Rights and Duties Relating to Cemeteries, Human Bodies and Anatomical Gifts
Distributions from preconstruction trust fund deposits
(1)A depository may not make any distributions from preconstruction sales contract trust deposits except as provided in this section.
(2)(a) The construction or development of undeveloped interment spaces shall be commenced on the phase of construction or development, or the section or sections of spaces in which sales are made within five years of the date of the first sale. The certified provider who sold the preconstruction sales contract shall give written notice including a description of the project to the Director of the Department of Consumer and Business Services no later than 30 days after the first sale.
(b)Once commenced, construction or development shall be pursued diligently to completion. The first phase of construction must be completed within seven years of the first sale. However, any delay caused by strike, shortage of materials, civil disorder, natural disaster or any similar occurrence beyond the control of the certified provider extends the time of completion by the length of a delay.
(c)If construction or development is not commenced or completed within the times specified, any contract purchaser may surrender and cancel the contract and upon cancellation shall be entitled to a refund of the actual amounts paid toward the purchase price, together with interest accrued on the amount deposited to the trust.
(3)Except as otherwise authorized by this section, every certified provider selling undeveloped spaces shall provide facilities for temporary interment for purchasers or beneficiaries of contracts who die prior to completion of the space. Such temporary facilities shall be constructed of permanent materials, and, insofar as practical, be landscaped and groomed to the extent customary in that community. The heirs, assigns or personal representative of a purchaser or beneficiary shall not be required to accept temporary underground interment space where undeveloped space contracted for was an aboveground entombment or inurnment space. In the event that temporary facilities as described in this subsection are not made available upon the death of a purchaser or beneficiary, the heirs, assigns or personal representative is entitled to a refund of the entire sales price paid plus undistributed interest attributable to such amount while in trust.
(4)If the certified provider who sold the preconstruction sales contract delivers a completed space acceptable to the heirs, assigns or personal representative of a purchaser or beneficiary, other than a temporary facility, in lieu of the undeveloped space purchased, the certified provider shall provide the depository with a delivery certificate and all sums deposited under the preconstruction sales contract and income allocable to that contract shall be paid to the certified provider.
(5)During the construction or development of interment spaces, upon receiving the sworn certification of the certified provider who sold the preconstruction sales contract and the contractor, the depository shall disburse from the trust fund the amount equivalent to the cost of performed labor or delivered materials as certified, not to exceed the amounts deposited and income allocable to those contracts. A person who executes and delivers a completion certificate with actual knowledge of a falsity contained therein shall be considered in violation of ORS 97.923 (Definitions for ORS 97.923 to 97.949) to 97.949 (Notification by director to appropriate federal, state or local law enforcement officer of violation of ORS 97.923 to 97.949) and 692.180 (Grounds for revocation, suspension or refusal to issue or renew licenses or certificates).
(6)Upon completion of the phase of construction or development, section or sections of the project as certified to the depository by the certified provider and the contractor, the trust requirements shall terminate and all funds held in the preconstruction sales contract trust fund attributable to the completed phase, section or sections shall be paid to the certified provider who sold the preconstruction sales contract.
(7)Upon the payment to a certified provider of preconstruction sales contract trust funds under subsection (4) or (6) of this section, the undistributed income of the trust shall be paid to:
(a)The certified provider who sold the contract if the contract is a guaranteed contract; or
(b)The contract purchaser, or the purchaser’s estate, if the contract is a nonguaranteed contract.
(8)If the preconstruction sales contract purchaser defaults in making payments under an installment preconstruction sales contract, and default continues for at least 30 days after the purchaser has received written notice of default, the certified provider who sold the contract may cancel the contract and withdraw from the trust fund the entire balance of the defaulting purchaser’s account as liquidated damages. Upon certification of the default, the depository shall deliver the balance to the certified provider. The depository may rely on the certification and affidavits made to it under the provisions of ORS 97.923 (Definitions for ORS 97.923 to 97.949) to 97.949 (Notification by director to appropriate federal, state or local law enforcement officer of violation of ORS 97.923 to 97.949), 97.992 (Penalties for ORS 97.937), 97.994 (Penalties for ORS 97.931, 97.933, 97.941 and 97.943) and 692.180 (Grounds for revocation, suspension or refusal to issue or renew licenses or certificates) and shall not be liable to any person for such reliance. [Formerly 128.430; 2007 c.661 §21]
Atty. Gen. Opinions
Embalming dead human body without prior authorization from surviving spouse or next of kin, (1981) Vol 41, p 457