlimited duration. A formal or
written proxy or power of attorney is not required from an owner to vest the
declarant with such authority.
     (2) A declarant may voluntarily relinquish
any rights reserved in the declaration under subsection (1) of this section.
     (3) Upon the expiration of any period of
declarant control reserved in the declaration under subsection (1) of this
section, the rights automatically shall pass to the lot owners, including the
declarant if the declarant owns a lot in the planned community.
     (4) A declarant may not amend a
declaration to increase the scope of special declarant rights reserved in the
declaration after the sale of the first lot in the planned community unless
owners representing 75 percent of the total vote, other than the declarant,
agree to the amendment. [1981 c.782 §11; 1999 c.677 §8]
     94.604
Transitional advisory committee. (1) As provided in this section, the declarant or the owners of a
planned community that contains at least 20 lots in either the initial
development or with the annexation of additional property shall form a
transitional advisory committee to provide for the transition from
administrative responsibility by the declarant of the planned community under
ORS 94.600 to administrative responsibility by the association. The declarant
shall call a meeting of owners for the purpose of selecting a transitional
advisory committee not later than the 60th day after the date the declarant
conveys 50 percent or more of the lots then existing in the planned community
to owners other than a successor declarant.
     (2) The transitional advisory committee
shall consist of three or more members. The owners, other than the declarant,
shall select two or more members. The declarant may select no more than one
member. The committee shall have reasonable access to all information and
documents which the declarant is required to turn over to the association under
ORS 94.616.
     (3) An owner may call a meeting of owners
to select the transitional advisory committee if the declarant fails to do so
under subsection (1) of this section.
     (4) Notwithstanding subsection (1) of this
section, if the owners do not select members for the transitional advisory
committee under subsection (2) of this section, the declarant shall have no
further obligation to form the committee.
     (5) The requirement for a transitional
advisory committee shall not apply once the turnover meeting called under ORS
94.609 has been held. [1981 c.782 §64; 1999 c.677 §9; 2003 c.569 §9]
     94.605 [Amended by 1965 c.619 §31; repealed by 1971
c.478 §1]
     94.609
Notice of meeting to turn over administrative responsibility. (1) At the time specified in the
declaration, but not later than 90 days after expiration of any period of
declarant control reserved under ORS 94.600, or 90 days after conveying 10 lots
in the planned community if there is not a period of declarant control, the
declarant shall call a meeting for the purpose of turning over administrative
responsibility for the planned community to the homeowners association.
     (2) The declarant shall give notice of the
meeting to each owner as provided in the bylaws.
     (3) If the declarant does not call a
meeting under this section within the required time, the transitional advisory
committee formed under ORS 94.604 or any owner may call a meeting and give
notice as required in this section. [1981 c.782 §65; 1999 c.677 §10]
     94.610 [Amended by 1965 c.619 §32; repealed by 1971
c.478 §1]
     94.615 [Repealed by 1971 c.478 §1]
     94.616
Turnover meeting; transfer of administration; receivership. (1) At the meeting called under ORS 94.609,
the declarant shall turn over to the homeowners association the responsibility
for the administration of the planned community, and the association shall
accept the administrative responsibility from the declarant.
     (2) If a quorum of the owners is present,
the owners shall elect not fewer than the number of directors sufficient to
constitute a quorum of the board of directors in accordance with the
declaration or bylaws of the association.
     (3) At the meeting called under ORS
94.609, the declarant shall deliver to the association:
     (a) The original or a photocopy of the
recorded declaration and copies of the bylaws and the articles of
incorporation, if any, of the planned community and any supplements and
amendments to the articles or bylaws;
     (b) A deed to the common property in the
planned community, unless otherwise provided in the declaration;
     (c) The minute books, including all
minutes, and other books and records of the association and the board of
directors;
     (d) All rules and regulations adopted by
the declarant;
     (e) Resignations of officers and members
of the board of directors who are required to resign because of the expiration
of any period of declarant control reserved pursuant to ORS 94.600;
     (f) A financial statement. The financial
statement:
     (A) Must consist of a balance sheet and an
income and expense statement for the preceding 12-month period or the period
following the recording of the declaration, whichever period is shorter; and
     (B) Must be reviewed, in accordance with
the Statements on Standards for Accounting and Review Services issued by the
American Institute of Certified Public Accountants, by an independent certified
public accountant licensed in the State of
     (g) All funds of the association and
control of the funds, including all bank records;
     (h) All tangible personal property that is
property of the association, and an inventory of the property;
     (i) Records of all property tax payments
for the common property to be administered by the association;
     (j) Copies of any income tax returns filed
by the declarant in the name of the association, and supporting records for the
returns;
     (k) All bank signature cards;
     (L) The reserve account established in the
name of the association under ORS 94.595;
     (m) The reserve study and the maintenance
plan required under ORS 94.595, including all updates and other sources of
information that serve as a basis for calculating reserves in accordance with
ORS 94.595;
     (n) An operating budget for the portion of
the planned community turned over to association administration and a budget
for replacement and maintenance of the common property;
     (o) A copy of the following, if available:
     (A) The as-built architectural,
structural, engineering, mechanical, electrical and plumbing plans;
     (B) The original specifications,
indicating all subsequent material changes;
     (C) The plans for underground site
service, site grading, drainage and landscaping together with cable television
drawings;
     (D) Any other plans and information
relevant to future repair or maintenance of the property; and
     (E) A list of the general contractor and
the electrical, heating and plumbing subcontractors responsible for
construction or installation of common property;
     (p) Insurance policies;
     (q) Copies of any occupancy permits issued
for the planned community;
     (r) Any other permits issued by
governmental bodies applicable to the planned community in force or issued
within one year before the date on which the owners assume administrative
responsibility;
     (s) A list of any written warranties on
the common property that are in effect and the names of the contractor,
subcontractor or supplier who made the installation for which the warranty is
in effect;
     (t) A roster of owners and their addresses
and telephone numbers, if known, as shown on the records of the declarant;
     (u) Leases of the common property and any
other leases to which the association is a party;
     (v) Employment or service contracts in
which the association is one of the contracting parties or service contracts in
which the association or the owners have an obligation or responsibility,
directly or indirectly, to pay some or all of the fee or charge of the person
performing the service; and
     (w) Any other contracts to which the
homeowners association is a party.
     (4) In order to facilitate an orderly
transition, during the three-month period following the turnover meeting, the
declarant or an informed representative shall be available to meet with the
board of directors on at least three mutually acceptable dates to review the
documents delivered under subsection (3) of this section.
     (5) If the declarant has complied with
this section and unless the declarant has sufficient voting rights as a lot
owner to control the association, the declarant is not responsible for the
failure of the owners to elect the number of directors sufficient to constitute
a quorum of the board of directors and assume control of the association in accordance
with subsection (1) of this section. The declarant is relieved from further
responsibility for the administration of the association, except as a lot
owner.
     (6) If the owners present do not
constitute a quorum or the owners fail to elect the number of directors
sufficient to constitute a quorum of the board of directors at the turnover
meeting held in accordance with this section:
     (a) At any time before the election of the
number of directors sufficient to constitute a quorum, an owner or first mortgagee
may call a special meeting for the purpose of election of directors and shall
give notice of the meeting in accordance with the notice requirements in the
bylaws for special meetings. The owners and first mortgagees present at the
special meeting shall select a person to preside over the meeting.
     (b) An owner or first mortgagee may
request a court to appoint a receiver as provided in ORS 94.642. [1981 c.782 §67;
1983 c.206 §3; 1999 c.677 §11; 2001 c.756 §11; 2003 c.803 §19; 2007 c.409 §8]
     94.620 [Repealed by 1971 c.478 §1]
     94.621
Rights of declarant following turnover meeting. If a declarant has not completed development
of lots or common property in a planned community at the time of the meeting
called under ORS 94.609, the declarant may continue to hold the special
declarant rights, other than a right of declarant control, reserved under the
declaration. [1981 c.782 §68; 1999 c.677 §12]
     94.622
Obligations and liabilities arising from transfer of special declarant rights. (1) As used in this section, “affiliate”
means any person who controls a transferor or successor declarant, is
controlled by a transferor or successor declarant or is under common control
with a transferor or successor declarant.
     (2) A person controls or is controlled by
a transferor or successor declarant if the person:
     (a) Is a general partner, officer,
director or employee;
     (b) Directly or indirectly, or acting in
concert with one or more other persons or through one or more subsidiaries,
owns, controls, holds with power to vote, or holds proxies representing more
than 20 percent of the voting interests of the transferor or successor
declarant;
     (c) Controls in any manner the election of
a majority of the members of the board of directors; or
     (d) Has contributed more than 20 percent
of the capital of the transferor or successor declarant.
     (3) Upon the transfer of any special
declarant right, the liabilities and obligations of a transferor are as
follows:
     (a) A transferor is not relieved of any
obligation or liability arising before the transfer. Lack of privity does not
deprive any owner of standing to bring an action to enforce any obligation of
the transferor.
     (b) If a transferor retains any special
declarant right, or if a successor declarant is an affiliate of the transferor,
the transferor is subject to liability for all obligations and liabilities
imposed on a declarant by the provisions of ORS 94.550 to 94.783 or by the
declaration or bylaws arising after the transfer and is jointly and severally
liable with the successor declarant for the liabilities and obligations of the
successor declarant which relate to the subject lot.
     (c) A transferor who retains no special
declarant right has no obligation or liability for any act or omission or any
breach of a contractual obligation arising from the exercise of a special
declarant right by a successor declarant who is not an affiliate of the
transferor.
     (4) Upon transfer of any special declarant
right, the liabilities and obligations of a successor declarant are as follows:
     (a) A successor declarant who is an
affiliate of the transferor is subject to all obligations and liabilities
imposed on a declarant by the provisions of this chapter or by the declaration
or bylaws.
     (b) A successor declarant who is not an
affiliate of the transferor shall not be liable for any misrepresentations or
warranties made or required to be made by the declarant or previous successor
declarant or for any breach of fiduciary obligation by such person. Such a
successor declarant, however, shall comply with any provisions of the
declaration and bylaws which pertain to such successor declarantÂ’s ownership of
the lot or lots and the exercise of any special declarant right. [1999 c.677 §34]
     94.623
Acquisition of special declarant rights by successor declarant; exceptions. (1) Except as otherwise provided in
subsections (2) and (3) of this section, a developer, vendor under a land sale
contract, mortgagee of a mortgage or beneficiary of a trust deed affecting the
declarantÂ’s interest in the property shall acquire all special declarant rights
of the transferor upon transfer by the declarant or prior successor declarant
of all of such transferorÂ’s interest in a lot or lots, unless:
     (a) The conveyance evidences an intent not
to transfer any special declarant rights;
     (b) An instrument executed by the
transferor and the transferee evidences an intent not to transfer any special
declarant rights and is recorded in the office of the recording officer of
every county in which the property is located; or
     (c) The transferee executes an instrument
disclaiming any right to exercise any special declarant rights and such
instrument is recorded in the office of the recording officer of every county
in which the property is located.
     (2) A transferee under subsection (1) of
this section shall acquire less than all special declarant rights if:
     (a) The conveyance from the transferor or
an instrument executed by the transferor and the transferee evidences an intent
to transfer less than all special declarant rights and states the specific
rights being transferred, and such instrument is recorded in the office of the
recording officer of every county in which the property is located; or
     (b) The transferee executes an instrument
disclaiming specific special declarant rights and the instrument is recorded in
the office of the recording officer of every county in which the property is
located.
     (3) When a transferee acquires all of the
declarantÂ’s interest in a lot or lots in which the declarant has reserved the
right to expand the planned community under ORS 94.580, the transferee shall
not acquire the right to annex property unless the transferee simultaneously
acquires from the declarant property adjacent to the lot or lots which are
entitled to be annexed to the lot or lots, or unless the conveyance evidences
an intent to transfer such right to the transferee.
     (4) A declarant or a successor declarant
may transfer all or less than all of the transferorÂ’s special declarant rights
to a transferee, whether or not any interest in real property is conveyed, by
an instrument executed by the declarant or successor declarant and the
transferee evidencing an intent to transfer all or specific special declarant
rights, which instrument shall be recorded in the office of the recording
officer of every county in which the property is located. If the transfer is
not subject to subsection (1) of this section, it shall also bear the written
consent of any holder of a blanket encumbrance on the lot.
     (5) An instrument disclaiming or transferring
special declarant rights shall be properly acknowledged as provided by law. [1999
c.677 §35]
(Homeowners
Association; Management of Planned Community)
     94.625
Formation of homeowners association; adoption of initial bylaws; amendment of
bylaws. (1) Except as
provided in subsection (2) of this section, not later than the date on which
the first lot in the planned community is conveyed, the declarant shall:
     (a) Organize the homeowners association as
a nonprofit corporation under ORS chapter 65;
     (b) Adopt, on behalf of the association,
the initial bylaws required under ORS 94.635 to govern the administration of
the planned community; and
     (c) Record the bylaws in the office of the
recording officer of each county in which the planned community is located.
     (2) If the plat contains a conveyance of
any property to the homeowners association, the declarant shall organize the
homeowners association as a nonprofit corporation under ORS chapter 65 before
the plat is recorded.
     (3)(a) The board of directors of an
association of a planned community created under ORS 94.550 to 94.783 before
January 1, 2002, or a planned community described in ORS 94.572 shall cause the
bylaws of the association and amendments to the bylaws in effect but not
codified in the bylaws to be certified as provided in this subsection and
recorded in the office of the recording officer of each county in which the
planned community is located within 180 days of receipt of a written request
from an owner that the bylaws be recorded.
     (b) The president and secretary of the
association shall certify and acknowledge, in the manner provided for
acknowledgment of deeds, that:
     (A) The bylaws are the duly adopted bylaws
of the association; and
     (B) Each amendment to the bylaws was duly
adopted in accordance with the bylaws of the association.
     (c) The 180-day period specified in
paragraph (a) of this subsection may be extended as necessary if the board of
directors is unable to record the bylaws for justifiable reasons.
     (d) Failure to record the bylaws or
amendments to the bylaws in accordance with this subsection does not render the
bylaws or amendments to the bylaws ineffective.
     (4) Unless otherwise provided in the
bylaws, amendments to the bylaws may be proposed by a majority of the board of
directors or by at least 30 percent of the owners of the planned community.
     (5) Subject to subsection (6) of this
section, an amendment is not effective unless the amendment is:
     (a) Approved, unless otherwise provided in
the bylaws, by a majority of the votes in a planned community present, in
person or by proxy, at a duly constituted meeting, by written ballot in lieu of
a meeting under ORS 94.647 or other procedure permitted under the declaration
or bylaws;
     (b) Certified by the president and
secretary of the association as having been adopted in accordance with the
bylaws and this section and acknowledged in the manner provided for
acknowledgment of deeds if the amendment is required to be recorded under
paragraph (c) of this subsection; and
     (c) Recorded in the office of the
recording officer if the bylaws to which the amendment relates were recorded.
     (6) If a provision required to be in the
declaration under ORS 94.580 is included in the bylaws, the voting requirements
for amending the declaration shall also govern the amendment of the provision
in the bylaws.
     (7) Notwithstanding a provision in the
bylaws, including bylaws adopted prior to July 14, 2003, that requires an
amendment to be executed, or executed and acknowledged, by all owners approving
the amendment, amendments to the bylaws under this section become effective
after approval by the owners if executed and certified on behalf of the
association by the president and secretary in accordance with subsection (5)(b)
of this section.
     (8) An amendment to the bylaws is
conclusively presumed to have been regularly adopted in compliance with all
applicable procedures relating to the amendment unless an action is brought
within one year after the effective date of the amendment or the face of the
amendment indicates that the amendment received the approval of fewer votes
than required for approval. Nothing in this subsection prevents the further
amendment of an amended bylaw.
     (9) Failure to comply with subsection (1)
of this section does not invalidate a conveyance from the declarant to an
owner.
     (10) The board of directors, by resolution
and without the further approval of the owners, may cause restated bylaws to be
prepared and recorded to codify individual amendments that have been adopted in
accordance with subsection (5) of this section. Bylaws restated under this
subsection must:
     (a) Include all previously adopted
amendments that are in effect and may not include any other changes except to
correct scrivenersÂ’ errors or to conform format and style;
     (b) Include a statement that the board of
directors has adopted a resolution in accordance with this subsection and is
causing the bylaws to be restated and recorded under this subsection;
     (c) Include a reference to the recording
index numbers and date of recording of the initial bylaws, if recorded, and all
previously recorded amendments that are in effect and are being codified;
     (d) Include a certification by the
president and secretary of the association that the restated bylaws include all
previously adopted amendments that are in effect and no other changes except,
if applicable, to correct scrivenersÂ’ errors or to conform form and style; and
     (e) Be executed and acknowledged by the
president and secretary of the association and recorded in the deed records of
each county in which the planned community is located. [1981 c.782 §35; 2001
c.756 §12; 2003 c.569 §10; 2007 c.410 §2]
     94.630
Powers of association. (1)
Subject to subsection (2) of this section and except as otherwise provided in
its declaration or bylaws, a homeowners association may:
     (a) Adopt and amend bylaws, rules and
regulations for the planned community;
     (b) Adopt and amend budgets for revenues,
expenditures and reserves, and collect assessments from owners for common
expenses and the reserve account established under ORS 94.595;
     (c) Hire and terminate managing agents and
other employees, agents and independent contractors;
     (d) Defend against any claims, proceedings
or actions brought against it;
     (e) Subject to subsection (4) of this
section, initiate or intervene in litigation or administrative proceedings in
its own name and without joining the individual owners in the following:
     (A) Matters relating to the collection of
assessments and the enforcement of governing documents;
     (B) Matters arising out of contracts to
which the association is a party;
     (C) Actions seeking equitable or other
nonmonetary relief regarding matters that affect the common interests of the
owners, including but not limited to the abatement of nuisance;
     (D) Matters, including but not limited to
actions for damage, destruction, impairment or loss of use, relating to or
affecting:
     (i) Individually owned real property, the
expenses for which, including maintenance, repair or replacement, insurance or
other expenses, the association is responsible; or
     (ii) Common property;
     (E) Matters relating to or affecting the
lots or interests of the owners including but not limited to damage,
destruction, impairment or loss of use of a lot or portion thereof, if:
     (i) Resulting from a nuisance or a defect
in or damage to common property or individually owned real property, the
expenses for which, including maintenance, repair or replacement, insurance or
other expenses, the association is responsible; or
     (ii) Required to facilitate repair to any
common property; and
     (F) Any other matter to which the
association has standing under law or pursuant to the declaration or bylaws;
     (f) Make contracts and incur liabilities;
     (g) Regulate the use, maintenance, repair,
replacement and modification of common property;
     (h) Cause additional improvements to be
made as a part of the common property;
     (i) Acquire, hold, encumber and convey in
its own name any right, title or interest to real or personal property, except
that common property may be conveyed or subjected to a security interest only
pursuant to ORS 94.665;
     (j) Grant easements, leases, licenses and
concessions through or over the common property;
     (k) Modify, close, remove, eliminate or
discontinue the use of common property, including any improvement or
landscaping, regardless of whether the common property is mentioned in the
declaration, provided that:
     (A) Nothing in this paragraph is intended
to limit the authority of the association to seek approval of the modification,
closure, removal, elimination or discontinuance by the owners; and
     (B) Modification, closure, removal,
elimination or discontinuance other than on a temporary basis of any swimming
pool, spa or recreation or community building must be approved by at least a
majority of owners voting on the matter at a meeting or by written ballot held
in accordance with the declaration, bylaws or ORS 94.647;
     (L) Impose and receive any payments, fees
or charges for the use, rental or operation of the common property and services
provided to owners;
     (m) Adopt rules regarding the termination
of utility services paid for out of assessments of the association and access
to and use of recreational and service facilities available to owners. The
rules must provide for written notice and an opportunity to be heard before the
association may terminate the rights of any owners to receive the benefits or
services until the correction of any violation covered by the rule has
occurred;
     (n) Impose charges for late payment of
assessments and attorney fees related to the collection of assessments and,
after giving written notice and an opportunity to be heard, levy reasonable
fines for violations of the declaration, bylaws, rules and regulations of the
association, provided that the charge imposed or the fine levied by the
association is based:
     (A) On a schedule contained in the
declaration or bylaws, or an amendment to either that is delivered to each lot,
mailed to the mailing address of each lot or mailed to the mailing addresses designated
in writing by the owners; or
     (B) On a resolution of the association or
its board of directors that is delivered to each lot, mailed to the mailing
address of each lot or mailed to the mailing addresses designated in writing by
the owners;
     (o) Impose reasonable charges for the
preparation and recordation of amendments to the declaration;
     (p) Provide for the indemnification of its
officers and the board of directors and maintain liability insurance for
directors and officers;
     (q) Assign its right to future income,
including the right to receive common expense assessments; and
     (r) Exercise any other powers necessary
and proper for the administration and operation of the association.
     (2) Notwithstanding subsection (1) of this
section, a declaration may not impose any limitation on the ability of the
association to deal with a declarant that is more restrictive than the
limitations imposed on the ability of the association to deal with any other
person, except during the period of declarant control under ORS 94.600.
     (3) A permit or authorization, or an
amendment, modification, termination or other instrument affecting a permit or
authorization, issued by the board of directors that is authorized by law, the
declaration or bylaws may be recorded in the deed records of the county in
which the planned community is located. A permit or authorization, or an
amendment, modification, termination or other instrument affecting a permit or
authorization, recorded under this subsection shall:
     (a) Be executed by the president and
secretary of the association and acknowledged in the manner provided for
acknowledgment of instruments by the officers;
     (b) Include the name of the planned
community and a reference to where the declaration and any applicable supplemental
declarations are recorded;
     (c) Identify, by the designations stated
or referenced in the declaration or applicable supplemental declaration, all
affected lots and common property; and
     (d) Include other information and
signatures if required by law, the declaration, bylaws or the board of
directors.
     (4)(a) Subject to paragraph (f) of this
subsection, before initiating litigation or an administrative proceeding in
which the association and an owner have an adversarial relationship, the party
that intends to initiate litigation or an administrative proceeding shall offer
to use any dispute resolution program available within the county in which the
planned community is located that is in substantial compliance with the
standards and guidelines adopted under ORS 36.175. The written offer must be
hand-delivered or mailed by certified mail, return receipt requested, to the
address, contained in the records of the association, for the other party.
     (b) If the party receiving the offer does
not accept the offer within 10 days after receipt by written notice
hand-delivered or mailed by certified mail, return receipt requested, to the
address, contained in the records of the association, for the other party, the
initiating party may commence the litigation or the administrative proceeding.
The notice of acceptance of the offer to participate in the program must
contain the name, address and telephone number of the body administering the
dispute resolution program.
     (c) If a qualified dispute resolution
program exists within the county in which the planned community is located and
an offer to use the program is not made as required under paragraph (a) of this
subsection, litigation or an administrative proceeding may be stayed for 30
days upon a motion of the noninitiating party. If the litigation or
administrative action is stayed under this paragraph, both parties shall
participate in the dispute resolution process.
     (d) Unless a stay has been granted under
paragraph (c) of this subsection, if the dispute resolution process is not
completed within 30 days after receipt of the initial offer, the initiating
party may commence litigation or an administrative proceeding without regard to
whether the dispute resolution is completed.
     (e) Once made, the decision of the court
or administrative body arising from litigation or an administrative proceeding
may not be set aside on the grounds that an offer to use a dispute resolution
program was not made.
     (f) The requirements of this subsection do
not apply to circumstances in which irreparable harm to a party will occur due
to delay or to litigation or an administrative proceeding initiated to collect
assessments, other than assessments attributable to fines. [1981 c.782 §36;
1999 c.677 §13; 2001 c.756 §13; 2003 c.569 §11; 2007 c.410 §2a]
     94.635
Association bylaws. The
bylaws of an association adopted under ORS 94.625, or amended or adopted under
ORS 94.630, shall provide for the following:
     (1) The organization of the association of
owners in accordance with ORS 94.625 and 94.630, including when the initial
meeting shall be held and the method of calling that meeting.
     (2) If a Class I planned community, the
formation of a transitional advisory committee in accordance with ORS 94.604.
     (3) The turnover meeting required under
ORS 94.609, including the time by which the meeting shall be called, the method
of calling the meeting, the right of an owner under ORS 94.609 (3) to call the
meeting and a statement of the purpose of the meeting.
     (4)(a) The method of calling the annual meeting
and all other meetings of the owners in accordance with ORS 94.650; and
     (b) The percentage of votes that shall
constitute a quorum.
     (5)(a) The election of a board of
directors from among the unit owners and the number of persons constituting the
board;
     (b) The powers and duties of the board;
     (c) Any compensation of the directors; and
     (d) The method of removing directors from
office in accordance with ORS 94.640 (6).
     (6) The terms of office of directors.
     (7) The method of calling meetings of the
board of directors in accordance with ORS 94.640 (8) and a statement that all
meetings of the board of directors shall be open to owners.
     (8) The offices of president, secretary
and treasurer and any other offices of the association, and the method of selecting
and removing officers and filling vacancies in the offices.
     (9) The preparation and adoption of a
budget in accordance with ORS 94.645.
     (10)(a) The program for maintenance,
upkeep, repair and replacement of the common property;
     (b) The method of payment for the expense
of the program and other expenses of the planned community; and
     (c) The method of approving payment
vouchers.
     (11) The employment of personnel necessary
for the administration of the planned community and maintenance, upkeep and
repair of the common property.
     (12) The manner of collecting assessments
from the owners.
     (13) Insurance coverage in accordance with
ORS 94.675 and 94.685.
     (14) The preparation and distribution of
the annual financial statement required under ORS 94.670.
     (15) The method of adopting administrative
rules and regulations governing the details for the operation of the planned
community and use of the common property.
     (16) The method of amending the bylaws in
accordance with ORS 94.630. The bylaws may require no greater than an
affirmative majority of votes to amend any provision of the bylaws.
     (17) If additional property is proposed to
be annexed pursuant to ORS 94.580 (3), the method of apportioning common
expenses if new lots are added during the fiscal year.
     (18) Any other details regarding the
planned community that the declarant or the association consider desirable.
However, if a provision required to be in the declaration under ORS 94.580 is
included in the bylaws, the voting requirements for amending the declaration
shall govern the amendment of that provision of the bylaws. [1981 c.782 §37;
1999 c.677 §14; 2001 c.756 §14]
     94.640
Association board of directors; powers and duties; removal of member; meetings;
executive sessions. (1) The
board of directors of an association may act on behalf of the association
except as limited by the declaration and the bylaws. In the performance of
their duties, officers and members of the board of directors are governed by
this section and the applicable provisions of ORS 65.357, 65.361, 65.367,
65.369 and 65.377, whether or not the association is incorporated under ORS
chapter 65.
     (2) Unless otherwise provided in the
bylaws, the board of directors may fill vacancies in its membership for the
unexpired portion of any term.
     (3) At least annually, the board of
directors of an association shall review the insurance coverage of the
association.
     (4) The board of directors of the
association annually shall cause to be filed the necessary income tax returns
for the association.
     (5) The board of directors of the
association may record a statement of association information as provided in
ORS 94.667.
     (6) Unless otherwise provided in the
declaration or bylaws:
     (a) The owners may remove any member of
the board of directors, other than members appointed by the declarant or
persons who are ex officio directors, with or without cause, by a majority vote
of all owners present and entitled to vote at any meeting of the owners at
which a quorum is present.
     (b) Removal of a director is not effective
unless the matter of removal is an item on the agenda and stated in the notice
for the meeting required under ORS 94.650.
     (7)(a) All meetings of the board of
directors of the association shall be open to owners, except that at the discretion
of the board the following matters may be considered in executive session:
     (A) Consultation with legal counsel
concerning the rights and duties of the association regarding existing or
potential litigation, or criminal matters;
     (B) Personnel matters, including salary
negotiations and employee discipline;
     (C) Negotiation of contracts with third
parties; and
     (D) Collection of unpaid assessments.
     (b) Except in the case of an emergency,
the board of directors of an association shall vote in an open meeting whether
to meet in executive session. If the board of directors votes to meet in
executive session, the presiding officer of the board of directors shall state
the general nature of the action to be considered and, as precisely as
possible, when and under what circumstances the deliberations can be disclosed
to owners. The statement, motion or decision to meet in executive session must
be included in the minutes of the meeting.
     (c) A contract or an action considered in
executive session does not become effective unless the board of directors,
following the executive session, reconvenes in open meeting and votes on the
contract or an action, which must be reasonably identified in the open meeting
and included in the minutes.
     (d) The meeting and notice requirements in
this section may not be circumvented by chance or social meetings or by any
other means.
     (8) In a planned community in which the
majority of the lots are the principal residences of the occupants, meetings of
the board of directors must comply with the following:
     (a) For other than emergency meetings,
notice of board of directorsÂ’ meetings shall be posted at a place or places on
the property at least three days prior to the meeting or notice shall be
provided by a method otherwise reasonably calculated to inform lot owners of
such meetings;
     (b) Emergency meetings may be held without
notice, if the reason for the emergency is stated in the minutes of the
meeting; and
     (c) Only emergency meetings of the board
of directors may be conducted by telephonic communication or by the use of a
means of communication that allows all members of the board of directors
participating to hear each other simultaneously or otherwise to be able to
communicate during the meeting. A member of the board of directors
participating in a meeting by this means is deemed to be present in person at
the meeting.
     (9) The board of directors, in the name of
the association, shall maintain a current mailing address of the association.
     (10) The board of directors shall cause
the information required to enable the association to comply with ORS 94.670
(7) to be maintained and kept current.
     (11) As used in this section, “meeting”
means a convening of a quorum of members of the board of directors where
matters relating to association business are discussed, except a convening of a
quorum of members of the board of directors for the purpose of participating in
litigation, mediation or arbitration proceedings. [1981 c.782 §38; 1983 c.206 §4;
1999 c.677 §15; 2001 c.756 §15; 2003 c.569 §12]
     94.641
Assent of director to board action. (1) A director of a homeowners association who is present at a meeting
of the board of directors at which action is taken on any association matter is
presumed to have assented to the action unless the director votes against the
action or abstains from voting on the action because the director claims a
conflict of interest.
     (2) When action is taken on any matter at
a meeting of the board of directors, the vote or abstention of each director
present must be recorded in the minutes of the meeting.
     (3) Directors may not vote by proxy or by
secret ballot at meetings of the board of directors.
     (4) Notwithstanding subsection (3) of this
section, officers may be elected by secret ballot. [2007 c.409 §6]
     94.642
Receivership for failure of homeowners association to fill vacancies on board
of directors. (1) Subject to
subsection (2) of this section, if a homeowners association fails to fill
vacancies on the board of directors sufficient to constitute a quorum in
accordance with the bylaws, an owner or a first mortgagee may request the
circuit court of the county in which the planned community is located to
appoint a receiver under ORCP 80 to manage the affairs of the association.
     (2) At least 45 days before an owner or
first mortgagee requests the circuit court to appoint a receiver under
subsection (1) of this section, the owner or first mortgagee shall mail, by
certified or registered mail, a notice to the association and shall post a copy
of the notice at a conspicuous place or places on the property or provide
notice by a method otherwise reasonably calculated to inform owners of the
proposed action.
     (3) The notice shall be signed by the
owner or first mortgagee and include:
     (a) A description of the intended action.
     (b) A statement that the intended action
is pursuant to this section.
     (c) The date, not less than 30 days after
mailing of the notice, by which the association must fill vacancies on the
board sufficient to constitute a quorum.
     (d) A statement that if the association
fails to fill vacancies on the board by the specified date, the owner or first
mortgagee may file a petition with the court under subsection (1) of this
section.
     (e) A statement that if a receiver is
appointed, all expenses of the receivership will be common expenses of the
association as provided in subsection (4) of this section.
     (4) If a receiver is appointed, the salary
of the receiver, court costs, attorney fees and all other expenses of the
receivership shall be common expenses of the association.
     (5) A receiver appointed under this
section has all of the powers and duties of a duly constituted board of
directors and shall serve until a sufficient number of vacancies on the board
are filled to constitute a quorum.
     (6) If at a turnover meeting held in
accordance with ORS 94.616 the owners fail to elect the number of directors
sufficient to constitute a quorum of the board of directors, in addition to the
notice requirements specified in subsections (2) and (3) of this section, an
owner shall give the notice to all other owners as provided in the bylaws.
     (7) Notwithstanding subsections (2) and
(3) of this section, in the case of an emergency, the court may waive the
notice requirements of subsections (2) and (3) of this section. [2007 c.409 §2]
     94.645
Adoption of annual budget.
(1) The board of directors at least annually shall adopt a budget for the
planned community.
     (2) The budget shall include moneys to be
allocated to the reserve account under ORS 94.595.
     (3) Within 30 days after adopting the
annual budget for the planned community, the board of directors shall provide a
summary of the budget to all owners.
     (4) If the board fails to adopt a budget,
the last adopted annual budget shall continue in effect. [1981 c.782 §39; 1999
c.677 §16; 2007 c.409 §8a]
     94.647
Use of written ballot for approving or rejecting matters subject to meeting of
association members; procedures; exceptions. (1) Unless prohibited or limited by the declaration or bylaws, any
action that may be taken at any annual, regular or special meeting of the
homeowners association may be taken without a meeting if the association
delivers a written ballot to every association member that is entitled to vote
on the matter. Action by written ballot may not substitute for the following
meetings:
     (a) A turnover meeting required under ORS
94.616.
     (b) An annual meeting of an association if
more than a majority of the lots are the principal residences of the occupants.
     (c) A meeting of the association if the
agenda includes a proposal to remove a director from the board of directors.
     (d) A special meeting of the association
called at the request of owners under ORS 94.650 (2).
     (2)(a) A written ballot shall set forth
each proposed action and provide an opportunity to vote for or against each
proposed action.
     (b) The board of directors must provide
owners with at least 10 daysÂ’ notice before written ballots are mailed or
otherwise delivered. If, at least three days before written ballots are
scheduled to be mailed or otherwise distributed, at least 10 percent of the
owners petition the board of directors requesting secrecy procedures, subject
to paragraph (d) of this subsection, a written ballot must be accompanied by:
     (A) A secrecy envelope;
     (B) A return identification envelope to be
signed by the owner; and
     (C) Instructions for marking and returning
the ballot.
     (c) The notice required under paragraph
(b) of this subsection shall state:
     (A) The general subject matter of the vote
by written ballot;
     (B) The right of owners to request secrecy
procedures specified in paragraph (b) of this subsection;
     (C) The date after which ballots may be
distributed;
     (D) The date and time by which any
petition requesting secrecy procedures must be received by the board; and
     (E) The address where any petition must be
delivered.
     (d) The requirements of paragraph (b)(A)
and (B) of this subsection do not apply to a written ballot of an owner if the
consent or approval of that owner is required by the declaration or bylaws or
ORS 94.550 to 94.783.
     (3) Matters that may be voted on by
written ballot shall be deemed approved or rejected as follows:
     (a) If approval of a proposed action
otherwise would require a meeting at which a certain quorum must be present and
at which a certain percentage of total votes cast is required to authorize the
action, the proposal shall be deemed to be approved when the date for the
return of ballots has passed, a quorum of owners has voted and the required
percentage of approving votes has been received. Otherwise, the proposal shall
be deemed to be rejected; or
     (b) If approval of a proposed action
otherwise would require a meeting at which a specified percentage of owners
must authorize the action, the proposal shall be deemed to be approved when the
percentage of total votes cast in favor of the proposal equals or exceeds the
required percentage. The proposal shall be deemed to be rejected when the
number of votes cast in opposition renders approval impossible or when both the
date for return of ballots has passed and the required percentage has not been
met.
     (4) All solicitations for votes by written
ballot shall state the following:
     (a) If approval of a proposal by written
ballot requires that the total number of votes cast equal or exceed a certain
quorum requirement, the number of responses needed to meet the quorum
requirement;
     (b) If approval of a proposal by written
ballot requires that a certain percentage of total votes cast approve the
proposal, the required percentage of total votes needed for approval; and
     (c) The period during which the
association will accept written ballots for counting in accordance with
subsection (5) of this section.
     (5)(a) The association shall accept
written ballots for counting during the period specified in the solicitation
under subsection (4) of this section. Except as provided in paragraph (b) of
this subsection, the period shall end on the earliest of the following dates:
     (A) If approval of a proposed action by
written ballot requires that a certain percentage of the owners approve the
proposal, the date on which the association has received a sufficient number of
approving ballots;
     (B) If approval of a proposed action by
written ballot requires that a certain percentage of the owners approve the proposal,
the date on which the association has received a sufficient number of
disapproving ballots to render approval impossible; or
     (C) In all cases, a specified date certain
on which all ballots must be returned to be counted.
     (b) If the vote is by secrecy procedure
under subsection (2)(b) of this section, the period shall end on the date
specified in the solicitation or any extension under paragraph (c) of this
subsection.
     (c) Except as otherwise provided in the
declaration or bylaws, in the discretion of the board of directors, if a date
certain is specified in the solicitation under subsection (4) of this section,
the period may be extended by written notice of the extension given to all
owners before the end of the specified date certain.
     (6) Except as otherwise provided in the
declaration or bylaws, unless the vote is by secrecy procedure under subsection
(2)(b) of this section, a written ballot may be revoked before the final return
date of the ballots.
     (7) Unless otherwise prohibited by the
declaration or bylaws, the votes may be counted from time to time before the
final return date of the ballots to determine whether the proposal has passed
or failed by the votes already cast on the date the ballots are counted.
     (8) Notwithstanding subsection (7) of this
section, written ballots that are returned in secrecy envelopes may not be
examined or counted before the date certain specified in the solicitation or
any extension under subsection (5)(c) of this section. [1999 c.677 §31; 2001
c.756 §16; 2003 c.569 §13; 2007 c.409 §9]
     94.650
Meetings of lot owners; notice.
(1) The homeowners association shall hold at least one meeting of the owners
each calendar year.
     (2)(a) Special meetings of the association
may be called by the president of the board of directors, by a majority of the
board of directors or by the president or secretary upon receipt of a written
request of a percentage of owners specified in the bylaws of the association.
However, the bylaws may not require a percentage greater than 50 percent or
less than 10 percent of the votes of the planned community for the purpose of
calling a meeting.
     (b) If the bylaws do not specify a
percentage of owners that may request the calling of a special meeting, a
special meeting shall be called if 30 percent or more of the owners make the
request in writing. Notice of the special meeting shall be given as specified
in this section.
     (c) Business transacted at a special
meeting shall be confined to the purposes stated in the notice.
     (3) If the owners request a special
meeting under subsection (2) of this section and the notice is not given within
30 days after the date the written request is delivered to the president or the
secretary, an owner who signed the request may set the time and place of the
meeting and give notice as provided in subsection (4) of this section.
     (4) Not less than 10 or more than 50 days
before any meeting called under this section, the secretary or other officer
specified in the bylaws shall cause the notice to be hand delivered or mailed
to the mailing address of each owner or to the mailing address designated in
writing by the owner, and to all mortgagees that have requested the notice.
     (5) The notice of a meeting shall state
the time and place of the meeting and the items on the agenda, including the
general nature of any proposed amendment to the declaration or bylaws, any
budget changes or any proposal to remove a director or officer.
     (6) Mortgagees may designate a
representative to attend a meeting called under this section. [1981 c.782 §40;
1999 c.677 §17; 2001 c.756 §17; 2007 c.409 §10]
     94.652
Electronic notice to owner or director. (1) Subject to subsection (2) of this section and notwithstanding any
requirement under the declaration or bylaws or ORS 94.550 to 94.783, in the
discretion of the board of directors of the homeowners association, any notice,
information or other written material required to be given to an owner or
director under the declaration or bylaws or ORS 94.550 to 94.783, may be given
by electronic mail, facsimile or other form of electronic communication.
     (2) Notwithstanding subsection (1) of this
section, electronic mail, facsimile or other form of electronic communication
may not be used to give notice of:
     (a) Failure to pay an assessment;
     (b) Foreclosure of an association lien
under ORS 94.709; or
     (c) An action the association may take
against an owner.
     (3) An owner or director may decline to
receive notice by electronic mail, facsimile or other form of electronic
communication and may direct the board of directors to provide notice in the
manner required under the declaration or bylaws or ORS 94.550 to 94.783. [2007
c.409 §4]
     94.655
Quorum for association meetings. (1) Unless the declaration or bylaws of a homeowners association
provide otherwise, a quorum for any meeting of the association consists of the
number of persons who are entitled to cast 20 percent of the votes and who are
present in person, by proxy or by absentee ballot, if absentee ballots are
permitted by the board of directors, at the beginning of the meeting.
     (2) If any meeting of the association
cannot be organized because of a lack of a quorum, the owners who are present,
either in person or by proxy, may adjourn the meeting. The quorum for a
subsequent meeting is the greater of:
     (a) One-half of the quorum required in the
declaration or bylaws; or
     (b) The quorum required in subsection (1)
of this section. [1981 c.782 §41; 1999 c.677 §18; 2007 c.409 §11]
     94.657
Rules of order. Unless other
rules of order are required by the declaration or bylaws or by a resolution of
the association or its board of directors:
     (1) Meetings of the association and the
board of directors shall be conducted according to the latest edition of RobertÂ’s
Rules of Order published by the RobertÂ’s Rules Association.
     (2) A decision of the association or the
board of directors may not be challenged because the appropriate rules of order
were not used unless a person entitled to be heard was denied the right to be
heard and raised an objection at the meeting in which the right to be heard was
denied.
     (3) A decision of the association and the
board of directors is deemed valid without regard to procedural errors related
to the rules of order one year after the decision is made unless the error
appears on the face of a written instrument memorializing the decision. [2001
c.756 §4]
     94.658
Voting or granting consent.
(1) Unless the declaration provides otherwise, each lot of a planned community
shall be entitled to one vote.
     (2) Unless the declaration or bylaws
provide otherwise:
     (a) An executor, administrator, guardian
or trustee may vote or grant consent with respect to a lot owned or held in a
fiduciary capacity if the fiduciary satisfies the secretary of the board of
directors that the person is the executor, administrator, guardian or trustee
holding the lot.
     (b) When a lot is owned by two or more
persons jointly, according to the records of the association:
     (A) Except as provided in this paragraph,
the vote of the lot may be exercised by a co-owner in the absence of protest by
another co-owner. If the co-owners cannot agree upon the vote, the vote of the
lot shall be disregarded completely in determining the proportion of votes
given with respect to such matter.
     (B) A valid court order may establish the
right of co-owners’ authority to vote. [2001 c.756 §2; 2007 c.409 §12]
     94.660
Method of voting or consenting.
(1) The vote or consent of a lot may be cast or given:
     (a) In person at a meeting of the
homeowners association.
     (b) In the discretion of the board of
directors, by absentee ballot in accordance with subsection (3) of this
section.
     (c) Unless the declaration or bylaws or
ORS 94.550 to 94.783 provide otherwise, pursuant to a proxy in accordance with
subsection (2) of this section.
     (d) By written ballot in lieu of a meeting
under ORS 94.647.
     (e) By any other method specified by the
declaration or bylaws or ORS 94.550 to 94.783.
     (2)(a) A proxy:
     (A) Must be dated and signed by the owner;
     (B) Is not valid if it is undated or
purports to be revocable without notice; and
     (C) Terminates one year after its date
unless the proxy specifies a shorter term.
     (b) The board of directors may not require
that a proxy be on a form prescribed by the board.
     (c) An owner may not revoke a proxy given
pursuant to this section except by actual notice of revocation to the person
presiding over a meeting of the association or to the board of directors if a
vote is being conducted by written ballot in lieu of a meeting pursuant to ORS
94.647.
     (d) A copy of a proxy in compliance with
paragraph (a) of this subsection provided to the association by facsimile,
electronic mail or other means of electronic communication utilized by the
board of directors is valid.
     (3)(a) An absentee ballot shall set forth
each proposed action and provide an opportunity to vote for or against each
proposed action.
     (b) All solicitations for votes by
absentee ballot shall include:
     (A) Instructions for delivery of the
completed absentee ballot, including the delivery location; and
     (B) Instructions about whether the ballot
may be canceled if the ballot has been delivered according to the instructions.
     (c) An absentee ballot shall be counted as
an owner present for the purpose of establishing a quorum.
     (d) Even if an absentee ballot has been
delivered to an owner, the owner may vote in person at a meeting if the owner
has:
     (A) Returned the absentee ballot; and
     (B) Canceled the absentee ballot, if
cancellation is permitted in the instructions given under paragraph (b) of this
subsection. [1981 c.782 §42; 1999 c.677 §19; 2003 c.569 §14; 2007 c.409 §13]
     94.661
Electronic ballot. (1) As
used in this section, “electronic ballot” means a ballot given by:
     (a) Electronic mail;
     (b) Facsimile transmission;
     (c) Posting on a website; or
     (d) Other means of electronic
communication acceptable to the board of directors.
     (2) Unless the declaration or bylaws
prohibit or provide for other methods of electronic ballots, the board of
directors of a homeowners association, in its discretion, may provide that a
vote, approval or consent of an owner may be given by electronic ballot.
     (3) An electronic ballot shall comply with
the requirements of this section and the declaration or bylaws or ORS 94.550 to
94.783.
     (4) An electronic ballot may be
accompanied by or contained in an electronic notice in accordance with ORS
94.652.
     (5) If an electronic ballot is posted on a
website, a notice of the posting shall be sent to each owner and shall contain
instructions on obtaining access to the posting on the website.
     (6) A vote made by electronic ballot is
effective when it is electronically transmitted to an address, location or
system designated by the board of directors for that purpose.
     (7) Unless otherwise provided in the
declaration or bylaws or rules adopted by the board of directors, a vote by
electronic ballot may not be revoked.
     (8) The board of directors may not elect
to use electronic ballots unless there are procedures to ensure:
     (a) Compliance with ORS 94.647 if the vote
conducted by written ballot under ORS 94.647 uses the procedures specified in
ORS 94.647 (2)(b); and
     (b) That the electronic ballot is secret,
if the declaration or bylaws or rules adopted by the board require that
electronic ballots be secret. [2007 c.409 §5]
     94.662
Notice to lot owners of intent of association to commence judicial or
administrative proceeding; contents of notice; right of lot owner to opt out. (1) At least 10 days prior to instituting
any litigation or administrative proceeding to recover damages under ORS 94.630
(1)(e)(E), the homeowners association shall provide written notice to each
affected owner of the associationÂ’s intent to seek damages on behalf of the
owner. The notice shall, at a minimum:
     (a) Be mailed to the mailing address of
each lot or to the mailing address designated in writing to the association by
the owner;
     (b) Inform each owner of the general
nature of the litigation or proceeding;
     (c) Describe the specific nature of the
damages to be sought on the ownerÂ’s behalf;
     (d) Set forth the terms under which the
association is willing to seek damages on the ownerÂ’s behalf, including any
mechanism proposed for the determination and distribution of any damages
recovered;
     (e) Inform each owner of the owner’s right
not to have the damages sought on the ownerÂ’s behalf and specify the procedure
for exercising the right; and
     (f) Inform the owner that exercising the
ownerÂ’s right not to have damages sought on the ownerÂ’s behalf:
     (A) Relieves the association of its duty
to reimburse or indemnify the owner for the damages;
     (B) Does not relieve the owner from the
ownerÂ’s obligation to pay dues or assessments relating to the litigation or
proceeding;
     (C) Does not impair any easement owned or
possessed by the association; and
     (D) Does not interfere with the association’s
right to make repairs to common areas.
     (2) Within 10 days of mailing the notice
described in this section, any owner may request in writing that the
association not seek damages on the ownerÂ’s behalf. If an owner makes such a
request, the association shall not make or continue any claim or action for
damages with regard to the objecting ownerÂ’s lot and shall be relieved of any
duty to reimburse or indemnify the owner for damages under the litigation or
proceeding. [1999 c.677 §37; 2001 c.756 §18]
     94.665
Authority of association to sell or transfer common property. (1) Except as otherwise provided in the
declaration, a homeowners association may sell, convey or subject to a security
interest any portion of the common property if 80 percent or more of the votes
in the homeowners association, including 80 percent of the votes of lots not
owned by a declarant at the time of the vote, are cast in favor of that action.
The association shall treat proceeds of any sale under this section as an asset
of the association.
     (2) A sale, transfer or encumbrance of the
common property or any portion of the common property made pursuant to a right
reserved in the declaration under this section may provide that the common
property be released from any restriction imposed on the common property by the
declaration. However, a sale, transfer or encumbrance may not deprive any lot
of its right of access to or support for the lot without the consent of the
owner of the lot. [1981 c.782 §47; 1987 c.447 §112; 1999 c.677 §20]
     94.667
Recording association information with county clerk. (1) As used in this section, “association”
means an association formed under ORS 94.625, 94.846 or 100.405, or any other
association in which a person holds membership by virtue of owning or
possessing a real estate interest subject to assessment and lien authority
pursuant to a recorded instrument.
     (2) The board of directors or managing
agent of an association may record with the county clerk for the county where
the subject property is located a statement of association information. Subject
to subsection (3) of this section, the statement shall contain at least the
following information:
     (a) The name of the association as
identified in the recorded declaration, conditions, covenants and restrictions
or other governing instrument, and the current name of the association, if
different;
     (b) The name, address and daytime
telephone number of a managing agent or treasurer of the association or other
person authorized to receive:
     (A) Assessments and fees imposed by the
association; or
     (B) Notice of a transfer of property;
     (c) A list of the properties, as described
for recordation in ORS 93.600, subject to assessment by the association;
     (d) Information identifying the recorded
declaration, conditions, covenants and restrictions or other governing
instrument, and a reference to where the instruments are recorded; and
     (e) If an amended statement is being
recorded, information identifying prior recorded statements.
     (3) The statement may not include
information for a purpose that is not related to the identification of the
person specified in subsection (2)(b) of this section.
     (4) The county clerk may charge a fee for
recording a statement under this section according to the provisions of ORS 205.320
(4). [1999 c.447 §1; 2001 c.756 §19]
     Note: 94.667 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 94 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     94.670
Association duty to keep documents and records; payment of association
expenses; review of financial statement by certified public accountant; examination
of records by owner. (1) A
homeowners association shall retain within this state the documents,
information and records delivered to the association under ORS 94.616 and all
other records of the association for not less than the period specified for the
record in ORS 65.771 or any other applicable law except that:
     (a) The documents specified in ORS 94.616
(3)(o), if received, must be retained as permanent records of the association.
     (b) Proxies and ballots must be retained
for one year from the date of determination of the vote.
     (2) All assessments, including declarant
subsidies, shall be deposited in the name of the association in a separate
federally insured account at a financial institution, as defined in ORS
706.008, other than an extranational institution. All expenses of the
association shall be paid from the association account.
     (3) The association shall keep financial
records sufficiently detailed for proper accounting purposes. Within 90 days
after the end of the fiscal year, the board of directors shall:
     (a) Prepare or cause to be prepared an
annual financial statement consisting of a balance sheet and income and
expenses statement for the preceding fiscal year; and
     (b) Distribute to each owner and, upon
written request, any mortgagee of a lot, a copy of the annual financial
statement.
     (4) Subject to section 24, chapter 803,
Oregon Laws 2003, the association of a planned community that has annual
assessments exceeding $75,000 shall cause the financial statement required
under subsection (3) of this section to be reviewed within 180 days after the
end of the fiscal year by an independent certified public accountant licensed
in the State of Oregon in accordance with the Statements on Standards for
Accounting and Review Services issued by the American Institute of Certified
Public Accountants.
     (5) The association of a planned community
created on or after January 1, 2004, or the association of a planned community
described in ORS 94.572 that has annual assessments of $75,000 or less shall
cause the most recent financial statement required by subsection (3) of this
section to be reviewed in the manner described in subsection (4) of this
section within 180 days after the association receives a petition requesting
review signed by at least a majority of the owners.
     (6) An association subject to the
requirements of subsection (4) of this section may elect, on an annual basis,
not to comply with the requirements of subsection (4) of this section by an
affirmative vote of at least 60 percent of the owners, not including the votes
of the declarant with respect to lots owned by the declarant.
     (7)(a) The association shall provide,
within 10 business days of receipt of a written request from an owner, a
written statement that provides:
     (A) The amount of assessments due from the
owner and unpaid at the time the request was received, including:
     (i) Regular and special assessments;
     (ii) Fines and other charges;
     (iii) Accrued interest; and
     (iv) Late payment charges.
     (B) The percentage rate at which interest
accrues on assessments that are not paid when due.
     (C) The percentage rate used to calculate
the charges for late payment or the amount of a fixed charge for late payment.
     (b) The association is not required to
comply with paragraph (a) of this subsection if the association has commenced
litigation by filing a complaint against the owner and the litigation is
pending when the statement would otherwise be due.
     (8) The association shall make the
documents, information and records described in subsections (1) and (3) of this
section and all other records of the association reasonably available for
examination and, upon written request, available for duplication by an owner
and any mortgagee of a lot that makes the request in good faith for a proper
purpose, except that records kept by or on behalf of the association may be
withheld from examination and duplication to the extent the records concern:
     (a) Personnel matters relating to a
specific identified person or a personÂ’s medical records.
     (b) Contracts, leases and other business
transactions that are currently under negotiation to purchase or provide goods
or services.
     (c) Communications with legal counsel that
relate to matters specified in paragraphs (a) and (b) of this subsection.
     (d) Disclosure of information in violation
of law.
     (e) Documents, correspondence or
management or board reports compiled for or on behalf of the association or the
board of directors by its agents or committees for consideration by the board
of directors in executive session held in accordance with ORS 94.640 (7).
     (f) Documents, correspondence or other
matters considered by the board of directors in executive session held in
accordance with ORS 94.640 (7).
     (g) Files of individual owners, other than
those of a requesting owner or requesting mortgagee of an individual owner,
including any individual ownerÂ’s file kept by or on behalf of the association.
     (9) The association shall maintain a copy,
suitable for the purpose of duplication, of the following:
     (a) The declaration and bylaws, including
amendments or supplements in effect, the recorded plat, if feasible, and the
association rules and regulations currently in effect.
     (b) The most recent financial statement
prepared pursuant to subsection (3) of this section.
     (c) The current operating budget of the
association.
     (d) The reserve study, if any, described
in ORS 94.595.
     (e) Architectural standards and
guidelines, if any.
     (10) The association, within 10 business
days after receipt of a written request by an owner, shall furnish the
requested information required to be maintained under subsection (9) of this
section.
     (11) The board of directors, by
resolution, may adopt reasonable rules governing the frequency, time, location,
notice and manner of examination and duplication of association records and the
imposition of a reasonable fee for furnishing copies of any documents,
information or records described in this section. The fee may include
reasonable personnel costs for furnishing the documents, information or
records. [1981 c.782 §48; 1999 c.677 §21; 2001 c.756 §20; 2003 c.569 §15; 2003
c.803 §20a; 2007 c.340 §1]
     Note: Section 24, chapter 803, Oregon Laws 2003,
provides:
     Sec.
24. The requirements of ORS
94.670 (4) first apply:
     (1) Commencing with the fiscal year
following the turnover meeting required by ORS 94.616 for the association of a planned
community created under ORS 94.550 to 94.783 prior to January 1, 2004, if the
turnover meeting has not yet occurred on January 1, 2004.
     (2) Commencing with the fiscal year
beginning in calendar year 2004 for the association of a planned community created
under ORS 94.550 to 94.783 if the turnover meeting required by ORS 94.616 has
occurred on or before January 1, 2004.
     (3) Commencing with the fiscal year
following the turnover meeting required by ORS 94.616 for the association of a
planned community created under ORS 94.550 to 94.783 on or after January 1,
2004.
     (4) Commencing with the fiscal year
following the year in which owners assume responsibility for administration of
a planned community described in ORS 94.572 if the owners have not assumed
responsibility for administration of the planned community on January 1, 2004.
     (5) Commencing with the fiscal year
beginning in calendar year 2004 for the association of a planned community
described in ORS 94.572 if the owners have assumed responsibility for
administration of the planned community on or before January 1, 2004. [2003
c.803 §24]
     94.673
When compliance with specified provisions of ORS 94.640 and 94.670 required. (1) The homeowners association of a
subdivision that received preliminary plat approval before July 1, 1982, shall
comply with the provisions of ORS 94.640 (1), (3), (4), (7), (8) and (9) and
94.670 if:
     (a) An owner submits a written request to
the homeowners association to comply with the provisions;
     (b) The subdivision otherwise conforms to
the description of a planned community under ORS 94.550; and
     (c) The subdivision is not otherwise
exempted under ORS 94.570.
     (2) A homeowners association board of
directors is not subject to ORS 94.780 unless the association fails to comply
with subsection (1) of this section after receiving a written request from an
owner. [1983 c.206 §6; 2001 c.756 §59]
     94.675
Insurance for common property.
(1) The board of directors of a homeowners association shall obtain and
maintain:
     (a) Insurance for all insurable
improvements in the common property against loss or damage by fire or other
hazards, including extended coverage, vandalism and malicious mischief. The
insurance shall cover the full replacement costs of any repair or
reconstruction in the event of damage or destruction from any such hazard if
the insurance is available at reasonable cost; and
     (b) A public liability policy covering all
common property and all damage or injury caused by the negligence of the
association.
     (2) Premiums for insurance obtained under
this section shall be a common expense of the association.
     (3) A policy may contain a deductible in
the amount specified in the declaration or bylaws. The deductible amount shall
be added to the face amount of the policy in determining whether the insurance
equals at least the full replacement cost.
     (4) Notwithstanding a provision in the
declaration or bylaws that imposes a maximum deductible amount in an
association insurance policy, if the board of directors determines that it is
in the best interest of the association and owners as provided in subsection
(5) of this section, the board may adopt a resolution authorizing the
association to obtain and maintain an insurance policy with a deductible amount
exceeding the specified maximum, but not in excess of the greater of:
     (a) The maximum deductible acceptable to
the Federal National Mortgage Association; or
     (b) $10,000.
     (5) In making the determination under
subsection (4) of this section, the board of directors shall consider such
factors as the availability and cost of insurance and the loss experience of
the association.
     (6) Not later than 10 days after adoption
of a resolution under subsection (4) of this section, the board of directors
shall ensure that a copy of the resolution and a notice described in ORS 94.676
are:
     (a) Delivered to each owner; or
     (b) Mailed to the mailing address of each
owner or to the mailing address designated in writing by the owner. [1981 c.782
§51; 2007 c.409 §14]
     94.676
Insurance deductible for certain planned communities. (1) If the declaration or bylaws of a
planned community created under ORS 94.550 to 94.783 before September 27, 2007,
or a planned community subject to ORS 94.572 do not assign the responsibility
for payment of the amount of the deductible in an association insurance policy,
the board of directors of the homeowners association may adopt a resolution
that assigns the responsibility for payment of the amount of the deductible.
The resolution must include, but need not be limited to:
     (a) The circumstances under which the
deductible will be charged against:
     (A) An owner or the owners affected by a
loss; or
     (B) All owners;
     (b) The allocation of the deductible
charged under paragraph (a) of this subsection; and
     (c) If an owner and the association have
duplicate insurance coverage, the insurance policy that is primary, unless
otherwise provided in the declaration or bylaws.
     (2) If the board of directors adopts a
resolution as described in subsection (1) of this section, the resolution may
require that an owner, in addition to any other insurance required by the
declaration or bylaws, obtain and maintain:
     (a) An insurance policy that insures the
ownerÂ’s lot for not less than the amount of the deductible in the associationÂ’s
insurance policy for which the owner may be responsible and that insures the
ownerÂ’s personal property for any loss or damage; and
     (b) Comprehensive liability insurance that
includes, but is not limited to, coverage for negligent acts of owners and
tenants, guests of owners and tenants and occupants of other lots for damage to
the common property, to other lots and to the personal property of other
persons that is located on other lots or the common property.
     (3) Unless otherwise provided in the
declaration or bylaws, the board of directors may adopt a resolution that:
     (a) Prescribes a procedure for processing
insurance claims. The procedure may require that all claims against the
associationÂ’s insurance policy be processed through and coordinated by the
board of directors or the managing agent, if authorized by the board.
     (b) Assigns the responsibility for payment
of charges for handling claims, including any charges by a managing agent.
     (4) Not later than 10 days after adoption
of a resolution under subsection (1) or (3) of this section, the board of
directors shall ensure that a copy of the resolution and a notice described in
subsection (5) of this section are:
     (a) Delivered to each lot; or
     (b) Mailed to the mailing address of each
owner or to the mailing address designated in writing by the owner.
     (5) The notice required under subsection
(4) of this section shall:
     (a) Advise each owner to contact an
insurance agent to determine the effect of the resolution on the ownerÂ’s
individual insurance coverage; and
     (b) Be in a form and style reasonably
calculated to inform the owner of the importance of the notice.
     (6) Failure to provide a copy of a
resolution or a notice required under this section does not affect the
responsibility of an owner to comply with a resolution adopted under this
section. [2007 c.409 §3]
     94.677
Election to have ORS 94.645, 94.655 and 94.675 apply. Unless contrary to the covenants, conditions
or restrictions of a recorded declaration or other similar instrument, or the
bylaws of the association adopted in accordance with documents governing the
association, the homeowners association board of directors of a subdivision
described in ORS 94.673 (1) may elect to be governed by ORS 94.645, 94.655 and
94.675, without further action by the association. [1983 c.206 §7]
     94.680
Blanket all-risk insurance.
(1) If a declaration or bylaws provide that the homeowners association has the
sole authority to decide whether to repair or reconstruct a unit that has
suffered damage or whether a unit must be repaired or reconstructed, the board
of directors shall obtain blanket all-risk insurance for the full replacement
cost of all structures in the planned community. Cost of the coverage shall be
a common expense to the association.
     (2) If the declaration or bylaws contain a
provision described in subsection (1) of this section, the declaration or
bylaws also shall provide:
     (a) Requirements of or limitations on
repairing or reconstructing damaged or destroyed property;
     (b) The time within which the repair or
reconstruction must begin; and
     (c) The actions the board of directors
must take if:
     (A) Damage or destruction is not repaired
or replaced; or
     (B) Insurance proceeds exceed or fall
short of the costs of repair or reconstruction. [1981 c.782 §52; 1999 c.677 §22;
2007 c.409 §15]
     94.685
Specification of insurance for individual lots. (1) Unless provided in the declaration, the
bylaws shall specify:
     (a) The insurance an owner must obtain, if
any;
     (b) The insurance, if any, an individual
owner is precluded from obtaining;
     (c) The responsibility for payment of the
amount of the deductible in an association insurance policy; and
     (d) Whether or not the insurance coverage
obtained and maintained by the board of directors may be brought into
contribution with insurance bought by owners or their mortgagees.
     (2) The declaration or bylaws may provide
that the responsibility for payment of the amount of the deductible may be
prescribed by resolution adopted by the board of directors. [1981 c.782 §54;
1999 c.677 §23; 2007 c.409 §16]
     94.690
Terms of insurance under ORS 94.680. The board of directors of a homeowners association shall obtain, if
reasonably available, terms in insurance policies under ORS 94.680 which
provide a waiver of subrogation by the insurer as to any claims against the
board of directors of the association, any owner or any guest of an owner. [1981
c.782 §56; 1999 c.677 §24]
     94.695
Authority to delegate association powers to master association. A declaration for a planned community may delegate
any of the powers of the homeowners association under ORS 94.630 to a master
association or provide that the master association may exercise any such power.
[1981 c.782 §62]
     94.700
Duration and termination of initial management agreements and service and
employment contracts. (1) If
entered into prior to the meeting called under ORS 94.609, no management
agreement, service contract or employment contract which is directly made by or
on behalf of the association, the board of directors or the owners as a group
shall be in excess of three years.
     (2) Any contract or agreement subject to
subsection (1) of this section and entered into after July 1, 1982, may
terminate without penalty to the declarant, the association or the board of
directors elected under ORS 94.616 if the board of directors gives not less
than 30 days written notice of termination to the other party not later than 60
days after the meeting called under ORS 94.609. [1981 c.782 §69]
(Assessments
and Liens Against Lots; Easements)
     94.704
Assessment and payment of common expenses. (1) Subject to subsection (2) of this section, the declarant of a
planned community shall pay all common expenses of the planned community until
the individual lots subject to assessment are assessed for common expenses as
specified in the declaration pursuant to ORS 94.580 (2).
     (2) If the declaration expressly
authorizes deferment, the declarant may defer payment of accrued assessments
for reserves required under ORS 94.595 for a lot subject to assessment until
the date the lot is conveyed. However, the declarant may not defer payment of
accrued assessments for reserves:
     (a) Beyond the date of the turnover
meeting provided for in the bylaws in accordance with ORS 94.635 (3); or
     (b) If a turnover meeting is not held, the
date the owners assume administrative control of the association.
     (3) Failure of the declarant to deposit
the balance due within 30 days after the due date constitutes a violation of
ORS 94.777.
     (4) The books and records of the
association shall reflect the amount the declarant owes for all reserve account
assessments.
     (5)(a) Except for assessments under
subsections (6), (7) and (8) of this section, the board of directors shall
assess all common expenses against all the lots that are subject to assessment
according to the allocations stated in the declaration.
     (b) Any assessment or any installment of
the assessment past due shall bear interest at the rate established by
resolution of the board of directors.
     (c) Nothing in this section prohibits the
board from making compromises on overdue assessments if the compromise benefits
the association.
     (6) Unless otherwise provided in the
declaration or bylaws, any common expense or any part of a common expense
benefiting fewer than all of the lots may be assessed exclusively against the
lots or units benefited.
     (7) Unless otherwise provided in the
declaration or bylaws, assessments to pay a judgment against the association
may be made only against the lots in proportion to their common expense liabilities.
     (8) If the board of directors determines
that any common expense is the fault of any owner, the homeowners association
may assess the expense exclusively against the lot of the owner.
     (9) If the homeowners association
reallocates common expense liabilities, any common expense assessment and any
installment of the assessment not yet due shall be recalculated according to
the reallocated common expense liabilities.
     (10)(a) A lot owner may not claim
exemption from liability for contribution toward the common expenses by waiving
the use or enjoyment of any of the common property or by abandoning the ownerÂ’s
lot.
     (b) An owner may not claim to offset an
assessment for failure of the association to perform the associationÂ’s
obligations.
     (11)(a) During any period of declarant
control, any special assessment for capital improvements or additions must be
approved by not less than 50 percent of the voting rights, or such greater
percentage as may be specified in the declaration, without regard to any weighted
right or special voting right in favor of the declarant.
     (b) Nothing in this subsection is intended
to prohibit a declarant from reserving a special declarant right to approve any
such assessment. [1981 c.782 §43; 1999 c.677 §25; 2001 c.756 §21; 2003 c.569 §16]
     94.705 [Repealed by 1971 c.478 §1]
     94.709
Liens against lots; priority; duration; record notice of claim of unpaid
assessment; foreclosure procedure. (1) Whenever a homeowners association levies any assessment against a
lot, the association shall have a lien upon the individual lot for any unpaid
assessments. The lien includes interest, late charges, attorney fees, costs or
other amounts imposed under the declaration or bylaws or other recorded
governing document. The lien is prior to a homestead exemption and all other
liens or encumbrances upon the lot except:
     (a) Tax and assessment liens; and
     (b) A first mortgage or trust deed of
record.
     (2) Recording of the declaration
constitutes record notice and perfection of the lien for assessments. No
further recording of a claim of lien for assessments or notice of a claim of
lien under this section is required to perfect the associationÂ’s lien. The
association shall record a notice of claim of lien for assessments under this
section in the deed records of the county in which a lot is located before any
suit to foreclose may proceed under subsection (4) of this section. The notice
shall contain:
     (a) A true statement of the amount due for
the unpaid assessments after deducting all just credits and offsets;
     (b) The name of the owner of the lot, or
reputed owner, if known;
     (c) The name of the association;
     (d) The description of the lot as provided
in ORS 93.600; and
     (e) A statement that if the owner of the
lot thereafter fails to pay any assessments when due, as long as the original
or any subsequent unpaid assessment remains unpaid, the unpaid amount of
assessments automatically continue to accumulate with interest without the
necessity of further recording.
     (3) The notice shall be verified by the
oath of some person having knowledge of the facts and shall be recorded by the
county recording officer. The record shall be indexed as other liens are
required by law to be indexed.
     (4)(a) The proceedings to foreclose liens
created by this section shall conform as nearly as possible to the proceedings
to foreclose liens created by ORS 87.010 except, notwithstanding ORS 87.055, a
lien may be continued in force for a period of time not to exceed six years
from the date the assessment is due. For the purpose of determining the date
the assessment is due in those cases when subsequent unpaid assessments have
accumulated under a notice recorded as provided in subsection (2) of this
section, the assessment and claim regarding each unpaid assessment shall be deemed
to have been levied at the time the unpaid assessment became due.
     (b) The lien may be enforced by the board
of directors acting on behalf of the association.
     (c) An action to recover a money judgment
for unpaid assessments may be maintained without foreclosing or waiving the
lien securing the claim for unpaid assessments.
     (5) Unless the declaration or bylaws
provide otherwise, fees, late charges, fines and interest imposed pursuant to
ORS 94.630 (1)(L), (n) and (o) are enforceable as assessments under this
section.
     (6) This section does not prohibit an
association from pursuing an action to recover sums for which subsection (1) of
this section creates a lien or from taking a deed in lieu of foreclosure in
satisfaction of the lien.
     (7) An action to recover a money judgment
for unpaid assessments may be maintained without foreclosing or waiving the
lien for unpaid assessments. However, recovery on the action operates to
satisfy the lien, or the portion thereof, for which recovery is made. [1981
c.782 §44; 1999 c.677 §26; 2003 c.569 §17]
     94.710 [Repealed by 1971 c.478 §1]
     94.712
Lot owner personally liable for assessment; joint liability of grantor and
grantee following conveyance; limitation. (1) An owner shall be personally liable for all assessments imposed on
the owner or assessed against the ownerÂ’s lot by the homeowners association.
     (2)(a) Subject to paragraph (b) of this
subsection, in a voluntary conveyance of a lot, the grantee shall be jointly
and severally liable with the grantor for all unpaid assessments against the
grantor of the lot to the time of the grant or conveyance, without prejudice to
the granteeÂ’s right to recover from the grantor the amounts paid by the grantee
therefor.
     (b) Upon request of an owner or owner’s
agent, for the benefit of a prospective purchaser, the board of directors shall
make and deliver a written statement of the unpaid assessments against the
prospective grantor or the lot effective through a date specified in the
statement, and the grantee in that case shall not be liable for any unpaid
assessments against the grantor not included in the written statement.
     (3) An escrow agent or a title insurance
company providing escrow services or issuing title insurance in conjunction
with the conveyance:
     (a) May rely on a written statement of
unpaid assessments delivered pursuant to this section; and
     (b) Is not liable for a failure to pay the
association at closing any amount in excess of the amount set forth in the
written statement. [1999 c.677 §32; 2003 c.569 §18]
     94.715 [Repealed by 1971 c.478 §1]
     94.716
Lien against two or more lots; release. If a lien against two or more lots of the planned community becomes
due, whether the lien is perfected before or after establishment of the planned
community, the owner of an affected lot may pay the lienholder the portion of
the lien attributable to the lot. Upon receipt of payment, the lienholder
promptly shall deliver to the owner a release of the lien as to that lot. The
amount of the payment shall be proportionate to the ratio which that ownerÂ’s
common expense liability bears to the common expense liabilities of all owners
whose lots are subject to the lien. After payment, the association may not
assess or have a lien against that ownerÂ’s lot for any portion of the common
expense liability representing the lien. This section applies to all liens
except a mortgage. [1981 c.782 §45]
     94.719
Lien foreclosure; other legal action by declarant, association or owner;
attorney fees. In any suit
or action brought by a homeowners association to foreclose its lien or to
collect delinquent assessments or in any suit or action brought by the
declarant, the association or any owner or class of owners to enforce
compliance with the terms and provisions of ORS 94.550 to 94.783 or the
declaration or bylaws, including all amendments and supplements thereto or any
rules or regulations adopted by the association, the prevailing party shall be
entitled to recover reasonable attorney fees therein and in any appeal
therefrom. [1999 c.677 §33; 2001 c.756 §23; 2007 c.409 §17]
     94.720 [Repealed by 1971 c.478 §1]
     94.723
Common expenses; liability of first mortgagee. If a first mortgagee acquires a lot in a
planned community by foreclosure or deed in lieu of foreclosure, the mortgagee
and subsequent purchaser shall not be liable for any of the common expenses
chargeable to the lot which became due before the mortgagee or purchaser
acquired title to the lot. The unpaid expenses shall become a common expense of
all lot owners including the mortgagee or purchaser. [1981 c.782 §46; 1999
c.677 §27]
     94.725 [Repealed by 1971 c.478 §1]
     94.728
Taxation of lots and common property. (1) Each lot in a planned community constitutes for all purposes a
separate parcel of real estate and shall be separately taxed and assessed.
     (2) No separate tax or assessment may be
levied against any common property which a declarant has reserved no right to
develop into additional lots.
     (3) The declarant alone is liable for
payment of taxes or assessments on any portion of the common property of a
planned community in which the declarant has reserved the right to develop the
property into additional lots, until the right terminates or expires, or is
exercised, abandoned or relinquished.
     (4) If the right described under subsection
(3) of this section terminates or expires or is abandoned or relinquished
before July 1 of any year, no tax or assessment shall be imposed against the
portion of the common property so affected for the next tax year beginning on
July 1. [1981 c.782 §34]
     94.730 [Repealed by 1971 c.478 §1]
     94.733
Easements held by owner of lot and by declarant. (1) Subject to ORS 94.665, each owner of a
lot has an easement through the common property:
     (a) For access to the owner’s lot; and
     (b) For use of the common property
consistent with the declaration and the bylaws.
     (2) Except as provided in the declaration,
a declarant has an easement through the common property as may be necessary for
discharging the declarantÂ’s obligations or exercising any special declarant
right.
     (3) If an encroachment results from
construction, reconstruction, repair, shifting, settlement or movement of any
portion of the planned community, an easement for the encroachment exists to
the extent that any lot or common property encroaches on any other lot or
common property. An easement continues for maintaining the encroachment so long
as the encroachment exists. Nothing in this section relieves an owner of
liability in case of the ownerÂ’s willful misconduct or relieves a declarant or
any other person of liability for failure to adhere to the plat of the planned
community. [1981 c.782 §33]
     94.740 [1981 c.782 §74; repealed by 1999 c.677 §72]
     94.745 [1981 c.782 §78; repealed by 1999 c.677 §72]
     94.750 [1981 c.782 §76; 1983 c.740 §8; repealed by
1999 c.677 §72]
     94.755 [1981 c.782 §82; repealed by 1999 c.677 §72]
(Miscellaneous)
     94.760
Promotional material showing possible improvements. If a declarant makes no commitment in the
declaration to build an improvement or specifically states in the declaration
that the declarant makes no commitment either to build or not to build the
improvement, no person may display or deliver promotional material to
prospective purchasers which describes or portrays the improvement unless the
description or portrayal is conspicuously labeled “POSSIBLE Improvement.” [1981
c.782 §79]
     94.765 [1981 c.782 §81; repealed by 1999 c.677 §72]
     94.770
Application of rule against perpetuities; conflict between declaration and
bylaws; effect on title of declarationÂ’s noncompliance with
     (2) In the event of a conflict between the
declaration and the bylaws of a planned community or between the declaration
and the articles of incorporation, the declaration shall prevail except to the
extent the declaration is inconsistent with ORS 94.550 to 94.783.
     (3) Title to a unit, lot and common
property shall not be rendered unmarketable or otherwise affected by reason of
a failure of the declarant or the declaration to comply with ORS 94.550 to
94.783.
     (4) If the provisions of ORS 94.550 to
94.783 and the provisions of ORS chapter 65 apply to an association and the
provisions conflict, the provisions of ORS 94.550 to 94.783 control. [1981
c.782 §86; 1999 c.677 §69; 2003 c.569 §19]
     94.775
Judicial partition prohibited.
(1) Unless the declaration expressly allows the division of lots in a planned
community, judicial partition by division of a lot in a planned community is
not allowed under ORS 105.205. The lot may be partitioned by sale and division
of the proceeds under ORS 105.245.
     (2) The restriction specified in
subsection (1) of this section does not apply if the homeowners association has
removed the property from the provisions of the declaration. [1981 c.782 §87;
2003 c.569 §20]
     94.777
Compliance with bylaws and other restrictions required; effect of
noncompliance. Each owner
and the declarant shall comply with the bylaws, and with the administrative
rules and regulations adopted pursuant thereto, and with the covenants,
conditions and restrictions in the declaration or in the deed to the lot.
Failure to comply therewith shall be grounds for an action maintainable by the
homeowners association or by an aggrieved owner. [1999 c.677 §36]
     94.780
Remedies. (1) Failure of the
declarant, association, any association member or any other person subject to
ORS 94.550 to 94.783 to comply with applicable sections of ORS 94.550 to 94.785
shall be cause for suit or action to remedy the violation or to recover actual
damages. The prevailing party is entitled to reasonable attorney fees and court
costs.
     (2) Failure of an association to accept
administrative responsibility under ORS 94.616 shall be a defense for the
declarant against an action brought under this section.
     (3) A suit or action arising under this
section must be commenced within one year after the discovery or identification
of the alleged violation. [1981 c.782 §83; 1999 c.677 §67]
     94.783
When certain administrative provisions apply. If a subdivision received preliminary plat approval before July 1,
1982, but the subdivision plat or the plat of the first phase is not filed
under ORS 92.120 before January 1, 1984, the provisions of ORS 94.595, 94.604,
94.609, 94.616, 94.700, 94.760 and 94.780 shall apply to the planned community.
[1983 c.206 §8; 1999 c.677 §68]
     94.785
Short title. ORS 94.550 to
94.783 may be cited as the Oregon Planned Community Act. [1981 c.782 §1]
TIMESHARE
ESTATES
(General
Provisions)
     94.803
Definitions for ORS 94.803 and 94.807 to 94.945. As used in this section and ORS 94.807 to
94.945:
     (1) “Agency” means the Real Estate Agency.
     (2) “Accommodation” means an apartment,
condominium unit, cabin, house, lodge, hotel or motel room or other private or
commercial structure situated on real property and designed for residential
occupancy.
     (3) “Assessment” means the pro rata share
assessed from time to time against each owner of a timeshare by the managing
entity to pay for common expenses.
     (4) “Blanket encumbrance” means a trust
deed or mortgage or any other lien or encumbrance, mechanicÂ’s lien or
otherwise, securing or evidencing the payment of money and affecting more than
one timeshare, or an agreement affecting more than one timeshare by which the
developer holds the timeshare property under an option, leasehold, contract to
sell or trust agreement.
     (5) “Commissioner” means the Real Estate
Commissioner.
     (6) “Common expenses” means:
     (a) Expenses of administration,
maintenance, repair or replacement of the accommodations and facilities of the
timeshare plan;
     (b) Expenses agreed upon as common by all
the timeshare owners in the timeshare plan; and
     (c) Expenses declared common by the
timeshare instrument or bylaws of the timeshare plan.
     (7) “Developer” means a person creating a
timeshare plan and a seller of a timeshare plan.
     (8) “Exchange program” means any
opportunity for a purchaser to exchange timeshare periods among purchasers in
the same or other timeshare plans.
     (9) “Facility” means a structure, service,
improvement or real property available for the ownerÂ’s use.
     (10) “Fractional interest” means any
undivided fractional ownership of real property which gives each and every
fractional owner full rights to unlimited use and possession of the real
property subject only to such limitation as the fractional owners may agree to
among themselves.
     (11) “Managing entity” means the person
designated in the timeshare instrument or selected by the ownersÂ’ association
board or by the owners to manage all or a portion of the timeshare plan.
     (12) “Negotiate” means any activity
preliminary to the execution of a binding agreement for the sale of a
timeshare, including but not limited to advertising, solicitation and promotion
of the sale of the timeshare.
     (13) “Offering” means any advertisement,
inducement, solicitation or attempt to encourage a person to acquire a timeshare,
other than as a security for an obligation. An advertisement in a newspaper or
other periodical of general circulation, or in any broadcast medium to the
general public, of a timeshare in property located outside this state is not an
offering if the advertisement states that the offering is valid only if made in
compliance with the law of the jurisdiction in which the offer is disseminated.
     (14) “Owner” means a person, other than
the developer, to whom a timeshare has been conveyed other than as security for
an obligation.
     (15) “Project” means real property subject
to a timeshare instrument. A project may include accommodations that are not
timeshare accommodations.
     (16) “Purchaser” means any person, other
than a developer, who by voluntary transfer acquires an interest in a timeshare
other than as security for an obligation.
     (17) “
     (18) “Seller” means a person who offers a
timeshare for sale to the public. “Seller” does not include a person who
acquired a timeshare for the personÂ’s own use and later offers it for resale.
     (19) “Timeshare” means a timeshare estate
or a timeshare license.
     (20) “Timeshare agreement” means an
agreement conferring the rights and obligations of the timeshare plan on a
purchaser including but not limited to a deed, lease and vacation license.
     (21) “Timeshare estate” means a right to
occupy an accommodation during five or more separated timeshare periods over a
period of at least five years, including renewal options, coupled with a
freehold estate or an estate for years in the timeshare property.
     (22) “Timeshare instrument” means a
document creating or regulating timeshares.
     (23) “Timeshare license” means a right to
occupy an accommodation during five or more separated timeshare periods over a
period of more than three years, including renewal options, not coupled with a
freehold estate or an estate for years.
     (24) “Timeshare period” means the period
of time when an owner is entitled to possess and occupy accommodations or
facilities of a timeshare plan.
     (25) “Timeshare plan” means an
arrangement, whether by membership, agreement, tenancy in common, sale, lease,
deed, rental agreement, license, right to use agreement or otherwise, in which
an owner receives a timeshare estate or a timeshare license and the right to
use accommodations and facilities that are part of the timeshare property. A
timeshare plan does not include an exchange program.
     (26) “Timeshare property” means one or
more accommodations subject to the same timeshare instrument and any other real
estate or rights appurtenant to those accommodations. [1983 c.530 §2; 1987
c.414 §144b; 1991 c.64 §1]
     94.805 [Repealed by 1971 c.478 §1]
     94.806
Legislative finding. The
Legislative Assembly finds and declares that there is a need to:
     (1) Protect timeshare purchasers by
requiring full and adequate disclosure of all pertinent facts about the
timeshare plan; and
     (2) Provide reasonable regulation of the
timeshare industry while encouraging the growth and development of the industry
in
     94.807
Application. ORS 94.803,
94.806, 94.811 to 94.863 and 94.869 to 94.945 do not apply to:
     (1) Any timeshare plan for which the
developer has complied with the requirements of ORS 92.305 to 92.495 or 100.005
to 100.910 before July 28, 1983.
     (2) Any timeshare plan for which the
developer has complied with all applicable local regulations and has submitted
a completed filing under ORS 92.305 to 92.495 or 100.005 to 100.910 before July
28, 1983.
     (3) Any subsequent phase or stage of a
timeshare plan described in subsection (1) or (2) of this section that has
complied with the applicable requirements of ORS chapter 92 and this chapter in
effect prior to July 28, 1983. However, the developer of the phase or stage
must comply with the cancellation provisions of ORS 94.836 and 94.839.
     (4) Subdivided land as defined by ORS
92.305, a planned community as defined by ORS 94.550 and a condominium subject
to ORS 100.005 to 100.910 that does not involve a timeshare plan.
     (5) Subdivided land as defined by ORS
92.305, a planned community as defined by ORS 94.550 and a condominium subject
to ORS 100.005 to 100.910, that involves a timeshare plan to the extent of the
nontimeshare aspects of the development. The developer of such a development
must comply with the applicable requirements of ORS chapter 92 and this chapter
in addition to ORS 94.803, 94.806 and 94.811 to 94.945.
     (6) Any transaction normal and customary
in the hotel and motel business involving the acceptance of advance
reservations which are not entered into for the purpose of evading the
provisions of ORS 92.325, 94.570, 94.803 to 94.945, 100.005, 100.105, 100.200,
100.450 and 696.490.
     (7) The offering, sale or transfer of a
fractional interest or a timeshare in a timeshare plan comprised of 12
timeshares or less unless the Real Estate Commissioner determines that the
developer is attempting by a common scheme or course of development to evade
the provisions of ORS 92.325, 94.570, 94.803 to 94.945, 100.005, 100.105,
100.200, 100.450 and 696.490.
     (8) The transfer of a timeshare by reason
of a foreclosure action, by deed in lieu of foreclosure, by gift or by devise,
descent or distribution or transfer to an inter vivos trust that is not made to
evade ORS 94.803 and 94.807 to 94.945.
     (9) The offering, sale or transfer of a
membership or interest in a recreational vehicle park or campground that
provides no right to use or occupy a residential dwelling structure in the
project overnight.
     (10) The offering, sale or transfer of a
membership or interest entitling the purchaser to a timeshare in personal
property, including but not limited to an airplane, boat or recreational
vehicle.
     (11) The offering, sale or transfer of a
membership or interest entitling the purchaser to use real property and
facilities without overnight use for dwelling purposes, including but not
limited to commercial office, retail or similar space and golf, tennis or
athletic clubs. [1983 c.530 §3; 1985 c.565 §9; 1991 c.64 §2; 1993 c.744 §245;
1999 c.677 §28]
     94.808
Managing entity as taxpayer.
(1) For the purposes of ad valorem taxation, the managing entity responsible
for managing the timeshare plan shall be considered the taxpayer, as agent for
the owners of the timeshare property.
     (2) All of the timeshare property within
each timeshare plan shall be listed on the assessment roll by code area and
account number as a single entry stating as one value the real market value and
assessed value of the land and improvements, except that recreational
facilities shall be separately valued and taxed to the owner thereof, as
provided in subsection (1) of this section.
     (3) All rights and privileges afforded
property owners by
     (4) The managing entity, as agent of the
timeshare owners, shall remit the taxes assessed on the timeshare property. [1987
c.424 §2; 1991 c.459 §337]
     94.809
Valuation of timeshare property; exclusions from value. (1) The real market value of timeshare
property shall not include any nonreal property components of timeshares, which
nonreal property components include, without limitation, tangible personal
property, exchange rights, club memberships, vacation convenience services such
as hotel-type services and the management structure of the timeshare plan, and
that portion of the legal, accounting, promotion and marketing costs in
developing and selling the timeshares allocable to the nonreal property
components. The real market value of timeshare property shall not be based upon
the aggregate sales prices of timeshares, if such sales prices include nonreal
property components.
     (2) The real market value of timeshare
property, other than the recreational facilities, shall be determined by taking
the value of each individual living unit as if such living unit were owned by a
single taxpayer, without having been timeshared, and adjusting such value by an
amount necessary to reflect any increase or decrease in such value attributable
to the fact that such timeshare property is marketed in increments of time.
There shall be a rebuttable presumption that the value of such timeshare
property is increased by 20 percent of its value under single ownership by
virtue of being marketed in increments of time. If the managing entity or
assessor contends that the adjustment due to such ability to market in
increments of time is less than or greater than an increase of 20 percent of
the single ownership value, then the burden of establishing such adjustment
shall be upon the party so contending. [1987 c.424 §3; 1991 c.459 §338]
     94.810 [Repealed by 1971 c.478 §1]
     94.811
When owners of planned community, condominium or subdivision may prohibit
timeshare plan. (1) The unit
owners in a condominium subject to the Oregon Condominium Act and the owners in
a planned community subject to the Oregon Planned Community Act may amend the
declaration for the condominium or planned community to prohibit the creation
of a timeshare plan involving any portion of the property of the condominium or
planned community. Any amendment to a condominium declaration must comply with
ORS 100.135 and any amendment to a planned community declaration must comply
with ORS 94.590.
     (2) The owners of land in a subdivision
may amend the recorded declaration, bylaws or other governing document for the
subdivision to prohibit the creation of a timeshare plan involving any portion
of the property within the subdivision. The amendment must be approved by not
less than 75 percent of the owners or by any larger percentage specified for
the amendment in the recorded declaration, bylaws or other governing document for
the subdivision. As used in this subsection, “subdivision” means a subdivision
as defined by ORS 92.010, that:
     (a) Was approved and for which a plat was
recorded under ORS 92.120 before July 28, 1983;
     (b) At the time of the subdivision’s
creation, would have met the definition of a planned community under ORS
94.550; and
     (c) Is not, because of the time of its
creation, a planned community subject to the Oregon Planned Community Act.
     (3) The declaration for a condominium
subject to the Oregon Condominium Act and created after July 28, 1983, and the
declaration for a planned community, subject to the Oregon Planned Community
Act and created after July 28, 1983, may include a provision prohibiting the
creation of a timeshare plan involving any portion of the property of the
condominium or planned community. [1983 c.530 §4; 1999 c.677 §29]
(Creation of
Timeshare Estates)
     94.813
Character of timeshare estates.
(1) Except as expressly modified by ORS 92.325, 92.425, 94.570, 94.803 to
94.945, 100.005, 100.105, 100.200, 100.450 and 696.490, a timeshare estate is
an estate in real property and has the character and incidents of an estate in
fee simple at common law or estate for years if a leasehold. A timeshare
license is an estate for years having the character and incidents of such an
estate at common law.
     (2) A document transferring or encumbering
a timeshare may not be rejected for recordation because of the nature or
duration of the interest.
     (3) Neither a timeshare plan nor a
timeshare, subject to regulation under ORS 94.803 and 94.807 to 94.945 is a “security,”
as defined in ORS 59.015. [1983 c.530 §§4a,5; 1985 c.349 §29; 1987 c.603 §25]
     94.815 [Repealed by 1971 c.478 §1]
     94.816
Partition prohibited; exception. (1) Except as otherwise provided in this section, no judicial action
for partition of a timeshare property may be undertaken as long as the property
remains subject to a timeshare plan.
     (2) If any timeshare is owned by two or
more persons as tenants in common, as tenants by the entirety or as tenants
with rights of survivorship, nothing in this section shall prohibit the
judicial sale of the timeshare in lieu of partition as between the cotenants.
     (3) A court of competent jurisdiction, on
petition of the developer of a timeshare plan or the developerÂ’s successor in
interest, may grant a waiver of the prohibition against partition under
subsection (1) of this section, if the court is satisfied that:
     (a) The developer retains at least 50
percent of the timeshares created in the timeshare plan;
     (b) The timeshare plan has failed and the
continuation of the use of timeshare property by timeshare owners is no longer
possible in the manner prescribed by the timeshare instruments;
     (c) It is in the best interest of
timeshare owners to terminate the timeshare plan and that no reasonable
alternative to partition of the timeshare property exists;
     (d) The petition has not been brought by
the developer to avoid the developerÂ’s responsibilities under the timeshare
instrument without good cause; and
     (e) The holder of each blanket encumbrance
consents to the proceeding under this section.
     (4) Except as otherwise provided in
subsection (5) of this section, upon a court declaration of timeshare plan
failure under subsection (3) of this section, the court shall proceed to
partition the timeshare property as otherwise provided by law.
     (5) In the event of a court-ordered sale
in connection with partition, proceeds of the sale shall be applied in the
following order:
     (a) Costs described in ORS 105.285 (1) and
(2);
     (b) Repayment to owners except the
developer of down payments and payments of principal and interest paid by such
owners for their timeshares less the value, as determined by the court, of the
ownersÂ’ use of their timeshares;
     (c) Payments to satisfy and discharge the
remaining timeshare purchase money obligations of all owners except the
developer. If the developer or an entity closely related to the developer holds
the beneficial interest in any of such purchase money obligations, funds shall
first be applied to discharge the purchase money obligations held by other
holders, and then to the credit of the developer and its related entity for
purchase money obligations held by the developer or such entity. Funds paid to
the developer or the related entityÂ’s credit shall be held by the court as
proceeds available to lienholders and other claimants in such partition. If
there are insufficient funds to fully discharge purchase money obligations of
all owners except the developer, the balance of unsatisfied purchase money
obligations of all owners except the developer shall be discharged by judgment
of the court; and
     (d) As otherwise provided by law. [1983
c.530 §6; 2003 c.576 §356]
     94.818
Recording of timeshare instrument; payments required. (1) To submit property located within this
state to the provisions of ORS 94.803 and 94.807 to 94.945, the developer shall
record a timeshare instrument in the office of the recording officer of every
county in which the timeshare property is located. To submit property located
outside this state to the provisions of ORS 94.803 and 94.807 to 94.945, the
developer shall satisfy the requirements of ORS 94.885 for the recording of a
notice of timeshare plan. The timeshare instrument shall comply with ORS 94.821
and shall be executed in accordance with subsection (2) of this section and
acknowledged in the manner provided for acknowledgment of a deed.
     (2) If the developer is not the fee owner
of the property, the fee owner and the vendor under any contract of sale and
the lessor under any lease shall also execute the timeshare instrument for the
purpose of consenting to the property being submitted to the provisions of ORS
94.803 and 94.807 to 94.945.
     (3) No timeshare instrument shall be
recorded unless all taxes, penalties, special assessments, fees and charges
that would be required to be paid for subdivisions or partitions under ORS
92.095 have been paid in the same manner as provided in ORS 92.095. [1983 c.530
§7; 1993 c.19 §2]
     94.820 [Repealed by 1971 c.478 §1]
     94.821
Content of timeshare instrument. A timeshare instrument shall include:
     (1) A legal description of the timeshare
property;
     (2) The name or other identification of
the project;
     (3) Identification of timeshare periods by
letter, name, number or a combination of letters, names and numbers and a
description of the timeshare;
     (4) Identification of the accommodations;
     (5) The method for determining the owner’s
liability for common expenses and real property taxes;
     (6) The method for notice and appeal of property
tax values;
     (7) If additional accommodations may
become part of the timeshare property or existing accommodations may be deleted
from the timeshare property, the method for adding them to or deleting them
from the property and the formula for allocation and reallocation of the
liabilities for common expenses and of voting rights;
     (8) Any restrictions on the use, occupancy
or alteration of a timeshare accommodation and any specified procedure or
method for amending existing rules or adopting additional rules and
regulations;
     (9) Any restriction on the alienation of a
timeshare;
     (10) The ownership interest of the owner
in personal property and provisions for care and replacement of personal
property;
     (11) If the instrument creates timeshare
licenses, the period the accommodations affected are committed to timeshare
licenses and provisions for disposition of those accommodations at the end of
the period, if the period is not infinite;
     (12) Any requirement for or restriction on
amending the timeshare instrument;
     (13) The nature and duration of the owner’s
rights in the timeshare plan, the circumstances under which the timeshare plan
could be terminated and the procedure for terminating the timeshare plan;
     (14) A description of the form of conveyance
or other instrument used by the developer to transfer a timeshare to a
purchaser;
     (15) The identity of any person that has
the power to grant an easement in the timeshare property or otherwise affect
the title to the timeshare property;
     (16) How and by whom the timeshare plan
will be managed, including but not limited to provisions for selecting a
replacement or successor managing entity and provisions for continuity of
management throughout the duration of the timeshare plan;
     (17) A description of the voting rights of
a timeshare owner and the developer and other participation rights, if any, of
a timeshare owner and the method for determining and allocating the voting
rights; and
     (18) Provisions for notifying a timeshare
owner of any authorized change in the ownerÂ’s voting or participation rights. [1983
c.530 §8; 1987 c.424 §4]
     94.823
Notice of intent to sell timeshares; form and content; rules. A developer shall submit a notice to the
Real Estate Commissioner informing the commissioner of the developerÂ’s intent
to sell timeshares in
     (1) The name and business and residence
addresses of:
     (a) The developer;
     (b) The developer’s agent;
     (c) The designated managing entity; and
     (d) Any person selling the timeshare plan
within
     (2) An explanation of the timeshare form
of ownership to be offered under the timeshare plan.
     (3) A general description of the timeshare
plan, including the number of timeshares to be offered under the timeshare plan
and the number and description of the accommodations and facilities.
     (4) A complete description, including a
copy of all necessary implementing documents, of the methods to be used by the developer
to comply with the requirements of ORS 92.325, 92.425, 94.570, 94.803 to
94.945, 100.005, 100.105, 100.200, 100.450 and 696.490.
     (5) A title report for the real property
underlying the timeshare plan, acceptable to the commissioner and including a
statement of any lien, defect, judgment or other encumbrance affecting title to
the property.
     (6) A copy of any judgment against the
developer or managing entity, the status of any pending suit that is material
to the timeshare plan to which the developer or managing entity is a party and
the status of any other suit that is material to the timeshare plan of which
the developer has actual knowledge.
     (7) A description of any insurance
coverage provided for the benefit of a purchaser or a statement that no
insurance coverage is provided.
     (8) The name and address of the
accommodations and facilities and the schedule for completing any improvements
not complete at the time of filing.
     (9) The financial obligation of a
purchaser, excluding the initial purchase price and including:
     (a) Additional charges and common expenses
to which the purchaser may be subject, whether or not in the form of an
assessment; and
     (b) An estimated operating budget and
schedule of estimated common expenses.
     (10) A copy of the timeshare instrument or
notice of timeshare plan as required under ORS 94.818.
     (11) A copy of any contract, lease or
timeshare agreement to be signed by the purchaser.
     (12) A copy of the rules, limitations or
conditions on the use of accommodations or facilities available to purchasers.
     (13) Any restriction on the transfer of
any timeshare.
     (14) If any portion of the timeshare
property is located outside the state, proof that the developer has recorded
the notice of timeshare plan as required under ORS 94.833 (1).
     (15) Any other information the
commissioner may determine is necessary. [1983 c.530 §19; 2003 c.14 §37]
     94.825 [Repealed by 1971 c.478 §1]
     94.826
Information on exchange program; content; rules. (1) A seller offering an exchange program to
a purchaser in conjunction with a timeshare plan shall provide written
information to the purchaser about the exchange program.
     (2) The exchange program information to be
provided to the purchaser shall be established by rule by the Real Estate
Commissioner and shall include at least:
     (a) The name and address of the exchange
company;
     (b) Whether or not the purchaser’s
participation in the exchange program is dependent upon the timeshare planÂ’s
continued affiliation with the exchange program;
     (c) Whether or not the purchaser’s
participation in the exchange program is voluntary;
     (d) A complete and accurate description of
the terms and conditions of the purchaserÂ’s contractual relationship with the
exchange program, and the procedure for modifying the exchange program
contract;
     (e) The procedure to qualify for and
effectuate an exchange;
     (f) A description of any limitation,
restriction or priority system employed in the operation of the exchange
program;
     (g) The circumstances under which a
purchaser may lose the use and occupancy of the purchaserÂ’s accommodation in
any properly applied for exchange through the exchange program;
     (h) Any fee for participation in the
exchange program; and
     (i) Any other information material to the
exchange program which, by omission, tends to make the information otherwise
disclosed misleading.
     (3) The exchange program information shall
be in addition to the information found in the public report required under ORS
94.828 (1), (2) and (4) and must be provided to the purchaser before a contract
may be executed between the purchaser and the company offering the exchange
program.
     (4) An exchange company offering an
exchange program to purchasers in
     (5) Only a timeshare owner and a developer
other than a seller may participate in an exchange program. [1983 c.530 §21]
     94.828
Public report on plan. (1)
After the Real Estate Commissioner receives a completed notice under ORS 94.823
the commissioner shall prepare a public report on the timeshare plan. In lieu
of preparing a report, the commissioner may accept a report prepared by the
developer and issue the report with any changes the commissioner considers
necessary.
     (2) Whether or not the commissioner issues
a public report on a timeshare plan the developer shall report to the
commissioner any material change in the timeshare plan or in the marketing
program for the timeshare plan within 10 days after the change occurs.
     (3) The commissioner may examine a
timeshare plan subject to ORS 94.803 and 94.807 to 94.945 to be offered for
sale and make a public report of the findings. If a timeshare plan is located
within this state and no report is made within 45 days after the commissioner
receives a completed timeshare filing, the report shall be considered waived.
     (4) As used in this section, “material
change” includes, but is not limited to:
     (a) The addition or deletion of a
timeshare accommodation or facility.
     (b) A change in the method of marketing or
conveyancing the timeshare plan.
     (c) A change in the purchase money
handling procedure previously approved by the commissioner, including but not
limited to:
     (A) A change in the escrow depository; or
     (B) A change in or creation of an
encumbrance affecting more than one timeshare.
     (d) A change in the developer or, if the
developer is an entity, a change in the name, form of organization or status of
the developer.
     (e) A revision of the timeshare plan’s
annual budget that will require a regular annual assessment against the owners
that is more than 25 percent greater than the regular annual assessment
indicated in the current public report for the timeshare plan.
     (f) Any legal or physical condition
rendering a timeshare accommodation or facility unusable by an owner. [1983
c.530 §§20,39]
     94.829
     (2) A copy of the public report, when
issued, shall be given to the prospective purchaser of a timeshare by the
developer or agent of the developer prior to the execution of a binding
contract or agreement for the sale of the timeshare. The developer or the
developerÂ’s agent shall take a receipt from the prospective purchaser upon
delivery of a copy of the Real Estate CommissionerÂ’s public report. Each such
receipt shall be kept on file by the developer within this state subject to
inspection by the commissioner or the commissionerÂ’s authorized representative
for a period of three years from the date the receipt is taken.
     (3) The commissioner’s public report shall
not be used for advertising purposes unless the report is used in its entirety.
No portion of the public report shall be underscored, italicized or printed in
larger or heavier type than the balance of the public report unless the true
copy of the report emphasizes the portion.
     (4) The commissioner may furnish, at cost,
copies of a public report for the use of a developer.
     (5) The requirements of this section
extend to timeshares sold by the developer after repossession.
     (6) Remedies and sanctions available for
violation of ORS 646.605 to 646.656 are available for violation of this
section, in addition to any other remedies or sanctions provided by law. [1985
c.76 §2]
     94.830 [Repealed by 1971 c.478 §1]
     94.831
Filing fees; inspection advance payment; disposition of moneys. (1) The notice required under ORS 94.823
shall be accompanied by a filing fee as follows:
     (a) For a timeshare plan developed in a
single phase, $500 plus $10 for each timeshare but in no case shall the fee
exceed $3,000.
     (b) For a timeshare plan developed in two
or more phases, $500 plus $10 for each timeshare in the first phase, and $5 for
each additional timeshare developed in a subsequent phase of the same
development, but in no case shall the fee exceed $3,000 for each phase.
     (2) For a material change notice submitted
under ORS 94.828 (1), (2) and (4), the Real Estate Commissioner may charge a
fee not to exceed $100 for each page of the public report that must be revised,
but in no case shall the fee for a material change exceed $500.
     (3) When an examination is to be made of
timeshare property located in the State of Oregon, or timeshare property
located outside Oregon that will be offered for sale to persons within Oregon,
the commissioner, in addition to the filing fee provided in subsections (1) and
(2) of this section, may require the developer to advance payment of an amount
estimated by the commissioner to be the expense incurred in going to and
returning from the timeshare property, and an amount estimated to be necessary
to cover the additional expense of the examination not to exceed $200 a day for
each day consumed in the examination of the timeshare property. The amounts
estimated by the commissioner under this subsection shall be based upon any applicable
limits established and regulated by the Oregon Department of Administrative
Services under ORS 292.220.
     (4) The moneys received under subsections
(1) to (3) of this section shall be paid into the State Treasury and placed in
the General Fund to the credit of the Real Estate Account established under ORS
696.490. [1983 c.530 §§22,23,24]
     94.833
     (a) Comply with ORS 94.803 and 94.807 to
94.945; and
     (b) Record, in the real property records
of each county or other appropriate jurisdiction of each state in which the
timeshare property is located for use of a timeshare owner, the notice of
timeshare plan, as defined in ORS 94.885 for the timeshare plan. This recording
requirement does not apply to timeshare property located in foreign countries.
     (2) Before the sale of a timeshare in a
timeshare plan composed wholly of timeshare property located within this state,
the developer of the timeshare plan must comply with the applicable provisions
of ORS 94.803 and 94.807 to 94.945. [1983 c.530 §18]
     94.835 [Repealed by 1971 c.478 §1]
(PurchaserÂ’s
Rights)
     94.836
Cancellation of purchase within five days. (1) A purchaser from a developer may cancel, for any reason, any
contract, agreement or other evidence of indebtedness associated with the sale
of the timeshare within five calendar days from the date the purchaser signs
the first written offer or contract to purchase.
     (2) Cancellation, under subsection (1) of
this section, occurs when the purchaser gives written notice to the developer
at the developerÂ’s address. The cancellation period in subsection (1) of this
section does not begin until the developer provides the purchaser with
developerÂ’s address for cancellation purposes.
     (3) A notice of cancellation given by a
purchaser need not take a particular form and is sufficient if it indicates in
writing the purchaserÂ’s intent not to be bound by the contract or evidence of
indebtedness.
     (4) Notice of cancellation, if given by
mail, shall be given by certified mail, return receipt requested, and is
effective on the date that the notice is deposited with the United States
Postal Service, properly addressed and postage prepaid.
     (5) Upon receipt of a timely notice of
cancellation, the developer shall immediately return any payment received from
the purchaser. If the payment was made by check, the developer shall not be
required to return the payment to the purchaser until the check is finally paid
as provided in ORS 74.2130. Upon return of all payments the purchaser shall
immediately transfer any rights the purchaser may have acquired in the
timeshare to the developer, not subject to any encumbrance created or suffered
by the purchaser. In the case of cancellation by a purchaser of any evidence of
indebtedness, the purchaser shall return the purchaserÂ’s copy of the executed
evidence of indebtedness to the developer, and the developer shall cancel the
evidence of indebtedness. Any encumbrance against the purchaserÂ’s interest in
the timeshare arising by operation of law from an obligation of the purchaser
existing before transfer of the interest to the purchaser shall be extinguished
by the reconveyance.
     (6) No act of a purchaser shall be
effective to waive the right of cancellation granted by subsection (1) of this
section. After the expiration of the five-day cancellation period, a developer
may require a purchaser to execute and deliver to the developer a signed
statement disclaiming any notice of cancellation timely and properly made by
the purchaser before the five-day cancellation period expired under subsection
(1) of this section, that has not been received by the developer. A disclaimer
statement executed by the purchaser shall rescind the notice of cancellation. [1983
c.530 §26]
     94.839
Notice of cancellation right.
(1) The first written agreement for the sale of a timeshare to a purchaser
signed by the purchaser shall contain, either upon the first page of the
agreement or on a separate sheet attached to the first page, the following
notice in at least 8-point type:
______________________________________________________________________________
NOTICE TO PURCHASER
     BY SIGNING THIS AGREEMENT YOU ARE
INCURRING A CONTRACTUAL OBLIGATION TO PURCHASE A TIMESHARE. HOWEVER, YOU HAVE
FIVE CALENDAR DAYS AFTER SIGNING THIS AGREEMENT TO CANCEL THE AGREEMENT BY
WRITTEN NOTICE TO THE DEVELOPER OR THE DEVELOPERÂ’S AGENT AT THE FOLLOWING
ADDRESS:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
     BEFORE EXECUTING THIS AGREEMENT, OR BEFORE
THE FIVE-DAY CANCELLATION PERIOD ENDS, YOU SHOULD CAREFULLY EXAMINE THE PUBLIC
REPORT ON THE TIMESHARE PLAN AND ANY ACCOMPANYING INFORMATION DELIVERED BY THE
DEVELOPER. ______________________________________________________________________________
     (2) A copy of the notice set forth in
subsection (1) of this section shall be given to each purchaser under an
agreement described in subsection (1) of this section at the time or
immediately after the purchaser signs the agreement. [1983 c.530 §27]
     94.840 [Repealed by 1971 c.478 §1]
     94.841
Waiver of rights void. Any
condition, stipulation or provision in a sales agreement, lease or other legal
document, that binds a purchaser to waive legal rights granted to the purchaser
under ORS 94.803 and 94.807 to 94.945 against the developer shall be considered
to be contrary to public policy and void. [1983 c.530 §28]
     94.843
Limits on developer right to transfer. (1) A developer may not transfer the developerÂ’s interest in
accommodations or facilities of a timeshare plan unless the transferee, as to
each owner whose interest is involved in the transfer, agrees to:
     (a) Honor the right of each owner to
occupy and use the accommodations and facilities;
     (b) Honor the right of a purchaser to
cancel a contract and receive an appropriate refund, as provided in ORS 94.836;
     (c) Comply with ORS 94.803 and 94.807 to
94.945 as long as the transferee continues to sell the timeshare plan, or as
long as the owner is entitled to occupy the accommodations or use the
facilities; and
     (d) Assume all of the developer’s
obligations to the owners under the timeshare instrument.
     (2) Within 30 days after the transfer of
the developerÂ’s interest, notice of the transfer shall be mailed to each owner.
     (3) A person holding a blanket encumbrance
on the property constituting timeshare property is not a transferee for
purposes of this section, if the person has executed and recorded a
nondisturbance agreement in accordance with ORS 94.885. [1983 c.530 §17]
     94.845 [Repealed by 1971 c.478 §1]
(Association
of Owners; Management)
     94.846
Designation of managing entity; duties and powers of entity. (1) Before the closing of the first
timeshare sale the developer shall designate a managing entity, which may be
the developer, the ownersÂ’ association, a trust, a management firm or an
individual.
     (2) The managing entity shall act as a
fiduciary to each timeshare owner.
     (3) The managing entity shall be
responsible for:
     (a) Managing and maintaining all
accommodations and facilities of the timeshare plan.
     (b) Collecting any assessment for common
expenses.
     (c) Providing each owner with an itemized
annual budget including all receipts and expenditures.
     (d) Maintaining all books and records
concerning the timeshare plan on the timeshare property and making the books
and records available for inspection by an owner.
     (e) Making the books and records of the
timeshare plan available for inspection by the Real Estate Agency.
     (f) Scheduling occupancy of accommodations
if each owner does not acquire a specific timeshare period so that each owner
receives the use of the timeshare planÂ’s accommodations and facilities to which
the owner is entitled.
     (g) Performing all other duties necessary
to maintain the accommodations or facilities as provided in any management contract
or other agreement.
     (h) Acting as agent for the owners for
purposes of real property taxation, including collection and payment of real
property taxes.
     (i) Hiring and supervising an employee or
agent to perform a function described in paragraphs (a) to (h) of this
subsection.
     (4) After giving the managing entity
reasonable notice, a timeshare owner may require the managing entity to provide
the names and addresses of all other timeshare owners in the timeshare plan.
The managing entity may require the payment of a reasonable fee for
reproduction costs.
     (5) Unless expressly prohibited by the
timeshare instrument, the managing entity shall have the authority to execute,
acknowledge, deliver and record on behalf of the timeshare owners, an easement,
right of way, license and any other similar interest affecting the timeshare
property if the interest is beneficial and not materially detrimental to the
timeshare plan.
     (6) The instrument granting an interest
under subsection (5) of this section shall be executed by the managing entity
and acknowledged in the manner provided for acknowledgment of deeds under ORS
93.410.
     (7) For the purpose of transferring or
otherwise disposing of all or any portion of the accommodations and facilities
in the timeshare plan upon termination of the plan, the managing entity shall
be the attorney-in-fact for each owner. Any transfer or disposition will be
effective if the managing entity executes and acknowledges the written transfer
instrument. [1983 c.530 §9; 1987 c.424 §5; 2003 c.14 §38]
     94.848
How managing entity of developer terminated. A timeshare instrument that provides for the developer or an agent
selected by the developer to manage the timeshare property until an ownersÂ’
association, a trust or the owners assume the role of managing entity shall
include provisions for:
     (1) Termination of developer management or
developer selected management by the association, trust or owners;
     (2) Termination of contracts for goods and
services for the timeshare property entered into during the period the
developer served as the managing entity;
     (3) A regular accounting at least annually
by the developer to the association, trust or owners as to all matters
affecting the timeshare property; and
     (4) Immediate termination of the developer
as managing entity by the association, trust or owners and assumption of
management functions by an association or trust in the case of abandonment or
substantial breakdown of management services for the timeshare plan. [1983
c.530 §10]
     94.850 [Repealed by 1971 c.478 §1]
     94.853
Payment of common expenses.
(1) Until the closing of the first timeshare sale the developer shall pay all
common expenses.
     (2) After the closing of the first
timeshare sale, the managing entity shall charge an annual assessment for the
payment of common expenses based on the projected annual budget. The assessment
shall be against:
     (a) Each owner in the proportion specified
in the timeshare instrument and the developer for the share allocated to all
timeshare periods still owned by the developer at the time the assessment is
made;
     (b) As provided in paragraph (a) of this
subsection, except that the developer shall also pay that portion of the total
assessment not paid by any owner, if the developer guarantees payment of all
common expenses of the timeshare plan under the provisions of the timeshare
instrument; or
     (c) The developer for the total assessment
if the developer agrees to pay all common expenses of the timeshare plan under
the provisions of the timeshare instrument.
     (3) Unless otherwise specified in the
timeshare instrument, past due assessments shall bear interest at the legal
rate. [1983 c.530 §11; 2003 c.14 §39]
     94.855 [Repealed by 1971 c.478 §1]
     94.856
Assessment of common expenses as lien; recording; foreclosure; fees; remedies;
exception. (1) Whenever a
managing entity levies an assessment for common expenses against a timeshare
estate, the managing entity, upon complying with subsection (2) of this
section, shall have a lien upon the timeshare estate for the reasonable value
of the expenses, for any unpaid assessment and interest as provided in
subsection (2)(b) of this section and for any late charges, fines and costs of
collection, including but not limited to attorney fees and court costs. The lien
shall be prior to any other lien or encumbrance upon the timeshare estate
except:
     (a) Blanket encumbrances of record;
     (b) Tax and assessment liens; and
     (c) A purchase money mortgage of record, a
purchase money trust deed of record or a purchase agreement of record.
     (2)(a) A managing entity claiming a lien
under subsection (1) of this section shall record in the county in which the
timeshare estate or some part thereof is located a claim containing:
     (A) A true statement of the account due
for common expenses after deducting all just credits and offsets;
     (B) The name of the owner of the timeshare
estate, or reputed owner, if known; and
     (C) The designation of the timeshare
estate, sufficient for identification.
     (b) If a claim is filed and recorded under
this section and the owner of the timeshare estate subject to the claim
thereafter fails to pay any assessment chargeable to the timeshare estate, then
so long as the original or any subsequent unpaid assessment remains unpaid the
claim shall automatically accumulate the subsequent unpaid assessment and
interest thereon without the necessity of further filings under this section.
     (3) The claim shall be verified by the
oath of a person having knowledge of the facts and shall be filed with and
recorded by the recording officer in the book kept for the purpose of recording
liens filed under ORS 87.035. The record shall be indexed in the same manner
that a deed or other conveyance is required by ORS 93.630 to be indexed.
     (4) The proceeding to foreclose a lien
created by this section shall conform as nearly as possible to the proceeding
to foreclose a lien created by ORS 87.010, except that notwithstanding ORS
87.055, a lien may be continued in force for a period of time not to exceed six
years from the date the claim is filed under subsection (3) of this section.
For the purpose of determining the date the claim is filed in those cases where
subsequent unpaid assessments have accumulated under the claim as provided in
subsection (2)(b) of this section, the claim regarding each unpaid assessment
shall be considered to have been filed at the time the unpaid assessment became
due. The lien may be enforced by the managing entity. An action to recover a
money judgment for unpaid common expenses may be maintained without foreclosing
or waiving the lien securing the claim for common expenses.
     (5) Unless the timeshare instrument
provides otherwise, a fee, late charge, fine and interest imposed under ORS
94.858 (4)(i) is enforceable as an assessment under this section.
     (6) In addition to seeking a money
judgment for the unpaid assessment if the timeshare plan conveys only a
timeshare license, the managing entity may bring an action for breach of
contract.
     (7) A construction lien under ORS 87.001
to 87.093 for labor performed or materials furnished to timeshare property, if
properly incurred by the association or managing entity for the benefit of all
timeshare owners with interests in the timeshare property shall, if effective,
attach to each timeshare with interests in the timeshare property. The owner of
a timeshare subject to the lien shall have the right to have the timeshare
released from the lien by payment of the amount of the lien attributable to the
timeshare. The amount of the lien attributable to the timeshare and the payment
required to satisfy the lien, in the absence of agreement, shall be determined
by application of the allocation of common expenses established in the
timeshare instrument.
     (8) Except as provided in subsection (7)
of this section, a construction lien under ORS 87.001 to 87.093 for labor
performed or materials furnished to a unit shall not be filed against the
timeshare of any timeshare owner who did not expressly consent to or request
the labor or materials. Consent shall be considered given under this subsection
by the owner of a timeshare in the case of emergency repairs to the timeshare
property done with the consent or at the request of the managing entity. [1983
c.530 §12]
     94.858
OwnersÂ’ association; powers and duties. (1) The timeshare instrument may provide that an association of
timeshare owners be organized to serve as a means through which the timeshare
owners may take action with regard to the administration, management and
operation of the timeshare plan and the timeshare property. The association
shall be organized as a corporation for profit or nonprofit corporation. The
name of the association shall include the complete name of the timeshare plan.
     (2) Membership in the association shall be
limited to timeshare owners.
     (3) The affairs of the association shall
be governed by a board of directors or other governing body as provided for in
the bylaws adopted under the applicable incorporation requirements.
     (4) Subject to the provisions of the
timeshare instrument and bylaws, the association may:
     (a) Assume the role of managing entity;
     (b) Adopt and amend bylaws, rules and
regulations;
     (c) Adopt and amend budgets for revenues,
expenditures and reserves and levy and collect assessments for common expenses
from timeshare owners;
     (d) Hire and terminate a managing agent,
other employees, agents and independent contractors;
     (e) Institute, defend or intervene in
litigation or an administrative proceeding in the associationÂ’s own name on
behalf of the association or on behalf of two or more timeshare owners on any
matter affecting the timeshare property;
     (f) Make contracts and incur liabilities;
     (g) Regulate the use, maintenance, repair,
replacement and modification of timeshare property;
     (h) Acquire by purchase, lease, devise,
gift or voluntary grant real property or any interest therein and take, hold,
possess and convey real property or any interest therein;
     (i) Impose a charge for the late payment
of an assessment and, after giving notice and an opportunity to be heard, levy
a reasonable fine for violation of the timeshare instrument, bylaws and rules
and regulations of the association;
     (j) Provide for the indemnification of the
associationÂ’s officers and governing board and maintain adequate liability
insurance for the associationÂ’s officers and governing board;
     (k) Exercise any other power conferred by
a timeshare instrument or bylaws; and
     (L) Exercise any other power determined by
the association to be necessary and proper for the governance and operation of
the association.
     (5) If an association of timeshare owners
is formed under this section, the public report issued for the timeshare plan
under ORS 94.828 (1), (2) and (4) shall include a disclosure of the powers of
the association and the manner in which the association will be governed. [1983
c.530 §13; 2007 c.410 §21]
     94.863
DeveloperÂ’s duty to managing entity. The developer shall deliver to the designated managing entity before
the closing of the first timeshare sale, the following:
     (1) The original or a photocopy of the
recorded timeshare instrument for the timeshare plan and any supplements and
amendments thereto.
     (2) A copy of any other document creating
the managing entity.
     (3) Any rules and regulations that have
been promulgated.
     (4) A report of the present financial
condition of the timeshare plan. The report shall consist of a balance sheet
and an income and expense statement for the preceding 12-month period or the
period following the recording of the timeshare instrument whichever period is
less.
     (5) All funds of the timeshare plan, or
control thereof, including, but not limited to, any bank signature card.
     (6) All tangible personal property that is
the property of the timeshare plan and an inventory of such property.
     (7) A copy of the following, if available:
     (a) The as-built architectural,
structural, engineering, mechanical, electrical and plumbing plans.
     (b) The original specifications indicating
all material changes.
     (c) The plans for any underground site
service, site grading, drainage and landscaping.
     (d) Any other plans and information
relevant to future repair or maintenance of the timeshare property.
     (8) Insurance policies.
     (9) A roster of timeshare owners and their
addresses and telephone numbers, if known, as shown on the developerÂ’s records.
     (10) Leases of the timeshare facilities
and accommodations and any other leases to which the managing entity is a
party.
     (11) Any employment or service contract to
which the managing entity is a party and any service contract under which the managing
entity has an obligation or responsibility, directly or indirectly, to pay some
or all of the fee or charge of the person performing the service.
     (12) Any other contract to which the
managing entity is a party. [1983 c.530 §14]
     94.867
Judicial declaration of failure in management. (1) A court of competent jurisdiction, upon
petition by timeshare owners constituting at least 10 percent of the total
number of timeshare owners in a timeshare plan, may declare a failure in the
management of the timeshare plan and timeshare property and appoint a trustee
to assume the duties of a managing entity for the timeshare plan, if the court
finds that:
     (a) The management of the timeshare plan
and timeshare property has failed to carry out the duties of a managing entity
under the timeshare instrument and ORS 94.846 to 94.858;
     (b) The rights of the timeshare owners
under the timeshare instrument will be substantially impaired if a trustee is
not appointed; and
     (c) No reasonable alternative exists to
appointment of a trustee to perform the functions of a managing entity.
     (2) The court may attach such conditions
and terms to its appointment of a trustee under subsection (1) of this section
as the court considers necessary to protect the rights of timeshare owners
under the timeshare instrument.
     (3) The trustee shall send a copy of the
court’s decision to the Real Estate Commissioner. [1983 c.530 §15; 1991 c.64 §3]
     94.869
Insurance coverage. (1) If
the managing entity has the sole authority to decide whether to repair or
reconstruct an accommodation or facility that has suffered damage or that an
accommodation or facility must be repaired or reconstructed, the managing
entity shall obtain and maintain at all times and shall pay for out of the
funds for payment of common expenses, insurance covering the accommodations and
facilities which may include reasonable deductible amounts reflecting
self-insurance by the owners as a common expense and which shall include:
     (a) Insurance for all insurable
improvements in the timeshare property against loss or damage by fire or other
hazards, including extended coverage, vandalism and malicious mischief. The
insurance shall cover the full replacement costs of any repair or
reconstruction in the event of damage or destruction from any such hazard if
the insurance is available at reasonable cost; and
     (b) Insurance covering the legal liability
of the association, the timeshare owners individually and the managing entity
including, but not limited to, the board of directors, to the public and to the
timeshare owners and their invitees or tenants, incident to ownership,
supervision, control or use of the property. There may be excluded from the
policy required under this paragraph, coverage of a timeshare owner, other than
coverage as a member of an association or board of directors, for liability
arising out of acts or omissions of that owner and liability incident to the
ownership or use of the part of the property as to which that owner has the
exclusive use or occupancy. Liability insurance required under this paragraph
shall be issued on a comprehensive liability basis.
     (2) If an individual timeshare owner is
required to obtain insurance for the ownerÂ’s individual legal liability, the
association or managing entity shall obtain insurance covering the
accommodations and facilities which may include reasonable deductible amounts
reflecting self-insurance by the owners as a common expense and which shall
include:
     (a) Insurance for all insurable
improvements in the timeshare property against loss or damage by fire or other
hazards, including extended coverage, vandalism and malicious mischief. The
insurance shall cover the full replacement costs of any repair or
reconstruction in the event of damage or destruction from any such hazard if
the insurance is available at reasonable cost; and
     (b) Insurance covering the legal liability
of the association and the managing entity including, but not limited to, the
board of directors, to the public or the timeshare owners and their invitees or
tenants, incident to supervision, control or use of the property. [1983 c.530 §16]
(Escrow)
     94.871
When purchase money agreement prohibited; escrow requirements. (1) Unless a lien payment trust is
established under ORS 94.890, no timeshare estate shall be sold by a developer
by means of a purchase money agreement as defined in ORS 94.890 unless a
collection escrow is established within this state with a person or firm
authorized to receive escrows under the laws of this state and all of the
following are deposited in the escrow:
     (a) A copy of the title report or
abstract, as it relates to the timeshare estate being sold.
     (b) The original or an executed copy of
the sales document relating to the purchase of the timeshare estate clearly
setting forth the legal description of the interest being purchased, the
principal amount of any blanket encumbrance outstanding on the date of the
sales document and the terms of the sales document.
     (c) A commitment in a form satisfactory to
the Real Estate Commissioner to give a partial release for the interest being
sold from the terms and provisions of any blanket encumbrance on or before full
payment of the purchase price by the purchaser.
     (d) A commitment in a form satisfactory to
the commissioner to give a release of any other lien or encumbrance existing
against the timeshare estate being sold.
     (e) A warranty or bargain and sale deed in
good and sufficient form conveying to the purchaser merchantable and marketable
title to the timeshare estate.
     (2) The developer shall submit written
authorization allowing the commissioner to inspect any escrow deposit
established under subsection (1) of this section.
     (3) In lieu of the procedures provided in
subsection (1) of this section, the developer shall conform to an alternative
requirement or method if the commissioner finds that the alternative
requirement or method carries out the intent and provisions of this section. [1983
c.530 §25]
     94.873
Escrow account; closing; release. (1) All funds, negotiable instruments, purchase money agreements and
credit card authorizations and proceeds thereof received in this state by a
developer from or on behalf of a purchaser or prospective purchaser in
connection with the purchase or reservation of a timeshare must be placed in an
escrow account with an escrow agent authorized under ORS 94.881 or the trustee
of a lien payment trust established under ORS 94.890.
     (2) The establishment of an escrow account
under subsection (1) of this section shall be by written agreement between the
developer and the escrow agent. The escrow agreement must provide for the
handling of a purchaserÂ’s funds, negotiable instruments, purchase money
agreements and credit card authorizations and proceeds as required by ORS
94.873 to 94.905.
     (3) A purchaser’s funds, negotiable
instruments, purchase money agreements, credit card authorizations and any
proceeds may be released from escrow without a closing only as follows:
     (a) If the purchaser gives a valid notice
of cancellation under ORS 94.836, to the purchaser within 15 days after the
notice of cancellation is received.
     (b) If the purchaser or developer properly
terminates a sales agreement under its terms or terminates a reservation
agreement, to the purchaser or developer according to the terms of the sales
agreement or reservation agreement.
     (c) If the purchaser or developer defaults
in performing an obligation under the sales agreement, to the purchaser or
developer according to the terms of the sales agreement.
     (4) After an escrow closing for the sale of
a timeshare, a purchaserÂ’s funds, negotiable instruments, purchase money
agreements and credit card authorizations and proceeds shall be delivered by
the escrow agent:
     (a) To the trustee of a lien payment trust
established under ORS 94.890 to protect the purchaser from any blanket
encumbrance.
     (b) As provided by an alternative
arrangement approved by the Real Estate Commissioner under ORS 94.900.
     (c) To the seller if the timeshare is
conveyed to the purchaser free and clear of any blanket encumbrance or as
provided in ORS 94.876.
     (5) Under no circumstances may the escrow
agent release a purchaserÂ’s funds, negotiable instruments, purchase money
agreements or credit card authorizations or proceeds from the escrow account to
anyone except the purchaser until:
     (a) The five-day cancellation period under
ORS 94.836 expires as to the purchaser whose funds, instruments, agreements,
authorizations or proceeds are being released;
     (b) The escrow agent receives a written
statement from the developer that no valid cancellation notice under ORS 94.836
has been received from the purchaser involved or from the purchaser that the
purchaser has not given such a notice; and
     (c) The escrow agent receives a written
statement from the developer that no other cancellation notice was received
during the five-day cancellation period from the purchaser involved.
     (6) The purpose of any escrow established
under this section shall be to protect a purchaserÂ’s right to a refund if the
purchaser cancels the timeshare sales agreement during the five-day
cancellation period under ORS 94.836, or if a prospective purchaser cancels a
reservation agreement for the purchase of a timeshare.
     (7) As used in this section “reservation
agreement” means an agreement relating to the future sale of a timeshare that
is not binding on the purchaser which grants the purchaser the right to cancel
the agreement for any reason without penalty and to obtain a refund of any
funds deposited at any time until the purchaser executes a timeshare sales
agreement. [1983 c.530 §29]
     94.876
Requirements for closing escrow. (1) Subject to the requirements of ORS 94.871 and 94.873, an escrow
for the sale of a timeshare estate may close only if one of the following
alternatives for protecting the purchaser is satisfied:
     (a) The timeshare estate is conveyed to
the purchaser free and clear of any blanket encumbrance;
     (b) The timeshare property in which the
timeshare estate is granted is conveyed to a trustee under a lien payment trust
established under ORS 94.890 and every person holding an interest in a blanket
encumbrance against the timeshare property executes and records a
nondisturbance agreement;
     (c) The timeshare estate is conveyed to
the purchaser subject only to a blanket encumbrance in which every person holding
an interest in the blanket encumbrance executes and records a nondisturbance
agreement or the Real Estate Commissioner accepts a surety bond as an
alternative arrangement under ORS 94.900 in an amount that is sufficient to
satisfy the blanket encumbrance; or
     (d) All requirements of an alternative
arrangement approved by the commissioner under ORS 94.900 are satisfied.
     (2) Subject to the requirements of ORS
94.873, an escrow for the sale of a timeshare license may close only if one of
the following alternatives for protecting the purchaser is satisfied:
     (a) The timeshare property is conveyed to
a trustee free and clear of any blanket encumbrance;
     (b) The timeshare property is conveyed to
a trustee under a lien payment trust established under ORS 94.890 and every
person holding an interest in a blanket encumbrance against the timeshare
property executes and records a nondisturbance agreement;
     (c) Every person holding an interest in a
blanket encumbrance against the timeshare property executes and records a
nondisturbance agreement and the commissioner accepts a recorded surety bond in
an amount that is sufficient to satisfy the blanket encumbrance; or
     (d) The requirements of an alternative
arrangement approved by the commissioner under ORS 94.900 are satisfied. [1983
c.530 §30]
     94.878
Duties of escrow agent. An
escrow agent holding funds under ORS 94.873:
     (1) May invest the escrowed funds in
securities of the federal government or any agency thereof or in savings or
time deposits in institutions insured by an agency of the federal government
according to the terms of the agreement between the escrow agent and the
developer.
     (2) Shall maintain separate books and
records for each timeshare plan in accordance with generally accepted
accounting methods. [1983 c.530 §36]
     94.881
Who may serve as escrow agent.
(1) Funds placed into escrow under ORS 94.873 shall be placed into an escrow
account established solely for that purpose with one of the following acting as
an escrow agent:
     (a) An attorney who is a member of the
Oregon State Bar;
     (b) An insured institution, as defined in
ORS 706.008, that is authorized to accept deposits in this state;
     (c) A trust company, as defined in ORS
706.008, that is authorized to transact trust business in this state; or
     (d) An escrow agent licensed under ORS
696.505 to 696.590.
     (2) In connection with sales of timeshares
made outside of this state for the use of timeshare property located within
this state, the escrow agent required under ORS 94.871 and 94.873 may be located
in and the purchasersÂ’ funds, negotiable instruments, purchase money contracts
and credit card authorizations may be held by the out-of-state escrow agent, if
the law of the state in which the sales are made requires impoundment in that
state and the out-of-state escrow agent is approved by the Real Estate
Commissioner. [1983 c.530 §37; 1997 c.631 §393]
(Lien
Payment)
     94.885
Rights of lienholder. (1)
When a nondisturbance agreement has been executed by the lienholder and
recorded, the lienholder, its successors and anyone who acquires the property
through foreclosure, by deed, assignment or transfer in lieu of foreclosure,
shall take the property subject to the rights of the owners under the timeshare
plan.
     (2) When a notice of timeshare plan is recorded,
any claim by the developerÂ’s creditors and any claim upon or by a successor to
the interest of the titleholder who executed the notice shall be subordinate to
the interest of the timeshare owners if the sale is closed after the notice is
recorded. The recording of notice shall not affect:
     (a) The rights or lien of a lienholder
whose lien was recorded before the notice of timeshare plan;
     (b) The rights of a person holding an
option in the timeshare property if the option was recorded before the notice
of timeshare plan; and
     (c) The rights or lien of a lienholder
having a recorded purchase money mortgage, recorded purchase money trust deed
or recorded purchase agreement on the timeshare.
     (3) As used in ORS 94.873, 94.876 and
94.885 to 94.905:
     (a) “Nondisturbance agreement” means an
instrument by which the holder of a blanket encumbrance agrees that the holderÂ’s
rights in the timeshare property shall be subordinate to the rights of any
timeshare owner. Every nondisturbance agreement shall contain a covenant by the
lienholder that the lienholder, its successors, and anyone who acquires the
timeshare property through the blanket lien shall not use, or cause or permit
the property to be used in a manner that prevents a timeshare owner from using
the timeshare property in the manner contemplated by the timeshare plan. The
lienholderÂ’s agreement not to disturb an owner may require as a continuing
condition that the owner perform all obligations and make all payments due
under any purchase money agreement for the ownerÂ’s timeshare and, if the
timeshare is held as a leasehold, under the lease for the ownerÂ’s timeshare.
     (b) “Notice of timeshare plan” means an
instrument executed by the holder of the legal and equitable title to the fee
or long-term leasehold interest in a timeshare property which provides notice
of the existence of the timeshare plan and of the rights of timeshare owners.
The notice of timeshare plan must identify the timeshare period for each
timeshare. For a timeshare property located wholly within this state, recording
of the timeshare instrument for the property under ORS 94.818 shall be
considered the recording of a notice of timeshare plan for the property. If the
timeshare property is located outside the state, the notice may be contained in
a declaration of covenants, conditions and restrictions that provides that as a
matter of covenant, the notice shall have the effects described in subsection
(2) of this section. The notice must be prepared to constitute a covenant
running with an equitable servitude upon the timeshare property for the
duration of the timeshare plan and to have the effects described in subsection
(2) of this section.
     (4) If the developer proposes use of a
nondisturbance agreement, the public report issued for the timeshare plan under
ORS 94.828 (1), (2) and (4) shall include disclosure of the nature and
limitations of nondisturbance agreements, the nature and amount of outstanding
blanket encumbrances and the potential impact upon timeshare purchasers of
failure to pay off the outstanding blanket encumbrances. [1983 c.530 §31]
     94.890
Lien payment trust; payments; delinquencies. (1) A lien payment trust may be established with a trust company as
defined in ORS 706.008 that is authorized to transact trust business in this
state, for the conveyance of timeshare property to the trustee under ORS 94.876
if the trust instrument provides for at least the following:
     (a) Title to the timeshare property must
be transferred to the trustee before the purchaserÂ’s funds, negotiable instruments,
purchase money agreements or credit card authorizations or proceeds are
disbursed by the escrow agent.
     (b) The trustee shall not convey or
transfer all or any portion of the timeshare property except for an
accommodation in which no owner has any further right of occupancy or as
permitted at termination of the trust.
     (c) The trustee shall not encumber the
timeshare property without the consent of the Real Estate Commissioner.
     (d) The association, if any, and all
timeshare owners are made third party beneficiaries of the trust.
     (e) Notice of the trustee’s intention to
resign must be given to the commissioner at least 90 days before the
resignation takes effect.
     (f) The trust instrument may not be
amended to adversely affect the interests or rights of a timeshare owner
without the written approval of the association or, if no association, a
majority of the timeshare owners.
     (g) Require the deposit into trust of a
lien payment deposit, as required by subsection (3) of this section, before the
closing of the first timeshare sale.
     (h) Require the deposit into trust before
closing the first timeshare sale, and the intention to maintain for the
duration of the trust, an installment payment reserve consisting of funds in an
amount sufficient at all times:
     (A) To pay the total of three successive
monthly installments of debt service on each blanket encumbrance or, if
installments of debt services are not payable monthly or in equal installments,
such funds as the commissioner determines reasonably necessary to assure that
the trustee will have sufficient cash to make any payment under the blanket
encumbrances when due; and
     (B) To create a sinking fund to extinguish
the debt at its maturity if the blanket encumbrance against the trust property
is an interest only loan, contains a balloon payment provision or is otherwise
not fully amortized under the terms for repayment.
     (i) Authorize the trustee to sell,
transfer, hypothecate, encumber, or otherwise dispose of the purchase money
agreement or any other asset composing the lien payment deposit or any portion
thereof if, in the trusteeÂ’s judgment, such action is necessary to enable the
trustee to make all payments required under the blanket encumbrances to prevent
foreclosure of the blanket encumbrance.
     (j) Require the developer to replenish the
funds and assets in the trust whenever the lien payment deposit or the funds in
the installment payment reserve fail to meet the requirements set forth in this
subsection.
     (k) Provide that the trustee periodically
shall disburse funds in the trust as follows: First, to pay real property
taxes, governmental assessments, and lease rent, if any; second, to pay current
payments due on the blanket encumbrances, in their order of priority; third, to
any sinking fund established for the payment of blanket encumbrances, including
any prepayment penalties and release prices; fourth, to pay any service charge
and cost payable to the trustee and its collection agent, if any, under the
trust instrument; and fifth, to the developer or as directed by the developer.
     (L) Contain any other provisions required
by the commissioner under rules adopted under ORS 94.915 (2) and (3).
     (2) Every purchase money agreement
delivered to the trustee of a lien payment trust must contain a notice to the
holder that the trustee may make demand of the holder to deliver to the trustee
all payments made by the owner after the trustee mails notice that the funds
and other assets in the trust are inadequate to meet the lien payment deposit
requirements. Following such demand, the holder must immediately deliver all
subsequent payments of the owner to the trustee and continue to deliver the
payments until the lien payment deposit is replenished.
     (3)(a) The lien payment deposit shall
consist of either nondelinquent purchase money agreements from timeshare owners
in the timeshare plan or other assets deposited into the trust by the developer
and approved by the commissioner. The purchase money agreements must have an
aggregate remaining principal balance of not less than, and any other assets
deposited must have a liquidated value of not less than, 110 percent of the
difference between the aggregate remaining balance owing under blanket
encumbrances against the timeshare property, including any prepayment
penalties, release prices or similar charges, and the amount of money or its
equivalent in the trust and available at any time to be applied to the
reduction of the principal balance of the blanket encumbrance. The developer
shall have the burden of establishing the liquidated value of assets other than
purchase money agreements from timeshare owners in the timeshare plan.
     (b) If the blanket encumbrance payment
deposit consists of purchase money agreements, the payments required to be made
by owners under the agreements shall:
     (A) Be due on or before the date payments
become due on the blanket encumbrances;
     (B) If paid when due as provided in
subsection (4) of this section, be equal to at least 110 percent of the amount
required to be paid on the blanket encumbrances on such date; and
     (C) Be sufficient to pay, in full, during
the term of the purchase money agreements all amounts secured by the blanket
encumbrances, including prepayment penalties and release prices, if any, and
all service charges payable to the trustee, any collection agent, and any other
servicing agent under the trust agreement.
     (c) If the developer proposes to deposit
into trust assets other than purchase money agreements, the assets must be
sufficient to pay debt service installments on the blanket encumbrance as they
become due and to create a sinking fund or other arrangement adequate to
extinguish the debt secured by the blanket encumbrance at its maturity.
     (4) For the purposes of this section, “purchase
money agreement” means and includes a purchase money mortgage, a purchase money
trust deed and a purchase contract.
     (5) For the purpose of this section, a
purchase money agreement is considered delinquent when an installment payment
is more than 59 days past due. [1983 c.530 §32; 1997 c.631 §394]
     94.895
Trust irrevocable without alternative arrangement. (1) Except as provided in subsection (2) of
this section:
     (a) If a trust is established for
timeshare property subject to timeshare licenses, the trust for the timeshare
property shall be irrevocable during the time that any purchaser of a timeshare
license has a right to the use of the timeshare property.
     (b) If a trust is established for
timeshare property subject to timeshare estates, the trust for the timeshare
property shall be irrevocable until all blanket encumbrances are extinguished.
     (2) The Real Estate Commissioner may
approve an alternative arrangement that permits termination of the trust. [1983
c.530 §33]
     94.900
Alternative to lien payment trust. (1) If it is impossible or impractical for a developer to satisfy any
of the requirements of ORS 94.890 because of factors over which the developer
has little or no control, the Real Estate Commissioner may accept arrangements
other than those prescribed by ORS 94.890 which in the commissionerÂ’s judgment
will give rights and remedies affording equivalent benefits and protection to
timeshare owners and which are at least comparable in scope though not
necessarily in nature to those afforded by ORS 94.890.
     (2) If the commissioner is asked to accept
alternative arrangements under this section, the commissioner may contract with
an attorney and with any other private consultant the commissioner considers
necessary or advisable, in connection with the review of the proposed arrangements
for protecting purchasers. The attorney shall thoroughly review the timeshare
plan for the purpose of examining the purchaser protections, including the
documentation used in the timeshare plan and the disclosure thereof in the
developerÂ’s public report. After completing the review the attorney shall
provide a written analysis of the nature and extent of the protection that the
proposal affords a purchaser against blanket encumbrances. The cost of
retaining the attorneys and other consultants shall be paid by the developer. [1983
c.530 §34]
     94.905
Surety bond. Any surety bond
furnished to the Real Estate Commissioner under ORS 94.890 must be in an amount
which is not less than 110 percent of the remaining principal balance of every
indebtedness secured by a blanket encumbrance affecting the timeshare property.
The surety bond must be issued by a surety authorized to do business in
(Enforcement)
     94.915
Inspection of records; rules; uniform standards. (1) Records of the sale of timeshares in a
timeshare plan shall be subject to inspection by the Real Estate Commissioner.
     (2) The Real Estate Agency shall adopt
rules necessary to carry out ORS 94.803 and 94.807 to 94.945.
     (3) The agency may cooperate with agencies
performing similar functions in other jurisdictions to develop uniform filing
procedures, forms, disclosure standards and administrative practices. [1983
c.530 §§38,40]
     94.920
Consent to service by out-of-state developer. (1) Every nonresident developer, at the time of filing the notice
required by ORS 94.823, also shall file with the Real Estate Commissioner an
irrevocable consent that if, in any suit or action commenced against the
nonresident developer in this state arising out of a violation of ORS 94.803
and 94.807 to 94.945, personal service of summons or process cannot be made
upon the developer in this state after the exercise of due diligence, a valid
service may be made upon the developer by service on the commissioner.
     (2) The consent required under subsection
(1) of this section shall be in writing executed and verified by an officer of
a corporation or association, a general partner of a partnership or by a
developer and shall set forth:
     (a) The name of the developer.
     (b) The address to which documents served
upon the commissioner are to be forwarded.
     (c) If the developer is a corporation or
unincorporated association, that the officer exercising the consent was
authorized by resolution duly adopted by the board of directors.
     (3) The address for forwarding documents
served under this section may be changed by filing a new consent in the form
prescribed in subsection (2) of this section.
     (4) Service of process on the commissioner
under this section shall be made by delivering to the commissioner or a clerk
on duty in any office of the commissioner, duplicate copies of the process,
with duplicate copies of any papers required by law to be delivered in
connection with the service.
     (5) When the commissioner is served with
process under the provisions of this section, the commissioner shall
immediately forward by registered mail or by certified mail with return receipt
one of the copies with any accompanying papers, to the developer at the address
set forth in the consent.
     (6) The commissioner shall keep a record
of each process, notice and demand served under this section, and shall record
the time of each service and the action taken by the commissioner on each
service. [1983 c.530 §43; 1991 c.249 §10]
     94.925
Civil penalty. (1) In
addition to any other penalty provided by law, the Real Estate Commissioner may
impose a civil penalty for violation of the provisions of ORS 94.803 and 94.807
to 94.945. No civil penalty shall exceed $1,000 per violation.
     (2) Civil penalties under this section
shall be imposed as provided in ORS 183.745. [1983 c.530 §44; 1989 c.706 §8;
1991 c.734 §5]
     94.930
Commissioner order; injunctive relief. (1) If the Real Estate Commissioner finds that an owner, developer or
other person is violating any of the provisions of ORS 94.803 and 94.807 to
94.945, the commissioner may order the person to desist and refrain from
violating the provisions or requirements, or from the further sale of interests
in the timeshare plan.
     (2) If the commissioner finds that a
developer or other person is violating, has violated or is about to violate,
any of the provisions of ORS 94.803 and 94.807 to 94.945, the commissioner may
bring an action in the circuit court of the county where the violation or
threatened violation has occurred or is about to occur, or in the county where
the person resides or carries on business, in the name of and on behalf of the
people of the State of Oregon against the person participating in the
violation, to enjoin the person from continuing or engaging in the violation or
doing any act in furtherance of the violation, and to apply for the appointment
of a receiver or conservator of the assets of the defendant if appropriate. [1983
c.530 §45]
(Prohibited
Practices)
     94.940
False practices prohibited.
No person shall, in connection with an offering, sale or lease of an interest
in a timeshare plan:
     (1) Employ any device, scheme or artifice
to defraud;
     (2) Make any untrue statement of a
material fact;
     (3) Fail to state a material fact
necessary to make a statement clear;
     (4) Issue, circulate or publish any
prospectus, circular, advertisement, printed matter, document, pamphlet,
leaflet or other literature containing an untrue statement of a material fact
or that fails to state a material fact necessary to make the statements made in
the literature not misleading;
     (5) Issue, circulate or publish any
advertising matter or make any written representation, unless the name of the
person issuing, circulating or publishing the matter or making the
representation is clearly indicated; or
     (6) Make any statement or representation,
or issue, circulate or publish any advertising matter containing any statement
that the timeshare plan has been in any way approved or indorsed by the Real
Estate Commissioner except in conjunction with a public report issued by the
commissioner under ORS 94.828 (1), (2) and (4). [1983 c.530 §41]
     94.945
Advertising regulation. It
shall be unlawful for any developer or the agent or employee of a developer
with intent to sell or lease a timeshare in a timeshare plan, to authorize,
use, direct or aid in the publication, distribution or circularization of any
advertisement, radio broadcast or telecast concerning a timeshare plan, that
contains any false or misleading statement, pictorial representation or sketch.
Nothing in this section shall be construed to hold the publisher or employee of
any newspaper, any job printer, broadcaster or telecaster liable for any
publication referred to in ORS 94.940 unless the publisher, employee, printer,
broadcaster or telecaster has actual knowledge that the material is false or
has an interest in the timeshare plan advertised. [1983 c.530 §42]
MEMBERSHIP
CAMPGROUNDS
     94.953
Definitions for ORS 94.953 to 94.989. As used in ORS 94.953 to 94.989:
     (1) “Blanket encumbrance” means any
mortgage, deed of trust, option to purchase, vendorÂ’s lien or interest under a
contract or agreement of sale, or other material financing lien or encumbrance
which secures or evidences the obligation to pay money or to sell or convey on
any campgrounds offered for sale, made available to purchasers by the
membership camping operator or any portion thereof, and which authorizes,
permits or requires the foreclosure or other disposition of the campground
affected.
     (2) “Campground” means real property owned
or operated by a membership camping operator which is available for camping by
purchasers of membership camping contracts.
     (3) “Camping site” means a space:
     (a) Designed and promoted for the purpose
of locating a trailer, tent, tent trailer, recreational vehicle, pickup camper
or other similar device used for camping; and
     (b) With no permanent dwelling on it.
     (4) “Commissioner” means the Real Estate
Commissioner.
     (5) “Facilities” means any of the
following amenities provided and located on property owned or operated by a
membership camping operator: Camping sites, rental trailers, swimming pools,
sport courts, recreation buildings and trading posts or grocery stores.
     (6) “Membership camping contract” means an
agreement offered or sold within this state granting the purchaser the right or
license to use for more than 30 days the campgrounds and facilities of a
membership camping operator and includes a membership which provides for such
use.
     (7) “Membership camping contract broker”
means a person who resells a membership camping contract to a new purchaser on
behalf of the prior purchaser, but does not include a membership camping
operator or its agents.
     (8) “Membership camping operator” means
any person, other than an entity that is tax exempt under section 501 (c)(3) of
the Internal Revenue Code of 1954, as amended, that solicits membership camping
contracts paid for by a fee or periodic payments and has as one purpose camping
or outdoor recreation, including use of camping sites primarily by purchasers. “Membership
camping operator” does not include:
     (a) Mobile home and manufactured dwelling
parks or camping or recreational vehicle parks which are open to the general
public and do not solicit purchases of membership camping contracts, but rather
contain only camping sites rented for per use fee; or
     (b) Any person who engages in the business
of arranging and selling reciprocal programs and who does not own campgrounds
and facilities.
     (9) “Offer” means any solicitation
reasonably designed to result in the entering into of a membership camping
contract.
     (10) “Purchaser” means a person who enters
into a membership camping contract and obtains the right to use campgrounds and
outdoor facilities of a membership camping operator.
     (11) “
     (12) “Salesperson” means any individual,
other than a membership camping operator, who offers to sell or sells
membership camping contracts by making a direct sales presentation to
prospective purchasers, but does not include individuals engaged in the
referral of persons without making any representations about the camping
program or a direct sales presentation to prospective purchasers. “Salesperson”
does not include a campground manager who is authorized in writing to act on
behalf of a membership camping operator in the operation of a campground and in
the supervision of campground employees and salespersons and who does not offer
to sell or sell membership camping contracts by making a direct sales
presentation to prospective purchasers. [1985 c.639 §1; 1991 c.377 §6]
     94.956
Registration required to sell membership camping contract. Except as provided in ORS 94.959, and except
for transactions pursuant to ORS 94.962, no person shall offer to sell or sell
a membership camping contract in this state unless the membership camping
contract is registered under ORS 94.953 to 94.989. [1985 c.639 §2]
     94.959
Application for registration.
(1) A membership camping operator wishing to offer to sell or sell a membership
camping contract in this state shall register the contract with the Real Estate
Commissioner. The application for registration shall include all of the
following if it is applicable to the membership camping operator:
     (a) Written disclosures, in any format the
commissioner is satisfied accurately and clearly communicates the required
information, which include:
     (A) The name and address of the membership
camping operator and any person who, directly or indirectly, through one or
more intermediaries, controls, is controlled by or is under common control with
the membership camping operator;
     (B) A brief description of the membership
camping operatorÂ’s experience in the camping club business;
     (C) A brief description of the nature of
the purchaserÂ’s right or license to use the campground or facilities;
     (D) The location and a brief description
of the significant facilities and recreation services then available for use by
purchasers and those which are represented to purchasers as being planned,
together with a brief description of any significant facilities or recreation
services that are or will be available to nonpurchasers and the price to
nonpurchasers therefor;
     (E) A brief description of the membership
camping operatorÂ’s ownership of or other right to use the campground facilities
represented to be available for use by purchasers, together with a brief
description of the duration of any lease, real estate contract, license
franchise or other agreement entitling the membership camping operator to use
the property, and any material provisions of the agreements which restrict a
purchaserÂ’s use;
     (F) A brief description of any material
encumbrance, including any mortgage, deed of trust, option to purchase, vendorÂ’s
lien or interest under a contract or agreement of sale, or other material
financing lien or encumbrance that secures or evidences the obligation to pay
money or to sell or convey, or which authorizes or requires the foreclosure or
other disposition of the campground affected;
     (G) A brief description of any reciprocal
agreement allowing purchasers to use camping sites, facilities or other
properties owned or operated by any person other than the membership camping
operator with whom the purchaser has entered into a membership camping
contract;
     (H) A summary or copy of the articles,
bylaws, rules, restrictions or covenants regulating the purchaserÂ’s use of each
campground, the facilities located on each property, and any recreation
services provided, including a statement of whether and how the articles,
bylaws, rules, restrictions or covenants may be changed;
     (I) A brief description of all payments of
a purchaser under a membership camping contract, including initial fees and any
further fees, charges or assessments, together with any provisions for changing
the payments;
     (J) A description of any restraints on the
transfer of membership camping contracts;
     (K) A brief description of the policies
relating to the availability of camping sites and whether reservations are
required;
     (L) A brief description of the membership
camping operatorÂ’s right to change or withdraw from use all or a portion of the
campgrounds or facilities and the extent to which the membership camping
operator is obliged to replace facilities or campgrounds withdrawn;
     (M) A brief description of any grounds for
forfeiture of a purchaserÂ’s membership camping contract; and
     (N) A copy of the membership camping
contract form;
     (b) A statement of the total number of
membership camping contracts then in effect, both within and without this
state; and a statement of the total number of membership camping contracts
intended to be sold, both within and without this state, together with a
commitment that the total number will not be exceeded unless disclosed by
amendment to the registration;
     (c) If the campground or campgrounds owned
or being purchased by the membership camping operator at the time of
registration are campgrounds on which the membership camping operator or
another membership camping operator previously registered a membership camping
contract with the State of Oregon and sold memberships under the registered
contract and thereafter went out of business or filed for bankruptcy, the new
membership camping operator shall file with the commissioner at the time of
registration a detailed plan whereunder all membership purchasers from the
prior membership camping operator or operators for the campground or
campgrounds will be offered memberships by the new membership camping operator
despite any rejection or cancellation of the previous contracts during bankruptcy
proceedings of the prior membership camping operator or operators. Procedures
for written notice to the purchasers and the material terms and conditions of
membership offered by the new campground operator shall be included in the
detailed plan filed with the commissioner. The material terms and conditions
including but not limited to price and terms of payment offered by the new
campground operator or operators shall not be materially less favorable than
the material terms and conditions offered to new purchasers; and
     (d) Any other material information the
commissioner may, by rule or order, require for the protection of the
purchasers.
     (2) The application shall be signed by the
membership camping operator, an officer or general partner of the membership
camping operator or by another person holding a power of attorney for such
purpose from the membership camping operator. If the application is signed
pursuant to a power of attorney, a copy of the power of attorney shall be
included with the application.
     (3) The application shall be submitted
with the registration fee.
     (4) An application for registration to
offer or sell membership camping contracts shall be amended when a material
change from the information previously filed occurs. Such amendment shall be
filed with the commissioner within 10 days after the membership camping
operator knows of such change.
     (5) In place of the disclosures required
with the application for registration, the commissioner may accept a public
report or other disclosure from another state in which the membership camping
operator has registered. [1985 c.639 §3; 1991 c.377 §7]
     94.962
Exemptions from registration.
The following transactions are exempt from registration:
     (1) An offer, sale or transfer by any one
person of not more than one membership camping contract for any membership
camping operator in any 12-month period, unless the person receives a
commission or similar payment for the sale or transfer.
     (2) An offer or sale by a government,
government agency or other subdivision of a government.
     (3) Granting a security interest in a
membership camping contract.
     (4) An offer, sale or transfer by a
membership camping operator of a membership camping contract previously
registered by the operator if the offer, sale or transfer constitutes a resale
to another owner. [1985 c.639 §4]
     94.965
Effective date of registration.
The application for registration shall automatically become effective upon the
expiration of 45 calendar days following filing of a completed application with
the Real Estate Commissioner unless:
     (1) The application for registration is
denied under ORS 94.968;
     (2) The commissioner grants the
registration effective as of an earlier date; or
     (3) The applicant consents to a delay of
the effective date. [1985 c.639 §5]
     94.968
Denial, suspension and revocation of registration; other sanctions. (1) The Real Estate Commissioner may order
that a registration of an offer or sale of membership camping contracts be
denied, suspended or revoked if the commissioner makes findings pursuant to ORS
183.430 that any of the following is true:
     (a) The membership camping operator has
failed to comply with any provisions of ORS 94.953 to 94.989 which materially
affect the rights of purchasers or prospective purchasers of membership camping
contracts.
     (b) The membership camping operator is
representing to purchasers in connection with the offer or sale of a membership
camping contract that any campground or facilities are planned without
reasonable grounds to believe that the campground or facilities will be
completed within a reasonable time.
     (c) The membership camping operator’s
offering of membership camping contracts works a fraud on purchasers or owners
of membership camping contracts.
     (2) Proceedings for suspending, revoking
or denying a registration shall be governed by ORS chapter 183.
     (3) If the commissioner finds that
immediate suspension of a registration is necessary to protect purchasers or
owners from fraud, the commissioner may order any person subject to ORS 94.953
to 94.989 to desist from such conduct and may suspend the registration
immediately. Affected persons shall be entitled to a hearing as in the case of
license suspension under ORS 183.430.
     (4) If the commissioner finds that a
membership camping operator or other person is violating any of the provisions
of ORS 94.953 to 94.989, the commissioner may order the person to desist and
refrain from violating the provisions and from the further offering and sale of
membership camping contracts.
     (5) If the commissioner finds that a
membership camping operator or other person is violating, has violated or is
about to violate, any of the provisions of ORS 94.953 to 94.989, the
commissioner may bring an action in the circuit court of the county where the violation
or threatened violation has occurred or is about to occur, or in the county
where the person resides or carries on business, in the name of and on behalf
of the people of the State of Oregon against the person participating in the
violation, to enjoin the person from continuing or engaging in the violation or
doing any act in furtherance of the violation, and to apply for the appointment
of a receiver or conservator of the assets of the defendant if appropriate. [1985
c.639 §6; 1991 c.377 §8]
     94.971
Fee for registration or amendment of an offer or sale of membership camping
contract. (1) The fee for
registration or amendment of an offer or sale of a membership camping contract
shall be an amount sufficient to recover any administrative expenses in staff
review and action upon the registration or amendment. The fee is subject to the
review of the Oregon Department of Administrative Services. The Real Estate
Commissioner shall set an estimated fee to be paid with the application. The
final fee shall be paid before final registration becomes effective.
     (2) No fee shall be required for an
amendment unless additional work is required by Real Estate Agency staff on
disclosures.
     (3) The fee for registration or renewal of
an existing registration of a broker or salesperson is $50. [1985 c.639 §7;
1991 c.377 §9; 1993 c.18 §18]
     94.974
Written disclosures required; procedures; inspection of records. (1) Except in a transaction exempt under ORS
94.962, any person who sells a membership camping contract shall provide the
prospective purchaser with those written disclosures required under ORS 94.959.
Disclosures shall be substantially accurate and complete and made to a
prospective purchaser before the prospective purchaser signs a membership
camping contract or gives any consideration for the purchase of such contract.
The person shall take a receipt from the prospective purchaser upon delivery of
the disclosures. Each receipt shall be kept on file by the membership camping
operator within this state subject to inspection by the Real Estate
Commissioner or the commissionerÂ’s authorized representative for a period of
three years from the date the receipt is taken.
     (2) Records of the sale of membership
camping contracts shall be subject to inspection by the commissioner or the
commissionerÂ’s authorized representative. Any list identifying campground
members obtained by the commissioner or the commissionerÂ’s authorized
representative shall be exempt from disclosure, as trade secrets, to any
person, public body or state agency, under ORS 192.501. [1985 c.639 §8; 1991
c.377 §10]
     94.975
False practices prohibited.
No person shall, in connection with an offering or sale of a membership camping
contract:
     (1) Employ any device, scheme or artifice
to defraud;
     (2) Make any untrue statement of a
material fact;
     (3) Fail to state a material fact
necessary to make a statement clear;
     (4) Issue, circulate or publish any
prospectus, circular, advertisement, printed matter, document, pamphlet,
leaflet or other literature containing an untrue statement of a material fact
or that fails to state a material fact necessary to make the statements made in
the literature not misleading;
     (5) Issue, circulate or publish any
advertising matter or make any written representation, unless the name of the
person issuing, circulating or publishing the matter or making the
representation is clearly indicated; or
     (6) Make any statement or representation,
or issue, circulate or publish any advertising matter containing any statement
that the membership camping contract has been in any way approved or indorsed
by the Real Estate Commissioner. [1991 c.377 §2]
     Note: 94.975 and 94.976 were added to and made a
part of 94.953 to 94.989 by legislative action but were not added to any other
series. See Preface to Oregon Revised Statutes for further explanation.
     94.976
Advertising regulation. It
shall be unlawful for any membership camping operator or the agent or employee
of any membership camping operator with intent to sell a membership camping
contract, to authorize, use, direct or aid in the publication, distribution or
circularization of any advertisement, radio broadcast or telecast concerning a
membership camping contract, that contains any materially false or misleading
statement, pictorial representation or sketch. Nothing in this section shall be
construed to hold the publisher or employee of any newspaper, any job printer,
broadcaster or telecaster liable for any publication referred to in this
chapter, unless the publisher, employee, printer, broadcaster or telecaster has
actual knowledge that the material is false or has an interest in the
membership camping contract being advertised. [1991 c.377 §3]
     Note: See note under 94.975.
     94.977
Registration as salesperson or broker. (1) Unless the transaction is exempt under ORS 94.962, it is unlawful
for any person to act as a salesperson or membership camping contract broker in
this state without first registering as a salesperson or membership camping
contract broker as provided in ORS 94.980. Individuals licensed as real estate
brokers or principal real estate brokers under ORS chapter 696 are exempt from
registration under this section.
     (2) A violation of this section is a Class
A misdemeanor. [1985 c.639 §9; 2001 c.300 §54; 2007 c.319 §26]
     94.980
Application for registration; fee. (1) A salesperson or membership camping contract broker may apply for
registration by filing with the Real Estate Commissioner an application which
includes the following information:
     (a) A statement whether or not the
applicant has been convicted of any misdemeanor or felony involving theft,
fraud or dishonesty or whether or not the applicant has been enjoined from, had
any civil penalty assessed for, or been found to have engaged in any violation
of any act designed to protect consumers; and
     (b) A statement describing the applicant’s
employment history for the past five years and whether or not any termination
of employment during the last five years was occasioned by any theft, fraud or
act of dishonesty.
     (2) Each applicant for initial
registration shall submit to fingerprinting and provide to the commissioner as
part of the application a recent photograph of the applicant. The registration
must be accompanied by a written acceptance of the applicant as a salesperson
signed by the membership camping operator with whom the salesperson will be
associated.
     (3) The commissioner may deny, suspend or
revoke a salespersonÂ’s or membership camping contract brokerÂ’s application for
registration or the salespersonÂ’s or membership camping contract brokerÂ’s
registration if the commissioner finds that the order is necessary for the
protection of purchasers or owners of membership camping contracts and that the
applicant or registrant:
     (a) Has been convicted of any misdemeanor
or felony or has been enjoined from, had any civil penalty assessed for, or
been found to have engaged in any violation of any act designed to protect
consumers;
     (b) Has violated any material provision of
ORS 94.925 to 94.983; or
     (c) Has engaged in fraudulent or deceitful
practices in any industry involving sales to consumers.
     (4) Registration shall be effective for a
period of one year. Registration shall be renewed annually by the filing of a
form prescribed by the commissioner for that purpose. The completed application
for registration or renewal shall automatically become effective upon the
expiration of 30 business days following filing with the commissioner, unless:
     (a) The application has been denied under
subsection (3) of this section;
     (b) The commissioner grants the
registration effective as of an earlier date; or
     (c) The applicant or registrant consents
to delay of the effective date.
     (5) During the effective period of a
salespersonÂ’s registration, the salesperson may transfer to a new membership
camping operator by requesting the operator to return the salespersonÂ’s
registration to the commissioner and filing with the commissioner a written
acceptance of the salespersonÂ’s transfer signed by the membership camping
operator with whom the salesperson will be associated following the transfer.
Upon receipt of the salespersonÂ’s registration and payment to the commissioner
of a $10 transfer fee, the commissioner may issue a registration for the
salesperson to the new membership camping operator. Upon the request of a
salesperson, a membership camping operator shall promptly return the
registration of the salesperson to the commissioner.
     (6) A salesperson’s registration granted
under this section shall be issued to a membership camping operator who signed
the written acceptance accompanying the initial registration application or
transfer request. A salespersonÂ’s registration entitles the salesperson to sell
membership camping contracts only for any campground operated by the membership
camping operator under the supervision of the operator. If the salesperson
terminates sales activity for any reason, the membership camping operator shall
return the registration of the salesperson to the commissioner without delay.
     (7) If an applicant for registration has
an active real estate license outstanding, the applicant must place the real
estate license on inactive status before issuance of the registration by the
commissioner. A salesperson or membership camping contract broker may not
reactivate an inactive real estate license during any term of registration as a
salesperson or membership camping contract broker. [1985 c.639 §10; 1991 c.377 §11]
     94.983
Cancellation of contract by purchaser; notice of right to cancel. (1) Any membership camping contract may be
canceled at the option of the purchaser, if:
     (a) The purchaser sends notice of the
cancellation by certified mail, return receipt requested, to the membership
camping operator; and
     (b) The notice is posted not later than
midnight of the third business day following the day on which the membership
camping contract is signed.
     (2) In addition to the cancellation right
established in subsection (1) of this section, any purchaser who signs a
membership camping contract without inspecting a campground or facility with
camping sites or proposed camping sites may, after making an inspection, cancel
the membership camping contract by posting a notice by certified mail, return
receipt requested, not later than midnight of the sixth business day following
the day on which the membership camping contract is signed. In computing the
number of business days, the day on which the membership camping contract was
signed, Saturdays, Sundays and legal holidays shall not be included as a “business
day.” The membership camping operator shall promptly refund any money or other
consideration paid by the purchaser upon receipt of timely notice of
cancellation by the purchaser.
     (3) Every membership camping contract
shall include the following statement in at least 10-point type immediately
before the space for the purchaserÂ’s signature:
______________________________________________________________________________
PurchaserÂ’s
Right To Cancel: You may cancel this membership camping contract without any
cancellation fee or other penalty by sending notice of cancellation by
certified mail, return receipt requested, to _____ (insert name and mailing
address of membership camping operator). The notice must be postmarked by
midnight of the third business day following the day on which the membership
camping contract is signed. In computing the three business days, the day on
which the membership camping contract is signed shall not be included as a “business
day,” nor shall Saturday, Sunday or legal holidays be included.
______________________________________________________________________________
     (4) If the purchaser has not inspected a
campground or facility at which camping sites are located or planned, the
notice must contain the following additional language:
______________________________________________________________________________
If you sign
this membership camping contract without having first inspected the property at
which camping sites are located or planned, you may also cancel this membership
camping contract by giving this notice within six business days following the
day on which you signed if you inspect such a property prior to sending the
notice.
______________________________________________________________________________
     (5) No act of a purchaser shall be
effective to waive the right of cancellation granted by subsection (1) or (2)
of this section. [1985 c.639 §11]
     94.986
Requirements for sale of membership camping contract; nondisturbance
agreements. With respect to
any campground offered for sale in this state and acquired and put into
operation by a membership camping operator after September 1, 1985, the
membership camping operator shall not sell membership camping contracts in this
state granting the right to use such campground until one of the following
requirements has been satisfied:
     (1) Each person holding an interest in a
blanket encumbrance executes and delivers to the Real Estate Commissioner a
nondisturbance agreement and records such agreement in the real estate records
of the county in which the campground is located. “Nondisturbance agreement”
means an instrument by which the holder of a blanket encumbrance agrees that
the holderÂ’s rights in the campground shall be subordinate to the rights of any
membership camping contract purchaser. Every nondisturbance agreement must
contain a covenant by the lienholder that the lienholder, its successors, and
anyone who acquires the campground property through the blanket lien shall not
use, or cause or permit the property to be used in a manner that prevents a
membership camping contract purchaser from using, the campground property in
the manner contemplated by the membership camping contract. The lienholderÂ’s
agreement not to disturb a membership camping contract purchaser may require as
a continuing condition that the purchaser perform all obligations and make all
payments due under any membership camping contract for the purchaserÂ’s
campground interest and, if the membership camping contract is held as a
leasehold, under the lease for the purchaserÂ’s campground interest. The
nondisturbance agreement shall also contain provisions setting forth each of
the following:
     (a) The nondisturbance agreement may be
enforced by purchasers of membership camping contracts. If the membership
camping operator is not in default under its obligations to the holder of the
blanket encumbrance, the agreement may be enforced by both the membership
camping operator and the purchasers.
     (b) The nondisturbance agreement is
effective as between each purchaser and the holder of the blanket encumbrance
despite any rejection or cancellation of the purchaserÂ’s contract during
bankruptcy proceedings of the membership camping operator.
     (c) The agreement is binding upon the
successors in interest of both the membership camping operator and the holder
of the blanket encumbrance.
     (d) A holder of the blanket encumbrance
who obtains title or possession, or who causes a change in title or possession
in a campground by foreclosure or otherwise, and who does not continue to
operate the campground upon conditions no less favorable to members than
existed prior to the change of title or possession shall:
     (A) Offer the title or possession of the
campground to an association of members to operate the campground; or
     (B) Obtain a commitment from another
entity that obtains title or possession to undertake the responsibility for
operation of the campground.
     (2) If a financial institution, acting as
hypothecation lender and providing the major hypothecation loan to the
membership camping operator, has a lien on, or security interest in, the
membership camping operatorÂ’s interest in the campground, the financial
institution shall execute and deliver to the commissioner a nondisturbance
agreement and record such agreement in the real estate records of the county in
which the campground is located. In addition, each person holding an interest
in any blanket encumbrance superior to the interest held by the financial
institution shall execute, deliver and record an instrument stating that such
person shall give the financial institution notice of, and at least 30 days to
cure, any default under the blanket encumbrance before such person commences
any foreclosure action affecting the campground. For the purposes of this
provision, a major hypothecation loan to a membership camping operator is a
loan or line of credit secured by substantially all of the contracts receivable
arising from the membership camping operatorÂ’s sale of membership camping
contracts.
     (3) There shall have been delivered to and
accepted by the commissioner a surety bond or letter of credit with the
commissioner as obligee for the benefit of purchasers. The bond or letter of
credit must be in an amount which is not less than 105 percent of the remaining
principal balance of every indebtedness secured by the blanket encumbrance
affecting the campground. Any such bond must be issued by a surety authorized
to do business in this state and having sufficient net worth to satisfy the
indebtedness. Any such letter of credit must be irrevocable and must be drawn
upon a bank, savings and loan association or other financial institution
acceptable to the commissioner. The bond or letter of credit shall provide for
payment of all amounts secured by the blanket encumbrance, including costs,
expenses and legal fees of the lienholder, if for any reason the blanket
encumbrance is enforced. The bond or letter of credit may be reduced
periodically in proportion to the reduction of the amounts secured by the
blanket encumbrance.
     (4) There have been delivered to and
accepted by the commissioner other financial assurances which the commissioner
finds are acceptable to carry into effect the intent and provisions of this
section. [1985 c.639 §11a; 1991 c.377 §5]
     94.987
Judicial declaration of failure in management. (1)(a) Upon petition by the Real Estate
Commissioner or a majority of active purchasers not then in default under their
membership camping contracts, a court of competent jurisdiction may declare a
failure of management of the membership camping operator and appoint a trustee
to assume the membership camping operatorÂ’s duties under the membership camping
contracts, if the court finds that:
     (A) Irreparable injury to the rights of
the purchasers is likely to occur unless a trustee is appointed; and
     (B) There is no reasonable alternative to
appointment of a trustee.
     (b) For purposes of this subsection, “active
purchaser” means a current, dues-paying member of the membership camping
operator.
     (2) The court may attach such conditions
and terms to its appointment of a trustee under subsection (1) of this section
as the court considers necessary to protect the rights of the purchasers under
the membership camping contract. The trustee shall provide a copy of the courtÂ’s
decision in such a case to the commissioner.
     (3) If the court petitioned under
subsection (1) of this section finds that there is a reasonable alternative to
the appointment of a trustee, the court may order the membership camping
operator to carry out the reasonable alternative and may attach to its order
such terms and conditions as it considers necessary to protect the rights of
the purchasers under the membership camping contracts. [1991 c.377 §4]
     94.989
Interpretation of membership camping contracts; application of Unlawful Trade
Practices Act. (1)
Membership camping contracts, campgrounds and facilities are not subdivisions
or series partitions under ORS chapter 92, are not condominiums under ORS
chapter 100, are not timeshare properties under ORS chapter 94, and are not
securities under ORS 59.005 to 59.451, 59.710 to 59.830, 59.991 and 59.995.
     (2) Membership camping contracts covered
by ORS 94.925 to 94.983 are retail installment contracts under ORS 83.010 to
83.190.
     (3) The Attorney General shall protect the
rights of purchasers through the application of ORS 646.605 to 646.652. [1985
c.639 §12]
     94.990 [Repealed by 1971 c.478 §1]
     94.991 [Formerly 91.990; 1987 c.320 §15; renumbered
100.990 in 1989]
_______________
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