Chapter 488 Oregon Laws 1999

Session Law

AN ACT

SB 490

Relating to professional real estate activities; amending ORS 696.010 and 696.030.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 696.010 is amended to read:

696.010. As used in ORS 696.010 to 696.490, 696.600 to 696.730, 696.800 to 696.855 and 696.995, unless the context requires otherwise:

(1) "Advance fee" means a fee received before the professional real estate activity involved is completed. The term "advance fee" shall not include a retainer fee paid to a real estate broker or organization to secure the availability of such broker or organization for future professional real estate activity, or a consulting fee paid to a real estate licensee engaged to provide consultation or advice concerning the valuation, marketability or acquisition potential of real estate.

(2) "Agency" means the Real Estate Agency.

(3) "Bank" includes any bank or trust company, savings bank, mutual savings bank, savings and loan association or credit union that maintains a head office or a branch in this state in the capacity of a bank or trust company, savings bank, mutual savings bank, savings and loan association or credit union.

(4) "Board" means the Real Estate Board.

(5)(a) "Branch office" means a business location other than the main office designated under ORS 696.200 (1), where professional real estate activity is regularly conducted or which is advertised to the public as a place where such business may be regularly conducted.

(b) Model units or temporary structures used solely for the dissemination of information and distribution of lawfully required public reports shall not be considered branch offices. A model unit means a permanent residential structure located in a subdivision or development used for such distribution and dissemination, so long as the unit is at all times available for sale, lease, lease option or exchange.

(6) "Commissioner" means the Real Estate Commissioner.

(7) "Compensation" means any fee, commission, salary, money or valuable consideration for services rendered or to be rendered as well as the promise thereof and whether contingent or otherwise.

(8) "Competitive market analysis" means a method or process used by a real estate licensee in pursuing a listing agreement or in formulating an offer to acquire real estate in a transaction for the sale, lease, lease-option or exchange of real estate. The objective of competitive market analysis is a recommended listing, selling or purchase price or a lease or rental consideration. A competitive market analysis may be expressed as an opinion of the value of the real estate in a contemplated transaction. Competitive market analysis may include but is not limited to an analysis of market conditions, public records, past transactions and current listings of real estate.

(9) "Controlling shareholder" means:

(a) Any individual who owns or controls, directly or indirectly, a majority of the outstanding shares of a corporate real estate organization.

(b) Any real estate salesperson who owns shares of stock of a corporate real estate organization, the majority of shares of which are owned or controlled, directly or indirectly, by real estate salespersons.

(10) "Inactive license" means a license which has been returned to the commissioner and is being held by the commissioner on an inactive status.

(11) "Letter opinion" means a document that expresses a real estate licensee's conclusion regarding a recommended listing, selling or purchase price or a rental or lease consideration of certain real estate and that results from the licensee's competitive market analysis. The commissioner by rule shall specify the minimum contents of a letter opinion, including but not limited to the distinction between a letter opinion and a real estate appraisal.

(12) "Professional real estate activity" means any of the following actions, when engaged in for another and for compensation or with the intention or in the expectation or upon the promise of receiving or collecting compensation, by any person who:

(a) Sells, exchanges, purchases, rents or leases real estate.

(b) Offers to sell, exchange, purchase, rent or lease real estate.

(d) Lists, offers, attempts or agrees to list real estate for sale.

(e) Offers, attempts or agrees to perform or provide a competitive market analysis or letter opinion, to represent a taxpayer under ORS 305.230[, 306.115] or 309.100 or to give an opinion in any administrative or judicial proceeding regarding the value of real estate for taxation. Such activity performed by a state certified appraiser or state licensed appraiser is not professional real estate activity.

(f) Auctions, offers, attempts or agrees to auction real estate.

(g) Buys, sells, offers to buy or sell or otherwise deals in options on real estate.

(h) Engages in property management as described in ORS 696.025 (5) or collects, offers, attempts or agrees to collect rental for the use of real estate.

(i) Purports to be engaged in the business of buying, selling, exchanging, renting or leasing real estate.

(j) Assists or directs in the procuring of prospects, calculated to result in the sale, exchange, leasing or rental of real estate.

(k) Assists or directs in the negotiation or closing of any transaction calculated or intended to result in the sale, exchange, leasing or rental of real estate.

(L) Engages in the business of charging an advance fee.

(m) Except as otherwise provided in ORS 696.030 (1)(k), advises, counsels, consults or analyzes in connection with real estate values, sales or dispositions, including dispositions through eminent domain procedures.

(n) Advises, counsels, consults or analyzes in connection with the acquisition or sale of real estate by an entity if the purpose of the entity is investment in real estate.

(o) Performs real estate marketing activity as described in ORS 696.600.

(13) "Real estate" includes leaseholds and licenses to use including, but not limited to, timeshare estates and timeshare licenses as defined in ORS 94.803, as well as any and every interest or estate in real property, whether corporeal or incorporeal, whether freehold or nonfreehold, whether held separately or in common with others and whether the real property is situated in this state or elsewhere.

(14) "Real estate licensee" means a person licensed by the commissioner in one of the following categories:

(a) "Real estate broker" as described in ORS 696.025 (1).

(b) "Real estate organization" as described in ORS 696.025 (2).

(d) "Associate real estate broker" as described in ORS 696.025 (4).

(e) "Real estate property manager" as described in ORS 696.025 (5).

(f) "Real estate salesperson" as described in ORS 696.025 (6).

SECTION 2. ORS 696.030 is amended to read:

696.030. (1) ORS 696.010 to 696.375, 696.392, 696.395 to 696.435, 696.490, 696.600 to 696.730, 696.990 and 696.995 do not apply to, and the term "real estate licensee" does not include:

(a) A nonlicensed regular full-time employee of a single owner of real estate whose activities involve the real estate of the employer and are incidental to the employee's normal, nonreal estate activities; or a nonlicensed regular full-time employee whose activity involving such real estate is the employee's principal activity, but the employer's principal activity or business is not the sale, exchange, lease option or acquisition of real estate.

(b) Any nonlicensed person acting as attorney in fact under a duly executed power of attorney from the owner authorizing the supervision of the closing of or supervision of the performance of any contract for the sale, leasing or exchanging of real estate, if the power of attorney is recorded in the office of the recording officer for the county in which the property to be sold, leased or exchanged is located.

(d) While acting as such, any receiver, trustee in bankruptcy, personal representative; or any trustee or the regular salaried employees thereof, acting under a trust agreement, deed of trust or will.

(e) Any person doing any of the acts of professional real estate activity under order of any court.

(f) A nonlicensed regular full-time employee employed by and acting for a single nonlicensed corporation, partnership, association or individual owner in the rental or management, but not sale, exchange, lease option or purchase of the real property of the employer.

(g) Any registered professional engineer or architect rendering services in performance of duties as a professional engineer or architect.

(h) A nonlicensed individual employed by a real estate broker or a real estate organization and acting as a manager for any real estate whose activities are limited to negotiating rental or lease agreements, the checking of tenant and credit references, the physical maintenance of the real estate, tenant relations and the collection of rent, and the supervision of premises' managers.

(i) Any person, partnership, association or corporation or any employee of any such person while engaging in the disposition of human bodies under the provisions of ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990, and engaged in the sale or leasing of cemetery lots, parcels or units in Oregon.

(j) Any salaried employee of the State of Oregon, or any of its political subdivisions, while engaged in professional real estate activity as a part of such employment.

(k) Any nonlicensed person, organization, or any regular full-time employee thereof, as to the activities of the person, organization, or employee in analyzing or advising of permissible land use alternatives, environmental impact, building and use permit procedures, or demographic market studies. This exclusion does not apply to the handling of transactional negotiations for transfer of an interest in real estate.

(L) Any hotelkeeper or innkeeper as defined by ORS 699.005 while in the course of business as a hotelkeeper or innkeeper.

(m) Any travel agent while in the course of business as a travel agent in arranging for compensation the rental of transient lodging at a hotel or inn as defined in ORS 699.005. For the purpose of this paragraph, "travel agent" means a person, including employees thereof, regularly engaged in the business of representing and selling travel services to the public either directly or indirectly through other travel agents, or both.

(n) Any common carrier while in the course of business as a common carrier in arranging for compensation the rental of transient lodging at a hotel or inn as defined in ORS 699.005. For the purpose of this paragraph, "common carrier" means a person who transports, or purports to be willing to transport persons, for hire, compensation or consideration by rail, motor vehicle, boat or aircraft from place to place.

(o) Any hotel representative while in the course of business as a hotel representative in arranging for compensation the rental of transient lodging at a hotel or inn as defined in ORS 699.005. For the purpose of this paragraph, "hotel representative" means a person who provides reservations or sale services to independent hotels, airlines, steamship companies and government tourist agencies.

(p) A nonlicensed person transferring or acquiring any interest in real estate owned or to be owned by the person.

(q) Any general partner for a domestic or foreign limited partnership duly registered and operating within this state under ORS chapter 70 while engaging in the sale of limited partnership interests and while engaging in the acquisition, sale, exchange, lease, transfer or management of the real estate of the limited partnership.

(r) A membership camping contract broker or salesperson registered with the Real Estate Agency when engaged in the sale of membership camping contracts.

(s) Any professional forester or farm manager who engages in property management activities on forest or farm land when such activities are incidental to the nonreal estate duties involving overall management of forest or farm resources.

(t) Any registered investment adviser under the Investment Advisers Act of 1940, 15 U.S.C. s.80b-1 et seq., when rendering real estate investment services for the office of the State Treasurer or the Oregon Investment Council.

(u) Any nonlicensed person who, for compensation, refers a new tenant to a real estate licensee acting as the property manager for the person's residential building or facility while the person resides in the building or facility or within six months after termination of the person's tenancy.

(v) Any nonlicensed person who gives an opinion in an administrative or judicial proceeding regarding the value of real estate for taxation, or who represents a taxpayer under ORS 305.230 or 309.100.

(2) The vesting of title to real estate in more than one person by tenancy by the entirety, tenancy in common or by survivorship shall be construed as that of a single owner for the purposes of this section.

Approved by the Governor July 6, 1999

Filed in the office of Secretary of State July 6, 1999

Effective date October 23, 1999

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