Oregon declarant rights transfer one way only, court holds
Oregon declarant rights transfer one way only, court holds
2026-09-15 · Oregon · Courts
The Oregon Court of Appeals has decided the most consequential planned-community case in years, and it says so itself. Eastside Bend, LLC v. Calaveras II, LLC, 349 Or App 550, decided May 13, 2026, opens by describing “technical and complex legal issues pertaining to planned communities, our first interpretations of several statutory provisions relating to planned communities, and a complex litigation history.”1
The facts
Eastside recorded CC&Rs and bylaws in 2015 creating a 76-lot Class I planned community in Deschutes County, and was the declarant. In 2018 it contracted to sell the whole subdivision to Calaveras II in three phases. Calaveras closed phases 1 and 2 — 53 lots plus common area tracts — and then failed to close phase 3, leaving Eastside owning 23 lots and several common tracts.
Eastside's sole member then appointed himself sole architectural review committee member and sole association director, suspended the other owners' voting rights by letter without a hearing, and unilaterally adopted a Third Amendment to the CC&Rs narrowing the conditions under which the declarant's weighted voting rights would end.
The trial court declared Eastside and Calaveras “joint declarants as to the entire community,” nullified the association's actions and the Third Amendment, removed the individual from the association and the committee, and awarded fees.
Holding one: ORS 94.623 is the only route
“In sum, the text, context, and legislative history of ORS 94.623 persuade us that that statute provides the exclusive method of transferring special declarant rights in planned communities regulated by the OPCA, and the trial court erred in ruling otherwise. Because the trial court's determination that Eastside transferred special declarant rights flowed from the faulty legal premise that those rights may be transferred via extra-statutory methods, we conclude that the trial court erred in declaring that Eastside had transferred special declarant rights to defendant Calaveras 'by contract, consistent with * * * the CC&Rs' because ORS 94.623's requirements went unmet.”1
A purchase agreement does not do it. A recital in the CC&Rs does not do it. The statute does it, or nothing does.
Holding two: there is no joint declarant in Oregon
“While the OPCA allows for successive ownership as to some or all declarant rights, it does not permit joint ownership of special declarant rights.”
The reasoning is definitional: “ORS 94.550(9) defines 'declarant' and ORS 94.550(26) defines 'successor declarant,' but ORS 94.550 does not provide a definition of 'joint declarant.' And the term 'joint declarant' is not found anywhere in the OPCA.”
So: “defendant Calaveras is an owner of lots and common area tracts in the Calaveras planned community but is not a joint declarant for the community in total, or as to the properties that it owns.”
What the court said a transfer actually requires
Footnote 11 of the opinion is the practical checklist, and it is the part an Oregon developer, lender or title officer should have in front of them:
“We observe that none of the referenced documents mention declarant rights, or a transfer thereof, and the purchase agreement was not recorded. It thus appears that that evidence is insufficient to permit defendant Calaveras to establish that a transfer occurred by way of a recorded instrument 'evidencing an intent' to transfer any special declarant rights, as required by ORS 94.623(4). And because Eastside has retained ownership of 23 lots and several common area tracts … no transfer could have occurred via ORS 94.623(1) - (2), either.”
Three failures, each independently fatal: the documents did not mention declarant rights; the purchase agreement was not recorded; and the original declarant still held lots and common tracts, which foreclosed the automatic-transfer route.
Why this matters beyond the parties
Partial sales of Oregon subdivisions are ordinary. A declarant sells a phase, or sells to a builder who sells on, or a lender takes back lots. Every one of those transactions raises the question this case answers: who holds the special declarant rights — the weighted voting, the appointment of directors, the control of the architectural committee, the power to amend?
After Eastside Bend, the answer is that they sit where ORS 94.623 puts them, and nowhere else. A buyer who assumed it acquired declarant rights along with the lots, without a recorded instrument evidencing that intent, did not acquire them. And an owner who believes the original declarant's control has lapsed because most of the community has changed hands has to test that against the statute rather than against the commercial reality.
The corollary is uncomfortable for owners in a stalled project: a declarant that retains lots retains its rights, whatever else has happened, unless the statutory conditions are met. That was the situation here — one member of one LLC, holding 23 of 76 lots, exercising declarant control over the whole community.
The turnover wrinkle the court flagged
Footnote 13 notes a tension in the Act worth knowing about: a non-declarant may own common property under ORS 94.550(7), even though ORS 94.616(3)(b) requires the declarant to deliver a deed to the common property at turnover. In a community where common tracts have been sold off in pieces, the turnover obligation and the ownership reality can come apart.
An Oregon board's options
Find out, in writing, who the declarant is. That means a title search for a recorded instrument under ORS 94.623, not an assumption based on who is building or who holds the most lots. For an association still under declarant control, or recently emerged from it, the answer determines whether board appointments, committee decisions and CC&R amendments made in the interim were validly made at all — which is precisely what was at issue here.
Also notable is what the trial court did that the Court of Appeals disturbed. Parts of the corporate relief were reversed and remanded, and the supplemental judgment for attorney fees and costs was reversed outright. A first-instance win in an Oregon declarant-control dispute is not a durable one if the legal premise underneath it is wrong.
Our Oregon governing statute and Oregon board elections pages set out the statutory framework the case construes.
What to watch next
The remand, and whether any of it reaches the Oregon Supreme Court. The disposition was mixed — the declaratory judgment on the first counterclaim reversed and remanded, specified paragraphs of the corporate relief reversed and remanded, the rest affirmed, and the fee judgment reversed. As of the most recent published disposition list, docket A182014 does not appear in any petitions-for-review list.
Watch also for how ORS 94.623 is now drafted around. The practical response to an exclusivity holding is that every Oregon subdivision purchase agreement from here on will carry an express recorded assignment of declarant rights, or an express statement that none is transferred. That is a better outcome than the ambiguity this case grew out of.
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