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to Table of Contents [Oneida
Indian Nation (New York) Codes and Rules]
Last amended: 2004 HOUSING CODE - CHAPTERS 1-9 101. Short
title
201. Rental
agreements 301. Grounds
for eviction
401. Complaint 501. Priority
701. Home
contribution
801. Home
Loan Guaranty 901. Inheritance
of home 1001. Non-Alienation
of Nation land I - Sample Use Rights and Homeowner Agreement Exhibit A - Legal descriptions of land II - Sample Secured Promissory Note
101. SHORT TITLE This Code shall be known as the "Housing Code".
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:
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.
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:
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.
This Code shall be interpreted and construed to fulfill the following purposes:
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.
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.
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:
Except as otherwise provided in a rental agreement, each landlord shall:
Except as otherwise provided in a rental agreement each tenant shall:
Where a landlord has not complied with this Code or the agreement of the parties, a tenant has the following rights:
Where a tenant has not complied with this Code or the agreement of the parties, the landlord has the right to:
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.
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.
This Code shall apply to all rental agreements subject to the provision of this Code no matter when the rental agreement commenced.
A tenant may be evicted for:
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:
D. Time Requirements for Notice. The notice must be delivered within the following periods of time:
Any notice to quit must be in writing, and must be delivered to the tenant in the following manner:
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:
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:
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.
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.
The Court shall grant the remedies allowed in this Code, unless it appears by the evidence that:
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.
Evidence in proceedings under this Code shall be under the provisions of the Oneida Indian Nation Rules of Evidence.
The burden of proof in all proceedings under this Code shall be preponderance of the evidence.
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:
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.
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.
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.
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:
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.
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.
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. 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.
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.
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.
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:
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:
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:
The satisfaction shall be filed with the Court Clerk within thirty (30) days of actual receipt of full payment under the mortgage.
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:
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:
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:
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.
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.
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.
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. 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:
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.
A. The proceeds of any sale of foreclosure shall be applied as follows:
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.
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:
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:
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:
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.
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.
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.
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.
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.
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:
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.
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.
C. Unmarried Member Household.
D. Deferred 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.
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.
C. Sale of Home Prior to Full Vesting.
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.
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.
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:"
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.
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:
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.
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:
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.
The Nation or the Nation Housing Corporation has absolute and final discretion to determine whether a proposed loan will be guaranteed by the Nation.
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.
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.
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:
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.
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.
Any conveyance by will other than pursuant to this Chapter is void.
If a Nation Member dies without a locatable valid Will, the following rules of distribution shall apply:
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.
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. Back to Top |
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