Oregon Statutes 100.220 – Liabilities and obligations arising from transfer of special declarant right; extinguishment of 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:
Terms Used In Oregon Statutes 100.220
- Common elements: means the general common elements and the limited common elements. See Oregon Statutes 100.005
- Declarant: means a person who records a declaration under ORS § 100. See Oregon Statutes 100.005
- Declaration: means the instrument described in ORS § 100. See Oregon Statutes 100.005
- Fiduciary: A trustee, executor, or administrator.
- Liabilities: The aggregate of all debts and other legal obligations of a particular person or legal entity.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Person: includes individuals, corporations, associations, firms, partnerships, limited liability companies and joint stock companies. See Oregon Statutes 174.100
- Sale: means any 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. See Oregon Statutes 100.005
- 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. See Oregon Statutes 100.005
- Successor declarant: means the transferee of any special declarant right. See Oregon Statutes 100.005
(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.
(4)(a) Upon transfer of any special declarant right under this section, any interest held by the transferor in the special declarant right is extinguished and the transferor has no right of recovery.
(b) A transferor may only recover a transferred special declarant right by execution of a subsequent conveyance or other instrument that evidences an intent to convey the special declarant right from the successor declarant to the transferor. [Formerly 94.097; 2011 c.532 § 8; 2017 c.112 § 1]