The opinion
*267 HOLMAN, J.,
dissenting in part.
In order for the Association to prorate and assess expenses to a unit owner as "common expenses,” the authority therefor must exist in the state’s statutes or in the declaration or bylaws of the Association. It is the purpose of this partial dissent to demonstrate that there is no authority from any of these sources for assessing a unit owner for electric power, heat, firewood, and garbage disposal.
ORS 91.615 provides:
"Apportionment of common profits and expenses; liability of unit owner. (1) Unless otherwise provided in the declaration, the common profits of the property shall be distributed among, and the common expenses shall be charged to, the unit owners according to the percentage of undivided interest of each in the common elements. (Emphasis mine.)
* * * *
Common expenses are defined by ORS 91.505(4), as follows:
" 'Common expenses’ means'.
"(a) Expenses of administration, maintenance, repair or replacement of the common elements'.;
"(b) Expenses agreed upon as common by all the unit owners', and
"(c) Expenses declared common by subsection (1) of ORS 91.590 and subsection (2) of ORS 91.595, or by the declaration or the bylaws of the particular condominium.” (Emphasis mine.)
Common elements are defined by ORS 91.505(3), as follows:
" 'Common elements’ means the general common elements and the limited common elements.”
General common elements are defined by ORS 91.505(6) as:
" 'General common elements,’ unless otherwise provided in a declaration or by consent of all the unit owners, means:
"(a) the land, whether leased or in fee simple, on *268 which a building is located except any portion thereof included in a unit or made a limited common element by the declaration;
"(b) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, fire escapes, entrances and exits of a building;
"(c) the basements, yards, gardens, parking areas and outside storage spaces;
"(d) Installations of central services such as power, light, gas, hot and cold water, heating, refrigeration, air conditioning, waste disposal and incinerating;
"(e) The elevators, tanks, pumps, motors, fans, compressors, ducts and in general all apparatus and installations existing for common use;
"(f) The premises for the lodging of janitors or caretakers of the property; and
"(g) All other elements of a building necessary or convenient to its existence, maintenance and safety, or normally in common use.”
Limited common elements are defined by ORS 91.505 (8) as;
" 'Limited common elements’ means those common elements designated in the declaration or by agreement of all the unit owners, as reserved for the use of a certain unit or number of units, to the exclusion of the other units.”
Referring back to ORS 91.505(4), it is apparent that electric power, heat, firewood, and garbage disposal do not come within the provisions of paragraph (a) because they are not expenses of administration, maintenance, repair or replacement of the common elements, either general or limited. Neither do they come within paragraph (b) because they are not expenses shown to have been agreed upon as common by all the unit owners. In considering whether the expenses in question come within paragraph (c), we must first determine whether they are expenses within subsection (1) of ORS 91.590, which is as follows;
"Where the purchaser of a unit obtains title to the unit as a result of foreclosure of the first mortgage or trust deed, such purchaser, his successors and assigns, *269 shall not be liable for any of the common expenses chargeable to such unit which became due prior to the acquisition of title to such unit by such purchaser. Such unpaid share of common expenses shall be a common expense of all the unit owners including such purchaser, his successors and assigns.”
It is obvious that the items which I question do not come within this subsection of the statute.
Further heeding the requirements of ORS 91.505(4) (c), we must determine whether the items come within the expenses mentioned in ORS 91.595(2), which subsection is:
"The manager, as trustee for the unit owners, shall, if required by the declaration, the bylaws or by a majority of the unit owners, insure the building against loss or damage by fire and such other hazards as shall be required, without prejudice to the right of each unit owner to insure his own unit for his own benefit. The premiums for such insurance on the building are common expenses.”
It is obvious that this statute also has no application to the items in question.
We again refer back to ORS 91.505(4) (c) and see that the remaining expenses which may be treated as common are those declared to be so by the declaration of the Association or by its bylaws. We first examine the declaration. Apparently, the only parts which the majority thinks are relevant are the following, which were quoted in the majority’s opinion:
"Insurance. * * *.
"(A) For the benefit of the Association and the owners, the Board of Directors shall obtain and maintain at all times, and shall pay for out of the common expense funds, the following insurance:
"* * * [F]ire insurance, with the extended coverage endorsement, for the full insurable replacement value * * * and such other fire and casualty insurance as the Board of Directors shall determine * * *.
Jji * *
"Interpretation. The provisions of this Declaration *270 shall be liberally construed to effectuate its purpose of creating a uniform plan for the development and operation of a condominium Project. Failure to enforce any provision hereof shall not constitute a waiver of the right thereafter to enforce that provision or any other provision hereof.”
Standing alone, there is no way that the provision for insurance and for a liberal construction to effectuate the purpose of creating a uniform plan for the operation of the condominium can transpose electric power, heat, firewood, and garbage disposal, which are based upon individual use, into common expenses.
Lastly, we now turn to the provisions of the bylaws for authorization to the Association to treat the expenses in question as "common.” They provide:
"1. Expenses and Assessment. Each unit owner shall contribute pro rata toward the common condominium expenses of The Inn, including (but without being limited to), the cost of operation, maintenance, repair and replacement of all common elements and the cost of insurance, in the proportion to his interest in the general common areas. One of the items of common expense for which the Board of Directors shall assess the unit owners is the monthly charge necessary to maintain the lease of the real property from Condominium Land Co. in full force and effect. In allocating this common expense, the Board of Directors shall assess each unit owner based on the type of his unit as computed in said lease agreement. The Board of Directors shall fix a monthly assessment for each unit in an amount sufficient to provide for all current expenses, a reasonable reserve for future expenses, and such other expenses as the Board of Directors may deem necessary. Such monthly assessments shall be due and payable quarterly in advance on the first (1st) day of every calendar quarter without demand, and delinquent accounts shall bear interest at the rate of ten per cent (10%) per annum from the due date until paid. The amounts received shall be held by the Treasurer in trust until expended for the purposes for which they were assessed.” (Emphasis mine.)
The provision availed of by the majority in the above section of the bylaws as authorizing its result is that *271 sentence which provides, "[t]he Board of Directors shall fix a monthly assessment for each unit in an amount sufficient to provide for all current expenses, a reasonable reserve for future expenses, and such other expenses as the Board of Directors may deem necessary.” The subject of the entire paragraph on "Expenses and Assessment” is "common expense,” and the sentence set forth must be interpreted in this light as it does not refer to all expenses without regard to whether or not they are common. If the construction put upon this sentence is that which is urged by the majority, it would mean that the Board of Directors could take any conceivable expense that it desires and declare that it is a common expense. This is not a reasonable interpretation of the language when found in this context.