Chapter 100 — Condominiums
2011 EDITION
CONDOMINIUMS
PROPERTY RIGHTS AND TRANSACTIONS
GENERAL PROVISIONS
100.005 Definitions
100.010 Short
title
100.015 Rules
100.020 Condominium
provisions; restrictions
100.022 Application
of zoning, subdivision, building code or real property law to condominium
100.025 Rule
against perpetuities; inapplicable
CREATION OF UNIT OWNERSHIP
100.100 Property
submitted to unit ownership by declaration; executors of declaration; conflict
between this chapter and ORS chapter 65
100.102 Leasehold
condominium submitted to unit ownership
100.103 Effect
of submission of leasehold condominium to unit ownership
100.105 Contents
of declaration; property name; variable property description
100.110 Approval
of declaration, supplemental declaration or amendment required; prerequisites;
fee
100.115 Recording
declaration and plat; plat contents; supplemental declaration and plat; fees
100.116 Plat
amendment; fees
100.117 Correction
amendment to declaration or bylaws
100.118 Correction
amendment to condominium plat; fees
100.120 Supplemental
declaration and plat required to annex additional property or reclassify
variable property; termination date
100.122 Declaration
prevails over inconsistent provisions of bylaws or articles of incorporation
100.123 Authority
to amend declaration or bylaws to comply with federal or state law
100.125 Annexation
of additional property; requirements
100.130 Relocation
of unit boundaries and common elements by amendment to declaration
100.135 Amendments
to declaration; requirements; procedure
100.140 Temporary
relocation of floating structure; security interests upon termination of
condominium
FLEXIBLE CONDOMINIUMS
100.150 Declarant’s
options until termination date
100.155 Variable
property; uses and restrictions
RIGHTS AND DUTIES OF DECLARANT
100.170 Easement
held by declarant
100.175 Reserve
account for maintaining, repairing and replacing common elements; reserve
study; maintenance plan
WARRANTIES ON NEW UNITS
100.185 Express
warranties; form; exclusion of implied warranties; exemption for consumer
products; claims
DECLARANT CONTROL; TURNOVER
100.200 Declarant
control of association
100.205 Transitional
committee; notice of meeting for formation
100.210 Turnover
meeting; notice; transfer of control
SPECIAL DECLARANT RIGHTS
100.220 Liabilities
and obligations arising from transfer of special declarant right; exemptions
100.225 Acquisition
of special declarant rights by successor declarant; exceptions
DOCUMENT FILING
100.250 Documents
required to be filed with Real Estate Agency; fees
100.255 Processing
of documents filed with Real Estate Agency; procedures
100.260 Condominium
Information and Annual Reports; contents; fees
100.265 Annual
Report; notification; filing
100.275 Application
of ORS 100.250 to 100.280
100.280 Termination
of filing Condominium Information Report
100.285 Resignation
of designated agent; procedures; effective date
100.290 Rules
CONVERSION CONDOMINIUMS
100.300 Inapplicability
of ORS 100.301 to 100.320 to transient lodgings
100.301 Definitions
for ORS 100.301 to 100.320
100.305 Conversion
condominium; notice
100.310 Rights
of tenants in conversion
100.315 Improvements
in conversion condominium during notice period
100.320 Authority
of city or county to require developer to pay tenant moving expenses
ASSOCIATION OF UNIT OWNERS; MANAGEMENT
OF PROPERTY; ENCUMBRANCES; CONVEYANCES
100.405 Association
of unit owners; powers; granting of interest in common elements; dispute
resolution
100.407 Annual
and special meetings of association
100.408 Quorum
for meeting of association
100.409 Rules
of order
100.410 Adoption
of bylaws; recording; amendment; approval by commissioner; fee
100.412 Annual
budget; distribution of budget summary to owners
100.415 Contents
of bylaws
100.416 Criteria
for board of directors membership
100.417 Board
of directors of association; powers and duties
100.418 Receivership
for failure of association to fill vacancies on board of directors
100.419 Assent
of director to board action
100.420 Board
meetings; executive sessions
100.423 Electronic
notice to owner or director
100.425 Use
of written ballot for approving or rejecting matters subject to meeting of unit
owners; procedures; exceptions
100.427 Methods
of voting
100.428 Electronic
ballot
100.430 Unit
deeds; contents
100.435 Insurance
for individual units and common elements
100.440 Liens
against property; removal from lien; effect of part payment
100.445 Independent
default clauses; option to purchase fee simple interest
100.450 Association
lien against individual unit; recording notice of claim; foreclosure; priority
of lien
100.460 Foreclosure
against unit; receiver for unit; power of board of directors to bid at
foreclosure sale
100.465 Circumstances
in which deed in lieu of foreclosure extinguishes lien
100.470 Lien
foreclosure; other legal action by declarant, association or owner; attorney
fees
100.475 Personal
liability for assessment; joint liability of grantor and grantee following
conveyance; limitation
100.480 Maintaining
documents and records; annual financial statement; review of financial
statement by certified public accountant; availability of documents and records
for examination
100.485 Duration
and termination of initial management agreements and service and employment
contracts; applicability of federal condominium law
100.490 Notice
to unit owners of intent of association to commence judicial or administrative
proceedings; contents of notice; right of unit owner to opt out
ATTRIBUTES AND DUTIES OF OWNERSHIP
100.505 Status
and ownership of units
100.510 Units
and common elements distinguished
100.515 Interest
of units in common elements
100.520 Easement
held by units and common elements
100.525 Voting
or consenting
100.530 Allocation
of common profits and expenses; liability of unit owner; limitation on
assessments against declarant; deferral of assessments by declarant
100.535 Maintenance
and improvement of units
100.540 Use
and maintenance of common elements; access for maintenance
100.545 Compliance
with bylaws and other restrictions
100.550 Service
of process
100.555 Taxation
of units; exemptions; uniform appraisal and assessment; rules
REMOVAL OF PROPERTY FROM UNIT OWNERSHIP
100.600 Termination
of association or removal of real property by unit owners; consent of
lienholders; recordation; amended plat requirements
100.605 Removal
of property from association; repair or removal of property that is damaged or
destroyed
100.610 Common
ownership of property removed from unit ownership; valuation; liens
100.615 Action
for partition; division of sale proceeds
100.620 Termination
or removal no bar to resubmission
DIVIDING OR CONVERTING UNITS
100.625 Procedure
for dividing or converting units
REGULATION OF SALES; FILING REQUIREMENTS
100.635 Filing
with commissioner; fee
100.640 Filing;
required documents and information
100.645 Filing
information to be kept current
100.650 Service
of process on nonresident developer; consent for service on commissioner;
contents of consent; records of service on commissioner
100.655 Disclosure
statement; contents; disclosure statement from other state; declarant liability
limited
100.660 Nonresidential
condominium or security filing; contents
100.665 Exemption
to certain disclosure and notice requirements
100.670 Fees;
hourly rate; deposit
100.675 Inventory;
review; approval; timelines
100.680 Escrow;
sales agreement; requirements
INSPECTION OF CONDOMINIUM; DISCLOSURE
STATEMENT
100.700 Inspection
of condominium; report in disclosure statement
100.705 Sale
prohibited prior to issuance of disclosure statement; exception; distribution;
use of disclosure statement
100.710 Inspection
deposit
REQUIREMENTS FOR SALE
100.720 Conditions
prerequisite to sale
100.725 Documents
prerequisite to execution of sale agreement and conveyance of unit
100.730 Cancellation
of sale of unit; notice to seller; return of payments and reconveyance;
extinguishment of encumbrances; waiver prohibited; disclaimer of notice;
applicability
100.735 Waiver
of right to cancel
100.740 Notice
to purchaser of cancellation rights; form
100.745 Escrow
documents required of successor to vendor’s interest
100.750 Inspection
of records
PROHIBITED ACTS
100.770 Fraud
and deceit prohibited
100.775 False
or misleading advertising prohibited; liability
100.780 Waiver
of legal rights void
100.785 Blanket
encumbrance prohibited
ENFORCEMENT
100.900 Civil
penalty
100.905 Cease
and desist order; injunction
100.910 Use
of fees
MISCELLANEOUS
100.920 Changes
or actions that require approval or consent of mortgagee
CRIMINAL PENALTIES
100.990 Criminal
penalties
GENERAL PROVISIONS
100.005 Definitions.
As used in this chapter, unless the context requires otherwise:
(1)
“Assessment” means any charge imposed or levied by the association of unit
owners on or against a unit owner or unit pursuant to provisions of the
declaration or the bylaws of the condominium or provisions of ORS 100.005 to
100.910.
(2)
“Association of unit owners” means the association provided for under ORS
100.405.
(3)
“Association property” means any real property or interest in real property
acquired, held or possessed by the association under ORS 100.405.
(4)
“Blanket encumbrance” means a trust deed or mortgage or any other lien or
encumbrance, mechanic’s lien or otherwise, securing or evidencing the payment
of money and affecting more than one unit in a condominium, or an agreement
affecting more than one such unit by which the developer holds such condominium
under an option, contract to sell or trust agreement.
(5)
“Building” means a multiple-unit building or single-unit buildings, or any
combination thereof, comprising a part of the property. “Building” also
includes a floating structure described in ORS 100.020 (3)(b)(D).
(6)
“Commissioner” means the Real Estate Commissioner.
(7)
“Common elements” means the general common elements and the limited common
elements.
(8)
“Common expenses” means:
(a)
Expenses of administration, maintenance, repair or replacement of the common
elements;
(b)
Expenses agreed upon as common by all the unit owners; and
(c)
Expenses declared common by ORS 100.005 to 100.625 or by the declaration or the
bylaws of the particular condominium.
(9)
“Condominium” means:
(a)
With respect to property located within this state:
(A)
The land, if any, whether fee simple, leasehold, easement or other interest or
combination thereof, and whether contiguous or noncontiguous;
(B)
Any buildings, improvements and structures on the property; and
(C)
Any easements, rights and appurtenances belonging to the property submitted to
the provisions of ORS 100.005 to 100.625; and
(b)
With respect to property located outside this state, the property that has been
committed to the condominium form of ownership in accordance with the jurisdiction
within which the property is located.
(10)
“Conversion condominium” means a condominium in which there is a building,
improvement or structure that was occupied prior to any negotiation and that
is:
(a)
Residential in nature, at least in part; and
(b)
Not wholly commercial or industrial, or commercial and industrial, in nature.
(11)
“Declarant” means a person who records a declaration under ORS 100.100 or a
supplemental declaration under ORS 100.110.
(12)
“Declaration” means the instrument described in ORS 100.100 by which the
condominium is created and as modified by any amendment recorded in accordance
with ORS 100.135 or supplemental declaration recorded in accordance with ORS
100.120.
(13)
“Developer” means a declarant or any person who purchases an interest in a
condominium from declarant, successor declarant or subsequent developer for the
primary purpose of resale.
(14)
“Flexible condominium” means a condominium containing property that may be
reclassified or withdrawn from the condominium pursuant to ORS 100.150 (1).
(15)
“General common elements,” unless otherwise provided in a declaration, means
all portions of the condominium that are not part of a unit or a limited common
element, including but not limited to the following:
(a)
The land, whether fee simple, leasehold, easement, other interest or
combination thereof, together with any rights and appurtenances;
(b)
The foundations, columns, girders, beams, supports, bearing and shear walls,
windows, except glazing and screening, unit access doors, except glazing and
screening, roofs, halls, corridors, lobbies, stairs, fire escapes, entrances
and exits of a building;
(c)
The basements, yards, gardens, parking areas and outside storage spaces;
(d)
Installations of central services such as power, light, gas, hot and cold
water, heating, refrigeration, air conditioning, waste disposal and
incinerating;
(e)
The elevators, tanks, pumps, motors, fans, compressors, ducts and in general
all apparatus and installations existing for common use;
(f)
The premises for the lodging of janitors or caretakers of the property; and
(g)
All other elements of a building and the condominium necessary or convenient to
their existence, maintenance and safety, or normally in common use.
(16)
“Leasehold” means the interest of a person, firm or corporation who is the
lessee under a lease from the owner in fee and who files a declaration creating
a condominium under ORS 100.100.
(17)
“Limited common elements” means those common elements designated in the declaration,
as reserved for the use of a certain unit or number of units, to the exclusion
of the other units.
(18)
“Majority” or “majority of unit owners” means more than 50 percent of the
voting rights allocated to the units by the declaration.
(19)
“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.
(20)
“Negotiation” means any activity preliminary to the execution by either
developer or purchaser of a unit sales agreement, including but not limited to
advertising, solicitation and promotion of the sale of a unit.
(21)
“Nonwithdrawable property” means property which pursuant to ORS 100.150 (1)(b):
(a)
Is designated nonwithdrawable in the declaration and on the plat; and
(b)
Which may not be withdrawn from the condominium without the consent of all of
the unit owners.
(22)
“Percent of owners” or “percentage of owners” means the percent of the voting
rights determined under ORS 100.525.
(23)
“Purchaser” means an actual or prospective purchaser of a condominium unit
pursuant to a sale.
(24)
“Recording officer” means the county officer charged with the duty of filing
and recording deeds and mortgages or any other instruments or documents
affecting the title to real property.
(25)
“Reservation agreement” means an agreement relating to the future sale of a
unit which is not binding on the purchaser and which grants purchaser the right
to cancel the agreement without penalty and obtain a refund of any funds
deposited at any time until purchaser executes a unit sales agreement.
(26)
“Sale” includes every disposition or transfer of a condominium unit, or an
interest or estate therein, by a developer, including the offering of the
property as a prize or gift when a monetary charge or consideration for
whatever purpose is required by the developer. “Interest or estate” includes a
lessee’s interest in a unit for more than three years or less than three years
if the interest may be renewed under the terms of the lease for a total period
of more than three years. “Interest or estate” does not include any interest
held for security purposes or a timeshare regulated or otherwise exempt under
ORS 94.803 and 94.807 to 94.945.
(27)
“Special declarant right” means any right, in addition to the regular rights of
the declarant as a unit owner, reserved for the benefit of or created by the
declarant under the declaration, bylaws or the provisions of this chapter.
(28)
“Staged condominium” means a condominium which provides for annexation of
additional property pursuant to ORS 100.115 and 100.120.
(29)
“Successor declarant” means the transferee of any special declarant right.
(30)
“Termination date” means that date described in ORS 100.105 (2)(b) or (7)(d).
(31)
“Transitional committee” means the committee provided for under ORS 100.205.
(32)
“Turnover meeting” means the meeting provided for under ORS 100.210.
(33)
“Unit” or “condominium unit” means a part of the property which:
(a)
Is described in ORS 100.020 (3);
(b)
Is intended for any type of independent ownership; and
(c)
The boundaries of which are described pursuant to ORS 100.105 (1)(d).
(34)
“Unit designation” means the number, letter or combination thereof designating
a unit in the declaration and on the plat.
(35)
“Unit owner” means, except to the extent the declaration or bylaws provide
otherwise, the person owning fee simple interest in a unit, the holder of a
vendee’s interest in a unit under a recorded installment contract of sale and,
in the case of a leasehold condominium, the holder of the leasehold estate in a
unit.
(36)
“Unit sales agreement” means a written offer or agreement for the sale of a
condominium unit which when fully executed will be binding on all parties. “Unit
sales agreement” includes but is not limited to an earnest money receipt and
agreement to purchase and other such agreements which serve as an agreement of
sale for a cash transaction or which are preliminary to the execution of an
installment contract of sale, but does not include a reservation agreement.
(37)
“Variable property” means property described in ORS 100.150 (2) and designated
as variable property in the declaration and on the plat.
(38)
“Voting rights” means the portion of the votes allocated to a unit by the declaration
in accordance with ORS 100.105 (1)(j). [Formerly 94.004; 1997 c.816 §1; 1999
c.677 §38; 2001 c.756 §24; 2007 c.410 §5]
100.010 Short title.
This chapter may be cited as the Oregon Condominium Act. [Formerly 94.011]
100.015 Rules.
The Real Estate Commissioner may adopt such rules as are necessary for the
administration of this chapter. [Formerly 94.333]
Note:
100.015 was added to and made a part of 100.635 to 100.910 by legislative
action but was not added to any other series. See Preface to Oregon Revised
Statutes for further explanation.
100.020 Condominium provisions;
restrictions. (1) Except as otherwise provided in
subsections (2) and (3) of this section, ORS 100.100 to 100.625 apply only to
property located within this state which a person elects to submit to the
condominium form of ownership as provided in ORS 100.005 to 100.625.
(2)
Unless the declarant elects otherwise, ORS 100.175, 100.185, 100.200 (2),
100.205, 100.210, 100.300, 100.305, 100.310, 100.315 and 100.320 apply only to
condominiums that include units to be used for residential purposes.
(3)
Property may not be submitted to the condominium form of ownership under ORS
100.005 to 100.625 unless:
(a)
Each unit has legal access to a public street or highway or, if the unit has
such access only by virtue of common ownership with other units, the
declaration executed under ORS 100.110 prohibits conveyance of the unit unless
after conveyance the unit will continue to have legal access to a public street
or highway;
(b)
Subject to paragraph (c) of this subsection, each unit consists of:
(A)
A building or part of a building;
(B)
A space used for the parking or storage of automobiles, trucks, boats, campers
or other vehicles or equipment;
(C)
A space for the moorage of a watercraft, floating home or other structure; or
(D)
A floating structure, including a structure formerly used as a ship or other
vessel that:
(i)
Is permanently moored to structures in a river, lake or other waterway pursuant
to a long-term lease with a remaining term at the time the declaration and plat
are recorded of not less than 15 years;
(ii)
Contains two or more residential units with a combined floor space of not less
than 2,000 square feet; and
(iii)
Has upland common elements owned in fee or by leasehold having a remaining term
of not less than the remaining term of the leasehold on the submerged or
submersible land. The units in a condominium described in this subparagraph
shall be considered real property for purposes of the Oregon Condominium Act; and
(c)
Each unit has an interest in the common elements in accordance with ORS
100.515. However, a unit may not include any portion of the land. A declaration
may not provide that there are no common elements.
(4)(a)
Except as otherwise provided in subsection (5) of this section, ORS 100.015 and
100.635 to 100.910 apply to condominiums having units to be used for
residential purposes which are not offered for sale as a security pursuant to
ORS 59.005 to 59.451.
(b)
ORS 100.635 (2), 100.640 (8) to (12), 100.655, 100.705, 100.720, 100.725,
100.730, 100.735, 100.740 and 100.745 do not apply to the sale of units to be
used for nonresidential purposes as provided in subsection (5) of this section
unless the units, including units used for parking or storage, are ancillary to
the sale of units to be used for residential purposes.
(5)(a)
ORS 100.650, 100.660, 100.670, 100.675, 100.750, 100.770, 100.775, 100.780,
100.900, 100.905 and 100.990 apply to a condominium located in this state that
consists exclusively of units to be used for nonresidential purposes or that
consists of units to be offered for sale as a security under ORS 59.005 to
59.451.
(b)
As used in this subsection, “nonresidential purposes” includes apartments
within a condominium in which the apartments are not separate units or units
that are restricted in use by the unit owner to less than full-time residential
purposes.
(6)
The units in a condominium described in subsection (3)(b)(C) and (D) of this
section shall be considered real property for purposes of this chapter.
(7)
Unless the declaration or bylaws provide otherwise, a condominium unit may be
submitted to the condominium form of ownership under ORS 100.005 to 100.625.
(8)
If an association creates not more than two additional units from common
elements by an amendment to the declaration under ORS 100.135, then ORS 100.635
(2), 100.640 (8) to (12), 100.655, 100.705, 100.720, 100.725, 100.730, 100.735
and 100.745 do not apply to the sale of the units by the association. [Formerly
94.013; 1997 c.816 §2; 1999 c.677 §39; 2001 c.756 §25; 2007 c.410 §6; 2009
c.641 §20]
100.022 Application of zoning,
subdivision, building code or real property law to condominium.
(1) A zoning, subdivision, building code or other real property law, ordinance
or regulation may not prohibit the condominium form of ownership or impose any
requirement upon a structure or development proposed to be submitted to the
condominium form of ownership under this chapter that it would not impose upon
a structure or development under a different form of ownership.
(2)
Except as set forth in this section, no provision of this chapter invalidates
or modifies any provision of any zoning, subdivision, building code or other
real property use law, ordinance or regulation.
(3)
Subsection (1) of this section does not prohibit any governmental approval
required under this chapter. [2009 c.641 §19]
Note:
100.022 was added to and made a part of ORS chapter 100 by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
100.025 Rule against perpetuities;
inapplicable. The rule against perpetuities may not
be applied to defeat any provisions of a declaration, supplemental declaration,
bylaw or rule for a condominium adopted under ORS 100.005 to 100.625. [Formerly
94.016]
CREATION OF UNIT OWNERSHIP
100.100 Property submitted to unit
ownership by declaration; executors of declaration; conflict between this chapter
and ORS chapter 65. (1) In order to submit any property
to the provisions of this chapter, the declarant shall record a declaration in
the office of the recording officer of every county in which such property is
located. The declaration shall comply with ORS 100.105 and shall be executed in
accordance with subsection (2) of this section and acknowledged in the manner
provided for acknowledgment of deeds.
(2)
If the declarant is not the fee owner of the property, the fee owner and the
vendor under any instrument of sale shall also execute the declaration for the
purpose of consenting to the property being submitted to the provisions of this
chapter.
(3)
If the condominium contains any variable property, the holder of any mortgage
or trust deed shall also execute the declaration for the purpose of consenting
to the property being submitted to the provisions of ORS 100.005 to 100.625 and
the terms and conditions of the declaration and bylaws.
(4)
A flexible or staged condominium may be created only as provided in ORS 100.005
to 100.625.
(5)
The provisions of and rights conferred by ORS 100.005 to 100.910 shall not be
varied or waived except as expressly provided in those statutes. A declarant
shall not act under a power of attorney or use any other device to evade the
limitations or prohibitions in the declaration, bylaws or ORS 100.005 to
100.910.
(6)
If the provisions of this chapter and the provisions of ORS chapter 65 apply to
an association and the provisions conflict, the provisions of this chapter
control. [Formerly 94.023; 2003 c.569 §22]
100.102 Leasehold condominium submitted to
unit ownership. (1) The owner of fee title
interest in the real property underlying a leasehold condominium may submit the
fee title to the provisions of this chapter by the procedures set forth in this
section. Submission has the effect set forth in ORS 100.103.
(2)
The fee title interest of a leasehold condominium may be submitted to the
provisions of this chapter by an amendment to the declaration. The amendment
must:
(a)
Include a reference to the recording index numbers and date of recording of the
initial declaration, supplemental declarations recorded pursuant to ORS 100.120
and the lease;
(b)
State that the fee title interest in the real property subject to the leasehold
is submitted to the provisions of this chapter pursuant to this section;
(c)
State that the submission of the fee title interest in the real property
subject to the leasehold to the provisions of this chapter has the effect set
forth in ORS 100.103;
(d)
State that there are no encumbrances against the fee title interest securing
payment of moneys except for the assessments of the owners association that are
not yet due;
(e)
Be approved by at least 75 percent of the unit owners, notwithstanding that the
declaration may require approval by a larger percentage of owners or the
consent of another person to amend the declaration;
(f)
Be executed by the fee title holder and the chairperson and secretary of the
association and acknowledged in the manner provided for acknowledgment of
instruments;
(g)
Be certified by the chairperson and secretary as being adopted in accordance
with this section;
(h)
Be approved as required by ORS 100.110; and
(i)
Be recorded in the office of the recording officer of each county in which the
condominium is located.
(3)
At the time of submission, the fee title interest being submitted may not be
subject to an encumbrance securing payment of money except for the assessments
of an association that are not yet due.
(4)
Nothing in this section precludes the declarant of a leasehold condominium, the
unit owners and the association from agreeing to other procedures for
submitting the fee title interest to the provisions of this chapter, provided
the procedures are set forth in:
(a)
The declaration; or
(b)
An amendment to the declaration approved by at least 75 percent of the unit
owners or, if a larger percentage is specified in the declaration to effect
amendments to the declaration, the larger percentage, and 75 percent of the
lenders holding a first-priority security position in any unit in the
condominium. [2003 c.569 §43; 2007 c.410 §7]
Note:
100.102 and 100.103 were added to and made a part of ORS chapter 100 by
legislative action but were not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation.
100.103 Effect of submission of leasehold
condominium to unit ownership. (1) After an
amendment submitting the fee title interest underlying a leasehold condominium
has been recorded as provided in ORS 100.102:
(a)
The leasehold or leaseholds affecting the fee title interest of the land
underlying the condominium property must be converted to individual leaseholds
of the units;
(b)
The former owner of the underlying fee title interest of the condominium
property shall become the holder of the fee title interest to all individual
units and the lessor of the individual units. The individual unit owners of the
leasehold condominium units shall become lessees of the fee title condominium
units;
(c)
Unless otherwise provided by the lease or agreed by the lessor and lessee of
the fee title condominium units, the obligations to pay rent under the former
lease must be allocated among all former leasehold units on the basis of the
percentage ownership in the common elements of the condominium allocated to
each unit;
(d)
Liens against leasehold condominium units become liens on the lessee’s interest
in the leased unit and have the same priority and rights against the leasehold
of the individual unit in the fee title condominium formerly held against the
leasehold condominium unit;
(e)
The holder of the fee title to the unit in the fee condominium shall have the
same priority and rights in the individual leasehold of the fee title
condominium unit as was held under the leases prior to submission of the fee
title interest; and
(f)
The fee title interest is not subject to the liens suffered or incurred by the
unit lessee, except for property taxes and condominium association assessment
liens.
(2)
The assessor shall assign all value of the fee simple interest to the fee title
condominium units and allocate any additional value in accordance with the
allocation of interest of each unit in the common elements.
(3)
All easements, covenants, conditions and restrictions or other interests encumbering
the fee title and the leasehold at the time of submission of the fee title to
the provisions of this chapter continue and remain in full force, unaffected by
the submission.
(4)(a)
Options to purchase that were granted to unit owners or to the association
prior to submission of the fee title interest to the provisions of this chapter
pursuant to ORS 100.102 continue according to their terms, except that
purchaser options must be segregated so that each option pertains to an
individual unit only.
(b)
Unless the purchase options provide otherwise, the purchase price must be
allocated among the individual units on the basis of the percentage ownership
interest in the common elements pertaining to individual units.
(c)
Except for segregating the former leasehold into individual leaseholds in each
of the units and reallocating lease payments among the units as provided in
this section, the terms and provisions of the former lease are unaffected by
submission of the fee title to the provisions of this chapter.
(d)
Except for segregating the purchase options and allocating the purchase price,
if not otherwise allocated by the terms of the purchase option, the terms and
provisions of the purchase option are unaffected by submission of the fee title
to the provisions of this chapter. [2003 c.569 §44]
Note: See
note under 100.102.
100.105 Contents of declaration; property
name; variable property description. (1) A
declaration shall contain:
(a)
A description of the property, including property on which a unit or a limited
common element is located, whether held in fee simple, leasehold, easement or
other interest or combination thereof, that is being submitted to the
condominium form of ownership and that conforms to the description in the
surveyor’s certificate provided under ORS 100.115 (1).
(b)
Subject to subsection (11) of this section, a statement of the interest in the
property being submitted to the condominium form of ownership, whether fee
simple, leasehold, easement or other interest or combination thereof.
(c)
Subject to subsection (5) of this section, the name by which the property shall
be known and a general description of each unit and the building or buildings,
including the number of stories and basements of each building, the total
number of units and the principal materials of which they are constructed.
(d)
The unit designation, a statement that the location of each unit is shown on
the plat, a description of the boundaries and area in square feet of each unit
and any other data necessary for proper identification. The area of a unit
shall be the same as shown for that unit on the plat described in ORS 100.115
(1).
(e)
A notice in substantially the following form in at least 12-point type that is
either all capitals or boldface:
______________________________________________________________________________
NOTICE
THE
SQUARE FOOTAGE AREAS STATED IN THIS DECLARATION AND THE PLAT ARE BASED ON THE
BOUNDARIES OF THE UNITS AS DESCRIBED IN THIS DECLARATION AND MAY VARY FROM THE
AREA OF UNITS CALCULATED FOR OTHER PURPOSES.
______________________________________________________________________________
(f)
A description of the general common elements.
(g)
An allocation to each unit of an undivided interest in the common elements in
accordance with ORS 100.515 and the method used to establish the allocation.
(h)
The designation of any limited common elements including:
(A)
A general statement of the nature of the limited common element;
(B)
A statement of the unit to which the use of each limited common element is
reserved, provided the statement is not a reference to an assignment of use
specified on the plat; and
(C)
The allocation of use of any limited common element appertaining to more than
one unit.
(i)
The method of determining liability for common expenses and right to common
profits in accordance with ORS 100.530.
(j)
The voting rights allocated to each unit in accordance with ORS 100.525 or in
the case of condominium units committed as property in a timeshare plan defined
in ORS 94.803, the voting rights allocated in the timeshare instrument.
(k)
A statement of the use, residential or otherwise, for which the building or
buildings and each of the units is intended.
(L)
A statement that the designated agent to receive service of process in cases
provided in ORS 100.550 (1) is named in the Condominium Information Report
which will be filed with the Real Estate Agency in accordance with ORS 100.250
(1)(a).
(m)
The method of amending the declaration and the percentage of voting rights
required to approve an amendment of the declaration in accordance with ORS
100.135.
(n)
A statement as to whether or not the association of unit owners pursuant to ORS
100.405 (5) and (8) has authority to grant leases, easements, rights of way,
licenses and other similar interests affecting the general and limited common
elements of the condominium and consent to vacation of roadways within and
adjacent to the condominium.
(o)
If the condominium contains a floating structure described in ORS 100.020 (3),
a statement regarding the authority of the board of directors of the
association, subject to ORS 100.410, to temporarily relocate the floating
structure without a majority vote of affected unit owners.
(p)
Any restrictions on alienation of units. Any such restrictions created by
documents other than the declaration may be incorporated by reference in the
declaration to the official records of the county in which the property is
located.
(q)
Any other details regarding the property that the person executing the
declaration considers desirable. However, if a provision required to be in the
bylaws under ORS 100.415 is included in the declaration, the voting
requirements for amending the bylaws shall also govern the amendment of the
provision in the declaration.
(2)
In the event the declarant proposes to annex additional property to the
condominium under ORS 100.125, the declaration shall also contain a general
description of the plan of development, including:
(a)
The maximum number of units to be included in the condominium.
(b)
The date after which any right to annex additional property will terminate.
(c)
A general description of the nature and proposed use of any additional common
elements which declarant proposes to annex to the condominium, if such common
elements might substantially increase the proportionate amount of the common
expenses payable by existing unit owners.
(d)
A statement that the method used to establish the allocation of undivided
interest in the common elements, the method used to determine liability for
common expenses and right to common profits and the method used to allocate
voting rights for each unit annexed shall be as stated in the declaration in
accordance with subsection (1)(g), (i) and (j) of this section.
(e)
Such other information as the Real Estate Commissioner shall require in order
to carry out the purposes of ORS 100.015, 100.116, 100.635 to 100.730 and
100.740 to 100.910.
(3)
Except where expressly prohibited by the declaration and subject to the
requirements of ORS 100.135 (2) and subsections (9) and (10) of this section:
(a)
Not later than two years following the termination dates specified in
subsections (2)(b) and (7)(d) of this section, such termination dates may be
extended for a period not exceeding two years; and
(b)
The general description under subsection (2)(c) of this section and the
information included in the declaration in accordance with subsection (7)(c),
(g) and (h) of this section may be changed by an amendment to the declaration.
(4)
The information included in the declaration in accordance with subsection
(2)(a) and (d) of this section and subsection (7)(a), (b), (e), (f) and (k) of
this section may not be changed unless all owners agree to the change and
record an amendment to the declaration in accordance with this chapter.
(5)
The name of the property shall include the word “condominium” or “condominiums”
or the words “a condominium.”
(6)
A condominium may not bear a name which is the same as or deceptively similar
to the name of any other condominium located in the same county.
(7)
If the condominium is a flexible condominium containing variable property, the
declaration shall also contain a general description of the plan of
development, including:
(a)
A statement that the rights provided for under ORS 100.150 (1) are being
reserved.
(b)
A statement:
(A)
Of any limitations on rights reserved under ORS 100.150 (1), including whether
the consent of any unit owner shall be required, and if so, a statement of the
method by which the consent shall be ascertained; or
(B)
That there are no limitations on rights reserved under ORS 100.150 (1).
(c)
A statement of the total number of tracts of variable property within the
condominium, including:
(A)
A designation of each tract as withdrawable or nonwithdrawable variable
property;
(B)
Identification of each variable tract by a label in accordance with ORS 100.115
(1)(i);
(C)
A statement of the method of labeling each tract depicted on the plat in
accordance with ORS 100.115 (1)(i); and
(D)
A statement of the total number of tracts of each type of variable property.
(d)
The termination date, which is the date or time period after which any right
reserved under ORS 100.150 (1) will terminate, and a statement of the
circumstances, if any, that will terminate any right on or before the date or
time period specified. The date or time period may not exceed seven years from
the recording of the conveyance of the first unit in the condominium to a
person other than the declarant. Recording shall be in the county in which the
property is located.
(e)
The maximum number of units that may be created.
(f)
A statement that the method used to establish the allocations of undivided
interest in the common elements, the method used to determine liability for
common expenses and right to common profits and the method used to allocate
voting rights as additional units are created shall be the same as stated in
the declaration in accordance with subsection (1)(g), (i) and (j) of this
section.
(g)
A general description of all existing improvements and the nature and proposed
use of any improvements that may be made on variable property if the
improvements might substantially increase the proportionate amount of the
common expenses payable by existing unit owners.
(h)
A statement of whether or not the declarant reserves the right to create
limited common elements within any variable property, and if so, a general
description of the types that may be created.
(i)
A statement that the plat shows the location and dimensions of all withdrawable
variable property that is labeled “WITHDRAWABLE VARIABLE PROPERTY.”
(j)
A statement that if by the termination date all or a portion of the
withdrawable variable property has not been withdrawn or reclassified, the
withdrawable property shall automatically be withdrawn from the condominium as
of the termination date.
(k)
A statement of the rights of the association under ORS 100.155 (2).
(L)
A statement of whether or not all or any portion of the variable property may
not be withdrawn from the condominium and, if so, with respect to the
nonwithdrawable variable property:
(A)
A statement that the plat shows the location and dimensions of all
nonwithdrawable property that is labeled “NONWITHDRAWABLE VARIABLE PROPERTY.”
(B)
A description of all improvements that may be made and a statement of the
intended use of each improvement.
(C)
A statement that, if by the termination date all or a portion of the variable
property designated as “nonwithdrawable variable property” has not been
reclassified, the property shall automatically be reclassified as of the
termination date as a general common element of the condominium and any
interest in such property held for security purposes shall be automatically
extinguished by such classification.
(D)
A statement of the rights of the association under ORS 100.155 (3).
(m)
A statement by the local governing body or appropriate department thereof that
the withdrawal of any variable property designated as “withdrawable variable
property” in the declaration in accordance with paragraph (L) of this
subsection, will not violate any applicable planning or zoning regulation or
ordinance. The statement may be attached as an exhibit to the declaration.
(8)
The plan of development for any variable property included in the declaration
or any supplemental declaration of any stage in accordance with subsection (7)
of this section shall be subject to any plan of development included in the
declaration in accordance with subsection (2) of this section, except that the
time limitation specified in subsection (7)(d) of this section shall govern any
right reserved under ORS 100.150 (1) with respect to any variable property.
(9)
The information included in the declaration in accordance with subsection
(7)(j), (k) and (m) of this section may not be deleted by amendment.
(10)
Approval by the unit owners shall not be required to redesignate variable
property as “nonwithdrawable variable property” by supplemental declaration or
amendment if such redesignation is required by the local governing body or
appropriate department thereof to comply with any planning or zoning regulation
or ordinance. If as a result of such redesignation the information required to
be included in the supplemental declaration or an amendment under subsection
(7)(L)(B) of this section is inconsistent with the information included in the
declaration or supplemental declaration in accordance with subsection (7)(g) of
this section, an amendment to the declaration approved by at least 75 percent of
owners shall be required.
(11)
The statement of an interest in property other than fee simple submitted to the
condominium form of ownership and any easements, rights or appurtenances
belonging to property submitted to the condominium form of ownership, whether
leasehold or fee simple, shall include:
(a)
A reference to the recording index numbers and date of recording of the
instrument creating the interest; or
(b)
A reference to the law, administrative rule, ordinance or regulation that
creates the interest if the interest is created under law, administrative rule,
ordinance or regulation and not recorded in the office of the recording officer
of the county in which the property is located. [Formerly 94.029; 1995 c.31 §1;
1997 c.816 §3; 1999 c.677 §40; 2001 c.756 §26; 2003 c.569 §23; 2007 c.410 §8;
2009 c.641 §36]
100.110 Approval of declaration,
supplemental declaration or amendment required; prerequisites; fee.
(1)(a) Before a declaration, supplemental declaration or an amendment thereto
may be recorded, it must be approved as provided in this section by the county
assessor of the county in which the property is located and the Real Estate
Commissioner.
(b)
Before a declaration, supplemental declaration or, if required under subsection
(3) of this section, an amendment thereto may be recorded, it must be approved
by the tax collector of the county in which the property is located.
(c)
A declaration, supplemental declaration or amendment thereto may not be
approved unless the requirements of subsections (2) to (7) of this section are
met. Approval shall be evidenced by execution of the declaration or amendment
or by a written approval attached thereto.
(2)
The county assessor of the county in which the property is located shall
approve a declaration, supplemental declaration or amendment thereto if:
(a)
The name complies with ORS 100.105 (5) and (6); and
(b)
The plat complies with the requirements of ORS 100.115 or the plat amendment
complies with ORS 100.116.
(3)
The tax collector of the county in which the property is located shall approve
the declaration or supplemental declaration, or an amendment that adds property
to the condominium, changes the boundary of a unit or creates an additional
unit from common elements for which a plat amendment is required under ORS
100.116, if:
(a)
All ad valorem taxes, special assessments, fees, or other charges required by
law to be placed upon the tax roll which have or will become a lien upon the
property during the tax year have been paid;
(b)
Advance payment of ad valorem taxes, special assessments, fees or other charges
which are not on the tax roll and for which payment is required under paragraph
(a) of this subsection has been made to the tax collector utilizing the
procedures contained in ORS 92.095 and 311.370; and
(c)
The additional taxes, penalty, and any interest attributable thereto, required
because of disqualification of the property from any special assessment have
been paid.
(4)
Subject to subsection (6) of this section, the commissioner shall approve the
declaration or amendment thereto if:
(a)
The declaration or the amendment thereto complies with the requirements of ORS
100.105 and 100.135;
(b)
The bylaws adopted under ORS 100.410 comply with the requirements of ORS
100.410 and 100.415;
(c)
The plat complies with the requirements of ORS 100.115 or the plat amendment
complies with ORS 100.116;
(d)
The declaration is for a conversion condominium and the declarant has
submitted:
(A)
An affidavit that the notice of conversion was given in accordance with ORS
100.305 and that the notice period has expired;
(B)
An affidavit that the notice of conversion was given in accordance with ORS
100.305 and copies of the written consent of any tenants as provided in ORS
100.305 (6) or a signed statement that no tenants were entitled to notice under
ORS 100.305; or
(C)
Any applicable combination of the requirements of subparagraphs (A) and (B) of
this paragraph; and
(e)
A paper copy of the plat executed by the declarant and prepared in conformance
with ORS 100.115 or plat amendment prepared in conformance with ORS 100.116 and
a certification of plat execution, on a form prescribed and furnished by the
commissioner, have been submitted stating that the paper copy is a true copy of
the plat signed by the declarant. The certification may be executed by the
declarant, the professional land surveyor who signed the surveyor’s certificate
on the plat, the attorney for the declarant, a representative of the title
insurance company that issued the information required under ORS 100.640 (5) or
100.660 (2)(d) or another person authorized by the declarant in writing to
execute the certification.
(5)
The commissioner shall approve a supplemental declaration if:
(a)
The supplemental declaration complies with the requirements of ORS 100.120;
(b)
The supplemental plat complies with the requirements of ORS 100.115;
(c)
The supplemental declaration is for a conversion condominium and the declarant
has complied with the requirements of subsection (4)(d) of this section; and
(d)
A paper copy of the supplemental plat and a certification of plat execution
described in subsection (4)(e) of this section have been submitted.
(6)
Approval by the commissioner is not required for an amendment to a declaration
transferring the right of use of a limited common element pursuant to ORS
100.515 (5).
(7)
Before the commissioner approves the declaration, supplemental declaration or
amendment thereto under this section:
(a)
The declarant or other person requesting approval shall pay to the commissioner
a fee determined by the commissioner under ORS 100.670; and
(b)
For an amendment or supplemental declaration, the Condominium Information
Report and the Annual Report described in ORS 100.260 shall be designated
current by the Real Estate Agency as provided in ORS 100.255 and the fee
required under ORS 100.670 shall be paid.
(8)
If the declaration, supplemental declaration or amendment thereto approved by
the commissioner under subsection (4) or (5) of this section is not recorded in
accordance with ORS 100.115 within one year from the date of approval by the
commissioner, the approval automatically expires and the declaration,
supplemental declaration or amendment thereto must be resubmitted for approval
in accordance with this section. The commissioner’s approval shall set forth
the date on which the approval expires. [Formerly 94.036; 1991 c.459 §339; 1993
c.270 §1; 1997 c.816 §4; 1999 c.677 §41; 2001 c.756 §27; 2009 c.641 §40]
100.115 Recording declaration and plat;
plat contents; supplemental declaration and plat; fees.
(1) A plat of the land described in the declaration or a supplemental plat
described in a supplemental declaration, complying with ORS 92.050, 92.060 (1)
and (2), 92.080 and 92.120, shall be recorded simultaneously with the
declaration or supplemental declaration. The plat or supplemental plat shall be
titled in accordance with subsection (3) of this section and shall:
(a)
Show the location of:
(A)
All buildings and public roads. The location shall be referenced to a point on
the boundary of the property; and
(B)
For a condominium containing units described in ORS 100.020 (3)(b)(C) or (D),
the moorage space or floating structure. The location shall be referenced to a
point on the boundary of the upland property regardless of a change in the
location resulting from a fluctuation in the water level or flow.
(b)
Show the designation, location, dimensions and area in square feet of each unit
including:
(A)
For units in a building described in ORS 100.020 (3)(b)(A), the horizontal and
vertical boundaries of each unit and the common elements to which each unit has
access. The vertical boundaries shall be referenced to a known benchmark
elevation or other reference point as approved by the city or county surveyor;
(B)
For a space described in ORS 100.020 (3)(b)(B), the horizontal boundaries of
each unit and the common elements to which each unit has access. If the space
is located within a structure, the vertical boundaries also shall be shown and
referenced to a known benchmark elevation or other reference point as approved
by the city or county surveyor;
(C)
For a moorage space described in ORS 100.020 (3)(b)(C), the horizontal
boundaries of each unit and the common elements to which each unit has access;
and
(D)
For a floating structure described in ORS 100.020 (3)(b)(D), the horizontal and
vertical boundaries of each unit and the common elements to which each unit has
access. The vertical boundaries shall be referenced to an assumed elevation of
an identified point on the floating structure even though the assumed elevation
may change with the fluctuation of the water level where the floating structure
is moored.
(c)
Identify and show, to the extent feasible, the location and dimensions of all
limited common elements described in the declaration. The plat may not include
any statement indicating to which unit the use of any noncontiguous limited
common element is reserved.
(d)
Include a statement, including signature and official seal, of a registered
architect, registered professional land surveyor or registered professional
engineer certifying that the plat fully and accurately depicts the boundaries
of the units of the building and that construction of the units and buildings
as depicted on the plat has been completed, except that the professional land
surveyor who prepared the plat need not affix a seal to the statement.
(e)
Include a surveyor’s certificate, complying with ORS 92.070, that includes
information in the declaration in accordance with ORS 100.105 (1)(a) and a
metes and bounds description or other description approved by the city or
county surveyor.
(f)
Include a statement by the declarant that the property and improvements
described and depicted on the plat are subject to the provisions of ORS 100.005
to 100.625.
(g)
Include such signatures of approval as may be required by local ordinance or
regulation.
(h)
Include any other information or data not inconsistent with the declaration
that the declarant desires to include.
(i)
If the condominium is a flexible condominium, show the location and dimensions
of all variable property identified in the declaration and label the variable
property as “WITHDRAWABLE VARIABLE PROPERTY” or “NONWITHDRAWABLE VARIABLE
PROPERTY,” with a letter different from those designating a unit, building or
other tract of variable property. If there is more than one tract, each tract
shall be labeled in the same manner.
(2)
The supplemental plat required under ORS 100.150 (1) shall be recorded
simultaneously with the supplemental declaration. The supplemental plat shall
be titled in accordance with subsection (3) of this section and shall:
(a)
Comply with ORS 92.050, 92.060 (1), (2) and (4), 92.080, 92.120 and subsection
(3) of this section.
(b)
If any property is withdrawn:
(A)
Show the resulting perimeter boundaries of the condominium after the
withdrawal; and
(B)
Show the information required under subsection (1)(i) of this section as it
relates to any remaining variable property.
(c)
If any property is reclassified, show the information required under subsection
(1)(a) to (d) of this section.
(d)
Include a “Declarant’s Statement” that the property described on the
supplemental plat is reclassified or withdrawn from the condominium and that
the condominium exists as described and depicted on the plat.
(e)
Include a surveyor’s certificate complying with ORS 92.070.
(3)
The title of each supplemental plat described in ORS 100.120 shall include the
complete name of the condominium, followed by the additional language specified
in this subsection and the appropriate reference to the stage being annexed or
tract of variable property being reclassified. Each supplemental plat for a
condominium recorded on or after January 1, 2002, shall be numbered
sequentially and shall:
(a)
If property is annexed under ORS 100.125, include the words “Supplemental Plat
No._____: Annexation of Stage_____”; or
(b)
If property is reclassified under ORS 100.150, include the words “Supplemental
Plat No._____: Reclassification of Variable Property, Tract_____.”
(4)
Upon request of the county surveyor or assessor, the person offering a plat or
supplemental plat for recording shall also file an exact copy, certified by the
surveyor who made the plat to be an exact copy of the plat, with the county
assessor and the county surveyor. The exact copy shall be made on suitable
drafting material having the characteristics of strength, stability and
transparency required by the county surveyor.
(5)
Before a plat or a supplemental plat may be recorded, it must be approved by
the city or county surveyor as provided in ORS 92.100. Before approving the
plat as required by this section, the city or county surveyor shall:
(a)
Check the boundaries of the plat and units and take measurements and make
computations necessary to determine that the plat complies with this section.
(b)
Determine that the name complies with ORS 100.105 (5) and (6).
(c)
Determine that the following are consistent:
(A)
The designation and area in square feet of each unit shown on the plat and the
unit designations and areas contained in the declaration in accordance with ORS
100.105 (1)(d);
(B)
Limited common elements identified on the plat and the information contained in
the declaration in accordance with ORS 100.105 (1)(h);
(C)
The description of the property in the surveyor’s certificate included on the
plat and the description contained in the declaration in accordance with ORS
100.105 (1)(a); and
(D)
For a flexible condominium, the variable property depicted on the plat and the
identification of the property contained in the declaration in accordance with
ORS 100.105 (7)(c).
(6)
The person offering the plat or supplemental plat for approval shall:
(a)
Submit a copy of the proposed declaration and bylaws or applicable supplemental
declaration at the time the plat is submitted; and
(b)
Submit the original or a copy of the executed declaration and bylaws or the
applicable supplemental declaration approved by the commissioner if required by
law prior to approval.
(7)
For performing the services described in subsection (5)(a) to (c) of this
section, the city surveyor or county surveyor shall collect from the person
offering the plat for approval a fee of $150 plus $25 per building. The
governing body of a city or county may establish a higher fee by resolution or
order. [Formerly 94.042; 1991 c.763 §28; 1997 c.489 §8; 1997 c.816 §5; 1999
c.677 §42; 1999 c.710 §7; 2001 c.104 §30; 2001 c.173 §3; 2001 c.756 §28; 2003
c.569 §24; 2005 c.22 §75; 2007 c.410 §17; 2009 c.641 §41]
100.116 Plat amendment; fees.
(1) A plat, including any floor plans that are a part of a plat, recorded
before October 15, 1983, may be amended as provided in this section.
(2)(a)
Except as otherwise provided in ORS 100.600, the following must be made by a
plat entitled “Plat Amendment”:
(A)
A change to the boundary of the property, a unit or a limited common element;
(B)
The creation of an additional unit from common elements; or
(C)
A change to the configuration of other information required to be graphically
depicted on the plat.
(b)
The plat amendment shall reference in the title of the amendment the recording
information of the original plat and any previous plat amendments.
(3)
The plat amendment shall comply with ORS 92.050, 92.060 (1), (2) and (4),
92.080 and 92.120 and shall include:
(a)
A graphic depiction of the change;
(b)
For a change to the boundary of the property, a surveyor’s certificate that
complies with ORS 92.070;
(c)
If the plat amendment is an amendment by correction under ORS 100.118, a
statement that the plat amendment is an amendment by correction under ORS
100.118;
(d)
A certification, including signature and official seal, of a registered
professional land surveyor that:
(A)
The plat amendment accurately depicts the amendments to the plat described in
the declaration amendment recorded under subsection (5) of this section; and
(B)
Any construction that changes the boundaries of a unit or limited common
element or the construction of any additional unit or limited common element
has been completed; and
(e)
A declaration by the chairperson and secretary on behalf of the association of
unit owners that the plat is being amended pursuant to this section. If the
amendment to the declaration required under subsection (5) of this section is a
correction amendment under ORS 100.117, the declaration shall be by the
declarant if the declarant adopts the correction amendment under ORS 100.117.
(4)
The declaration required under subsection (3)(e) of this section shall be
executed and acknowledged in the manner provided for acknowledgment of deeds.
(5)
The plat amendment shall be accompanied by an amendment to the declaration
authorizing the plat amendment. The declaration amendment shall be executed,
approved and recorded in accordance with ORS 100.110 and 100.135 or ORS
100.117, if the declaration amendment is a correction amendment under ORS
100.117.
(6)
Before a plat amendment may be recorded, it must be approved by the city or
county surveyor as provided in ORS 92.100. The surveyor shall approve the plat
amendment if it complies with the requirements of this subsection. The person
offering the plat amendment shall:
(a)
Submit a copy of the proposed amendment to the declaration required under
subsections (3) to (5) of this section when the plat amendment is submitted.
(b)
Submit the original or a copy of the executed amendment to the declaration
approved by the Real Estate Commissioner if required by law prior to approval
of the plat amendment.
(c)
Upon request of the county assessor or county surveyor, file an exact copy,
certified by the surveyor who made the plat to be an exact copy of the plat
amendment, with the county assessor and the county surveyor. The exact copy
shall be made on suitable drafting material having the strength, stability and
transparency required by the county surveyor.
(7)
A change to a restriction or other information not required to be graphically
depicted on the plat may be made by amendment of the declaration without a plat
amendment described in subsections (3) to (5) of this section. A declaration
amendment under this subsection shall include:
(a)
References to recording index numbers and date of recording of the declaration
or plat and any applicable supplemental declarations, amendments, supplemental
plats or plat amendments.
(b)
A description of the change to the plat.
(c)
A statement that the amendment was approved in accordance with the declaration
and ORS 100.135.
(8)
The declaration amendment described in subsection (7) of this section shall be
executed, approved and recorded in accordance with ORS 100.110 and 100.135.
(9)
Before the declaration amendment described in subsection (7) of this section
may be recorded, it must be approved by the city or county surveyor as provided
in ORS 92.100. The surveyor shall approve the declaration amendment if it
complies with subsection (7) of this section. Such approval shall be evidenced
by execution of the amendment or by written approval attached thereto.
(10)
Floor plans of a condominium for which a plat was not required at the time of
creation may be amended by amendment of the declaration. An amendment under
this subsection shall include:
(a)
References to recording index numbers and date of recording of the declaration
and any applicable supplemental declarations or amendments.
(b)
A description of the change to the floor plans.
(c)
A graphic depiction of any change to the boundaries of a unit or common element
and a statement by a registered architect, registered professional land
surveyor or registered professional engineer certifying that such graphic
depiction fully and accurately depicts the boundaries of the unit or common
element as it currently exists.
(11)
The declaration amendment described in subsection (10) of this section shall be
approved and recorded in accordance with ORS 100.110 and 100.135 except that
any change to the floor plans need only comply with the requirements of the
unit ownership laws in effect at the time the floor plans were initially
recorded.
(12)
After recording of any declaration amendment or plat amendment pursuant to this
section, the county surveyor shall, upon the surveyor’s copy of all previously
recorded plats relating to the condominium and any copies filed under ORS
92.120 (3), make such appropriate marks or notations, including the date and
the surveyor’s name or initials, with archival quality black ink in such manner
as to denote the changes. The recording index numbers and date of recording of
the declaration amendment and any plat amendment shall also be referenced on
the copy of each plat. The original plat may not be changed or corrected after
the plat is recorded.
(13)
For performing the services described in subsections (6), (9) and (12) of this
section, the county surveyor shall collect from the person offering the plat
amendment or declaration amendment for approval a fee established by the county
governing body. [2009 c.641 §43]
Note:
100.116 was added to and made a part of ORS chapter 100 by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
100.117 Correction amendment to
declaration or bylaws. (1) As used in this section and
ORS 100.118, “document” means the declaration, supplemental declaration or
bylaws of a condominium.
(2)
Notwithstanding a provision in a document or this chapter, a document or an
amendment to a document may be corrected by a correction amendment under this
section to:
(a)
Correct the omission of an exhibit to a document.
(b)
Correct a mathematical mistake, including, but not limited to:
(A)
The calculation of the stated interest of affected units in the common
elements;
(B)
The area in square feet of a unit specified in the declaration or supplement
declaration; and
(C)
Liability of a unit for common expenses or right to common profits.
(c)
Correct an inconsistency within a document or between or among the documents or
a plat, supplemental plat or plat amendment.
(d)
Correct an ambiguity, inconsistency or error with respect to an objectively
verifiable fact.
(e)
Authorize a plat amendment by correction under ORS 100.118 or an affidavit of
correction under ORS 100.118.
(f)
Correct a provision that was inconsistent with this chapter at the time the
document was recorded.
(g)
Correct the omission of a provision required under this chapter.
(3)
A correction amendment adopted under subsection (4) of this section shall
include:
(a)
The words “Correction Amendment” in or after the title;
(b)
A reference to the recording index numbers and date of recording of the
declaration, bylaws, plat, the document being corrected and any other
applicable supplemental declarations, supplemental plats or amendments to the
documents;
(c)
A statement of the purpose of the correction; and
(d)
A reference to this section.
(4)
The board of directors may adopt a correction amendment under this section
after giving notice as provided in subsection (8) of this section. No action by
the unit owners is required.
(5)
The declarant of the condominium may unilaterally adopt a correction amendment
under this section to:
(a)
A document or an amendment to a document, before the conveyance of the first
unit in the condominium.
(b)
A supplemental declaration or an amendment to the supplemental declaration,
before conveyance of the first unit created by the supplemental declaration.
(6)
A correction amendment under this section is not effective unless:
(a)
The amendment is approved by the Real Estate Commissioner under ORS 100.110
and, to the extent required, ORS 100.410, the county assessor in accordance
with ORS 100.110 and, if required, the county tax collector;
(b)
The amendment is certified by the chairperson and secretary of the association
of unit owners as being adopted in accordance with subsection (4) of this
section or is certified by the declarant under subsection (5) of this section
and acknowledged in the manner provided for acknowledgement of deeds; and
(c)
Is recorded.
(7)
A correction amendment that corrects the boundary of a unit, common element,
variable property or other property interest constitutes a conveyance to the
extent necessary to effectuate the correction.
(8)(a)
Except for a correction amendment adopted by a declarant under subsection (5)
of this section, the notice of any meeting of the board of directors at which
the board intends to consider adoption of a correction amendment under this
section must:
(A)
State that the board intends to consider the adoption of a correction
amendment.
(B)
Specify the document to be corrected.
(C)
Include a description of the nature of the correction.
(b)
At least three days before the meeting of the board of directors, a notice of
the meeting must be given to all owners in the manner described in ORS 100.420
(4).
(9)
The owner of a unit materially affected by the correction must be given notice
of the meeting of the board of directors under subsection (8) of this section
in the manner required under ORS 100.407 (4).
(10)
The board of directors shall provide a copy of the recorded correction
amendment and any plat amendment by correction or by affidavit of correction
under ORS 100.118 recorded concurrently with the correction amendment to any
owner described under subsection (9) of this section and to any owner if the
correction changes that owner’s:
(a)
Allocation of voting rights;
(b)
Liability for common expenses that changes the amount of any assessment; or
(c)
Allocation of interest in the common elements. [2009 c.641 §43a; 2011 c.532 §19]
Note:
100.117 and 100.118 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 100 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.
100.118 Correction amendment to
condominium plat; fees. (1) Unless the context requires
otherwise, as used in this section “plat” means:
(a)
A plat recorded under ORS 100.115.
(b)
Floor plans made part of a plat that was recorded before October 15, 1983.
(c)
A supplemental plat recorded under ORS 100.115.
(d)
A plat amendment recorded under ORS 100.116.
(2)
Notwithstanding a provision in a document of a condominium or this chapter, a
plat may be corrected by a plat amendment under ORS 100.116 as provided in
subsection (3) of this section or by an affidavit of correction as provided in
subsection (4) of this subsection.
(3)
Except as provided in subsection (4) of this section, a correction to a plat
must be made by a plat amendment in accordance with ORS 100.116. The plat
amendment by correction may:
(a)
Conform the designation, depiction or boundaries of a unit, common elements or
variable property on the plat to the physical location or actual dimensions of
the unit, common elements or variable property.
(b)
Correct a mathematical mistake.
(c)
Correct the designation of a unit or limited common element.
(d)
Make any other correction permitted under ORS 100.117.
(4)
An affidavit of correction may correct a plat to:
(a)
Show any courses or distances omitted from the plat.
(b)
Correct an error in any courses or distances shown on the plat.
(c)
Correct an error in the description of the real property shown on the plat.
(d)
Correct any other errors or omissions when the error or omission is
ascertainable from the data shown on the plat.
(e)
Correct any other errors or omissions on the plat determined by the county
surveyor.
(5)
Nothing in subsection (4) of this section may be construed to permit changes in
courses or distances for the purpose of redesigning unit, common element or
variable property configurations by affidavit of correction under this section.
(6)
The affidavit of correction shall be prepared by the registered professional
land surveyor whose signature and seal are on the plat. In the event of the
death, disability or retirement from practice of the surveyor, the county
surveyor may prepare and record the affidavit of correction.
(7)
The affidavit of correction prepared under subsection (6) of this section
shall:
(a)
Set forth in detail the corrections made; and
(b)
Contain the seal and signature of the registered professional land surveyor
making the correction which shall be affixed to the affidavit of correction.
(8)
The affidavit of correction shall be submitted to the county surveyor for
examination and a determination that:
(a)
The changes shown on the affidavit of correction are permitted under subsection
(4) of this section; and
(b)
The affidavit of correction complies with subsection (7) of this section.
(9)
If the county surveyor determines that the affidavit of correction complies
with subsection (7) of this section, the county surveyor shall sign a
certification that the affidavit of correction has been examined and complies
with this section. The certification shall be a part of or an attachment to the
affidavit of correction.
(10)(a)
Before an affidavit of correction is recorded, it must be approved by the Real
Estate Commissioner. The affidavit of correction shall be filed with the
commissioner under ORS 100.670.
(b)
The commissioner shall approve the affidavit of correction if it complies with
this section. The approval shall be evidenced by execution of the affidavit of
correction.
(11)(a)
The surveyor who prepared the affidavit of correction shall cause the affidavit
of correction to be recorded by the recording officer of the county where the
plat or supplemental plat is recorded.
(b)
If a correction by an affidavit of correction requires a correction amendment
to a document under ORS 100.117, the affidavit of correction must be recorded
concurrently with the correction amendment.
(12)
The surveyor who prepared the affidavit of correction shall cause a copy of the
recorded affidavit of correction to be provided to:
(a)
The association of unit owners of the condominium, at the address shown in the
Condominium Information Report filed in accordance with ORS 100.250 or such
other address of which the surveyor has knowledge.
(b)
The county surveyor, unless otherwise directed by the county surveyor.
(c)
The commissioner.
(13)(a)
Unless otherwise specified in the affidavit of correction, after recording the
affidavit of correction, the county clerk shall return the affidavit of
correction to the county surveyor.
(b)
Upon receipt of the original recorded affidavit of correction or a copy, the
county surveyor shall note the correction and the recorder’s filing
information, with permanent ink, upon any true and exact copies filed in
accordance with ORS 92.120 (3). The corrections and filing information shall be
marked in such a manner so as not to obliterate any portion of the plat.
(14)
For recording the affidavit of correction under subsection (11) of this
section, the county clerk shall collect a fee as provided in ORS 205.320.
Corrections or changes are not allowed on the original plat once it is
recorded.
(15)
For performing the services described in this section, the county surveyor
shall collect from the person submitting the affidavit of correction a fee
established by the county governing body. [2009 c.641 §43b]
Note: See
note under 100.117.
100.120 Supplemental declaration and plat required
to annex additional property or reclassify variable property; termination date.
(1) To annex additional property to the condominium or to reclassify variable
property under ORS 100.125 or 100.150, a supplemental declaration and a
supplemental plat shall be executed, approved and recorded by declarant at the
time of each annexation or reclassification. The supplemental plat shall comply
with ORS 100.115 and the supplemental declarations shall:
(a)
Include a reference to recording index numbers and date of recording of the
initial declaration and bylaws.
(b)
Be consistent with the provisions of the original declaration prepared pursuant
to ORS 100.105 and any prior recorded supplemental declarations.
(c)
Contain the information required by ORS 100.105 (1) insofar as that information
relates to the property being annexed or reclassified.
(d)
State the allocation of undivided interest in the common elements of each unit
previously submitted to the provisions of this chapter upon the creation or
annexation of the additional property.
(e)
If the stage being annexed contains any variable property, include the
information required under ORS 100.105 (7) insofar as that information relates
to the property being annexed. The termination date shall be consistent with
the information included in the declaration in accordance with ORS 100.105
(2)(b) but may not exceed seven years from the recording of the conveyance of
the first unit in the stage to a person other than the declarant. Recording
shall be in the county in which the property is located.
(2)
If the Condominium Information Report and the Annual Report described in ORS
100.250 are designated current as provided in ORS 100.255, all such
supplemental declarations and plats shall be approved, executed and recorded as
provided in ORS 100.100, 100.110 and 100.115. No unit being annexed or created
by a supplemental declaration shall be conveyed until after such recording.
(3)
To withdraw all or a portion of variable property from a flexible condominium
pursuant to ORS 100.150 (1)(b), a supplemental declaration and plat shall be
recorded in accordance with subsection (2) of this section. The supplemental
plat shall comply with ORS 100.115 (2) and the supplemental declaration shall:
(a)
Be consistent with the provisions of the declaration or supplemental
declaration drawn pursuant to ORS 100.105 (7).
(b)
Include a metes and bounds legal description of the variable property being
withdrawn.
(c)
Include a metes and bounds legal description of the resulting boundaries of the
condominium after the withdrawal.
(d)
State whether or not any variable property remains which may be reclassified or
withdrawn from the condominium and, if property may be withdrawn, include the
statement required under ORS 100.105 (7)(m).
(e)
If any variable property is being redesignated as “nonwithdrawable variable
property,” include the information required under ORS 100.105 (7)(L).
(4)
Except as provided in subsection (5) of this section, as to property submitted
to unit ownership after October 4, 1977, additional units may not be added
within property previously submitted to unit ownership unless all unit owners
consent to an amendment to the declaration, plat and any floor plans recorded
pursuant to ORS 100.116 in order to provide for such additional units.
(5)
As to property submitted to unit ownership before September 27, 1987, if the
declaration provides that additional property may be annexed to the
condominium, any subsequent stage may contain variable property. The
termination date may not be later than the earlier of:
(a)
The date specified in the declaration under ORS 100.105 (2)(b); or
(b)
Seven years from the recording of the conveyance of the first unit in the
condominium to a person other than the declarant. Recording shall be in the
county in which the property is located. [Formerly 94.047; 1995 c.31 §2; 1999
c.677 §43; 2001 c.756 §29; 2009 c.641 §44]
100.122 Declaration prevails over
inconsistent provisions of bylaws or articles of incorporation.
In the event of a conflict between the declaration and the bylaws or between
the declaration and any articles of incorporation, the declaration shall
prevail except to the extent the declaration is inconsistent with ORS 100.005
to 100.910. [1999 c.677 §62]
Note:
100.122 was added to and made a part of ORS chapter 100 by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
100.123 Authority to amend declaration or
bylaws to comply with federal or state law. (1) A
declarant may amend the declaration or 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 condominium or units in a
condominium.
(2)
If the need to amend the declaration or the bylaws occurs after turnover to the
association of unit owners has occurred, the amendment must be approved by the
association in accordance with the approval provisions of the declaration or
bylaws and this chapter. [2007 c.410 §4]
Note:
100.123 was added to and made a part of ORS chapter 100 by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
100.125 Annexation of additional property;
requirements. Subject to ORS 100.120 (4), if the declaration
complies with ORS 100.105 (2), until the termination date, additional property
may be annexed to the condominium by the recording of a supplemental
declaration and supplemental plat in accordance with ORS 100.115. [Formerly
94.048; 2001 c.756 §30; 2009 c.641 §45]
100.130 Relocation of unit boundaries and
common elements by amendment to declaration. (1)
Subject to any limitations contained in the declaration, the boundaries between
adjoining units, including any intervening common elements, may be relocated or
eliminated by an amendment to the declaration. The owners of the affected units
shall submit to the board of directors of the association a proposed amendment
which shall identify the units involved, state any reallocations of common element
interest, voting rights, common expense liability and right to common profits
and contain words of conveyance. The board of directors shall approve the
amendment unless it determines within 45 days that the reallocations are
unreasonable or the relocation or elimination will impair the structural
integrity or mechanical systems of the condominium or lessen the support of any
portion of the condominium.
(2)
The board of directors of the association of unit owners may require the owners
of the affected units to submit an opinion of a registered architect or
registered professional engineer that the proposed relocation or elimination
will not impair the structural integrity or mechanical systems of the
condominium or lessen the support of any portion of the condominium.
(3)
The board of directors of the association or any agent appointed by the board
of directors may supervise the work necessary to effect the boundary relocation
or elimination.
(4)
Any expenses incurred under subsections (2) and (3) of this section shall be
charged to the owners of the units requesting the boundary relocation or
elimination.
(5)
The amendment shall be executed by the owners and mortgagees or trust deed
beneficiaries of the affected units, certified by the chairperson and secretary
of the association and approved and recorded in accordance with ORS 100.135
(2)(b).
(6)
An amendment to the plat and any floor plans necessary to show the altered
boundaries between the adjoining units shall be recorded in accordance with ORS
100.116. [Formerly 94.053; 2003 c.569 §25; 2009 c.641 §46]
100.135 Amendments to declaration;
requirements; procedure. (1) Unless otherwise provided in
the declaration, an amendment to the declaration may be proposed by a majority
of the board of directors of the association of unit owners or by at least 30
percent of the unit owners.
(2)
Except as otherwise provided in ORS 100.005 to 100.625, an amendment of the
declaration is not effective unless:
(a)
The amendment is approved by the unit owners as provided in this section and
the Real Estate Commissioner and county assessor according to ORS 100.110; and
(b)
The amendment, certified by the chairperson and secretary of the association of
unit owners as being adopted in accordance with the declaration and the
provisions of this section and acknowledged in the manner provided for
acknowledgment of deeds, is recorded notwithstanding a provision in a
declaration, including a declaration recorded before January 1, 2002, that
requires amendments to be executed and acknowledged by all owners approving the
amendment.
(3)
Except as otherwise provided in ORS 100.105 or 100.130 or this section, the
declaration may be amended only with the approval of at least 75 percent of
owners, or such greater percentage as may be required by the declaration.
(4)
Unless the declaration requires a greater percentage:
(a)
The declaration and plat may be amended to change a general common element to a
limited common element or change the boundary of a limited common element with
the approval of at least 75 percent of owners and approval of the owners of all
units to which the limited common element appertains.
(b)
The declaration may be amended to change a limited common element, or portion
thereof, to a general common element with the approval of the owners of all
units to which the limited common element appertains and the board of
directors.
(5)(a)(A)
Except as otherwise provided in ORS 100.120, 100.130, 100.515, 100.600, 100.605
and 100.625 and paragraph (b) of this subsection or other provisions of the
Oregon Condominium Act, an amendment that changes the boundary of the property
or a unit or creates an additional unit from common elements shall be approved
by all unit owners.
(B)
The amendment constitutes a conveyance and shall include words of conveyance
and, if an additional unit is created from common elements, shall state the
name of the grantee and unit designation. If an additional unit is created from
common elements, the association shall be named as the initial grantee of the
additional unit.
(C)
In addition to the certification required under subsection (2)(b) of this
section, an amendment to the boundary of a unit shall also be executed by the
owners of all affected units.
(b)
An amendment that adds property owned by the association to the condominium as
a common element constitutes a conveyance and shall:
(A)
Be approved by at least 75 percent of owners;
(B)
Contain words of conveyance;
(C)
Be executed by the chairperson and secretary of the association on behalf of
the unit owners and be certified in accordance with subsection (2)(b) of this
section; and
(D)
Be accompanied by a plat amendment in accordance with ORS 100.116.
(c)
Nothing in paragraph (b) of this subsection is intended to require property
acquired or held by the association pursuant to ORS 100.405 (4)(i) to be added
to the condominium.
(6)
Except as otherwise provided in ORS 100.005 to 100.625, an amendment may not
change the allocation of undivided interest in the common elements, 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 unit
unless such amendment has been approved by the owners of the affected units.
(7)
The declaration may not be amended to limit or diminish any right of a
declarant reserved under ORS 100.105 (2) or (7) or any other special declarant
right without the consent of the declarant. However, the declarant may waive
the declarant’s right of consent.
(8)
Nothing in this section shall affect any other approval that may be required by
the declaration, bylaws or other instrument.
(9)
During a period of declarant control reserved under ORS 100.200, voting on an
amendment under this section must be without regard to any weighted vote or
other special voting allocation reserved by the declarant unless the
declaration provides that the declarant has the right to exercise the voting
rights with respect to specifically described amendments. Nothing in this
subsection prohibits a declarant from reserving the right that declarant’s
consent is required for an amendment during a period of declarant control
reserved in the declaration.
(10)
An amendment to a declaration or a supplemental declaration 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 are required for such approval. However, nothing in this subsection
shall prevent the further amendment of an amended declaration or plat in
accordance with ORS 100.005 to 100.625.
(11)(a)
The board of directors, by resolution and without the further approval of the
unit owners, may cause a restated declaration to be prepared and recorded to
codify individual amendments that have been adopted in accordance with this
section.
(b)
A declaration 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 scriveners’ errors or to conform
format and style;
(B)
Include a statement that the board of directors has adopted a resolution in
accordance with paragraph (a) of 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 that are in effect
and are being codified;
(D)
Include a certification by the chairperson and secretary of the association
that the restated declaration includes all previously adopted amendments that
are in effect, that amendments were approved by the county assessor and tax
collector if required under ORS 100.110 and that no other changes were made
except, if applicable, to correct scriveners’ errors or to conform format and
style;
(E)
Be executed and acknowledged by the chairperson and secretary of the
association and recorded in the deed records of each county in which the
condominium is located; and
(F)
Be approved by the commissioner, and by the county assessor and the tax
collector under ORS 100.110 if the restated declaration includes any amendments
required to be approved by the county assessor and the tax collector under ORS
100.110 but not previously approved.
(c)
The board of directors shall cause a copy of the recorded restated declaration,
including the recording information, to be filed with the commissioner. [Formerly
94.059; 1995 c.31 §3; 1997 c.816 §6; 1999 c.677 §70; 2001 c.756 §31; 2003 c.569
§26; 2009 c.641 §21]
100.140 Temporary relocation of floating
structure; security interests upon termination of condominium.
(1) A floating structure described in ORS 100.020 (3)(b)(D) that constitutes
part of a condominium may be temporarily relocated for purposes of safety,
renovation, repair or remodeling without affecting its status as a condominium
or real property. However, if the floating structure is not returned to its
original location within 18 months after the relocation, the condominium shall
be terminated or, if there are remaining units, partially terminated pursuant
to ORS 100.600 and subsection (2) of this section.
(2)
If the condominium is terminated, all security interests affecting any interest
in the condominium shall continue to be considered a security in real property
after the termination, notwithstanding that the floating structure portion of
the condominium may be physically moved from its permanent moorage.
(3)
When a floating structure has been relocated under subsection (1) of this
section, the board of directors of the association shall give written notice of
the temporary location of the structure to the county assessor within 10 days
of the relocation. [1997 c.816 §18]
Note:
100.140 was added to and made a part of ORS chapter 100 by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
FLEXIBLE CONDOMINIUMS
100.150 Declarant’s options until termination
date. (1) With regard to a flexible
condominium, before the termination date, and by recording a supplemental
declaration and a supplemental plat in accordance with ORS 100.115 and 100.120,
the declarant may:
(a)
Reclassify all or a portion of the property designated as variable in the
declaration and on the plat, as one or more general common elements, limited
common elements, units or a combination of the elements and units.
(b)
Unless designated in the declaration or on the plat as nonwithdrawable
property, withdraw all or a portion of the variable property from the
condominium.
(2)
Until variable property is withdrawn or reclassified as provided in subsection
(1) of this section or under ORS 100.155 (1):
(a)
The property shall be a distinct classification of property and may not be a
common element or unit of the condominium.
(b)
The property shall be considered a parcel of real property and shall be subject
to separate assessment and taxation by any taxing unit in like manner as other
parcels of real property.
(c)
Unless otherwise specifically provided in the declaration or supplemental
declaration:
(A)
The declarant shall be responsible for the payment of all assessments, taxes
and other expenses of the variable property. If the declarant fails to pay any
expenses of any variable property designated as nonwithdrawable variable
property, the board of directors may elect to pay the expenses and assess the
unit owners as a common expense. All costs incurred may be charged to the
declarant.
(B)
Ownership or occupancy of variable property shall not confer any right to use
the common elements of the condominium.
(C)
Ownership or occupancy of units shall not confer any right to use variable
property.
(D)
Variable property shall not be subject to assessments for expenses of the
condominium. [Formerly 94.021; 2001 c.756 §32]
100.155 Variable property; uses and
restrictions. (1) If by the termination date specified
in the declaration there is any remaining variable property:
(a)
Any property designated nonwithdrawable variable property becomes part of the
common elements and any interest in the property held for security purposes is
automatically extinguished by reclassification.
(b)
Any property designated withdrawable variable property shall be automatically
withdrawn from the condominium as of the termination date.
(c)
Subject to paragraph (d) of this subsection, the association may record in the
office of the recording officer in the county in which the condominium is
located:
(A)
For property reclassified under paragraph (a) of this subsection, a “Statement
of Reclassification of Variable Property” stating that the remaining
nonwithdrawable variable property has been reclassified to common elements
pursuant to paragraph (a) of this subsection.
(B)
For property withdrawn under paragraph (b) of this subsection, a “Statement of
Withdrawal of Variable Property from Condominium” stating that remaining withdrawable
variable property has been withdrawn from the condominium pursuant to paragraph
(b) of this subsection.
(d)
A statement described in paragraph (c) of this subsection shall:
(A)
Include the name of the condominium, a reference to the recording index numbers
and date of recording of the declaration, the plat creating the affected
variable property and any applicable supplemental declaration.
(B)
Include a description of the reclassified or withdrawn variable property
complying with ORS 93.600.
(C)
Be executed by the chairperson and secretary of the association and
acknowledged in the manner provided for acknowledgment of deeds.
(e)
After recording a statement under paragraph (c) of this subsection, the
association shall provide a copy of the recorded statement to the county
surveyor. The original plat may not be changed or corrected after it is
recorded with the county clerk.
(2)(a)
Unless expressly prohibited by the declaration, any variable property
automatically withdrawn from the condominium under subsection (1)(b) of this
section or voluntarily withdrawn under ORS 100.150 (1)(b) may be later annexed
to the condominium by the recording of a supplemental declaration and plat in
accordance with ORS 100.120 (2) if such action is first approved by at least 75
percent of all voting rights in the manner required for an amendment to the
declaration.
(b)
The supplemental declaration and plat shall be executed by the chairperson and
secretary on behalf of the association and acknowledged in the manner provided
for acknowledgment of deeds by such officers. Except for the termination date,
the supplemental declaration shall comply with ORS 100.120 (1) and shall state
that the annexation was approved by at least 75 percent of all voting rights.
(3)(a)
Unless expressly prohibited by the declaration and notwithstanding the
termination date, the association may, with respect to any variable property
automatically reclassified, exercise any rights previously held by the
declarant. The exercise of any right shall first be approved by at least a
majority of all voting rights. All other actions relating to such reclassified
general common elements shall be regulated and governed in like manner as other
general common elements of the condominium.
(b)
If a supplemental declaration and plat is required for any action, the plat
shall be executed by the chairperson and secretary of the association and shall
comply with the requirements of this chapter as to a supplemental declaration
and the recording of plats.
(4)
Title to any additional units created under subsection (3) of this section
automatically vests in the association upon the recording of a supplemental
declaration and plat. The board of directors acting on behalf of the
association has the power to hold, convey, lease, encumber or otherwise deal
with a unit or any interest therein in like manner as other property owned by
the association.
(5)
The county clerk may charge a fee for recording a statement under this section
according to provisions of ORS 205.320 (4).
(6)
The county assessor shall cause the assessment and tax rolls to reflect the
status of any variable property affected by automatic property reclassification
under subsection (1)(a) of this section or automatically withdrawn under
subsection (1)(b) of this section. [Formerly 94.022; 2001 c.756 §33; 2009 c.641
§22]
RIGHTS AND DUTIES OF DECLARANT
100.170 Easement held by declarant.
Subject to the provisions of the declaration, a declarant has an easement
through the common elements as may be reasonably necessary for the purpose of
discharging any obligation of the declarant or exercising any special declarant
right, whether arising under the provisions of this chapter or reserved in the
declaration or bylaws. [Formerly 94.066]
100.175 Reserve account for maintaining,
repairing and replacing common elements; reserve study; maintenance plan.
(1) The declarant, on behalf of the association of unit owners, 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 those common elements all or part of which will normally require major
maintenance, repair or replacement in more than one and less than 30 years, for
exterior painting if the common elements include exterior painted surfaces, and
for such other items as may be required by the declaration or bylaws. The
reserve account need not include:
(A)
Items that can reasonably be funded from the general budget or other funds or
accounts of the association; or
(B)
A reserve for limited common elements for which maintenance and replacement are
the responsibility of one or more, but less than all, unit owners under the
provisions of the declaration or bylaws.
(b)
The reserve account shall be established in the name of the association of unit
owners. 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;
(B)
In the case of a conversion condominium, the statement described in ORS 100.655
(1)(g); or
(C)
Other reliable information.
(d)
The reserve account must be funded by assessments against the individual units
for the purposes for which the reserve account is established.
(e)
The assessment under this subsection accrues from the time of the conveyance of
the first individual unit assessed as provided in ORS 100.530.
(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. Subject to subsection (10) of this section, after a review of the
reserve study or the reserve study update, the board may, without any action by
the unit owners:
(A)
Adjust the amount of payments in accordance with the study or review; 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 item’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 this chapter. 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 or
replacement responsibility.
(b)
The board of directors shall review and update the maintenance plan described
under this subsection as necessary.
(5)(a)
Except as provided in paragraph (b) of this subsection, the reserve study
requirements under subsection (3) of this section and the maintenance plan
requirements under subsection (4) of this section do not apply to a condominium
consisting of one or two units, excluding units used for parking, storage or
other uses ancillary to a unit:
(A)
After the sale of the first unit to a person other than a successor declarant,
if the condominium is created on or after September 27, 2007; or
(B)
If the condominium was created before September 27, 2007, notwithstanding any
requirement in the declaration or bylaws.
(b)
The reserve study requirements under subsection (3) of this section and the
maintenance plan requirements under subsection (4) of this section apply to a
flexible condominium or a staged condominium created on or after September 27,
2007, if the condominium might in the future consist of more than two units.
(6)(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 condominium recorded prior to October 23, 1999:
(A)
Upon adoption of a resolution by the board of directors in accordance with the
bylaws providing that the requirements of subsections (3) and (4) of this
section apply to the association; or
(B)
Upon submission to the board of directors of a petition signed by a majority of
unit owners mandating that the requirements of subsections (3) and (4) of this
section apply to the association.
(b)
The reserve study and the maintenance plan shall be completed within one year
of the date of adoption of the resolution or submission of the petition to the
board of directors.
(7)(a)
Except as provided in paragraph (b) of this subsection, the reserve account is
to 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 unit owners have assumed administrative responsibility for
the association under ORS 100.210, 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.
(8)
The reserve account is subject to the requirements and restrictions of ORS
100.480 and any additional requirements or restrictions imposed by the
declaration, bylaws or rules of the association of unit owners.
(9)
Assessments paid into the reserve account are the property of the association
of unit owners and are not refundable to sellers of units.
(10)(a)
Except as provided under paragraph (b) of this subsection, unless the board of
directors under subsection (3) of this section determines that the reserve
account will be adequately funded for the following year, the board of
directors or the owners may not vote to eliminate funding a reserve account
required under this section or under the declaration or bylaws.
(b)
Following the turnover meeting described in ORS 100.210, on an annual basis,
the board of directors, with the approval of all owners, may elect not to fund
the reserve account for the following year. [Formerly 94.072; 1997 c.816 §7;
1999 c.677 §44; 2001 c.756 §34; 2003 c.569 §27; 2005 c.543 §2; 2007 c.409 §23;
2009 c.641 §23; 2011 c.532 §7]
WARRANTIES ON NEW UNITS
100.185 Express warranties; form;
exclusion of implied warranties; exemption for consumer products; claims.
(1) The declarant shall expressly warrant against defects in the plumbing,
electrical, mechanical, structural, and all other components of the newly
constructed units and common elements. Such warranty:
(a)
Shall exist on a unit and the related limited common elements for not less than
one year from the date of delivery of possession of that unit by the declarant
to the first unit owner other than the declarant;
(b)
Shall exist on the general common elements for not less than one year from the
initial conveyance of title to a unit by the declarant to a unit owner other
than the declarant, or, in the case of a staged or a flexible condominium, for
not less than one year from such initial conveyance of title or completion of
the construction of the specific general common element, whichever is later;
(c)
Shall be contained in the contract or other agreement to purchase;
(d)
Shall be separate from, and in addition to, any warranties provided by any
other person;
(e)
Shall be in lieu of any implied warranties by the declarant against defects in
the plumbing, electrical, mechanical, structural or other components of any
newly constructed unit or common elements; and
(f)
Shall name the association of unit owners as an express beneficiary with regard
to general common elements.
(2)
A written claim reasonably specifying a breach of the warranty on the unit and
the related limited common elements must be delivered to the declarant before
the expiration of such warranty. A written claim reasonably specifying a breach
of the warranty on the general common elements must be delivered to the
declarant within two years of expiration of such warranty, but the claim must
be for a defect existing prior to the expiration of such warranty under this
section. An action to enforce such warranty shall not be commenced later than
four years after expiration of such warranty.
(3)
For the purposes of this section, “newly constructed units and common elements”
means:
(a)
Units and related limited common elements:
(A)
That have been substantially completed for less than three years; and
(B)
That have been occupied for less than 12 months.
(b)
General common elements:
(A)
That have been substantially completed for less than three years; and
(B)
That were constructed contemporaneously with units that have been occupied for
less than 12 months.
(4)
The warranty required under subsection (1) of this section is not required for
consumer products as defined in 15 United States Code 2301 (1). [Formerly
94.017; 1999 c.677 §45; 2001 c.756 §35]
DECLARANT CONTROL; TURNOVER
100.200 Declarant control of association.
(1) Subject to subsection (2) of this section, the declaration or bylaws may
specifically provide for a period of declarant control of the association of
unit owners, during which period a declarant or person designated by the
declarant may appoint and remove officers and members of the board of directors
and exercise powers and responsibilities otherwise assigned by the declaration,
bylaws or the provisions of this chapter to the association, the officers or
the board of directors. No formal or written proxy or power of attorney need be
required of the unit owners to vest the declarant with such authority.
Declarant control may be achieved by allocating in the declaration greater
voting rights to a unit owned by the declarant.
(2)
The declaration or bylaws may not provide for a period of administrative
control of the association of unit owners by the declarant for a period
exceeding:
(a)
In a single stage condominium the earlier of:
(A)
Three years from the date the first unit is conveyed; or
(B)
The date of conveyance to persons other than the declarant of 75 percent of the
units.
(b)
In a staged or flexible condominium the earlier of:
(A)
Seven years from the date the first unit is conveyed; or
(B)
The date of conveyance to persons other than the declarant of 75 percent of the
units which may be created or annexed under ORS 100.125 or 100.150, whichever
is applicable.
(3)
A declarant may voluntarily relinquish any rights reserved in the declaration
or bylaws under subsection (1) of this section.
(4)
Upon the expiration of any period of declarant control reserved in the
declaration or bylaws under subsection (1) of this section, such right shall
automatically pass to the unit owners, including the declarant if the declarant
then owns one or more units in the condominium.
(5)
A declaration or bylaws may not be amended to increase the scope of any rights
reserved in the declaration or bylaws under subsection (1) of this section
without the consent of all unit owners.
(6)
The limitations specified in subsection (2) of this section shall not limit any
right reserved by the declarant under ORS 100.105 (2) or (7), 100.125 or
100.150 or any other special declarant right which does not relate to
administrative control of the association by the declarant including, but not
limited to, the right to require that the declaration or bylaws may not be
amended without the declarant’s consent until a stated date, the expiration of
a stated number of years or the occurrence of a stipulated event.
(7)
The limitations of subsection (2) of this section do not apply to a condominium
or condominium units committed to a timeshare plan as defined in ORS 94.803. [Formerly
94.078]
100.205 Transitional committee; notice of
meeting for formation. A transitional committee shall
be established as provided in this section in a single stage condominium
consisting of at least 20 units and in a staged or flexible condominium if the
number of units which the declarant may submit to the provisions of this
chapter under ORS 100.125 or 100.150 totals at least 20.
(1)
Unless the turnover meeting has been held, the declarant shall call a meeting
of the unit owners for the purpose of forming a transitional committee in
accordance with the bylaws of the condominium. The declarant shall call such
meeting:
(a)
In a single stage condominium, within 60 days of conveyance to persons other
than the declarant of 50 percent of the units.
(b)
In a staged or flexible condominium, within 60 days of conveyance to persons
other than the declarant of 50 percent of the total number of units which the
declarant may submit to the provisions of this chapter under ORS 100.125 or
100.150.
(2)
The transitional committee shall be advisory only and shall consist of two or
more members selected by unit owners other than the declarant and may include
not more than one representative of the declarant. The members shall serve
until the turnover meeting. The function of the committee shall be that of
enabling ease of transition from control of the administration of the
association of unit owners by the declarant to control by the unit owners. The
committee shall have access to the information, documents and records which the
declarant must turn over to the unit owners under ORS 100.210 (5).
(3)
The declarant shall give notice of the meeting required under subsection (1) of
this section in accordance with the bylaws of the condominium to each unit
owner at least seven but not more than 50 days prior to the meeting. The notice
shall state the purpose of the meeting and the time and place where it is to be
held.
(4)
If the meeting required under subsection (1) of this section is not called by
the declarant within the time specified, the meeting may be called and notice
given by a unit owner.
(5)
If the owners other than the declarant do not select members for the committee
under subsection (2) of this section, the declarant shall have no further
responsibility to form the committee. [Formerly 94.084]
100.210 Turnover meeting; notice; transfer
of control. (1) A turnover meeting shall be called
by the declarant within 90 days of the expiration of any period of declarant
control reserved in the declaration or bylaws under ORS 100.200. If no control
has been reserved, the declarant shall call the turnover meeting within 90 days
of the earlier of:
(a)
In a single stage condominium, three years from the date of conveyance of the
first unit to a person other than a successor declarant or conveyance of 50
percent of the units.
(b)
In a staged or flexible condominium, seven years from the date of conveyance of
the first unit to a person other than the declarant or conveyance to persons
other than a successor declarant of 50 percent of the total number of units
which the declarant may submit to the provisions of this chapter under ORS
100.125 or 100.150.
(2)
The declarant shall give notice of the turnover meeting in accordance with the
bylaws of the condominium to each unit owner at least 10 but not more than 50
days prior to the meeting. The notice shall state the purpose of the meeting
and the time and place where it is to be held.
(3)
If the meeting required under subsection (1) of this section is not called by
the declarant within the time specified, the meeting may be called and notice
given by a unit owner or any first mortgagee of a unit.
(4)
At the turnover meeting:
(a)
The declarant shall relinquish control of the administration of the association
of unit owners and the unit owners shall assume the control;
(b)
If a quorum of the unit owners is present, the unit 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
condominium; and
(c)
The declarant shall deliver to the association the items specified in
subsection (5) of this section.
(5)
At the turnover meeting the declarant shall deliver to the association all
property of the unit owners and the association of unit owners held or
controlled by the declarant including, but not limited to, the following items,
if applicable:
(a)
The original or a photocopy of the recorded declaration and bylaws of the
condominium and any supplements and amendments thereto.
(b)
A copy of the articles of incorporation.
(c)
The minute books, including all minutes, and other books and records of the
association.
(d)
The reserve study, the maintenance plan and all updates described in ORS
100.175 and other sources of information that serve as a basis for calculating
reserves in accordance with ORS 100.175.
(e)
Any rules and regulations which have been promulgated.
(f)
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
under ORS 100.200.
(g)
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.
(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 Oregon if the annual assessments of an association of unit owners
exceed $75,000.
(h)
Association funds or control thereof, including, but not limited to, funds for
reserve required under ORS 100.530 (3)(b) and any bank signature cards.
(i)
All tangible personal property that is property of the association and an
inventory of such property.
(j)
A copy of the following, if available:
(A)
The as-built architectural, structural, engineering, mechanical, electrical and
plumbing plans.
(B)
The original specifications indicating thereon all 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.
(k)
Insurance policies.
(L)
Copies of any occupancy permits which have been issued for the condominium.
(m)
Any other permits issued by governmental bodies applicable to the condominium
in force or issued within one year prior to the date the unit owners assume
control of the administration of the association of unit owners.
(n)
A list of the general contractor and the subcontractors responsible for
construction or installation of the major plumbing, electrical, mechanical and
structural components of the common elements.
(o)
A roster of unit owners and their addresses and telephone numbers, if known, as
shown on the records of the declarant.
(p)
Leases of the common elements and any other leases to which the association is
a party.
(q)
Employment or service contracts in which the association is one of the
contracting parties or service contracts in which the association or the unit
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.
(r)
Any other contracts to which the association of unit owners is a party.
(6)
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 (5) of this
section.
(7)
If the declarant has complied with this section, unless the declarant otherwise
has sufficient voting rights as a unit owner to control the association, the
declarant is not responsible for the failure of the unit 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 (4) of this
section. The declarant shall be relieved of any further responsibility for the
administration of the association except as a unit owner of any unsold unit.
(8)
If the unit owners present do not constitute a quorum or the unit 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 subsection (1) of
this section:
(a)
At any time before the election of the number of directors sufficient to
constitute a quorum, a unit owner or first mortgagee of a unit 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 unit owners and first mortgagees present at the special
meeting shall select a person to preside over the meeting.
(b)
A unit owner or first mortgagee of a unit may request a court to appoint a
receiver as provided in ORS 100.418. [Formerly 94.091; 1999 c.677 §46; 2001
c.756 §36; 2003 c.803 §21; 2007 c.409 §24]
SPECIAL DECLARANT RIGHTS
100.220 Liabilities and obligations
arising from transfer of special declarant right; exemptions.
(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.
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 directors; or
(d)
Has contributed more than 20 percent of the capital of the transferor or
successor declarant.
(2)
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 and remains liable for warranty obligations imposed under ORS 100.185.
Lack of privity does not deprive any unit 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 this chapter 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 that relate to the
special declarant rights.
(c)
A transferor who does not retain special declarant rights does not have an
obligation or liability for an act or omission or for a breach of a contractual
or warranty obligation arising from the exercise of a special declarant right
by a successor declarant who is not an affiliate of the transferor.
(3)
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 is not liable
for any misrepresentations or warranties made or required to be made, including
without limitation warranties required under ORS 100.185, by the declarant or
previous successor declarant or for any breach of fiduciary obligation by such person.
Such a successor declarant, however, shall:
(A)
Comply with any provisions of the declaration and bylaws which pertain to such
successor declarant’s ownership of the unit or units and the exercise of any
special declarant right;
(B)
Comply with the provisions of ORS 100.015 and 100.635 to 100.910 in connection
with the sale of any unit or units, except as provided in ORS 100.665; and
(C)
Give the warranties described in ORS 100.185 only with respect to common
elements or units constructed by the successor declarant. [Formerly 94.097;
2011 c.532 §8]
100.225 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 declarant’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 transferor’s interest
in the condominium, 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 right 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 declarant’s interest in a condominium in
which the declarant has reserved the right to add additional stages under ORS
100.125, the transferee shall not acquire the right to annex additional stages
to the condominium unless the transferee simultaneously acquires from the
declarant property adjacent to the condominium which is entitled to be annexed
to the condominium, 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
transferor’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 condominium. [Formerly 94.103]
DOCUMENT FILING
100.250 Documents required to be filed
with Real Estate Agency; fees. (1) The
following shall be delivered to the Real Estate Agency for filing on behalf of
the association in accordance with ORS 100.260 (5):
(a)
A Condominium Information Report described in ORS 100.260 (1) by the declarant
not later than 90 days after the declaration is recorded under ORS 100.100 or
by the board of directors if required under ORS 100.275.
(b)
The Annual Report described in ORS 100.260 (2) by the declarant until the
turnover meeting and the board of directors thereafter every year not later
than the report date which shall be the anniversary date of filing the
Condominium Information Report.
(c)
An amendment to the reports required under this subsection by the declarant
until the turnover meeting and the board of directors thereafter, within 30
days after there is a change in the information contained in a report.
(2)
The Real Estate Agency shall collect the following fees for the documents
delivered for filing:
______________________________________________________________________________
Document Fee
(a) Condominium
Information
Report $100
(b) Annual
Report $ 25
(c) Amendment $
75
(d) Application
for
Termination
Statement $ 75
(e) Statement
of Resignation $ 75
______________________________________________________________________________
(3) Any fee paid under subsection (2) of
this section or ORS 100.275 may be a common expense of the condominium. [1989
c.595 §38; 1991 c.132 §13; 1995 c.31 §4; 2001 c.756 §37]
Note:
100.250 to 100.290 were added to and made a part of ORS 100.005 to 100.910 by
legislative action but were not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation.
100.255
Processing of documents filed with Real Estate Agency; procedures.
(1) If after review the Real Estate Agency determines that a report or
amendment submitted for filing under ORS 100.250 (1) satisfies the requirements
of ORS 100.260, and all fees have been paid, the Real Estate Agency shall file
the document and designate the filing “current.”
(2) The Real Estate Agency files a
document by indicating thereon that it has been filed by the Real Estate Agency
and the date of filing. The time of filing shall be considered to be 12:01 a.m.
on that date. After filing a document, the Real Estate Agency shall return a
copy to the association.
(3) If the Real Estate Agency refuses to
file a document, the Real Estate Agency shall return it to the association
within 10 business days after the document was received by the Real Estate
Agency, together with a brief written explanation of the reason or reasons for
the refusal.
(4) The Real Estate Agency’s duty to file
documents under this section and ORS 100.250 is ministerial. The Real Estate
Agency is not required to verify or inquire into the legality or truth of any
matter included in any document delivered to the Real Estate Agency for filing.
The Real Estate Agency’s filing or refusing to file a document does not:
(a) Affect the validity or invalidity of
the document in whole or in part; or
(b) Relate to the correctness or incorrectness
of information contained in the document.
(5) The Real Estate Agency’s refusal to
file a document does not create a presumption that the document is invalid or
that information contained in the document is incorrect.
(6) If the Real Estate Agency refuses to
file a document delivered to the Real Estate Agency for filing, the
association, in addition to any other legal remedy which may be available,
shall have the right to appeal from such final order pursuant to the provisions
of ORS 183.484. [1989 c.595 §39; 1995 c.31 §5]
Note:
See note under 100.250.
100.260
Condominium Information and Annual Reports; contents; fees.
(1) The Condominium Information Report required under ORS 100.250 (1)(a) shall
set forth:
(a) The name of the association;
(b) The name of the condominium and the
county in which the condominium is located;
(c) The mailing address, including the
street and number, if any, and county of the association;
(d) The date the condominium declaration
was recorded and the recording index numbers;
(e) The name and residence or business
address, including the street and number, of the person designated as agent to
receive service of process in cases provided in ORS 100.550 (1) and any other
legal proceeding relating to the condominium or association; and
(f) The number and type of units as
follows:
No._____ Living Units
No._____ Commercial/Office Units
No._____ Other (describe) ______
__________________________
(2) The Annual Report required under ORS
100.250 (1)(b) shall set forth:
(a) The information required under
subsection (1)(a), (b), (c) and (e) of this section;
(b) The names and addresses of the
chairperson and secretary of the association; and
(c) If the designated agent is changed, a
statement that the new agent has consented to the appointment.
(3) The amendment required under ORS
100.250 (1)(c) shall set forth:
(a) The name of the association as shown
on the current records of the Real Estate Agency;
(b) The name of the condominium and county
in which the condominium is located;
(c) A statement of the information as
changed; and
(d) If the current designated agent is to
be changed, the name of the new designated agent and residence or business
address, including the street and number, and a statement that the new agent
has consented to the appointment.
(4) The filing by the Real Estate Agency
of an amendment which changes the designated agent shall terminate the existing
designated agent on the effective date of the filing and establish the newly
appointed designated agent as that of the association.
(5) The reports and amendment described in
this section and an application for termination described in ORS 100.280 shall
be made on forms prescribed and furnished by the Real Estate Agency and must be
accompanied by the correct filing fee and shall:
(a) Contain information current as of 30
days before delivery for filing;
(b) Be executed by the designated agent
and until the turnover meeting by the declarant and thereafter by the
chairperson or secretary of the association;
(c) State beneath or opposite the
signature the name of the person and the capacity in which the person signs;
and
(d) Contain any additional identifying
information that the Real Estate Agency may require by rule. [1989 c.595 §40;
1995 c.31 §6; 2001 c.756 §38]
Note:
See note under 100.250.