Oregon
Revised Statutes
Chapter
35
2001
EDITION
Eminent
Domain Procedure
35.235
Agreement for compensation; status of resolution or ordinance
of public condemner; status of action of private condemner;
agreement effort not prerequisite
35.245
Commencement of action; jurisdiction; parties
35.265
Advance deposit by public condemner requiring immediate possession;
effect on interest otherwise allowable
35.275
Advance occupancy by private condemner; hearing; deposit or
bond; effect of size of bond or deposit on amount of just
compensation
35.285
Distribution of deposits; effect of withdrawal on appeal
35.305
Conduct of trial; defendant's option; jury argument; neither
side has burden of proof of just compensation
35.315
View of property by order of court
35.325
Effect of judgment; effect of payment under judgment
35.335
Effect of condemner's abandonment of action
35.346
Offer to purchase required prior to filing action for condemnation;
appraisal; arbitration; when costs and disbursements allowed
35.348
Special rule for road authorities
35.365
Effect of withdrawal of award; disposition of award
35.375
Chapter as exclusive condemnation proceeding; exception
35.385
Public purpose use required of condemner; right of repurchase;
specification of duration of public purpose use; effect
35.390
Effect of failure of condemner to use property as required;
price of repurchase; form of offer of repurchase
35.395
Change in period of use; notice; effect of failure to agree
on change; review by court
35.400
Designation of person to exercise right of repurchase; effect
of failure to designate; offer to repurchase; acceptance;
notice; determination of price
35.405
Designation of person to exercise right of repurchase by multiple
owners
35.410
Right to contest change in public purpose use; notice of proposed
change
35.415
Application of ORS 35.385 to 35.415
CROSS-REFERENCES
Assessment
and tender of compensation required prior to taking, except
in case of state, Const. Art. I, s.18, Const. Art. XI, s.4
Conservation
easements, acquisition, 271.725
Costs
and attorney fees, 20.085
County
road legalization procedure, 368.201 to 368.221
Geothermal
heating districts, Ch. 523
Oregon
Health Sciences University:
Applicability of provisions of chapter to, 353.100
Right to acquire property by condemnation, 353.110
Procedure
when pedestrian mall established, 376.785
Relocation
assistance, use of federal programs by public agencies authorized,
281.060
Relocation
of persons displaced by highway acquisitions, 366.323
Willamette
River Greenway, 390.310 to 390.368
35.235
Determination
of right of railroad to cross constructed line of another
railroad, 772.025
35.275
Assessment
and tender of compensation required prior to taking, except
in case of state, Const. Art. I, s.18, Const. Art. XI, s.4
Deposit
in lieu of bond, 22.020 to 22.070
35.325
Judgment
authorizing one railroad to use another's right of way, 772.030
Taxes
on land acquired by eminent domain, payment, 311.412, 311.413
Chapter
35 — Eminent Domain Procedure
2001
EDITION
35.010
[Repealed by 1971 c.741 s.38]
35.020
[Repealed by 1971 c.741 s.38]
35.030
[Repealed by 1971 c.741 s.38]
35.040
[Amended by 1967 c.479 s.1; repealed by 1971 c.741 s.38]
35.050
[Repealed by 1971 c.741 s.38]
35.060
[Repealed by 1971 c.741 s.38]
35.070
[Amended by 1967 c.479 s.2; repealed by 1971 c.741 s.38]
35.080
[Repealed by 1971 c.741 s.38]
35.085
[1967 c.479 ss.4,5; repealed by 1971 c.741 s.38]
35.090
[Repealed by 1971 c.741 s.38]
35.100
[Repealed by 1971 c.741 s.38]
35.105
[1967 c.479 s.6; repealed by 1971 c.741 s.38]
35.110
[Repealed by 1971 c.741 s.38]
35.120
[Repealed by 1971 c.741 s.38]
35.130
[Repealed by 1971 c.741 s.38]
35.140
[Repealed by 1971 c.741 s.38]
35.205 Short title. This chapter
may be cited as the General Condemnation Procedure Act. [1971
c.741 §2]
Back to top.
35.215 Definitions. As used in this
chapter, unless the context otherwise requires:
(1) "Condemner" means the state, any city, county,
school district, municipal or public corporation, political
subdivision or any instrumentality or any agency thereof or
a private corporation that has the power to exercise the right
of eminent domain.
(2) "Owner" or "owner of the property"
means the owner of property as that term is defined in subsection
(5) of this section.
(3) "Person" means person as defined by ORS 174.100
and also includes the state, any city, county, school district,
municipal or public corporation, political subdivision or
any instrumentality or any agency thereof.
(4) "Private condemner" means a private corporation
that has the power to exercise the right of eminent domain.
(5) "Property" means real or personal property or
any interest therein of any kind or nature, that is subject
to condemnation.
(6) "Public condemner" means condemner other than
private condemner. [1971 c.741 §4; 1983 c.327 §10]
35.225 [1971 c.741 §5; repealed by 1979 c.284 §199]
Back to top.
35.225
[1971 c.741 s.5; repealed by 1979 c.284 s.199]
Back to top.
35.235 Agreement for compensation; status
of resolution or ordinance of public condemner; status of
action of private condemner; agreement effort not prerequisite.
(1) Subject to ORS 758.015 and 836.050, whenever in the
judgment of the condemner it is necessary to acquire property
for a purpose for which the condemner is authorized by law
to acquire property, the condemner shall, after first declaring
by resolution or ordinance such necessity and the purpose
for which it is required, attempt to agree with the owner
with respect to the compensation to be paid therefor, and
the damages, if any, for the taking thereof.
(2) The resolution or ordinance of a public condemner is presumptive
evidence of the public necessity of the proposed use, that
the property is necessary therefor and that the proposed use,
improvement or project is planned or located in a manner which
will be most compatible with the greatest public good and
the least private injury.
(3) The commencement of an action to condemn property by a
private condemner creates a disputable presumption of the
necessity of the proposed use, that the property is necessary
therefor and that the proposed use, improvement or project
is planned or located in a manner which will be most compatible
with the greatest public good and the least private injury.
(4) The question of the validity of the disputable presumptions
created in subsection (3) of this section, if raised, shall
be determined by the court in a summary proceeding prior to
trial.
(5) It is not a prerequisite to the exercise of the right
of eminent domain by the condemner to attempt first to agree
with an owner or to allege or prove any effort to agree with
such owner as to reasonable value, when such owner is at the
time concealed within the state or, after reasonable effort
by condemner, cannot be found within the state. [1971 c.741
§6; 1973 c.579 §1]
Back to top.
35.245 Commencement of action; jurisdiction;
parties. (1) If the condemner is unable to agree with
or locate the owner of the property under ORS 35.235, then
an action to condemn property may be commenced in the circuit
court of the county in which the property proposed to be condemned,
or the greater portion thereof, is located.
(2) An action may be commenced against the person in whose
name the record title appears. There may be included as defendants
any lessee or other person in possession and all other persons
having or claiming an interest in the property. [1971 c.741
§7]
Back to top.
35.255 Content of complaint. The
complaint shall describe the property sought to be condemned
and shall allege the true value of the property sought and
the damage, if any, resulting from the appropriation thereof.
[1971 c.741 §8; 1979 c.284 §75]
Back to top.
35.265 Advance deposit by public condemner
requiring immediate possession; effect on interest otherwise
allowable. (1) When a public condemner commences an action
for the condemnation of property and immediate possession
of the property is considered necessary by the public condemner,
a fund shall be created in the amount estimated to be the
just compensation for the property and placed in the hands
of the treasurer of the public condemner for deposit with
the clerk of the court wherein the action was commenced, for
the use of the defendants in the action.
(2) When the public condemner is a state agency and immediate
possession of property is considered necessary by the agency,
the agency shall certify to such facts and authorize an advancement
out of funds available to the agency of the amount estimated
by the agency to be just compensation for the property. Upon
such certification and authorization, a warrant shall be drawn
in favor of the clerk of the court in the amount authorized.
(3) Upon the deposit in court by the public condemner of the
estimated amount of just compensation as provided by subsections
(1) and (2) of this section, no interest shall be allowed
thereon in any final judgment. [1971 c.741 §10]
Back to top.
35.275 Advance occupancy by private condemner;
hearing; deposit or bond; effect of size of bond or deposit
on amount of just compensation. (1) At any time after
an action is commenced to acquire any property, a private
condemner may apply to the court for an order to occupy the
property to be condemned and to make use of the property for
the purposes for which it is being appropriated.
(2) At the hearing on the motion, the court shall determine
the reasons for requiring a speedy occupation. The court shall
grant the motion if, giving consideration to the public interest
involved, it finds that the interests of the owners will be
adequately protected. The court may make such provisions or
orders as necessary, so that the advance taking or an advance
payment, as provided by subsection (3) of this section, will
not be prejudicial to either party.
(3)(a) If an order to occupy the property is granted, it may
also require the private condemner to deposit with the court
either such sum as the court finds reasonable on account of
just compensation to be awarded or to deposit a surety bond
in an amount and with such surety as the court may approve.
The surety bond shall be conditioned to the effect that the
private condemner shall pay to the owners of the property
just compensation for the property taken or restitution, if
any, and costs, disbursements and reasonable attorney fees
as finally determined.
(b) After an order to occupy is entered, if it appears necessary
in order to protect the interests of the owners of the property,
the court at any time may require the private condemner to
deposit with the court an additional bond or sum on account
of just compensation to be awarded.
(c) Evidence as to the finding of the court regarding the
amount of such bond or deposit shall not be admissible at
the trial of just compensation. [1971 c.741 §11]
Back to top.
35.285 Distribution of deposits; effect
of withdrawal on appeal. (1) The court may distribute
all or any part of the funds deposited by a condemner to the
persons entitled thereto for or on account of the just compensation
to be awarded in the action, upon such terms and conditions
as may appear just and reasonable.
(2) Any persons entitled to withdraw any or all of the deposit,
as provided by subsection (1) of this section, may do so at
any time without waiving rights of appeal provided by ORS
35.355. [1971 c.741 §12]
Back to top.
35.295 Defendant's answer. The defendant
in answer may set forth any legal defense the defendant may
have to the condemnation. The defendant shall also allege
the true value of the property and the damage, if any, resulting
from the appropriation thereof. [1971 c.741 §13]
Back to top.
35.305 Conduct of trial; defendant's
option; jury argument; neither side has burden of proof of
just compensation. (1) Evidence shall be received and
the trial conducted in the order and manner prescribed for
a civil action in the circuit court, except that the defendant
shall have the option of proceeding first or last in the presentation
of evidence, if notice of such election is filed with the
court and served on the condemner at least seven days prior
to the date set for trial. If no notice of election is filed,
the condemner shall proceed first in the presentation of evidence.
Unless the case is submitted by both sides to the jury without
argument, the party who presents evidence first shall also
open and close the argument to the jury.
(2) Condemner and defendant may offer evidence of just compensation,
but neither party shall have the burden of proof of just compensation.
[1971 c.741 §14; 1979 c.284 §76]
Back to top.
35.315 View of property by order of court.
If motion is made by either party before the formation
of the jury, the court shall order a view of the property
in question; and, upon the return of the jury, the evidence
of the parties may be heard and the verdict of the jury given.
[1971 c.741 §15]
Back to top.
35.325 Effect of judgment; effect of
payment under judgment. Upon the assessment of the compensation
by the jury, the court shall give judgment appropriating the
property in question to the condemner, conditioned upon the
condemner’s paying into court the compensation assessed
by the jury; and, after the making of such payment, the judgment
shall become effective to convey the property, and the right
of possession thereof to the condemner if not previously acquired.
[1971 c.741 §16]
Back to top.
35.335 Effect of condemner's abandonment
of action. (1) If an action is abandoned by the condemner,
the court shall enter judgment in favor of the defendant for
costs and disbursements in the action and for reasonable attorney
fees and reasonable expenses as determined by the court.
(2) Expenses mean costs of appraisals and fees for experts
incurred in preparing and conducting the defense to the action.
(3) An action is considered abandoned if, at any time after
filing a complaint, the case is dismissed or terminated or
the condemner files an election not to take the property.
If an election is not filed within 60 days after the verdict,
the condemner is considered to have elected to take the property.
[1971 c.741 §17]
Back to top.
35.345
[1971 c.741 §18; repealed by 1973 c.617 §1 (35.346
enacted in lieu of 35.345)]
Back to top.
35.346 Offer to purchase required prior
to filing action for condemnation; appraisal; arbitration;
when costs and disbursements allowed. (1) At least 20
days prior to the filing of any action for condemnation of
property or any interest therein, the condemner shall make
a written offer to the owner or party having an interest to
purchase the property or interest, and to pay just compensation
therefor and for any compensable damages to remaining property.
(2) The offer shall be accompanied by any written appraisal
upon which the condemner relied in establishing the amount
of compensation offered. If the condemner determines that
the amount of just compensation due is less than $20,000,
the condemner, in lieu of a written appraisal, may provide
to the owner or other person having an interest in the property
a written explanation of the bases and method by which the
condemner arrived at the specific valuation of the property.
The amount of just compensation offered shall not be reduced
by amendment or otherwise before or during trial except on
order of the court entered not less than 60 days prior to
trial. An order for reduction of just compensation offered,
pleaded by the condemner in the complaint or deposited with
the court for the use and benefit of the owner pending outcome
of the condemnation action, may be entered only upon motion
of the condemner and a finding by clear and convincing evidence
that the appraisal upon which the original offer is based
was the result of a mistake of material fact that was not
known and could not reasonably have been known at the time
of the original appraisal or was based on a mistake of law.
(3) Unless otherwise agreed to by the condemner and the owner,
prior to appraising the property the condemner shall provide
not less than 15 days’ written notice to the owner of
the planned appraisal inspection. The property owner and designated
representative, if any, shall be invited to accompany the
condemner’s appraiser on any inspection of the property
for appraisal purposes.
(4) The owner shall have not less than 40 days from the date
of receipt of the initial written offer and the accompanying
appraisal from the condemner to accept or reject the offer.
If the owner rejects the condemner’s offer and obtains
a separate appraisal, the owner shall provide the condemner
with a copy of the owner’s appraisal not less than 60
days prior to trial or arbitration.
(5)(a) Failure to provide the opposing party with a copy of
the appropriate appraisal as provided in subsections (2) and
(4) of this section shall prohibit the use of the appraisal
in arbitration or at trial.
(b) In the event the owner and condemner are unable to reach
agreement and proceed to trial or arbitration as provided
in subsection (6) of this section, each party to the proceeding
shall provide to every other party a copy of every appraisal
obtained by the party as part of the condemnation action.
(6)(a) If an action based on the condemnation is filed, the
owner may elect to have compensation determined by binding
arbitration if the total amount of compensation claimed by
any party does not exceed $20,000. Notice of an election of
binding arbitration must be given to the condemner at least
90 days prior to the date on which an arbitration hearing
is scheduled under ORS 36.420.
(b) Notwithstanding the amounts established under ORS 36.400,
if the owner elects to proceed with binding arbitration, the
arbitration shall be conducted according to the mandatory
arbitration program established under ORS 36.400 to 36.425.
Notwithstanding ORS 36.425, no party may request a trial de
novo after the filing of the decision and award of the arbitrator.
Within 20 days after the filing of the decision and award
of the arbitrator under ORS 36.425, any party may file exceptions
to the award with the court. Exceptions to the award may only
be for one or more of the reasons specified in ORS 36.355.
The court shall rule on the exceptions as provided in ORS
36.360 and any appeal from the court’s judgment on the
exceptions shall be as provided in ORS 36.365. Except as provided
in this subsection, no party may appeal from the decision
and award of an arbitrator if the owner elects binding arbitration
in lieu of trial.
(c) If the total amount of compensation claimed exceeds $20,000
but is less than $50,000, the owner may elect to have compensation
determined by nonbinding arbitration under the applicable
provisions of ORS 36.400 to 36.425.
(7) If a trial is held or arbitration conducted for the fixing
of the amount of compensation to be awarded to the defendant
owner or party having an interest in the property being condemned,
the court or arbitrator shall award said defendant costs and
disbursements including reasonable attorney fees and reasonable
expenses as defined in ORS 35.335 (2) in the following cases,
and no other:
(a) If the amount of just compensation assessed by the verdict
in the trial exceeds the highest written offer in settlement
submitted by condemner to those defendants appearing in the
action at least 30 days prior to commencement of said trial;
or
(b) If the court finds that the first written offer made by
condemner to defendant in settlement prior to filing of the
action did not constitute a good faith offer of an amount
reasonably believed by condemner to be just compensation.
(8) Costs and disbursements other than reasonable attorney
fees and expenses as defined in ORS 35.335 (2) shall be awarded
to condemner in all cases other than those in which defendant
is entitled to costs and disbursements under subsection (7)
of this section. [1973 c.617 §2 (enacted in lieu of 35.345);
1997 c.797 §1]
Back to top.
35.348 Special rule for road authorities.
Notwithstanding the time limits in ORS 35.346 (4), in
cases where a road authority, as defined in ORS 801.445, determines
that an emergency exists that requires immediate maintenance,
repair, construction or other road work related to the emergency,
the authority may assume rejection by the landowner of a compensation
offer made under ORS 35.346. [1997 c.797 §3]
Back to top.
35.355 Appeal. Either party to the
action may appeal from the judgment in like manner and with
like effect as in ordinary cases, but the appeal shall not
stay the proceedings so as to prevent the condemner from taking
possession of the property and using it for the purposes for
which it is being appropriated. In the event the defendant
prevails on an appeal, the costs and disbursements of the
defendant, including a reasonable attorney fee to be fixed
by the court, shall be taxed by the clerk and recovered from
the condemner. [1971 c.741 §19]
Back to top.
35.365 Effect of withdrawal of award;
disposition of award. If the defendant withdraws the
compensation awarded by the court or jury, the defendant waives
the right of appeal; and, if the defendant does not, such
sum shall remain in the control of the court, to abide the
event of the appeal. If an unknown owner of the property or
other defendant does not appear and claim the sum, it shall
be invested for the benefit of whom it may concern, as in
case of unclaimed moneys in the sale and partition of lands.
[1971 c.741 §20]
Back to top.
35.375 Chapter as exclusive condemnation
proceeding; exception. Except for procedures provided
in ORS chapter 368, any action for the condemnation of property
under the power of eminent domain shall be conducted according
to this chapter. [1971 c.741 §3; 1979 c.873 §3;
1981 c.153 §52]
Back to top.
35.385 Public purpose use required of
condemner; right of repurchase; specification of duration
of public purpose use; effect. (1) If real property is
acquired by a condemner by agreement with the owner of such
property after commencement of an action under ORS 35.245
for the appropriation of such property but prior to judgment
in such action, the condemner and the owner shall:
(a) Specify in such agreement for the real property a reasonable
period within which the real property must be used by the
condemner for a public purpose or specify a 10-year period
for such use and provide that the right of repurchase of the
real property or any portion thereof may be exercised as provided
in ORS 35.385 to 35.415; or
(b) Specify that the right of repurchase of the real property
has been waived by the owner and, in such case, not specify
a period within which the real property must be used by the
condemner for a public purpose.
(2) If real property is acquired by a condemner under this
chapter by judgment given in a condemnation action under ORS
35.325, the court shall:
(a) Specify in the judgment a reasonable period within which
the real property must be used by the condemner for a public
purpose or specify a 10-year period, and provide that the
right of repurchase may be exercised with respect to the real
property as provided in ORS 35.385 to 35.415; or
(b) Specify that the right of repurchase of the real property
has been waived by the owner and, in such case, not specify
a period within which the real property must be used by the
condemner for a public purpose.
(3) For the purposes of subsection (2)(a) of this section,
the resolution or ordinance of the condemner is presumptive
evidence that the period of time that is proposed by the condemner
is a reasonable period in which the real property must be
used by the condemner for a public purpose; provided, however,
that if the resolution or ordinance specifies a 10-year period
or less, neither the owner nor a designated beneficiary of
the owner can contest the reasonableness of the period specified.
[1973 c.720 §2]
Back to top.
35.390 Effect of failure of condemner
to use property as required; price of repurchase; form of
offer of repurchase. (1) If a condemner fails to use
the real property or any portion thereof acquired under this
chapter within the time specified in an agreement entered
into under ORS 35.385 (1) or with the terms of a judgment
given under ORS 35.325 and 35.385 (2), whichever applies,
and the prior owner of the real property has not waived the
right to repurchase the real property, the condemner shall
offer such property or any portion thereof, that has not been
used for a public purpose within the specified period, to
the prior owner or the beneficiary of the prior owner designated
as provided in ORS 35.400. The condemner shall, at its expense,
insure the title to any property or portion thereof conveyed
or vested in the owner or beneficiary under any provision
of ORS 35.385 to 35.415, free and clear of any and all encumbrances
except those subject to which the condemner originally took
such property.
(2) The prior owner or beneficiary described in subsection
(1) of this section may repurchase from the condemner the
real property that is subject to the right of repurchase for
a price equal to the sum of the compensation and damages paid
by the condemner for the real property plus interest at the
rate of seven percent per year from the date of the conveyance
of the real property by the prior owner to the condemner.
(3) If only a portion of the real property acquired by a condemner
is subject to the right of repurchase under ORS 35.385 to
35.415, the prior owner or beneficiary may acquire such portion
for a price equal to the sum of:
(a) The fair cash market value of the portion subject to the
right of repurchase, as of the date of the commencement of
any action subject to ORS 35.385; and
(b) The damages for diminution in value of the remainder,
if any, of the former owner’s property not so acquired,
as of the date of the commencement of any action subject to
ORS 35.385; and
(c) Interest at the rate of seven percent per year from the
date of the conveyance of the real property by the prior owner
to the condemner.
(4) The offer to repurchase only a portion of real property
as provided in subsection (1) of this section and ORS 35.400
(3), shall be in writing and shall include the price for repurchase
as determined by the condemner, including an itemization of
the components thereof, pursuant to subsection (3) of this
section. [1973 c.720 §3]
Back to top.
35.395 Change in period of use; notice;
effect of failure to agree on change; review by court.
(1) The period specified in an agreement or judgment as provided
in ORS 35.385 may be changed as provided in this section,
if the prior owner of the real property has not waived the
right of repurchase and the condemner finds that it will be
unable to use all or a portion of the real property for such
purpose within the specified period and requires a reasonable
extension of such period for the completion of its project
on the real property.
(2) Upon a finding under subsection (1) of this section, a
condemner shall notify the prior owner or designated beneficiary
of the requested change in period. The condemner shall negotiate
with the prior owner or beneficiary on the requested change.
(a) Notification under this subsection shall consist of mailing
a letter by certified mail to the last address of the prior
owner or the designated beneficiary of the owner as shown
in the agreement or judgment whereby the real property was
acquired or the address subsequently supplied by such owner
or beneficiary. If no response has been received by the condemner
within 60 days after receipt of notice by the owner or designated
beneficiary, all the rights of the owner or designated beneficiary
under ORS 35.385 to 35.415 shall be considered waived.
(b) If the condemner cannot locate the prior owner or the
designated beneficiary of the owner at the last-known address
of the owner or the designated beneficiary, notice may be
effected by publication. The publication shall be made in
a newspaper published in the county where the property is
located, or if no newspaper is published in the county, then
in a newspaper designated as being most likely to give notice
to the prior owner or the beneficiary of the prior owner.
The newspaper utilized shall meet the requirements of ORS
193.020. The notice shall contain the name of the public project,
a general description of the location of the property, the
change in purpose or extension of time desired by the condemner
and a time within which the owner or the beneficiary of the
owner must respond to the notice. The notice shall be published
not less than once each week for four weeks. The publication
of notice may be directed to one or more owners or beneficiaries
affected by the same project. If no response is received by
the condemner within 10 days after the date of the last publication
of notice, all rights of the prior owner or designated beneficiary
shall be considered waived.
(3) If, after negotiation, the prior owner or beneficiary
and the condemner agree on the proposed change in period,
the period as changed shall, for the purposes of ORS 35.385
to 35.415, be considered the period as specified in the agreement
or judgment under ORS 35.385. In the case of real property
acquired by a condemner by judgment under ORS 35.325, the
condemner shall notify the court by which the judgment was
given of the agreed upon change in period and the court shall
modify such judgment accordingly.
(4) If the prior owner or beneficiary and the condemner cannot,
after negotiation, agree on the proposed change in period,
the condemner may:
(a) In the case of real property acquired by an agreement
under ORS 35.235 (1), petition the circuit court for the county
within which such real property is situated for a hearing
to determine whether the proposed change in period is reasonable
and necessary in the public interest; or
(b) In the case of real property acquired by a judgment given
under ORS 35.325, petition the court by which such judgment
was given for a hearing to determine whether it is reasonable
and necessary in the public interest to modify such judgment
to permit the proposed change in period. The condemner in
its petition may include as parties and serve all or any owners
and designated beneficiaries whose property is affected by
the same project.
(5) If, after a hearing under subsection (4) of this section,
the court finds that the proposed change in period is reasonable
and necessary in the public interest, the court shall grant
such change. For the purposes of ORS 35.385 to 35.415, a period
as changed by the court shall be considered the period specified
in the agreement or judgment described in ORS 35.385. For
the purposes of this subsection, the resolution or ordinance
of the condemner is presumptive evidence that the change in
period proposed by the condemner is reasonable and necessary
in the public interest.
(6) If, after a hearing under subsection (4) of this section,
the court finds that the proposed change in period is unreasonable
or not necessary in the public interest, the court shall deny
the requested change. In such case, the terms of the original
agreement or judgment shall control for the purpose of the
exercise of the right of repurchase under ORS 35.385 to 35.415.
[1973 c.720 §4]
Back to top.
35.400 Designation of person to exercise
right of repurchase; effect of failure to designate; offer
to repurchase; acceptance; notice; determination of price.
(1) At the time of entering into an agreement pursuant
to ORS 35.385 (1) for the acquisition of real property by
a condemner or prior to the time of giving judgment for the
acquisition of real property by a condemner under ORS 35.325,
the owner of the real property to be acquired may, if such
owner has not waived the right of repurchase under ORS 35.385
to 35.415, designate a person to exercise such right of repurchase.
Such designation shall constitute an assignment of the right
of the owner of such property to exercise the right of repurchase
otherwise available under ORS 35.385 to 35.415. The name and
address of the person so designated shall be included in such
agreement or judgment. Such owners and designated beneficiaries
shall also notify the condemner in writing of any change of
address so that their respective current addresses shall be
of record with the condemner. The person so designated may
not assign or transfer the right of repurchase.
(2) If an owner of real property to be acquired by a condemner
does not designate a person to exercise the right of repurchase
under ORS 35.385 to 35.415 and such owner has not waived such
right of repurchase, only the owner may exercise the right
of repurchase under ORS 35.385 to 35.415. If such owner dies
while real property is still subject to a right of repurchase
by the owner, the personal representative of such owner’s
estate may act as the owner to exercise the right of repurchase
with respect to such property on behalf of the estate of the
owner at any time prior to the discharge of the personal representative
under ORS 116.213.
(3) Upon receipt from a condemner of an offer to repurchase
any real property or portion thereof in accordance with ORS
35.385 to 35.415:
(a) In the case of an offer to repurchase the entire parcel
of real property to which ORS 35.385 applies, if the owner
or beneficiary of such right of repurchase does not accept
such offer within 30 days, the right of repurchase is terminated
and the condemner may use and dispose of such property or
portion as otherwise provided by law.
(b) In the case of an offer to repurchase only a portion of
a parcel of real property to which ORS 35.385 applies, the
owner or beneficiary of such right of repurchase may:
(A) Accept such offer within 30 days; or
(B) Notify the condemner within 30 days of the desire of the
owner or beneficiary to exercise such right, but refuse to
accept the price established by the condemner in the offer
to repurchase made pursuant to ORS 35.390 (4).
(c) If the owner or beneficiary of the right of repurchase
fails to timely notify the condemner pursuant to either paragraph
(b)(A) or (B) of this subsection, the right of repurchase
is terminated and the condemner may use or dispose of such
portion of property as otherwise provided by law.
(d) If timely notice of intent to exercise the right of repurchase
is given by the owner or beneficiary as provided by paragraph
(b)(B) of this subsection, the owner or beneficiary must within
60 days thereafter commence an action, in the court in which
the original action by the condemner to acquire such real
property was commenced, to determine the sole issue of the
price to be paid upon such repurchase, pursuant to the provisions
of ORS 35.390 (3). Failure to commence such an action within
such 60-day period shall void such notice of intention to
exercise repurchase for the purposes of paragraph (c) of this
subsection.
(A) Upon the determination of the price for repurchase by
the court or jury, the court shall give judgment vesting title
to the property in the owner or the beneficiary, conditioned
upon payment into court of the assessed price by the owner
or beneficiary within 90 days after the date of the judgment;
and upon the making of such payment, the judgment shall become
effective to convey the property and the right of possession
thereof to the owner or beneficiary. Failure to make such
payment into court within 90 days of the date of the judgment
shall void the notice of intent to exercise the right of repurchase
for the purposes of paragraph (c) of this subsection, and
the judgment shall be withdrawn by the court.
(B) If the price determined pursuant to the provisions of
this paragraph is less than the price established by the condemner
in its written offer to repurchase, the costs and disbursements
of the owner or beneficiary, as specified in ORS 35.335 and
35.346, shall be taxed by the clerk; and the judgment rendered
shall reflect such costs and disbursements only as an offset
against the price to be paid into court by the owner or beneficiary.
[1973 c.720 §5]
Back to top.
35.405 Designation of person to exercise
right of repurchase by multiple owners. Notwithstanding
any other provision of ORS 35.385 to 35.415, in any instance
in which ORS 35.385 applies, where the agreement by which
the condemner acquired the property is executed by more than
one person exclusive of the condemner, or where the judgment
given in a condemnation action by which the condemner acquired
the property includes more than one named defendant, all such
persons executing such agreement, or all such named defendants
must designate one person to act as beneficiary in the exercise
of the right of repurchase, unless all such persons executing
such agreement, or all such named defendants, waive such right
of repurchase as provided in ORS 35.385 to 35.415. Such designated
beneficiary thereafter shall exclusively have and exclusively
may exercise all rights, remedies and obligations provided
in ORS 35.385 to 35.415. [1973 c.720 §6]
Back to top.
35.410 Right to contest change in public
purpose use; notice of proposed change. A prior owner
of real property acquired pursuant to an agreement entered
into under ORS 35.385 (1) or a judgment given under ORS 35.235
and 35.385 (2), whichever applies, or the designated beneficiary
of such owner, may contest any proposed change by the condemner
in the public purpose for which such real property was acquired
in the manner provided for contesting a change in the period
specified for the use of such real property by the condemner
under ORS 35.395 (4). The resolution or ordinance of the condemner
is presumptive evidence that a proposed change of use proposed
by the condemner is reasonable and necessary in the public
interest. Each condemner proposing any such change in public
purpose shall notify each such owner or designated beneficiary
of such proposed change and the reasons therefor in the manner
provided in ORS 35.395 (2) for notification of a proposed
change in the period specified for use of such real property
by the condemner. Each such notice shall be mailed to the
most recent address of the owner or designated beneficiary
of record with the condemner. [1973 c.720 §7]
Back to top.
35.415 Application of ORS 35.385 to
35.415. (1) ORS 35.385 to 35.415 applies only to property
acquired after the filing of a complaint pursuant to a resolution
or ordinance adopted as provided in ORS 35.235 (1) on or
after October 5, 1973, and for which a condemnation action
is commenced on or after October 5, 1973.
(2) Notwithstanding ORS 35.375, ORS 35.385 to 35.415 applies
to real property acquired by a county pursuant to ORS chapter
368.
(3) ORS 35.385 to 35.415 shall not apply to any real property
acquired under ORS 35.385 (1) and (2) after the date the
real property is used for the purpose for which it was acquired
nor shall ORS 35.385 to 35.415 apply to any tract of real
property where the compensation and damages paid to the
owner is less than $1,000. [1973 c.720 §8; 1981 c.153
§53]
Back to top.
The
text appearing in this database was produced from material
provided to the public by the Oregon State Legislature (http://www.leg.state.or.us/ors/home.htm).
The official record copy is the printed published copy of
the Oregon Revised Statutes. The text on this website is
not the official text of Oregon law.
Although efforts have been made to match the database text
to the official legal text they represent, substantive errors
or differences may remain. It is the user’s responsibility
to verify the legal accuracy of all legal text. The office
of John R. McCulloch and any affiliated associate is not
liable for any loss or damage resulting from errors introduced
into the materials supplied by Oregon State Legislature,
by a user or any third party, or resulting from any defect
in or misuse of any search software, drivers or other equipment.
__________
|
