Oregon Statutes 35.352 – Notice of immediate possession of property by public condemner; objection
(1) At any time after a condemnation action is commenced, a public condemner may serve notice that the public condemner will take immediate possession of the property that is the subject of the action. The notice must be served in the manner provided by ORCP 9 on all defendants in the action.
Terms Used In Oregon Statutes 35.352
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Answer: The formal written statement by a defendant responding to a civil complaint and setting forth the grounds for defense.
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- 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. See Oregon Statutes 35.215
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Fraud: Intentional deception resulting in injury to another.
- Plaintiff: The person who files the complaint in a civil lawsuit.
- Property: means real or personal property or any interest therein of any kind or nature that is subject to condemnation. See Oregon Statutes 35.215
- Public condemner: means condemner other than private condemner. See Oregon Statutes 35.215
(2) If notice is served under this section, a defendant in a condemnation action may object to immediate possession of property by a public condemner by filing a written objection with the court within 10 days after notice is served on the defendant under this section and serving a copy of the objection on the public condemner in the manner provided by ORCP 9. The objection must request that the court schedule a hearing on the objection at the earliest possible time. The only issues that a court may consider upon objection are:
(a) Whether the condemnation is legal; and
(b) Subject to the presumption established by ORS § 35.235 (2), whether the public condemner has acted in bad faith, engaged in fraud or engaged in an abuse of discretion under a delegation of authority.
(3) If notice is served under this section and an objection is not filed with the court within the time allowed under subsection (2) of this section, the public condemner may at any time thereafter file with the court a form of order confirming the public condemner’s possession of the property as of the date specified in the notice. The form of order must be accompanied by an affidavit attesting to service of the notice as required by subsection (1) of this section, and a statement that an objection was not filed within 10 days after notice was served on the defendants in the action. Upon filing of the affidavit, the clerk of the court shall affix the seal of the court to the form of order. The order may thereafter be enforced in the same manner as any other order of the court.
(4) A notice under this section must be in substantially the following form:
______________________________________________________________________________
CIRCUIT COURT FOR THE
COUNTY OF ______
TO THE DEFENDANTS:
By service of this notice, you are advised that the plaintiff will take possession of the property described in the complaint on:
(1) _________, 2___, if the deposit required by ORS § 35.265 has been made by that date; or
(2) The date on which the deposit required by ORS § 35.265 is made if that date is later than the date specified above.
You may file an objection with the court within 10 days after this notice is served on you. An objection may be made only to determine:
(1) Whether the condemnation is legal; and
(2) Subject to the presumption established by ORS § 35.235 (2), whether the public condemner has acted in bad faith, engaged in fraud or engaged in an abuse of discretion under a delegation of authority.
______________________________________________________________________________
(5) The court shall expeditiously consider any objection filed under this section to prevent prejudice to the public condemner’s need for immediate possession.
(6) The ability of the defendant in a condemnation action to assert legal defenses in the answer of the defendant under ORS § 35.295 is not affected solely by reason of the filing of an objection to a notice served under this section, or by reason of the failure to file an objection.
(7) This section does not impose a requirement that a public condemner use the procedure described in this section, and the procedure described in this section is not the exclusive method by which a public condemner may obtain possession of property. [2005 c.565 § 3]