Oneida Indian Nation (New York) Codes and Rules
Last amended: 2004
HOUSING CODE - CHAPTERS 1-9
Table of Contents [all chapters of the Housing Code]
101. Short
title
102. Definitions
103. Applicability
104. Jurisdiction
105. Purposes and interpretation
106. Relation to other laws
Chapter 2 - Landlord/Tenant Responsibilities and Remedies
201. Rental
agreements
202. Rules and regulations
203. Landlord responsibilities
204. Tenant responsibilities
205. Tenant remedies
206. Landlord remedies
207. Abandoned dwelling units
208. Security deposits
209. Retroactive effect
Chapter 3 - Grounds for Eviction to Quit/Pre-Eviction Options
301. Grounds
for eviction
302. Notice to quit requirements
303. Serving the notice to quit
304. Pre-eviction options
Chapter 4 - Judicial Eviction Procedures
401. Complaint
402. Action upon filing complaint
403. Commencement of proceedings
404. Defenses
405. Discovery and prehearing proceedings
406. Evidence
407. Burden of proof
408. Judgment
409. Form of judgment
410. Execution of judgment
411. Stay of execution
412. Appeals
413. Miscellaneous complaints and claims
414. Judgment to leave the premises
415. Forcible eviction
416. No self-help eviction
Chapter 5 - Mortgage and Foreclosure
501. Priority
502. Recordation
503. Mortgage default
504. Foreclosure complaint and summons
505. Service of process and procedures
506. Right to cure default
507. Judgment and remedy
508. Foreclosure sale
509. Application of the proceeds of sale
510. Foreclosure evictions
511. No merger of estate
512. Certified mailing to Nation and lessor
513. Intervention
514. Appeals
Chapter 7 - Oneida Nation Home Contribution Program
701. Home
contribution
702. Eligibility
703. Nature and mechanics of the contribution
704. Contribution calculations
705. Limitation on uses of contributions
706. Vesting
Chapter 8 - Oneida Nation Home Loan Guarantee Program
801. Home
Loan Guaranty
802. Definitions
803. Use rights and ownership agreement
804. Guaranty coverage
805. Nation notifications
806. Nation guaranty commitment
807. Reimbursement
901. Inheritance
of home
902. Definitions
903. Inheritance rights and duties
904. Intestate death
905. Transfer of jointly owned homes
906. Death of the homeowner automatically terminates the use rights
and ownership agreement
1001. Non-Alienation
of Nation land
1002. Use rights and homeowner agreement
1003. Special loan requirements
1004. Home sale
1005. Records
1006. Insurance
Appendices
I - Sample Use Rights and Homeowner Agreement
Exhibit A - Legal descriptions of land
II - Sample Secured Promissory Note
CHAPTER 1 - GENERAL PROVISIONS
101. SHORT TITLE
This Code shall be known as the "Housing Code".
102. DEFINITIONS
As used in this Code, the following words will have the meanings given them in this section unless the context clearly requires otherwise:
A. "Action, suit or lawsuit, claim, complaint or defense" means any dispute between persons or entities which relates to the sale, rental, use or occupancy of any dwelling unit, including claims for the payment of monies for such dwelling unit, damages to such units, condition of such units or the relationship between owners and occupiers of such units, including the right to occupy them.
B. "Adult person" means any person eighteen (18) years of age or older.
C. "Borrower/Mortgagor" means the Nation, the Housing Entity, or any individual Indian or any heir, successor, executor, administrator, or assign of the Nation or such Indian or non-Indian who has executed a Mortgage, Leasehold Mortgage or Use Mortgage, as those terms are defined in this Code.
D. "Building" means a structure, and any appurtenances or additions thereto, designed for habitation, shelter, storage and the like.
E. "Building codes or housing codes" mean any law, ordinance, regulation, or policy of the Nation which deals with fitness for habitation, health conditions, or the safety, construction, maintenance, operation, occupancy, use, or appearance of any dwelling unit.
F. "Court" means the Oneida Nation Court.
G. "Court Clerk" means the Clerk of the Oneida Nation Court. The Court Clerk is the person designated by the Nation to perform the recording functions required by this Code or any deputy or designee of such person.
H. "Distribution Proceeds" mean any grant of money by the Nation to its members from the revenues of Nation businesses other than gaming under the Indian Gaming Regulatory Act.
I. "Dwelling unit" means a house or other building or any portion thereof, which are rented, leased, permitted or otherwise used as a residence or sleeping place by any person, not including public transient accommodations, such as hotel rooms.
J. "Ground Lease" means a written agreement, including rules and regulations, regarding the terms and conditions of the use and occupancy of land located in a designated area.
K. "Guest" means any person, other than the Homeowner, owner or tenant, in or around a dwelling unit with the permission and consent of the Homeowner, owner or tenant.
L. "He/His" means the masculine as well as the feminine gender and the singular includes the plural.
M. "Homeowner" means a person who has the right pursuant to a valid Use Rights and Homeowner Agreement to use and occupy a Home.
N. "Home" means a dwelling unit located on Nation land that is used as a principal residence.
O. "House Trailer" means any enclosed building or structure built on a chassis and at any time mounted on wheels.
P. "Housing Entity" means the Oneida Housing Corporation, established by Nation Ordinance 0-97-03, its predecessors, it successors or any other entity or agency established by the Nation for the purpose of developing, or overseeing dwelling units within the territorial jurisdiction of the Nation.
Q. "Landlord" means the Nation, the Housing Entity, a person, an entity or government agency which is the owner, lessor, or sublessor of a dwelling unit intended for the use of tenants.
R. "Leasehold Mortgage" means the mortgage of a Ground Lease given to secure a loan, and may be created under the auspices of any federal agency homebuyer program, programs administered by the Housing Entity, or any other agreement entered between a Borrower/Mortgagor and a Lender/Mortgagee.
S. "Lender designated assignee" means any Lender, as defined in this Code, who may receive an assignment or transfer of an interest in a Mortgage or Lease and/or Leasehold Mortgage. A Lender must seek written approval from the Nation of a proposed Lender designated assignee any time prior to such assignment, transfer or assumption, except where the U.S. government and federal agencies guaranteeing or insuring the Mortgage or Leasehold Mortgage acts as the Lender designated assignee.
T. "Lender/Mortgagee" or "Lender" means any private lending institution established to primarily loan funds and not to invest in or purchase properties; the Nation; the Housing Entity; a U.S. government agency which loans money, guarantees or insures loan to a Borrower for construction, acquisition, or rehabilitation of a dwelling unit.
U. "Lessor" means the Nation or any legal, beneficial, or suitable owner of property under a Ground Lease, including the heir, successor, executor, administrator, or assign of the lessor.
V. "Lessee" means any person who uses and/or occupies real property under a Ground Lease. The lessee may, for purposes of federal agency home mortgage programs, be the Housing Entity.
W. "Mortgage" means a lien as is commonly given to secure advances on, or the unpaid purchase price of a building or land, or the use of such building or land and may refer both to a security instrument creating a lien, whether called a mortgage, Leasehold Mortgage, Use Mortgage, deed of trust, security deed, or other term, as well as the credit instrument, or note, secured thereby.
X. "Mortgage foreclosure proceeding" means a proceeding in the Court:
1. To foreclose the interest of a Borrower/Mortgagor, and each person or entity claiming through the Borrower/Mortgagor, in real property, or a building, or in the case of a Leasehold Mortgage, a Lease for which a Mortgage has been given under a home purchase program of any governmental agency, or in the case of a Use Mortgage, a Use Rights and Homeowner Agreement for which a Mortgage has been given under a loan program of the Nation; and
2. To assign, where appropriate, the Borrower/Mortgagor’s interest to a designated assignee.
Y. "Mortgagor/Borrower" - see Borrower/Mortgagor.
Z. "Mortgagee/Lender" - see Lender/Mortgagee.
AA. "Nation" means Oneida Indian Nation and its authorized representatives and agents.
AB. "Native American" or "Indian" means any person recognized as being a Native American or Indian or Alaska Native by any Indian Nation, or by the government of the United States.
AC. "Nuisance" means maintenance or allowance on real property of a condition which unreasonably threatens the health or safety of the public or neighboring persons or unreasonably and substantially interferes with the ability of neighboring property users to enjoy the reasonable use and occupancy of the property.
AD. "Person" means the Nation, its agents, including the Housing Entity, or any individual, or other organization or entity. "Person" includes persons unless the context in which "person" is used requires otherwise.
AE. "Premises" means a dwelling unit and, where applicable, the structure of which it is a part, and all facilities and areas connected with it, including grounds, common areas, and facilities intended for the use of tenants or Homeowners.
AF. "Purchaser" means any person who is eligible to buy the right to enter into a Use Rights and Homeowner Agreement for a Home and who does so.
AG. "Rent" means all payments to be made to a landlord or lessor under a lease.
AH. "Rental Agreement" means a written agreement including valid rules and regulations, regarding the terms and conditions of the use and occupancy of dwelling units, buildings, or premises including lease-to-purchase agreements such as the Mutual Help Occupancy Agreement.
AI . "Subordinate lienholder" means the holder of any lien, including a subsequent mortgage, perfected subsequent to the recording of a mortgage under this Code, except the Nation shall not be considered a subordinate lienholder with respect to any claim regarding a Nation tax on real property.
AJ. "Tenant" means any person entitled under a rental agreement or Lease to use or occupy a dwelling unit or premises, including a homebuyer under any federal lease-to-purchase programs such as the Mutual Help Program.
AK. "Territorial jurisdiction" means all lands possessed, occupied or held by or for the Nation within the exterior boundaries of the reservation recognized by the 1794 Treaty of Canandaigua between the Nation and the United States of America.
AL. "Use Mortgage" means a lien on the Homeowner’s interest in a Use Rights and Homeowner Agreement.
103. APPLICABILITY
A. This Code shall apply to any and all arrangements, formal or informal, written or oral or by the practice of the parties, in selling, buying, renting, leasing, occupying, or using any and all housing, dwellings, building or premises for human occupation and residence. This Code shall also apply to any and all mortgages, leasehold mortgages, Use Mortgages, and agreements to secure an interest in real property, premises, a building or a dwelling unit, or the use thereof.
B. The following arrangements are not governed by this Code:
1. Residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious, or similar service; or
2. Occupancy in a hotel, motel, or other commercial lodging.
104. JURISDICTION
A. Jurisdiction is extended over all buildings and lands intended for human dwelling, occupation or residence which may lie within the territorial jurisdiction of the Nation.
B. Jurisdiction is extended over all persons or entities within the territorial jurisdiction of the Nation who sell, rent, lease, or allow persons to occupy any dwelling, building or premises for the purpose of human dwelling, occupation, or residence, and all persons who buy, rent, lease, or occupy any such dwelling, building, or premises. Jurisdiction is extended over all persons or entities within the territorial jurisdiction of the Nation who lease, mortgage, or otherwise secure an interest in a building, premises, or real property or in the use thereof. Such personal jurisdiction is extended over all persons and entities, whether or not they are members of the Nation, whether or not they are Native American, and whether or not they have a place of business within the territorial jurisdiction of the Nation. Any act dealing with the subject matter of this Code shall be subject to the exclusive jurisdiction of the Nation.
C. Jurisdiction over all matters arising within the jurisdiction of the Nation with respect to the subjects of this Code, and jurisdiction with respect to any person or entity acting or causing actions which arise under this Code shall be exercised by the Oneida Nation Court.
105. PURPOSE AND INTERPRETATION
This Code shall be interpreted and construed to fulfill the following purposes:
A. To simplify the law governing the use and occupation of dwelling units, buildings, premises, or real property for primarily residential use and to protect the rights of Homeowners, landlords, and tenants.
B. To preserve the peace, harmony, safety, health and general welfare of the people of the Nation and those permitted to enter or reside within the territorial jurisdiction of the Nation.
C. To avail the Nation, Nation entities, and Nation members of financing for the construction, rehabilitation and/or purchase of family residences on land within the jurisdiction of the Nation by prescribing procedures for the recording, priority and foreclosure of mortgages given to secure loans made by or through any government agency or private lending institution.
D. To establish laws and procedures which are necessary in order to obtain federal, state, or private funding for Nation housing programs or loan guarantees for private or Nation housing construction, purchase, or renovation.
106. RELATIONS TO OTHER LAWS
To the extent that this Code may conflict with Nation laws or ordinances which have been enacted to comply with statutes or regulations of any agency of the United States, such Nation laws or ordinances shall govern over the provisions of this Code if such laws or ordinances have specific applicability and they are clearly in conflict with the provisions of this Code.
CHAPTER 2 - LANDLORD/TENANT RESPONSIBILITIES AND
REMEDIES
201. RENTAL AGREEMENTS
A. Effect of Rental Agreements. The provisions of this Code establish the minimum rights and responsibilities of landlords and tenants. Unless inconsistent with this Code, rental agreements may supplement these minimum rights and responsibilities.
B. Terms Prohibited in Rental Agreements. No rental agreement shall provide that the tenant agrees: (1) to waive or forfeit his rights or remedies under this Code or any other applicable Nation law or ordinance; (2) to exculpate or limit the liability of the landlord or to indemnify the landlord for that liability or the costs connected therewith; (3) to permit the landlord to dispossess him without resort to court order; or (4) to pay a late charge prior to the expiration of the grace period set forth in this Code. A provision prohibited by this subsection shall be unenforceable.
C. Term of Tenancy. In the absence of a definite terms in the rental agreement, the tenancy shall be month-to-month.
D. Payment of Rent. In the absence of definite terms in the rental agreement, rent is payable at the landlord’s office or collectable at the dwelling unit. In the absence of definite terms, the amount of rent shall be the fair market value of the rental unit.
202. RULES AND REGULATIONS
A. The landlord may promulgate reasonable rules and regulations regarding the use and occupancy of the premises.
B. Such rules and regulations are enforceable against the tenant only if:
1. their purpose is to promote convenience, safety or welfare, preserve the landlord’s property from abusive use or make a fair distribution of services and facilities held out for all tenants generally;
2. the rules and regulations are reasonably related to the purpose for which they are adopted;
3. the rules and regulations apply to all tenants in a fair manner;
4. the rules and regulations are sufficiently explicit in their prohibition, direction or limitation of the tenant’s conduct to fairly inform the tenant of what shall or shall not be done to comply; and
5. the tenant has notice of the rules and regulations at the time the rental agreement is entered into or when they are adopted.
203. LANDLORD RESPONSIBILITY
Except as otherwise provided in a rental agreement, each landlord shall:
A. Maintain the dwelling unit in a decent, safe, and sanitary condition;
B. Comply with applicable Nation building and housing codes;
C. Make all repairs necessary to maintain the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by a tenant or a guest of the tenant, in which case payment for repairs shall be the responsibility of the tenant;
D. Keep common areas clean and safe;
E. Maintain in good condition and safe working order all electrical, plumbing, sanitary, heating, ventilation, air-conditioning, and other facilities and appliances, where such things are not the responsibility of a tenant or are generated by an installation within the exclusive control of such tenant or supplied by a direct public service utility connection;
F. Provide and maintain proper and appropriate receptacles and facilities for the disposal of ashes, garbage, rubbish, and other waste;
G. Provide running water, hot water, and heat in accordance with applicable building and housing codes, except to the extent a tenant is required to provide such for himself;
H. Guarantee the right of quiet enjoyment of a dwelling unit to a tenant;
I. Give sole possession of the dwelling unit to a tenant in accordance with the rental agreement and refrain from: (1) entering the unit, except as authorized in this Code; (2) making repeated demands for entry otherwise lawful under this Code but which have the effect of unreasonably harassing a tenant; (3) sexually harassing or physically assaulting a tenant in or around his dwelling unit, or (4) locking a tenant out of a dwelling without such tenant’s consent.
J. Disclose, in writing, the name, address, and telephone number of the person responsible for receiving rent, notices and demands under this Code, the person authorized to manage the premises, the owner of the premises or his agent, and the person responsible for making required repairs.
204. TENANT RESPONSIBILITIES
Except as otherwise provided in a rental agreement each tenant shall:
A. Pay rent to the landlord without demand or notice;
B. Immediately notify the landlord of any defects in the premises which are hazardous to life, health, or safety;
C. Keep the dwelling unit reasonably clean and dispose of all ashes, garbage or other waste, rubbish, junk, and abandoned vehicles in a proper, sanitary, and safe manner;
D. Use all electrical, plumbing, sanitary, heating, ventilation, air-conditioning, and other facilities and appliances which are part of the dwelling unit or premises, in a proper, safe, sanitary, and reasonable manner;
E. Refrain from destroying, defacing, damaging, or removing any part of the dwelling unit or premises and to require guests to act in a like manner.
F. Pay reasonable charges for the repair of damages, other than normal wear and tear, to the dwelling unit or premises caused by a tenant or tenant’s guests, or to repair such damages as required under the rental agreement, within thirty (30) calendar days of such damage.
G. Conduct himself, and require his guests to conduct themselves, in a manner which does not disturb the quiet enjoyment of others or cause a breach of the peace.
H. Not give up the dwelling unit to others, assign a rental agreement, or sublease the dwelling unit without the permission of the landlord.
I. Use the dwelling unit only for residential purposes or other lawful purposes, and not to use the unit or permit its use for any other purpose, including illegal conduct or any other activity which may harm the physical or social environment of the premises or the area around it.
J. Abide by all rules and regulations promulgated by the landlord in accordance with this Code.
K. Provide the landlord access to the dwelling unit to perform maintenance and repairs, inspect the premises, supply necessary or agreed services, or show the dwelling unit to prospective buyers or tenants, provided that such access shall be at reasonable times when the tenant is present, and upon reasonable written or oral notice from the landlord, except in emergency situations where the health, safety or welfare of the tenant or the tenant’s neighbors is in immediate danger or where the tenant consents. No tenant who unreasonably denies access to a landlord for these purposes may pursue an action or grievance on the grounds that any services or repairs were not provided.
205. TENANT REMEDIES
Where a landlord has not complied with this Code or the agreement of the parties, a tenant has the following rights:
A. To give reasonable notice to the landlord to comply with its obligations;
B. To demand repairs or maintenance which are the responsibility of the landlord. Should landlord fail to make repairs within a reasonable time after such demand, tenant may make necessary repairs and deduct the cost from the rent payment;
C. To terminate the rental agreement under which the tenant occupies the premises; or
D. To seek a Court order or judgment for the payment of monies or costs, compliance with the rental agreement and other obligations of landlord, termination of the rental agreement, payment of damages, or any other relief to which tenant may be entitled by law or equity, or by agreement of the parties.
206. LANDLORD REMEDIES
Where a tenant has not complied with this Code or the agreement of the parties, the landlord has the right to:
A. Give reasonable notice to the tenant to comply with tenant’s obligations, pay any monies due and owing under the agreement of the parties, make repairs which are the responsibility of the tenant, and comply with rules and regulations for occupancy.
B. Terminate the agreement under which the tenant occupies the premises, and demand that the tenant and any guests or occupants leave the premises.
C. Seek a court order or judgment for the payment of monies or costs, compliance with the rental agreement and other obligations of tenant, termination of the rental agreement, payment of damages, eviction of tenant, or any other relief to which landlord may be entitled by Nation law, or agreement of the parties.
207. ABANDONED DWELLING UNITS
A landlord may regain possession of an abandoned dwelling unit in accordance with this section. The landlord need not comply with the procedures set forth in Chapter Three of this Code to obtain possession of a dwelling unit which has been abandoned.
A. A dwelling unit will be deemed abandoned when the tenant has vacated the unit without notice to the landlord and does not intend to return, which is evidenced by the removal by the tenant or his agent of substantially all of his possessions and personal effects from the premises and either: (1) nonpayment of rent for two or more months, (2) terminated water or electrical utility service for more than one month, or (3) an express statement by the tenant that he does not intend to occupy the premises after a specified date.
B. The landlord must send notice to the tenant at his last-known address by both regular mail, postage prepaid, and certified mail, return receipt requested, stating that: (1) landlord has reason to believe that the tenant has abandoned the dwelling unit, (2) landlord intends to reenter and take possession of the dwelling unit unless the tenant contacts him within ten (10) days of receipt of the notice, (3) if the tenant does not contact him, landlord intends to remove any possessions and personal effects remaining in the premises and to rent the premises, and (4) if the tenant does not reclaim such possessions and personal effects within thirty (30) days after the notice, they will be disposed of in accordance with section 415(c) of this Code. The notice shall be in clear and simple language and shall include a telephone number and a mailing address at which the landlord can be contacted. If the notice is returned as undeliverable, or if the tenant fails to contact the landlord within ten (10) days of the receipt of the notice, the landlord may reenter and take possession of the dwelling unit, at which time any rental agreement in effect shall terminate.
208. SECURITY DEPOSITS
A. Security Deposit Limits. A landlord may demand a security deposit of an amount equal to one-hundred dollars ($100) or one month’s periodic rent, whichever is greater, in addition to the current month's rent. Additional security deposits may be allowed for special circumstances such as animals or pets or prior tenant history of property damage.
B. Payment of Security Deposit at Termination of Tenancy. The person who is the landlord at the time a tenancy is terminated shall pay to the tenant, within thirty days of such termination the amount of the security deposit that was deposited by the tenant with the person who was landlord at the time such security deposit was deposited less the value of any damages resulting from tenant’s failure to comply with its obligations. Damages shall not include normal wear and tear.
C. Action to Reclaim Security Deposit. Any tenant may bring an action in the Nation Court to reclaim any part of his security deposit which may be due.
209. RETROACTIVE EFFECT
This Code shall apply to all rental agreements subject to the provision of this Code no matter when the rental agreement commenced.
CHAPTER 3 - GROUNDS FOR EVICTION/NOTICE TO QUIT/PRE-EVICTION
OPTIONS
301. GROUNDS FOR EVICTION
A tenant may be evicted for:
A. Nonpayment of rent under a rental agreement when such payments are not made after ten (10) calendar days of the date of payment set forth in the agreement, or ten (10) calendar days following the first day of the month in a month-to-month tenancy.
B. Any arrearage in rent, costs, or damages which have been due and owing for thirty (30) calendar days or more. The receipt by a landlord or partial payments under an agreement shall not excuse the payment of any balance due upon demand.
C. Nuisance, damage, or destruction of property, injury to any person, or disturbance of peace of other tenants.
D. Violation of the Housing Code or any rule or regulation adopted in accordance with this Code.
E. Noncompliance with any Nation building, health or safety code or other Nation law.
F. Occupation of any premises without permission or agreement, following any reasonable demand by a person in authority over the premises to leave.
G. Failure to comply with any term in the rental agreement which does not conflict with the provisions of this Code.
302. NOTICE TO QUIT REQUIREMENTS
A. When Notice to Quit is Required. When a landlord desires to obtain possession of a dwelling unit or premises, and when there exists one or more legally cognizable reasons to evict a tenant from the dwelling unit or premises, the landlord shall give written notice to the tenants to quit possession of such dwelling unit or premises in accordance with the provisions of this Chapter.
B. Statement of Grounds for Eviction Required. The notice to quit shall be addressed to the known tenants of the dwelling unit or premises and shall state the reason(s) for termination of the tenancy and the date by which the tenant is required to quit possession.
C. Form of Notice. The notice shall be in writing substantially in the following form:
I (or we) hereby give you notice that you are to quit possession or occupancy of the dwelling unit or premises now occupied by you at (here insert the address or other reasonable description of the location), on or before the (here insert the date) for the following reason (here insert the reason or reasons for the notice to quit possession using the statutory language or words of similar import). Signed, (here insert the signature, name and address of the landlord, as well as the date and place of signing).
D. Time Requirements for Notice. The notice must be delivered within the following periods of time:
1. No less than seven (7) calendar days prior to the date to quit specified in the notice for any failure to pay rent or other payments required by the rental agreement.
2. No less than five (5) calendar days prior to the date to quit specified in the notice for nuisance, serious damage to property, or injury to persons. In situations in which there is an emergency, such as a fire or condition making the dwelling unit unsafe or uninhabitable, or in situations involving an imminent or serious threat to public health or safety, the notice may be made in a period of time which is reasonable under the circumstances;
3. No less than fourteen (14) calendar days in all other situations.
303. SERVING THE NOTICE TO QUIT
Any notice to quit must be in writing, and must be delivered to the tenant in the following manner:
A. Delivery must be made by (1) a law enforcement officer of the Nation, or (2) any person, not a party to the action, over the age of 18 years.
B. Delivery will be effective when it is:
1. Personally delivered to the tenant; or
2. Personally delivered to an adult living in the premises with a copy delivered by certified mail to the tenant, or
3. Personally delivered to an adult agent or employee of the tenant with a copy delivered by certified mail to the tenant.
C. If the notice cannot be given by means of personal delivery, or the tenant cannot be found, the notice may be delivered by means of:
1. Certified mail, return receipt requested, at the last known address of the tenant, or
2. Securing a copy of the notice to the main entry door of the premises in such a manner that it is not likely to blow away, posting a copy of the notice in some public place near the premises, including a Nation office, or other commonly-frequented Nation facility, and sending a copy first class mail, postage prepaid, addressed to the tenant at the premises.
D. The person serving the notice must return the proof of service to the landlord.
304. PRE-EVICTION OPTIONS
A. Negotiated Settlement. After a Notice to Quit is served upon a tenant, the landlord and tenant may engage in discussions to settle the issues between the parties and avoid an eviction proceeding. The agreement to enter into discussions will not affect the rights of the parties unless the parties reach an agreement to waive any of their rights.
B. Stay of Proceedings. Where the parties mutually agree in good faith to proceed with such discussions, and formal eviction procedures have been initiated, upon notice, the court shall stay such proceedings until notified that a hearing is required or that a settlement has been reached.
C. Settlement Options. In reaching an agreement, the parties may consider, but are not limited to the following options:
1. The parties may employ the use of advocates or attorneys;
2. The parties may employ the use of the peacemaker;
3. The parties may agree to dismiss the matter in exchange for any agreement reached;
4. The parties may agree to stipulate to a judgment to be entered by the court.
CHAPTER 4 - JUDICIAL EVICTION PROCEDURES
401. COMPLAINT
If, after the expiration date set forth in the notice to quit the tenant has not quit possession of the dwelling unit, the landlord may file a complaint in the Court for eviction. The complaint shall state:
A. The names and known addresses of the tenant(s) against whom the suit is brought;
B. A description of the rental agreement, if any;
C. The address or reasonable description of the location of the premises;
D. The grounds for eviction;
E. A statement showing that the notice to quit and any required notices have been served in accordance with this Code or other applicable Nation law or ordinance;
F. A statement of the relief demanded, including any claim for possession of the dwelling unit, damages, fees, costs, or other relief; and
G. If the landlord is the Housing Entity, a statement that the Housing Entity has complied with all required regulatory processes prior to filing the eviction action.
402. ACTION UPON FILING COMPLAINT
When a complaint is filed in the Court pursuant to this Code, the Court shall issue an order requiring the defendant named in the complaint to appear before the Court on a certain date to answer the complaint. The date for appearance for answering the complaint shall be no less than ten (10) calendar days after the date of the order.
403. COMMENCEMENT OF PROCEEDINGS
A. If the tenant appears before the Court in person or in writing to answer the complaint, the Court shall set a trial date. Any written response shall state any defenses or factual disputes and where any defendant appears in person, a written response shall be served upon the plaintiff within five (5) calendar days of any hearing, excluding weekends and holidays.
B. The Court shall set a trial date which is no more than fifteen (15) calendar days following the date for appearance.
C. A defendant may, for good cause shown, obtain an extension of time beyond the fifteen (15) day period. The Court may refuse to extend the trial date where the complaint is based upon nuisance or injuries as provided in Section 301 of Chapter 3, and shall not extend the date of hearing where the complaint is based upon conduct which would constitute a serious danger to public health, safety, or peace.
D. The Court may, in its discretion, and on motion from the landlord order the tenant to pay into the Court rents for the use and occupancy during the pendency of the eviction case.
404. DEFENSES
The Court shall grant the remedies allowed in this Code, unless it appears by the evidence that:
1. The landlord has not proven a breach of the lease.
2. The premises are untenable, uninhabitable, or constitute a situation where there is a constructive eviction of the tenant, in that the premises are in such a condition, due to the fault of the landlord, that they constitute a real and serious hazard to human health and safety and not a mere inconvenience.
3. The landlord has, without good cause, failed or refused to make repairs which are his responsibility after a reasonable demand by a tenant to do so, and the repairs are necessary for the reasonable enjoyment of the premises.
4. There are monies due and owing to the tenant because he has been required to make repairs which are the obligation of the landlord and the landlord has failed or refused to make them after reasonable notice and demand. Such sums may be a complete or partial defense to a complaint for eviction, but only to the extent that such sums set off monies owed for rent. A tenant may be evicted after such period if he fails or refuses to pay the reasonable rental value of the premises.
5. Due to the conduct of the landlord, there is injury to the tenant in such a way that justice requires that relief be modified or denied, including the equitable defenses of estoppel, laches, fraud, misrepresentation, and breaches of serious and material obligations for public health, safety, and peace standards.
6 . That there are such serious and material breaches of the rental agreement or this Code that it would be unjust to grant landlord a remedy.
7. The landlord is evicting the tenant because of his/her sex, sexual orientation, religion, age, marital status, family status, or disability.
8. Any other material or relevant fact the tenant might present that may explain why his eviction is unjust and unfair.
405. DISCOVERY AND PREHEARING PROCEEDINGS
Extensive, prolonged, or time-consuming discovery and prehearing proceedings will not be permitted, except in the interests of justice and for good cause shown by the moving party. Discovery shall be informal, and reasonably provided on demand of a party, and it shall be completed within five (5) calendar days of the date of trial. Requests for discovery shall be made no later than three (3) calendar days following the setting of the trial date. The Court may enter reasonable orders requiring discovery or protecting the rights of the parties upon reasonable notice.
406. EVIDENCE
Evidence in proceedings under this Code shall be under the provisions of the Oneida Indian Nation Rules of Evidence.
407. BURDEN OF PROOF
The burden of proof in all proceedings under this Code shall be preponderance of the evidence.
408. JUDGMENT
A. Within five (5) calendar days of the date of the trial, the Court shall grant and enter judgment and the judgment shall grant all relief that the parties are entitled to as of the date of the judgment. The judgment may:
1. Order the immediate eviction of a tenant;
2. Order delivery of the premises to the appropriate party;
3. Grant damages as provided in any agreement of the parties or by this Code, including interest;
4. Order the parties to carry out an obligation required by Nation law;
5. Establish a payment plan for the tenant;
6. Order rent payments out of distribution payments or through garnishment;
7. Establish an authority in another person/agency to fulfill rights or obligations of either landlord or tenant;
8. Remediate the action, in part or in whole, through appropriate recalculation of rent;
9. Order the payment of attorneys’ fees and the costs and expenses of litigation;
10. Grant any relief provided in this Code.
B. If a tenant fails to appear in person or in writing on or before the date of appearance, the Court shall enter judgment on behalf of the landlord following a hearing to determine whether relief should be granted and the kind of relief that should be granted.
409. FORM OF JUDGMENT
The judgment shall state the relief granted by the Court to any party, but need not state findings of fact or conclusions of law in support of the judgment. The judgment may state brief reasons supporting the judgment. If a trial is held, the judge should, whenever possible, render his decision immediately after both parties have rested their case and award costs and fees as appropriate.
410. EXECUTION OF JUDGMENT
Any judgment may be immediately executed, and the judgments and orders of the Court shall enforced by a Nation police officer. The police officer shall, upon receipt of an order of the Court, execute the judgment or order made by it within five (5) calendar days of the date of the judgment or order and make a report to the Court on what was done to enforce it. Any police officer to whom a judgment or order is given for enforcement who fails, in the absence of good faith, or refuses to execute it shall be subject to the payment of reasonable damages, costs, and expenses to a party for failure to execute the judgment and/or suspension from employment.
411. STAY OF EXECUTION
If judgment for possession of the dwelling is entered in favor of the landlord, the tenant may apply for a stay of execution of the judgment or order within five (5) days of the judgment being rendered, if the following is established:
A. Good and reasonable grounds affecting the well-being of the party are stated;
B. There would be no substantial prejudice or injury to the prevailing party during the period of the stay; or
C. Execution of the judgment could result in extreme hardship for the tenant; or
D. A bond is posted or monies are paid to the Court to satisfy the judgment or pay for the reasonable use and occupancy of the premises during the period of time following the judgment. No stay may exceed one month in the aggregate. The clerk shall distribute such arrearages to the landlord in accordance with any order of the Court.
412. APPEALS
Appeals under this Chapter shall be in accordance with the Oneida Indian Nation Rules of Appellate Procedure and shall be to the Nation Appellate Court.
413. MISCELLANEOUS COMPLAINTS AND CLAIMS
Any miscellaneous complaint or claim including a complaint or claim by a tenant which does not fall within the procedures of this code may be made under the Rules of Civil Procedure Code.
414. JUDGMENT TO LEAVE THE PREMISES
Any judgment to leave a premises shall be by written order of the Court and shall be delivered to the tenant in the following manner:
A. Delivery shall be made by:
1. A police officer of the Nation; or
2. Any person authorized by the Court.
B. Delivery will be effective when it is:
1. Personally delivered to a tenant; or
2. Personally delivered to an adult living in the premises with a copy delivered by mail to the tenant, or
3. Personally delivered to an adult agent or employee of the tenant with a copy delivered by mail to the tenant.
C. If the notice cannot be given by means of personal delivery, or the tenant cannot be found, the notice may be delivered by means of:
1. Certified mail, return receipt requested, to the last known address of the tenant, or
2. Securing a copy of the notice to the main entry door of the premises in such a manner that it is not likely to blow away, posting a copy of the notice in some public place near the premises, including a Nation office, or other commonly-frequented Nation facility, and sending a copy first class mail, postage prepaid, addressed to the tenant at the premises.
415. FORCIBLE EVICTION
A. Where the Court orders an eviction, and the tenant or any other occupant of the premises refuses to vacate voluntarily by the effective date of that Order, the tenant or other occupants may be forcibly removed from the premises by a Nation law enforcement officer. At the hearing where the eviction is ordered, the Court shall inform the tenant that if he does not vacate the premises voluntarily by the effective date, he and the other occupants will be subject to forcible eviction, and their property will be subject to storage, sale and disposal as set forth in subsection C below.
B. Following eviction, the Court may allow the landlord access to the property for purposes of preserving and securing the property.
C. Following forcible eviction of the tenant and/or other occupants, the personal property of the tenant and/or occupants shall be stored by the landlord or owner of the premises for at least thirty (30) days, either on the premises or at another suitable location. In order to reclaim their property, the former tenant and/or other occupants shall pay the reasonable costs of removal and storage. If they do not pay such costs within thirty (30) days, the landlord or owner is authorized to sell the property in order to recover these costs. The landlord or owner shall provide the former tenant and/or occupants with pertinent information concerning the sale, including the time, date and location. Any proceeds from the sale in excess of the storage and removal costs shall be remitted to the former tenant and/or occupants. Nothing in this section shall be construed to prevent the former tenant and/or occupants from reclaiming property remaining after the sale if they can arrange to do so in a reasonable manner satisfactory to the landlord or owner.
416. NO SELF-HELP EVICTION
No landlord may compel a tenant to vacate any premises in a forceful fashion or way which causes a breach of the peace without giving a notice to quit and obtaining a Court order as provided in this Code.
CHAPTER 5 - MORTGAGE AND FORECLOSURE
501. PRIORITY
All mortgages recorded in accordance with the procedures set forth in this Chapter shall have priority over any lien or claim subsequently recorded excepting a lien or claim arising from a Nation levy or assessment imposed against the subject property after such time as the mortgage upon which the lien is based was recorded. Notwithstanding the foregoing, no mortgage, lien or claim arising from such mortgage shall be effective without prior written approval of the Nation.
502. RECORDATION
A. The Court Clerk shall maintain a system for the recording of mortgages and such other documents as the Nation may designate by law or ordinance.
B. The Court Clerk shall endorse upon any mortgage or other document received for recording:
1. The date and time of receipt of the mortgage or other document;
2. The filing number, to be assigned by the Court Clerk, which shall be a unique number for each mortgage or other document received; and
3. The name of the Court Clerk or designee receiving the mortgage or document.
Upon completion of these endorsements, the Court Clerk shall make a true and correct copy of the mortgage or other document and shall certify the copy as follows:
Oneida Indian Nation ss.:
I certify that this is a true and correct copy of the document received for recording this date.
Given under my hand and seal this day of , 20 .
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(SEAL) |
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The Court Clerk shall maintain the true and correct copy in the records and shall return the original document to the person or entity that presented the same for recording.
C. Upon satisfaction of the mortgage, the holder of the mortgage shall record with the Court Clerk an instrument evidencing the satisfaction of the mortgage in the following form:
Known all men by these presents, that ______________ do hereby certify that a certain mortgage, bearing date of ________, made and executed by ______________ to secure payment of the principal sum of ______________, and duly recorded with the Court Clerk of the Oneida Indian Nation as [insert recording information], on the _____ day of _______, 20__, is paid, and do hereby consent that the same be discharged of record.
Given under my hand and seal this ________ day of _________, 20__.
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(SEAL) |
(Signature) |
| (Title) |
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The satisfaction shall be filed with the Court Clerk within thirty (30) days of actual receipt of full payment under the mortgage.
503. MORTGAGE DEFAULT
A. A Borrower/Mortgagor shall be considered to be in default when such individual is thirty (30) days past due on all or part of any mortgage payment to the Lender/Mortgagee or thirty (30) days following any other default pursuant to the mortgage documents.
B. Before a Borrower/Mortgagor is ninety (90) days in default under a mortgage and before any foreclosure action or activity is initiated, the Lender/Mortgagee shall:
1. Make a reasonable effort to arrange a face-to-face interview with the Borrower/Mortgagor, which effort shall be documented by the Lender/Mortgagee; or
2. Make at least one phone call to the Borrower/Mortgagor, or the nearest phone designated by the Borrower/Mortgagor as able to receive and relay messages to the Borrower/Mortgagor, which effort shall be documented by the Lender/Mortgagee.
C. Lender/Mortgagee may appoint an agent to perform the services of arranging and conducting the face-to-face or telephone interview specified in this section.
D. No sooner than thirty (30) days following a determination of a default as specified in Section 503.A. of the Code and no later than ten (10) days before initiating a foreclosure action in the Nation Court, the Lender/Mortgagee shall issue a written notice to the Borrower/Mortgagor by certified mail or by posting the notice prominently on the premises, with a copy simultaneously provided to the Nation. The notice shall:
1. Advise the Borrower/Mortgagor that he or she is in default;
2. Advise the Borrower/Mortgagor that information regarding the loan and default will be given to credit bureaus;
3. Advise the Borrower/Mortgagor of homeownership counseling opportunities/programs available through the Lender/Mortgagee or otherwise;
4. Advise the Borrower/Mortgagor of other available assistance regarding the mortgage default; and
5. In addition to the preceding notification requirements, the Lender/Mortgagee shall complete the following additional notice requirements when a Leasehold Mortgage is involved:
a. notify the Borrower/Mortgagor that if the Leasehold Mortgage remains in default for more that ninety (90) days, the Lender/Mortgagee may ask the applicable governmental agency to accept assignment of the Leasehold Mortgage if this is a requirement of the governmental program;
b. notify the Borrower/Mortgagor of the qualifications for forbearance relief from the Lender/Mortgagee, if any, and that forbearance relief may be available from the government if the mortgage is assigned; and
c. provide the Borrower/Mortgagor with names and addresses of government officials to whom further communications may be addressed, if any.
504. FORECLOSURE COMPLAINT AND SUMMONS
A. No sooner than sixty (60) days following a determination of a default as specified in Section 503.A. of the Code and provided Lender/Mortgagee has complied with the requirements of Section 503 of the Code, the Lender/Mortgagee shall be entitled to initiate a foreclosure action in the Nation Court by filing a verified complaint in accordance with the following procedures. The verified complaint in a mortgage foreclosure proceeding shall contain the following:
1. The name of the Borrower/Mortgagor and each person or entity claiming through the Borrower/Mortgagor subsequent to the recording of the mortgage, including each Subordinate Lienholder, except the Nation with respect to a claim for a Nation leasehold, as a defendant;
2. A description of the property or interest subject to the mortgage;
3. A concise statement of the facts concerning the execution of the mortgage, any Use Rights and Homeowner Agreement, and the Ground Lease in the case of a Leasehold Mortgage; the facts concerning the recording of the mortgage or the Leasehold Mortgage; the facts concerning the alleged default of the Borrower/Mortgagor; and such other facts as may be necessary to constitute a cause of action;
4. True and correct copies of each promissory note and mortgage, any Use Rights and Homeowner Agreement, and if a Leasehold Mortgage, a copy of the Ground Lease, the Leasehold Mortgage or any assignments thereof relating to the property (appended as exhibits); and
5. Any applicable allegations concerning relevant requirements and conditions prescribed in (1) federal statutes and regulations (2) Nation codes, ordinances and regulations; and/or (3) provisions of the Use Rights and Homeowner Agreement, Ground Lease or Leasehold Mortgage, or other security instrument.
B. The complaint shall be verified and accompanied by a summons issued by the Court specifying a date and time of appearance for the Borrower/Mortgagor and all other persons named as defendants.
505. SERVICE OF PROCESS AND PROCEDURES
A. Service of process shall be governed by the procedures set forth in section 303, Chapter 3 of this Code.
B. The admission of evidence in proceedings under this Chapter shall be governed by the Oneida Indian Nation Rules of Evidence.
506. RIGHT TO CURE DEFAULT
Prior to the entry of a judgment of foreclosure, any Borrower/Mortgagor or subordinate lienholder may cure the default under the mortgage by making a full payment to the Lender/Mortgagee of the delinquent amount, including interest at the rate stated in the mortgage through the date of redemption and including all reasonable legal and Court costs and actual out-of-pocket expenses incurred in foreclosing on the property. Any subordinate lienholder who has cured a default shall thereafter have included in its lien the amount of all payments made by such subordinate lienholder to cure the default, plus interest on such amounts at the rate stated in the mortgage. There shall be no right of redemption in any mortgage foreclosure proceeding involving a Leasehold Mortgage.
507. JUDGMENT AND REMEDY
Foreclosure matters shall be heard and decided by the Court in a prompt and reasonable time period not to exceed sixty (60) days from the date of service of the Complaint on the Borrower/Mortgagor. If the alleged default has not been cured at the time of the judicial proceeding and the Court finds for the Lender/Mortgagee, the Court shall enter judgment:
A. Foreclosing the interests of the Borrower/Mortgagor and each other defendant, including subordinate lienholders, in the mortgage.
B. Assigning the mortgage to the Lender/Mortgagee or the Lender’s designated assignee. Assignments are subject to the following provisions when said mortgage is on Nation land:
1. The Lender/Mortgagee shall give the Nation the right of first refusal on any acceptable offer to purchase the rights in the collateral or the mortgage, which is subsequently obtained by the Lender/Mortgagee, or Lender’s designated assignee; and
2. The Lender/Mortgagee or Lender’s designated assignee may only transfer, sell, or assign rights to the collateral or the mortgage to a Nation member, the Nation, or the Oneida Housing Corporation.
C. Providing 10 business days from the date final judgment is served on the Borrower/Mortgagor for the Borrower/Mortgagor to quit possession of the property;
D. Providing for such other and further relief as appropriate.
508. FORECLOSURE SALES
A. The sale shall be conducted by public auction, at a place on Nation land convenient to potential bidders, upon such notice as required by the Court. Notice shall be reasonably calculated to assure that potential bidders are aware of the sale and shall, at a minimum, include:
1. Publication of notice of sale in a newspaper of general circulation within Territorial jurisdiction once a week for four (4) consecutive weeks and in a Nation publication to members at least once during such four (4) week time period; and
2. Notice mailed at least thirty (30) days before the sale to the Borrower/Mortgagor, the Nation, the Nation Housing Corporation, any guarantor, and any subordinate Lender with a recorded interest.
The Notice shall be mailed to the Borrower/Mortgagor at the address provided in the lien instruments and to such other notice address(es) provided or known to the Lender/Mortgagee.
B. The officer or person making the sale shall issue to the purchaser an appropriate document entitling the purchaser to the use of the property, immediately upon payment of the purchase price and approval of the sale by the Nation. Upon approval of the sale, the transfer of the use of the property shall be deemed to relate back to the date of the sale.
C. If the sale is the sale of an interest in property located on Nation land, the purchaser must obtain Nation approval for the purchase of such interest. No sale of an interest in property located on Nation land shall be effective without Nation approval.
509. APPLICATION OF THE PROCEEDS OF SALE.
A. The proceeds of any sale of foreclosure shall be applied as follows:
1. First, to the expenses of the sale, including the cost of notice and a reasonable fee by the officer conducting the sale;
2. Second, to the discharge of the debts adjudged by the Nation Court to be due on the most senior mortgage foreclosed in the action, which debt shall include the reasonable, out-of-pocket costs actually incurred and interest at the rate set forth in the mortgage through the date of the foreclosure sale;
3. Third, to the discharge of the claims of the mortgage holders of other mortgages whether or not foreclosed, which are junior to the most senior mortgage foreclosed, in order of seniority; and
4. Finally, if the net proceeds exceed the amount of the mortgage debt, this excess amount shall be returned to the Borrower/Mortgagor.
B. If, upon a sale of the collateral, the net proceeds shall be insufficient to pay the mortgage debt, the Court shall enter a judgment against the Borrower/Mortgagor or other party to the suit who is liable for the payment of the mortgage debt for the amount of the debt remaining unsatisfied after applying the proceeds of such sale to the debt.
C. If the Lender/Mortgagee shall become the purchaser at such sale, the Lender/Mortgagee shall be entitled to credit the amount of the purchase money against the debt, and shall be required only to pay the excess of the purchase money over the debt owed to the Lender/Mortgagee.
510. FORECLOSURE EVICTIONS
A. On entry of a judgment pursuant to Section 507 of this Chapter, a copy of the order of judgment shall be served by the Court on the Borrower/Mortgagor. In addition, a written notice in a form substantially similar to that required in Section 302(c) of Chapter 3 shall be delivered by the Lender/Mortgagee to the Borrower/Mortgagor. The notice and order shall be delivered pursuant to Section 303 of Chapter 3. The order and notice shall serve as the Notice to Quit.
B. If after the expiration date set forth in the order the Borrower/Mortgagor has not quit possession of the dwelling unit, the Lender/Mortgagee may file a complaint in the Court for eviction. The complaint shall state:
1. The names and known addresses of the Borrower/Mortgagor against whom the suit is brought;
2. The address or reasonable description of the location of the premises;
3. The date and copy of the foreclosure judgment.
4. A statement showing that the order and notice have been served in accordance with this Code or other applicable Nation law or ordinance;
5. A statement of the relief demanded, including any claim for possession of the dwelling unit, damages, fees, costs, or other relief; and
6. A statement that the Lender/Mortgagee has complied with all required regulatory processes prior to filing the eviction action.
C. When a complaint is filed in the Court pursuant to Section 510B of this Chapter, the Court shall issue an order to the Borrower/Mortgagor named in the complaint to appear before the Court on a date certain within ten (10) business days of the date of the order, to answer the Complaint.
D. The order of proceedings shall occur as follows:
1. If the Borrower/Mortgagor appears before the Court in person or in writing to answer the complaint, the Court shall set a trial date. Any written response shall state any defenses or factual disputes and where any Borrower/Mortgagor appears in person, a written response shall be served upon the Lender/Mortgagee within five (5) calendar days of any hearing, excluding weekends and holidays.
2. The Court shall set a trial date which is no more than fifteen (15) calendar days following the date for appearance.
3. The Court may, in its discretion, and on motion from the Lender/Mortgagee order the Borrower/Mortgagor to pay into the Court for the benefit of the Lender/Mortgagee, the fair market rent for the use and occupancy of the property during the pendency of the eviction case.
E. Discovery, evidencing, and burden of proof issues shall be governed by Sections 405-407 of Chapter 4.
F. Judgment shall be entered as follows:
1. Within five (5) calendar days of the date of the trial, the Court shall grant and enter judgment and the judgment shall grant all relief that the parties are entitled to as of the date of the judgment. The order of judgment may:
a. Order the immediate eviction of a Borrower/Mortgagor;
b. Order delivery of the premises to the appropriate party;
c. Grant actual damages as provided in any agreement of the parties or by this Code, including interests;
d. Order the parties to carry out an obligation required by Nation law;
e. Order the payment of attorneys' fees and the costs and expenses of litigation; or
f. Grant any relief provided in this Code.
2. If a Borrower/Mortgagor fails to appear in person or in writing on or before the date of appearance, the Court shall enter judgment on behalf of the Lender/Mortgagee following a hearing to determine whether relief should be granted and the kind of relief that should be granted.
G. The form of judgment, execution, stays and appeal shall be governed by Sections 409-412 of Chapter 4.
H. Notwithstanding anything herein to the contrary, all foreclosure evictions shall occur no later than sixty (60) days from the date of service of the foreclosure judgment order and notice upon Borrower/Mortgagor.
511. NO MERGER OF ESTATE
There shall be no merger of estates by reason of the execution of a Use Rights and Homeowner Agreement, a Ground Lease, or a mortgage or the assignment or assumption of the same, including an assignment adjudged by the Court, or by operation of law, except as such merger may arise upon satisfaction of the Leasehold Mortgage.
512. CERTIFIED MAILING TO NATION AND LESSOR
In any foreclosure proceeding where the Nation or any lessor is not a named party, a copy of the summons and complaint shall be mailed to the Nation Housing Corporation and any lessor by certified mail, return receipt requested, within five (5) days after the issuance of the summons.
513. INTERVENTION
The Nation or any lessor may petition the Court to intervene in any mortgage foreclosure proceeding under this Code. Neither the filing of a petition for intervention by the Nation, nor the granting of such a petition by the Court shall operate as a waiver of the sovereign immunity of the Nation, except as may be expressly authorized by the Nation.
514. APPEALS
Appeals under this Chapter shall be handled in accordance with Oneida Indian Nation Rules of Appellate Procedure and shall be to the Nation Appellate Court.
CHAPTER 7 - ONEIDA NATION HOME CONTRIBUTION PROGRAM
701. HOME CONTRIBUTION
The Nation shall provide a monetary contribution (the "Contribution") to each eligible Nation member to be used to construct, improve, rehabilitate, or purchase an interest in the use and occupancy of a dwelling situated on Nation land to be used as such member’s principal residence ("Home"). The Nation Housing Entity shall administer the Contribution.
702. ELIGIBILITY
A. Only enrolled Nation members in good standing are eligible to receive a Contribution.
B. Each Nation member aged twenty-one (21) years or older is eligible. Members not yet twenty-one (21) years old become eligible for the Contribution on their twenty-first (21st) birthday.
C. To be eligible for some or all of the Contribution, the Nation member must make an investment of a minimum of Ten Thousand Dollars ($10,000.00) in cash in each Home in which the member elects to apply some or all of the Contribution (the "Member’s Investment"). The Member’s Investment may be obtained from a Nation-guaranteed loan obtained through the Oneida Loan Guaranty Program established in Chapter 8 of the Nation Housing Code.
703. NATURE AND MECHANICS OF THE CONTRIBUTIONS
A. The total lifetime Contribution for each eligible individual Nation member is Fifty Thousand Dollars ($50,000). An eligible Nation member can draw the Contribution in increments of Five Thousand Dollars ($5,000.00).
B. The Contribution shall be used solely for the construction, improvement, rehabilitation, or purchase of an interest in the use and occupancy of a Home and may not be used for any other purpose.
C. To obtain a Contribution, the eligible Nation member must provide to the Nation Housing Entity a written request for the desired portion of the Contribution (the "Initial Notice"). The Initial Notice shall be delivered to the Nation Housing Entity no later than forty-five (45) days prior to the required date of disbursement. The Nation Housing Entity shall review the request and, if such request is approved, shall prepare the required documentation for signature by the Nation member.
D. Prior to distribution of the Contribution, the Nation member shall deliver or cause to be delivered to the Nation Housing Entity the following:
1. An executed Use Rights and Homeowner Agreement with respect to the premises on which the Home is or shall be located (a sample Use Rights and Homeowner Agreement appears at Appendix I to this Code);
2. An executed secured promissory note (the "Note") as described in Section 703.F below and illustrated at Appendix I1 to this Code;
3. An executed pledge to secure the Note (the "Pledge"), a sample of which appears at Appendix I11 to this Code; and
4. Evidence of the Member’s Investment.
E. The distributed portion of the Contribution shall be provided to the Nation member in the form of an interest-free loan, which loan shall be forgiven, or "vested," each year for a ten-year period until the total distributed portion of the Contribution is reduced to zero, provided the Nation member complies with Section 706 of this Chapter.
F. The Nation member must sign the Note in favor of the Nation for the amount of the Contribution received. This Note shall be secured by the Nation member’s (i) interest in the Use Rights and Homeowner Agreement, (ii) Distributions Proceeds from the Nation, and (iii) any other security provided to the Nation. Nation land and improvements thereon may not serve as security. This Note may be made subordinate to the security interest of any approved Lender. Any default under the Note shall be enforced under Nation law, including Chapters 3-5 of the Nation’s Housing Code. In addition, the Nation may, among other enforcement measures, terminate the Use Rights and Homeowner Agreement or withhold or setoff the Nation member’s Distribution Proceeds (as defined in, Section 102 of Chapter 1) until the Note is satisfied.
G. Until a Contribution has fully vested, the Nation member receiving the Contribution may not obtain any loan(s) from the Nation secured by such member’s Distribution Proceeds in excess, at any one time, of the amount of the scheduled distributions for such member for one year.
704. CONTRIBUTION CALCULATIONS
A. Individual Member Household.
A Nation member who is the sole Homeowner of a Home under a Use Rights and Ownership Agreement may receive up to the maximum Contribution.
B. Married Members Household.
1. Where two (2) Nation members, whose marriage is recognized under the laws of the Nation, own a Home together under a Use Rights and Homeowner Agreement, they may mutually elect to receive their Contributions in one (1) of the following ways:
a. Option One - One (1) Nation member receives some or all of such member’s Contribution. Unless otherwise approved by the Nation Housing Entity, receipt of the other spouse’s Contribution is deferred until the one member’s Contribution is fully drawn and vested pursuant to Section 706.B of this Chapter. At that time, the remaining spouse shall be eligible to qualify for such spouse’s Contribution pursuant to Sections 702 and 703 of this Chapter. Notwithstanding the provisions of Section 702.C, if the remaining spouse’s Contribution is to be invested in the same Home as was invested in by the first spouse, no additional Member’s Investment is required.
b. Option Two - Each married Nation member receives a portion of their Contribution to be used for the same Home. Each member spouse may each elect to receive up to sixty percent (60%) of each of their respective Contributions for a combined maximum total of $60,000. Each spouse’s receipt of the remaining percentage of such member’s Contribution is deferred until the first portion is fully vested pursuant to Section 706.B of this Chapter. The Member Investment shall be the same as if only one member’s Contribution were used.
2. In the event of a divorce, a Nation member’s Contribution shall not be treated as a marital asset.
C. Unmarried Member Household.
1. Unrelated Nation members who are living together but are unmarried must each execute the Use Rights and Homeowner Agreement for the Home.
2. Unrelated Nation members who are living together but are unmarried cannot combine Contribution eligibility under Option Two in Section 704.B.l.b of this Chapter.
3. Each unrelated Nation member retains such member’s individual eligibility to receive the Contribution, but only one (1) member of the household may exercise that eligibility at a time for any Home.
4. The second member in the household may exercise eligibility once the first member’s Contribution has been fully vested.
D. Deferred Contributions:
Except if otherwise prohibited by this Chapter, a Nation member who has not drawn such member’s entire Contribution may draw one or more additional Contributions prior to the full vesting of any portion of the Contribution to reduce the Nation member’s remaining Note principal, to pay for additional constructiodimprovements to the Home, or to purchase an interest in the use and occupancy of a different Home for the primary residence. All draws of the Contribution shall be assigned separate vesting schedules according to when the Nation member received each draw of the Contribution.
705. LIMITATION OF USES OF CONTRIBUTIONS
A. Subject to the other restrictions set forth in this Chapter, a maximum of two (2) Nation members may use their Contributions for any one (1) Home.
B. All plans for construction, rehabilitation, or improvement of any Home must be approved by the Nation Housing Entity and the Nation Design and Construction Department.
C. All construction, rehabilitation, or improvement must be performed by individuals or entities approved for such work by the Nation Housing Entity and Nation Design and Construction Department.
D. All construction, rehabilitation, or improvement must be in accordance with Nation law and subsequent to the issuance of all required permits or other approvals.
706. VESTING
A. Definition.
Vesting is the process by which the Nation forgives the portion of the Contribution drawn by the Nation member, thereby increasing the rights of individual Nation members to ownership of the Contribution.
B. Vesting Schedule.
Vesting will occur in equal annual amounts sufficient to fully vest the Contribution over a ten (10) year period. Vesting will occur on the anniversary date of the initial draw of the Contribution and on each one-year anniversary thereafter. At the end of the tenth successive year of homeownership, the Contribution shall be fully forgiven, and the member shall own the total Contribution and the Note and the Pledge shall be satisfied.
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VESTING
SCHEDULE (Assuming a Contribution of $50,000)
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| YEAR END | PERCENTAGE OF VESTED CONTRIBUTION | DOLLAR AMOUNT OF CONTRIBUTION VESTED |
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1 |
10% |
$5,000 |
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2 |
20% |
10,000 |
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3 |
30% |
15,000 |
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4 |
40% |
20,000 |
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5 |
50% |
25,000 |
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6 |
60% |
30,000 |
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7 |
70% |
35,000 |
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8 |
80% |
40,000 |
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9 |
90% |
45,000 |
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10 |
100% |
50,000 |
C. Sale of Home Prior to Full Vesting.
1. A Nation member who sells such member’s Home and moves off Nation land before the Contribution is fully vested must repay to the Nation the remaining non-vested portion of the Contribution based upon the assumption that vesting shall occur only on the anniversary date of the initial draw.
2. A Nation member who sells such member’s Home and purchases a different Home on Nation land before the vesting process is complete may apply all proceeds from the sale of the first Home to the purchase of the second Home and the vesting schedule shall continue uninterrupted to the new Home.
D. Nation Approval of Home Sales
All Home sales must be approved by the Nation in accordance with Nation laws. A Home Sale is the sale of the right to enter a Use Rights and Homeowner Agreement with the Nation for the use of a Home. Each Purchaser must enter into a Use Rights and Homeowner Agreement with the Nation prior to the closing of any sale.
E. Death of a Member Prior to Full Vesting.
Vesting of a Contribution ceases upon the death of the Nation member. All unvested sums of a used Contribution must be repaid by the decedent’s estate unless the Nation in its sole discretion determines otherwise. Unused Contributions for a Nation member extinguish upon such member’s death.
CHAPTER 8 - ONEIDA NATION HOME LOAN GUARANTY PROGRAM
801. HOME LOAN GUARANTY
The Nation shall guaranty the repayment of loans made by Qualified Lenders to Eligible Borrowers to construct, improve, rehabilitate and/or purchase an interest in Eligible Housing.
802. DEFINITIONS
A. Eligible Borrower.
An "Eligible Borrower" for purposes of this Chapter is a member in good standing of the Nation who is at least 2 1 years of age and will occupy the Home as the principal residence and who meets the credit and underwriting requirements of a Qualified Lender.
B. Qualified Lender.
A "Qualified Lender" is any of the following: (i) a Lender approved by the Nation or the Nation Housing Corporation; (ii) Lenders who are already approved by the Federal Housing Authority, U.S. Department of Housing and Urban Development for participation in the single family mortgage insurance program under Title I1 of the National Housing Act; (iii) Lenders authorized by the U.S. Department of Veterans Affairs to originate automatically guaranteed housing loans under section 1802(d), chapter 37, title 38 of the U.S. Code; or (iv) Lenders approved by the U.S. Department of Agriculture to make loans for single family housing under the Housing Act of 1949.
C. Eligible Housing.
"Eligible Housing" is any single family residential dwelling other than a house trailer located or to be located on Nation land to be used solely as an Eligible Borrower’s principal residence. The proposed housing must comply with all applicable Nation laws, including, without limitation, Nation construction and safety codes and regulations.
D. Eligible Activities.
Eligible Borrowers may use a Nation loan guaranty for the following "Eligible Activities:"
1. Acquisition of the rights to use and occupy Eligible Housing;
2. Rehabilitation or improvement of Eligible Housing; or
3. Construction of Eligible Housing.
803. USE RIGHTS AND OWNERSHIP AGREEMENT.
To obtain a home loan guaranty, a Nation member must enter into a Use Rights and Homeowner Agreement ("Agreement") with the Nation. The Agreement grants the Nation member the right to construct improve, rehabilitate and/or purchase the rights to use and occupy Eligible Housing on certain Nation land for the term of the Agreement. The Nation shall retain all ownership rights in the land and the improvements thereon. The Agreement shall be for a period of not more than fifty (50) years. At the end of the Agreement’s term, the Nation member may remain on the Nation land in the Eligible Housing if such member and the Nation enter into a new Agreement. The Agreement is assignable on a limited basis in accordance with Nation laws and with the approval of the Nation. The Agreement must be entered into before a loan can be closed and the Agreement’s effectiveness shall be contingent upon the Nation member’s obtaining the loan from a Qualified Lender. The Agreement must be recorded with the Nation Court Clerk consistent with the recordation requirements of Section 502 of this Code.
804. GUARANTY COVERAGE
The Nation will guaranty the repayment of single family residential loans made to Eligible Borrowers by Qualified Lenders for Eligible Activities provided the loan terms fully comply with the following:
1. The term of the loan may not exceed 30 years.
2. Interest rates must be a fixed rate no greater than the current market rate.
3. The loan may be prepaid without penalty.
4. The loan cannot be secured with any interest in the Eligible Housing, except for a mortgage on the Eligible Borrower’s right to use and occupy the Eligible Housing pursuant to a Use Rights and Homeowner Agreement.
5. The loan cannot be secured with any mortgage on Nation land.
The Nation will guaranty up to 100 percent of the outstanding principal balance and interest on the loan as well as other necessary and allowable expenses as determined by the Nation. Loans insured by the United States government are not eligible for this program.
805. NATION NOTIFICATIONS
A. Upon application by an Eligible Borrower to a Qualified Lender, the Eligible Borrower must give written notice of such application to the Nation Housing Corporation.
B. In addition to the requirements of Section 805.A. of this Chapter, the following information, whether or not requested by the Qualified Lender, must be submitted by the Borrower to the Nation Housing Entity before a decision will be made on the guaranty:
1. Pre-qualification letter from Qualified Lender;
2. Statement from Qualified Lender as to amount of the loan, the terms, the monthly payment amount, and any special conditions;
3. Executed Use Rights and Ownership Agreement; and
4. Detailed plans and specifications for the Home, if applicable.
Provided the Eligible Borrower has complied with Section 805.A. of this Chapter, the Nation shall make a decision regarding the guaranty within ten (10) business days after receipt of all of the foregoing material.
806. NATION GUARANTY COMMITMENT
The Nation or the Nation Housing Corporation has absolute and final discretion to determine whether a proposed loan will be guaranteed by the Nation.
807. REIMBURSEMENT
In order to secure the Nation’s guaranty of the Nation member’s obligation, the Nation member shall grant the Nation, at the Nation’s request, a security interest in the member’s interest in the Eligible Housing, the member’s Distribution Proceeds from the Nation, and/or such other collateral as requested by the Nation. The Nation member agrees that if the Nation shall be obligated to pay on the guaranty, the Nation may, among other things, withhold or set off the Nation member’s Distribution Proceeds (as defined in Section 102 of Chapter 1) until the Note has been satisfied. A sample Note and Pledge appear at Appendix II and III to this Code.
901. INHERITANCE OF HOME
Pursuant to this Chapter, a Nation member may by Will transfer the rights to use and occupy a Home or an interest therein to a spouse, child or an enrolled member of the Nation.
902. DEFINITIONS
A. Homeowner or Decedent.
A deceased Nation member who prior to such member’s death resided in a Home in accordance with the terms of a valid Use Rights and Homeowner Agreement with the Nation.
B. Inheritance.
The interest in a Home that a Nation member may, by Will and in accordance with Nation law, grant to a spouse, child(ren), other member(s) of the Oneida Nation, or non-member(s) of the Oneida Nation upon such member’s death. Such interest may be: (i) a Life Estate or Limited Estate; and/or (ii) the right to receive all or a part of the Net Value of the Home. In the event that a Nation member gifts a Life Estate or Limited Estate, such estate must expire or terminate before anyone may receive the Net Value of the Home.
C. Non-member. A person who is not an enrolled member of the Oneida Indian Nation.
D. Life Estate.
The right of a person to live in a Home until such person dies, vacates the Home (and such absence is not approved by the Nation), or until the Use Rights and Homeowner Agreement expires and is not renewed, provided that:
1. A Life Estate gifted to a Non-member may only be granted to the spouse or long-term partner of the opposite sex ("Spouse") of the decedent and that Spouse must be residing in the Home at the time of the Homeowner’s death.
2. A Life Estate gifted to a Non-member Spouse terminates automatically upon remarriage or establishment of a new partnership by the Non-member Spouse to another Non-member of the Nation.
3. A Life Estate gifted to a Nation member or to a non-member Spouse shall terminate in the event that the beneficiary of the Life Estate is absent from the Home for more than thirty (30) consecutive days, provided that the Life Estate shall not be terminated if such absence is approved by the Nation.
4. A person who is bequeathed a Life Estate, who is eligible for a Life Estate, and who accepts a Life Estate in a Home shall execute a Use Rights and Homeowner Agreement with the Nation in order to receive the Life Estate.
E. Limited Estate.
The right of a non-member minor child of a Homeowner, who is residing at the Home at the time of the Nation member’s death, to live in the Home until the child has reached the age of twenty-one (21). This right may be extended by the Nation until the age of twenty-five (25), provided the child is a full-time student in good academic standing. A Limited Estate shall not terminate in the event that the beneficiary is absent from the Home for more than thirty (30) consecutive days provided that the absence is approved by the Nation.
A minor child who receives a Limited Estate shall have an adult guardian reside at the Home until the child reaches the age of eighteen (18). The adult guardian shall act as trustee for the child and execute a Use Rights and Homeowner Agreement with the Nation for the period from the date of inheritance until the child reaches the age of eighteen (18). At the age of eighteen (18), the beneficiary shall execute a Use Rights and Homeowner Agreement with the Nation for the remaining term of the Limited Estate.
F. Net Value.
The economic value of the Homeowner’s interest in the Home. The Homeowner’s economic interest in the Home shall be equal to the proceeds from the sale of the rights to use and occupy the Home after satisfying (i) all debts and liabilities against the property and (ii) the unvested portion of the Contribution.
G. Will.
A duly executed and acknowledged written instrument, recognized by the Nation Court as a valid will instrument, providing for the distribution of a person’s property upon that person’s death. Each Homeowner should execute a will that sets forth the Homeowner’s intention with regard to the Home.
903. INHERITANCE RIGHTS AND DUTIES
The following rules apply to inheritance of a Home unless there is a surviving Nation member who shared the Home and the Use Rights and Homeowner Agreement with the decedent at the time of the decedent’s death. A party to the Use Rights and Homeowner Agreement, who is in compliance with the Agreement, has a right of survivorship with the other Nation member party to the Agreement.
A. Nation Members as Beneficiaries.
A Nation member Homeowner may gift a Life Estate for the remaining term of the Use Rights and Homeowner Agreement, or all or portion of any Net Value of the Home to any enrolled member of the Nation.
B. Surviving Non-member Spouse as a Beneficiary.
A Nation member Homeowner may gift a Life Estate for the remaining term of the Use Rights and Homeowner Agreement, or all or a portion of the Net Value of the Home, to such member’s Spouse.
C. Non-member Child as a Beneficiary
A Nation member Homeowner may gift a Limited Estate for the remaining term of the Use Rights and Homeowner Agreement, or all or a portion of the Net Value of a Home, to any child of the member who is not an enrolled member of the Nation.
D. Non-Nation Member as a Beneficiary.
A Nation member Homeowner may gift only the Net Value (or a portion thereof) to a person who is not an enrolled member of the Nation.
Any conveyance by will other than pursuant to this Chapter is void.
904. INTESTATE DEATH
If a Nation Member dies without a locatable valid Will, the following rules of distribution shall apply:
A. Decedent’s Surviving Spouse Is A Nation Member.
A surviving Spouse who is a Nation Member shall be the sole beneficiary of the Home and shall receive the Homeowner’s entire interest in the Home, including the right to dispose of such interest in accordance with Nation law.
B. Decedent Has One Or More Surviving Children And Decedent’s Surviving Spouse Is Not A Nation Member.
The surviving Spouse shall be entitled to elect between a Life Estate or one-half (1/2) of the Net Value of the Home. If the surviving Spouse elects the Life Estate, then the Decedent’s children shall divide the Net Value of the Home upon the surviving Spouse’s death. If the surviving Spouse elects to take one-half (1/2) of the Net Value, then the remaining one-half (1/2) shall be divided equally between the Decedent’s children.
C. Decedent Has No Surviving Children And Decedent’s Surviving Spouse Is Not A Nation Member.
The surviving Spouse shall be entitled to elect between a Life Estate and the Net Value of the Home.
D. Decedent Has One or More Surviving Children, but No Surviving Spouse.
The Decedent’s children shall divide the Net Value equally among themselves.
E. Decedent Has No Surviving Spouse or Children.
The Nation receives the Net Value in the Home.
905. TRANSFER OF JOINTLY OWNED HOMES
Where the Home is held in a form of Homeownership containing a right of survivorship, all interest of the decedent in the Home shall pass to the surviving interest holder notwithstanding a Will of the decedent to the contrary. Where the Home is held by a decedent and others in common, Sections 903 and 904 of this Chapter shall apply as to the decedent’s interest.
906. DEATH OF THE HOMEOWNER AUTOMATICALLY TERMINATES THE USE RIGHTS
AND HOMEOWNER AGREEMENT.
A Use Rights and Homeowner Agreement entered into solely by a Decedent shall terminate, regardless of its term of years, upon the death of the Homeowner. An inheritance of a Home is not effective without the execution of a new Use Rights and Homeowner Agreement between the Nation and the beneficiary. Beneficiaries granted a Limited Estate or Life Estate shall execute a Use Rights and Homeowner Agreement for the applicable term, not to exceed fifty (50) years. A beneficiary devised a Limited Estate who is a minor may not be a party to a Use Rights and Homeowner Agreement until such child reaches the age of eighteen (18). Until such date, the child’s guardian shall act as trustee and execute the Use Rights and Homeowner Agreement for such child. The Use Rights and Homeowner Agreement and the Limited Estate shall terminate simultaneously. A beneficiary inheriting Net Proceeds from the Home shall execute a new Use Rights and Homeowner Agreement pending the sale of the Home and the distribution of the Net Proceeds.
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