Bill Text: OR SB774 | 2011 | Regular Session | Introduced

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Bill Title: Relating to restrictive covenants in documents conveying real property.

Spectrum: Committee Bill

Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB774 Detail]

Download: Oregon-2011-SB774-Introduced.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 3700

                         Senate Bill 774

Sponsored by COMMITTEE ON BUSINESS, TRANSPORTATION AND ECONOMIC
  DEVELOPMENT

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Prohibits inclusion in instrument conveying or contracting to
convey real property, or in declaration or bylaws of planned
community or condominium governed by declaration, of provision
that limits use of real property in ways otherwise permissible
under applicable planning and zoning for area. Specifies judicial
procedure by which owner of property may petition to remove
provision from instrument.

                        A BILL FOR AN ACT
Relating to restrictive covenants in documents conveying real
  property; amending ORS 93.270 and 93.272.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 93.270 is amended to read:
  93.270. (1) A person conveying or contracting to convey fee
title to real property may not include in an instrument for that
purpose a provision:
  (a) Restricting the use of the real property by any person or
group of persons by reason of race, color, religion, sex, sexual
orientation, national origin or disability.
  (b) Restricting the use of the real property by any home or
facility that is licensed under ORS 443.400 to 443.455 or 443.705
to 443.825 to provide residential care alone or in conjunction
with treatment or training or a combination thereof.  { +
  (c) Restricting the use of the real property in ways that are
otherwise permissible under the planning and zoning requirements
that apply to the real property. + }
  (2) Any provision in an instrument executed in violation of
subsection (1) of this section is void and unenforceable.
  (3) An instrument that contains a provision restricting the use
of real property in a manner listed in subsection (1)(b) of this
section does not give rise to any public or private right of
action to enforce the restriction.
  (4)(a) An instrument that contains a provision restricting the
use of real property by requiring roofing materials with a lower
fire rating than that required in the state building code
established under ORS chapter 455 does not give rise to any
public or private right of action to enforce the restriction in
an area determined by a local jurisdiction as a wildfire hazard
zone.  Prohibitions on public or private right of action under

this paragraph are limited solely to considerations of fire
rating.
  (b) As used in this subsection, 'wildfire hazard zones' are
areas that are legally declared by a governmental agency having
jurisdiction over the area to have special hazards caused by a
combination of combustible natural fuels, topography and climatic
conditions that result in a significant hazard of catastrophic
fire over relatively long periods each year. Wildfire hazard
zones shall be determined using criteria established by the State
Forestry Department.
  SECTION 2. ORS 93.272 is amended to read:
  93.272. (1) Any owner of record of real property that is
subject to an instrument conveying or contracting to convey fee
title to the property that contains a provision that is in
violation of ORS 93.270 may file a petition to remove that
provision from the title to the property. The petition
 { - shall - }  { + must + } be filed in the circuit court for
the county in which the property is located.   { - No fee shall
be charged - }   { + The circuit court may not charge a fee + }
for the filing of the petition. The petition
  { - shall - }   { + must + } contain:
  (a) The name and mailing address of the person filing the
petition;
  (b) The name and mailing address of all owners of record of the
property;
  (c) The legal description of the property subject to the
provision in violation of ORS 93.270; and
  (d) A clear reference to the provision claimed to be in
violation of ORS 93.270.
  (2)  { + The petitioner shall serve + } notice and a copy of
the petition   { - shall be served - }  on all owners of record
in any manner provided for in ORCP 7. The notice   { - shall - }
 { + must + } inform the owners of record that:
  (a) The petition seeks the removal of a provision that is in
violation of ORS 93.270 from the title to the property;
  (b) The person served may request a hearing within 10 days
after service of the petition; and
  (c) The court   { - is authorized to - }   { + may + } enter a
default judgment removing the provision if   { - no hearing is
requested by - }  the owners of record { +  do not request a
hearing + }.
  (3) The petitioner shall file with the court proof of service
in the manner provided in ORCP 7 F. If   { - no - }   { + a + }
request for hearing is  { + not + } made by any person served
within 10 days after service on that person, the court shall
enter a judgment removing the provision from the title to the
property if the court determines that the provision is in
violation of ORS 93.270.
  (4) If a hearing is requested by any person served under
subsection (2) of this section, the clerk of the court shall
schedule a hearing within 20 days after the filing of the request
for a hearing. The clerk of the court shall mail notification of
the hearing date to the petitioner and to all owners of record
listed in the petition.
  (5) At any hearing under the provisions of this section, the
sole issue   { - that shall - }   { + to + } be decided by the
court is whether the provision that is the subject of the
petition is in violation of ORS 93.270. The  { + court shall try
the + } matter   { - shall be tried to the court sitting - }
without jury. If the court finds that the provision is not in
violation of ORS 93.270, the court shall dismiss the petition. If
the court finds that the provision is in violation of ORS 93.270,
the court shall enter a judgment removing the provision from the
title to the property.
  (6) If a court finds only part of a provision to be in
violation of ORS 93.270 under this section, the court shall enter
a judgment removing only that part of the provision that is in
violation.
  (7) For the purposes of this section  { - , - }  { + :
  (a) 'Instrument conveying or contracting to convey fee title'
includes a declaration and bylaws of a planned community
established pursuant to ORS 94.550 to 94.783 or established by
contract and a declaration and bylaws of a condominium
established pursuant to ORS chapter 100.
  (b) + } ' Owner of record' means a person having any legal or
equitable interest in property, including, but not limited to, a
purchaser, lienholder   { - or - }   { + and + } holder of any
security interest in
  { - such - }   { + the + } property whose interest is recorded
in the public records provided for by Oregon statutes where the
owner's interest must be recorded to perfect a lien or security
interest or provide constructive notice of the owner's interest.
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