Chapter 300 Oregon Laws 2001
AN ACT
SB 446
Relating to licensing by the
Real Estate Commissioner; creating new provisions; amending ORS 9.166, 59.720,
93.265, 94.977, 105.465, 105.480, 279.712, 305.230, 309.100, 316.209, 426.508,
443.738, 646.382, 656.037, 657.085, 659.430, 674.100, 696.010, 696.030,
696.110, 696.130, 696.174, 696.200, 696.205, 696.221, 696.226, 696.232,
696.235, 696.241, 696.243, 696.245, 696.265, 696.270, 696.280, 696.290,
696.301, 696.310, 696.320, 696.361, 696.365, 696.375, 696.430, 696.445,
696.511, 696.520, 696.525, 696.535, 696.541, 696.555, 696.582, 696.600,
696.603, 696.609, 696.621, 696.710, 696.730, 696.800, 696.805, 696.810,
696.815, 696.820, 696.845, 696.855, 696.870, 696.880, 696.990, 702.005 and
709.030; and repealing ORS 696.025, 696.050, 696.060, 696.080, 696.085,
696.100, 696.120, 696.141, 696.150, 696.160, 696.165, 696.169, 696.176,
696.180, 696.210, 696.224, 696.228, 696.258, 696.355, 696.359, 696.435, 696.825
and 696.830.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
(1) A person who, on the effective date
of this 2001 Act, holds or is qualified to hold a real estate broker’s license
described in ORS 696.025 (1) (1999 Edition) shall receive a license under
section 9 of this 2001 Act. At the person’s option and request, the person may
receive either a real estate broker’s license or a principal real estate
broker’s license.
(2) A person who, on the
effective date of this 2001 Act, holds or is qualified to hold a designated
real estate broker’s license described in ORS 696.025 (3) (1999 Edition) shall
receive a license under section 9 of this 2001 Act. At the person’s option and
request, the person may receive either a real estate broker’s license or a
principal real estate broker’s license.
(3) A person who, on the
effective date of this 2001 Act, holds or is qualified to hold an associate
real estate broker’s license described in ORS 696.025 (4) (1999 Edition) shall
receive a license under section 9 of this 2001 Act. At the person’s option and
request, the person may receive either a real estate broker’s license or a
principal real estate broker’s license.
SECTION 2.
(1) Except as provided in subsection (4)
of this section, a person who, on the effective date of this 2001 Act, holds or
is qualified to hold a real estate salesperson’s license described in ORS
696.025 (6) (1999 Edition) may lawfully engage in all of the professional real
estate activities of a real estate broker associated with a principal real
estate broker under section 9 of this 2001 Act.
(2) If a person who
holds a real estate salesperson’s license on the effective date of this 2001
Act successfully completes courses in contract law, trust accounting, property
management and real estate closings, the Real Estate Commissioner shall issue a
real estate broker’s license under section 9 of this 2001 Act to the person.
The courses are subject to approval by the commissioner. The courses must be
completed within three years after the effective date of this 2001 Act.
(3) If a person who
holds a real estate salesperson’s license fails to demonstrate successful
completion of the required courses prior to the expiration of the period
prescribed by the Real Estate Agency by rule, the real estate salesperson’s
license shall be canceled and a real estate broker’s license may not be issued.
Thereafter, the person may not engage in professional real estate activity
unless a license is issued subsequently to the person under section 9 of this
2001 Act.
(4) A person who holds a
valid real estate salesperson’s license may engage in all of the professional
real estate activities of a real estate broker only if the person is associated
with a principal real estate broker. A real estate salesperson may engage in
professional real estate activities as a sole practitioner only if the person
is licensed as a real estate broker or principal real estate broker under
section 9 of this 2001 Act.
(5) A person who, on the
effective date of this 2001 Act, holds or is qualified to hold a real estate
salesperson’s license described in ORS 696.025 (6) (1999 Edition) shall be
designated a temporary associate broker.
SECTION 3.
(1) A person who, on the effective date
of this 2001 Act, holds or is qualified to hold a real estate property
manager’s license described in ORS 696.025 (5) (1999 Edition) shall receive a
temporary real estate property manager’s license. A person who holds a valid
temporary real estate property manager’s license may lawfully engage in all of
the professional property management activities of a person licensed as a real
estate property manager under section 9 of this 2001 Act.
(2) If a person who
holds a temporary real estate property manager’s license successfully completes
courses in trust accounting, record keeping and basic accounting, the Real
Estate Commissioner shall issue to the person a real estate property manager’s
license under section 9 of this 2001 Act. The courses are subject to approval
by the commissioner. The courses must be completed within a period prescribed
by the Real Estate Agency by rule, but the period may not expire less than one
year from the effective date of this 2001 Act.
(3) If a person who
holds a temporary real estate property manager’s license fails to demonstrate
successful completion of the required courses prior to the expiration of the
period prescribed by the agency, the temporary real estate property manager’s
license shall be canceled and a real estate property manager’s license may not
be issued. Thereafter, the person may not engage in professional real estate
property management activity unless a real estate property manager’s license is
issued subsequently under section 9 of this 2001 Act.
SECTION 4.
A person described in section 1, 2 or 3
of this 2001 Act may request that the person’s real estate license be issued on
an inactive status. A license on inactive status does not permit the holder to
engage in the professional real estate activity for which the holder is
qualified. Inactive status under this section does not affect the time limits
or educational requirements described in sections 2, 3 and 9 of this 2001 Act.
SECTION 5.
Sections 1 to 4 of this 2001 Act are
repealed on January 1, 2005.
SECTION 6.
Sections 8, 9 and 15 of this 2001 Act
are added to and made a part of the Oregon Real Estate License Law.
SECTION 7.
(1) Upon the issuance by the Real Estate
Commissioner of the licenses as provided in sections 1, 2, 3 and 4 of this 2001
Act, every outstanding real estate broker’s license, designated real estate
broker’s license, associate real estate broker’s license, real estate
salesperson’s license and real estate property manager’s license issued under
ORS 696.025 (1999 Edition) is void.
(2) The term of a
license issued under section 1, 2 or 3 of this 2001 Act does not extend beyond
the term of the license being converted.
(3) All branch office
licenses issued under ORS 696.200 (1999 Edition) are void.
(4) All real estate
organization licenses issued under ORS 696.025 (2) and 696.080 (both 1999
Edition) are void.
SECTION 8.
(1) A real estate broker or principal
real estate broker may conduct business under the broker’s name or may register
a business name with the Real Estate Agency. Registering a business name allows
the real estate broker or principal real estate broker to conduct professional
real estate activity in the registered business name. The registered business
name has no license standing independent of the broker registering the
business.
(2) The agency by rule
shall adopt a registration system for business names. The system shall allow
the registration of any branch office of either a real estate broker or a
principal real estate broker acting as a sole practitioner.
(3) A real estate broker
or principal real estate broker operating under a business name registered by
the broker need not be an owner or officer of any organization otherwise
lawfully entitled to use the registered business name or have an ownership
interest in the registered name. However, all professional real estate activity
conducted by or on behalf of the broker must be conducted under the business
name registered by the broker.
(4) A real estate broker
or principal real estate broker may register two or more business names if the
business names are for affiliated or subsidiary business organizations. If a real
estate broker or principal real estate broker registers the business names for
two or more affiliated or subsidiary business organizations, the broker may
conduct professional real estate activity separately under each business name.
A real estate broker or principal real estate broker must supervise and control
the professional real estate activity conducted under the broker’s name or
registered business name.
(5) A real estate broker
employed, engaged or supervised by a principal real estate broker for required
training and supervision by the principal real estate broker may have an
ownership interest in any business through which the principal broker conducts
professional real estate activity, but may not control or supervise the
professional real estate activity of the principal broker and may not interfere
with or be responsible for the training and supervision of any other broker.
(6) A nonlicensed person
may have an ownership interest in any business through which a real estate
broker or principal real estate broker engages in professional real estate
activity, but may not control or supervise the professional real estate
activity of any real estate broker or principal real estate broker licensed to
control or supervise the professional real estate activity of such business.
(7) A real estate
business in which two or more real estate brokers engage in professional real
estate activity may not have two or more principal real estate brokers who are
jointly responsible for the supervision and control of the professional real
estate activity conducted through the business, unless the principal brokers
enter into a written agreement and have written office policies dividing
control and supervision responsibilities.
(8) Two or more
principal real estate brokers operating under the same registered business name
who have engaged one or more real estate brokers for training or supervision or
who have supervisory control over other principal real estate brokers may not be
jointly responsible for the supervision and control of the real estate brokers
engaged by them or the other principal real estate brokers under their
supervision unless the principal brokers enter into a written agreement and
have written office policies dividing control and supervision responsibilities.
(9) Two or more
principal real estate brokers operating under the same registered business name
who have engaged one or more real estate brokers to provide administrative or
managerial services may not be jointly responsible for supervision and control
of the real estate brokers providing administrative or managerial services
unless the principal brokers enter into a written agreement and have written
office policies dividing the responsibilities for control and supervision.
(10) Two or more real
estate brokers operating under the same registered business name who do not
exercise any administrative or supervisory control over one another are solely
responsible for their own professional real estate activity.
SECTION 9.
(1) The Real Estate Agency shall
establish by rule a system for licensing real estate brokers, principal real
estate brokers and real estate property managers. The system shall establish,
at a minimum:
(a) The form and content
of applications for licensing under each category of real estate professional
licensed by the agency;
(b) A licensing
examination for each category of license;
(c) Schedules and
procedures for issuing and renewing licenses; and
(d) The term of a
license in each category.
(2)(a) A real estate
broker may engage in all of the professional activities of a real estate broker
described in this chapter. A real estate broker may conduct professional real
estate activities as a sole practitioner or in conjunction with other real
estate brokers or principal real estate brokers after the person has acquired
three years of active experience as a real estate broker. A real estate broker
may not employ, engage or otherwise supervise the professional activities of
another real estate broker or principal real estate broker.
(b) In order to qualify
for a real estate broker’s license, an applicant must furnish proof
satisfactory to the Real Estate Commissioner that the applicant has
successfully completed the basic real estate broker’s educational courses and
the examination required by rule of the agency. Proof of completion of all
required courses must be provided at the time of applying for the license.
(3)(a) A principal real
estate broker may engage in all of the professional activities of a real estate
broker described in this chapter. A principal real estate broker may conduct
professional real estate activities as a sole practitioner or in conjunction
with other real estate brokers or principal real estate brokers. In addition, a
principal real estate broker may employ, engage and otherwise supervise the
professional activities of real estate brokers or principal real estate
brokers.
(b) In order to qualify
for a principal real estate broker’s license, an applicant must meet the
requirements of subsection (2)(b) of this section and must furnish proof
satisfactory to the commissioner that the applicant has successfully completed
courses in brokerage administration and sales supervision, as required by
agency rule, and has three years of active experience as a licensed real estate
broker.
(4) In order to qualify
for a real estate property manager’s license, an applicant must furnish proof
satisfactory to the commissioner that the applicant has successfully completed
courses in the legal aspects of real estate, real estate property management
and accounting, bookkeeping and trust accounting practices. The applicant also
must have successfully completed a real estate property manager’s license
examination prescribed by rule of the agency. Proof of completion of all required
courses must be provided at the time of applying for the license.
(5)(a) A license for a
real estate broker, principal real estate broker or real estate property
manager shall be granted only to a person who is trustworthy and competent to
conduct professional real estate activity in a manner that protects the public
interest. As a condition of licensing, the commissioner may require such proof
of competence and trustworthiness as the commissioner deems necessary.
(b) In implementing this
subsection, the commissioner may require fingerprints and criminal offender
information of an applicant for initial licensing or license renewal.
Fingerprints acquired under this subsection may be submitted to appropriate law
enforcement agencies to determine any previous unlawful activity of the
applicant.
(6) A license may be
issued under this section only to persons who are 18 years of age or older.
(7) In order to qualify
for a real estate broker’s license, a real estate salesperson licensed in
another state or country must successfully complete a course of study and pass
a real estate broker’s license examination, both as prescribed by agency rule.
(8) In order to satisfy
the educational requirements under subsections (2) to (4) and (7) of this
section, a course must be approved by the commissioner. The commissioner shall
determine the final examination score acceptable as evidence of successful
completion for each required course.
(9) The Real Estate
Board may determine that an applicant for a principal real estate broker’s
license has real estate related experience that is equivalent to the experience
required under subsection (3) of this section.
SECTION 10.
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, 696.990
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)] (1) “Agency” means the Real Estate
Agency.
(2) “Associated
with” means to be employed, engaged or otherwise supervised by, with respect to
the relationship between a real estate broker and a principal real estate
broker.
(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)] (9) “Inactive license” means a license
which has been returned to the commissioner and is being held by the
commissioner on an inactive status.
[(11)] (10) “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.
(11)(a) “Management
of rental real estate” means representing the owner of real estate in the
rental or lease of the real estate and includes but is not limited to:
(A) Advertising the real
estate for rent or lease;
(B) Procuring
prospective tenants to rent or lease the real estate;
(C) Negotiating with
prospective tenants;
(D) Accepting deposits
from prospective tenants;
(E) Checking the
qualifications and creditworthiness of prospective tenants;
(F) Charging and
collecting rent or lease payments;
(G) Representing the
owner in inspection or repair of the real estate;
(H) Contracting for
repair or remodeling of the real estate;
(I) Holding trust funds
or property received in managing the real estate and accounting to the owner
for the funds or property;
(J) Advising the owner
regarding renting or leasing the real estate;
(K) Consulting with
prospective buyers regarding purchase of the real estate;
(L) Providing staff and
services to accommodate the tax reporting and other financial or accounting
needs of the real estate;
(M) Providing copies of
records of acts performed on behalf of the owner of the real estate; and
(N) Offering or
attempting to do any of the acts described in this paragraph for the owner of
the real estate.
(b) “Management of
rental real estate” also means representing a tenant or prospective tenant when
renting or leasing real estate and includes but is not limited to:
(A) Consulting with
tenants or prospective tenants about renting or leasing real estate;
(B) Assisting
prospective tenants in renting or leasing real estate;
(C) Assisting
prospective tenants in qualifying for renting or leasing real estate;
(D) Accepting deposits
or other funds from prospective tenants for renting or leasing real estate and
holding the funds in trust for the prospective tenants;
(E) Representing tenants
or prospective tenants renting or leasing real estate; and
(F) Offering or
attempting to do any of the acts described in this paragraph for a tenant or
prospective tenant.
(12) “Principal real
estate broker” means a real estate broker who is qualified to employ, engage or
otherwise supervise other real estate brokers and who is licensed as a
principal real estate broker.
[(12)] (13) “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.
(c) Negotiates, offers, attempts or agrees to negotiate the
sale, exchange, purchase, rental or leasing of 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 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] management of rental 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)] (L) 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)] (m) 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)] (n) Performs real estate marketing
activity as described in ORS 696.600.
[(13)] (14) “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.
(15) “Real estate
broker” means a person who engages in professional real estate activity and who
is licensed as a real estate broker.
[(14)] (16) “Real estate licensee” means a real estate broker, principal real estate
broker or real estate property manager. [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).]
[(c) “Designated real
estate broker” as described in ORS 696.025 (3).]
[(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).]
(17) “Real estate
property manager” means a real estate licensee who is authorized to engage in
management of rental real estate.
(18) “Registered
business name” means a name registered with the Real Estate Agency under which
the person registering the name engages in professional real estate activity.
SECTION 11.
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 or purchaser 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:
(A) 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;
(B) The power of
attorney specifically describes the real estate to be sold, leased or
exchanged; and
(C) The person does not
use the power of attorney to engage in professional real estate activity.
(c) Any attorney at law rendering services in the
performance of duties as an attorney at law.
(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] principal real estate broker 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] who, in the course of business as a travel
agent for compensation, arranges 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. §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.
SECTION 12.
ORS 696.110 is amended to read:
696.110. [(1) Every
application for a license and any examination under ORS 696.010 to 696.490,
696.600 to 696.730, 696.800 to 696.855 and 696.995 shall be accompanied by the
examination fee prescribed in ORS 696.270. The fee for all licenses issued
shall, at all periods of the year, be the same as prescribed in ORS 696.270.]
[(2)] The
provisions of ORS 696.010 to 696.490, 696.600 to 696.730, 696.800 to 696.855
and 696.995 shall be exclusive and no political subdivision or agency of this
state shall require or issue any license or charge any fee for licensing or
regulation of persons [duly] licensed
under [ORS 696.010 to 696.490, 696.600 to
696.730, 696.800 to 696.855 and 696.995] section 9 of this 2001 Act. Nothing in this [subsection] section
shall limit the authority of a county, city or town to levy and collect a
general and nondiscriminatory license fee upon all businesses in the county,
city or town or to levy a tax based upon the business conducted by any licensee
or firm within the county, city or town.
SECTION 13.
ORS 696.130 is amended to read:
696.130. [(1) All
applicants for a real estate license, other than for a real estate property
manager’s license or an unrestricted real estate broker’s license shall be
required to pass a basic written real estate examination to be conducted by the
Real Estate Board. The examination shall include arithmetic and computation
related to real estate, property descriptions, contracts and conveyances, real
estate sales practices and instruments, problems generally encountered in real
estate, appraising, real estate taxation and a general knowledge of the
provisions of this chapter.]
[(2) The examination
for an unrestricted real estate broker’s license shall be on problems and
matters affecting and involving a real estate broker including, but not limited
to, business law, escrows, real estate office administration, property
management, appraisals, real estate contracts, deposit receipts, earnest money
receipts, deeds, mortgages, deeds of trust, leases, principles of business,
land economics, real estate finance and Oregon laws relating to real estate.]
[(3) The examination
for a real estate property manager’s license shall be on problems and matters
relating to the rental and management of real estate, as prescribed by the Real
Estate Commissioner by rule.]
[(4) The board shall
hold licensing examinations at such times and places as it may determine,
except that the board shall hold the examinations no less frequently than every
120 days and shall hold not less than four examinations in each calendar year.]
[(5) The successful
passing of an examination prescribed by the commissioner to demonstrate
competence in the areas of legal aspects of real estate, real estate practice
and real estate finance may be accepted by the board in lieu of the examination
required by subsection (1) of this section for a salesperson’s license provided
that the prescribed examinations are all successfully passed within the period
of two years.]
[(6)] (1) If the license of any real estate
broker or [salesperson] principal real estate broker is
revoked by the Real Estate
Commissioner, [no] a new license shall not be issued until the person complies
with the provisions of ORS 696.010 to 696.490, 696.600 to 696.730, 696.800 to
696.855 and 696.995 unless [at the time
the order] the commissioner
authorizes the issuance of a limited license [or if a broker’s license is revoked, the order authorizes the issuance
of a salesperson’s license].
[(7)] (2) [The] A limited license
issued under subsection [(6)] (1) of this section as the
commissioner in the commissioner’s discretion finds advisable in the public
interest may be limited:
(a) By term;
(b) To [serve as the
agent of a particular real estate broker, if a salesperson] acts subject to the supervision of a
specific principal real estate broker; or
(c) By conditions to be observed in the exercise and the
privileges granted.
[(8)] (3) A limited license issued under [subsections (6) and (7) of] this section
does not confer any property right in the privileges to be exercised
thereunder, and the holder of a limited license does not have the right to
renewal of such license. A limited license may be suspended or revoked, or the
licensee may be reprimanded, by the commissioner on the grounds set out in ORS
696.301.
SECTION 14.
ORS 696.174 is amended to read:
696.174. [(1) Each
license as a real estate broker, real estate property manager or real estate
salesperson may be renewed by the Real Estate Commissioner upon the payment by
the licensee of the registration or renewal fee specified in ORS 696.270, with
a complete renewal application and evidence of completion of educational
requirements as provided in subsections (4) and (5) of this section. The
completed application, fee, and evidence of educational requirements shall be
delivered to the commissioner on or before the expiration date of the license.]
[(2) If the licensee
fails to renew the license in the manner set forth in subsection (1) of this
section on or before the expiration date of the license, the commissioner may
accept a late payment, subject to such conditions as the commissioner may
require. However, during the period beginning on the day following the
expiration date of the license and ending on the date of renewal of the license
the rights of the licensee under such license and the rights of each associate
broker and salesperson engaged by the licensee shall be suspended, and during
such suspension it is unlawful for any of such licensees to do or attempt or
offer to engage in any professional real estate activity.]
[(3) The license of
an associate broker or salesperson suspended as provided for in subsection (2)
of this section may be reissued to the same broker or a new broker if requested
within 30 days after expiration of the broker’s license and upon payment of a
transfer fee and on receipt of the associate broker’s or salesperson’s original
license.]
[(4)] (1) To qualify an active license for renewal,
the real estate licensee must present evidence of attendance during the
preceding two license years [of] at 30 clock-hours of real estate
oriented [educational sessions] continuing education courses, of which
a minimum of 15 clock-hours shall be in required course topics.
[(5)(a)] (2)(a) The Real Estate Commissioner, with advice from real estate
professionals, educators and the
public, may accept a broad range of topics for real estate oriented [educational sessions] continuing education courses. Required
course topics shall be flexible so as to allow for changes in the real estate
profession.
(b) The minimum length of each course, required or
elective, shall be one hour. A standard form, created by the Real Estate Agency
in consultation with real estate professionals, shall be developed to ensure
that licensees have completed the required number of hours. Certification of
attendance by the principal real estate
broker with whom the [licensee] real estate broker is [licensed] associated, or self-certification if the licensee is a [broker] sole practitioner, a principal real estate broker or a real estate property manager, shall be considered evidence of
attendance.
(3) The
commissioner, with advice from real estate professionals, educators and the
public, shall prescribe rules for certifying continuing education courses. The
rules shall provide for correspondence courses and other distance learning
alternatives, including but not limited to rules for minimum course length,
comprehension of written materials and tests for course completion. The rules
shall also provide that continuing education course topics contain an advanced
course in real estate practices that must be completed by a licensee prior to
the licensee’s first renewal of an active license.
[(6)] (4) The commissioner may waive the
continuing education requirements of subsection [(4) or (5)] (1) of this
section for any licensee who submits satisfactory evidence of inability to
attend such [sessions] courses because of health or other circumstances
beyond the licensee’s control.
SECTION 15.
To qualify for a real estate license
under section 9 of this 2001 Act or to renew an active or inactive real estate
license, the applicant must make full payment of any unpaid moneys due and
owing to the Real Estate Agency, including any unpaid civil penalties assessed
under a final order of the Real Estate Commissioner.
SECTION 16.
ORS 696.200 is amended to read:
696.200. (1) Except for [associate] real estate
brokers [licensed pursuant to ORS 696.165] associated with a principal real estate
broker, every real estate broker and [real
estate organization] principal real
estate broker shall maintain in this state a place of business to be
designated as the broker’s [or
organization’s] main office and designate such place of business by a sign
which shall contain the name under which such broker is licensed.
(2) The place of business shall be specified in the
application for a real estate
license, and designated in the license. [No
license issued under ORS 696.010 to 696.490, 696.600 to 696.730, 696.800 to
696.855 and 696.995 authorizes the licensee to transact business from any
office other than that designated in the license, unless notice in writing is
given to the Real Estate Commissioner prior to any such change of business
location, designating the new location of such office, at which time the broker
shall send in the broker’s license and the licenses of the licensee agents with
the fee required by ORS 696.270 for each new license. The commissioner
forthwith shall issue a new license for the new location for the unexpired
period.] Prior to the change of a
business location, the broker shall notify the Real Estate Commissioner in
writing of the new location. The change of a business location without
notification to the commissioner is grounds for revocation of licenses
previously issued.
(3) [If a broker
desires to establish one or more branch offices, the broker shall notify the
commissioner, giving the location thereof, and pay the fee required by ORS
696.270 for each branch office to be established, whereupon the commissioner
may issue a license therefor. The branch office license shall be issued in the
same name that the main office license is issued, and the license must be
posted in the branch office. Branch office signs shall conform with the
provisions of subsection (1) of this section and the designation “Branch
Office” shall be included. Each office, whether main or branch, shall be under
the management of a licensee in the broker category as specified in ORS 696.025
who shall conduct and supervise the business of the office.] A real estate broker or principal real
estate broker may establish one or more branch offices as separate business
locations under the management of the broker. A broker may conduct and
supervise the business of more than one office, whether main or branch. The broker must register each branch
office with the commissioner.[The
license of an associate real estate broker managing an office shall state that
the broker is associated with or the agent of, as the case may be, the broker
licensed to establish the office. Salespersons who were authorized to and were
managing a “Branch Office” for a broker on October 5, 1973, may continue such
management.]
(4) Upon removal from any location it shall be a broker’s
duty to see that the broker’s name or the name under which the broker has
operated is removed from the location which the broker has vacated. A broker
shall not display any name as such at the designated places of business named
in the broker’s license or licenses other than the name under which the broker
is licensed.
SECTION 17.
ORS 696.205 is amended to read:
696.205. In the event of the death or incapacity of a licensed broker who is [the] a sole [proprietor] practitioner or the sole principal real estate broker of a real
estate business, the Real Estate Commissioner may issue a temporary license to
the executor, administrator or personal representative of the estate of the
deceased broker, to the court-appointed
fiduciary of the incapacitated broker, or to some other person designated
by the commissioner, to continue to transact said business in the case of an incapacitated broker or for the [sole] purpose of winding up the affairs
of the deceased or incapacitated
broker. Unless the commissioner, in the discretion of the commissioner, extends
the term of the temporary license upon sufficient cause being furnished to the
commissioner by the temporary licensee, the term of a temporary license shall
not exceed one year from the date of issuance.
SECTION 18.
ORS 696.221 is amended to read:
696.221. [(1)] A principal real estate broker at any
time may, and at the request of a licensee [under
the broker’s supervision] associated
with the broker shall without delay, return the license of the licensee to
the Real Estate Commissioner. When, and only when, the license of the licensee
is returned to the commissioner, the relationship of the broker returning the
license and the licensee whose license is returned, is, for the purposes of ORS
696.010 to 696.490, 696.600 to 696.730, 696.800 to 696.855 and 696.995,
terminated. Before the principal
broker returns the license of a licensee to the commissioner the broker shall
make a reasonable attempt to give the licensee notice of the broker’s intent to
do so.
[(2) After the
license of a licensee has been returned to the commissioner under subsection
(1) of this section by the broker it may:]
[(a) Become an
inactive license.]
[(b) Be reissued to
the same broker.]
[(c) Be reissued to a
different broker.]
SECTION 19.
ORS 696.226 is amended to read:
696.226. (1) When a real
estate broker or a principal real estate broker ceases to maintain a place
of business designated as a main office,
the broker shall return the broker’s real
estate license and, if a principal
real estate broker, the licenses of all persons [under the broker’s supervision] associated with the principal broker to the Real Estate
Commissioner, who shall keep such licenses [on
record] as inactive licenses.
(2) While a license is being held by the commissioner as an
inactive license, the licensee shall not engage in, or carry on, or advertise
or hold the licensee out as engaging in professional real estate activity
within this state.
(3) Inactive [licenses] licensees may be[:]
[(a) Renewed upon the
payment of the renewal fee specified in ORS 696.270.]
[(b) Reactivated upon
application to the commissioner and the payment of the reactivation fee
specified in ORS 696.270.]
[(c) Revoked or
suspended] sanctioned by the commissioner as provided under ORS 696.301 when
conditions exist under which the commissioner would have been authorized to [revoke or suspend the license if it were
active] sanction an active licensee.
SECTION 20.
ORS 696.235 is amended to read:
696.235. (1) An inactive real estate license may be renewed as an inactive license for a
period of two years.
(2) To reactivate a license which has been renewed as an
inactive license, the licensee, during the year in which the licensee wishes to
reactivate the license and prior to the issuance of the active license, must:
(a) Complete the continuing
education requirements of ORS 696.174 [(4)
and (5)]; and
(b) If the license
has been inactive for two consecutive years preceding the request to reactivate
the license, complete successfully an examination to be conducted by the
Real Estate Agency to exhibit knowledge on current real estate matters.
[(3) This section
shall not apply to a broker whose license becomes inactive on account of the
issuance and retention of an active associate broker license.]
SECTION 21.
ORS 696.241 is amended to read:
696.241. (1) Each real estate broker who is a sole practitioner and each principal real estate broker
shall maintain in this state one or more separate bank accounts that shall be
designated a Clients’ Trust Account in which all trust funds received or
handled by the broker and the real estate licensees subject to the supervision
of the broker on behalf of any other person shall be deposited unless, pursuant
to written agreement of all parties having an interest in the trust funds, the
trust funds are immediately placed in a neutral escrow depository in this
state.
(2) Each real estate broker or principal real estate broker shall file with the Real Estate
Agency, on forms approved by the Real Estate Commissioner, a statement
identifying the name of the bank or banks, account number or account numbers,
and name of account or accounts for each Clients’ Trust Account maintained.
(3) Each real estate broker or principal real estate broker shall authorize the agency, by a
form approved by the commissioner, to examine any Clients’ Trust Account, by a
duly authorized representative of the agency. The examination shall be made at
such times as the commissioner may direct.
(4) If a [branch
office] real estate broker or
principal real estate broker maintains a separate Clients’ Trust Account in a branch office, a separate
bookkeeping system shall be maintained in the branch office, provided a copy of
[each document] the records required by the provisions of ORS 696.280 [is] are
maintained in the main office of the [real
estate] broker.
(5) Trust funds received by a real estate broker or principal real estate broker may be
placed by the broker in a federally insured interest-bearing bank account,
designated a Clients’ Trust Account, but only with the prior written approval
of all parties having an interest in the trust funds. The earnings of such
interest-bearing account shall not inure to the benefit of the real estate
broker or principal real estate broker
unless expressly approved in writing before deposit of the trust funds by all
parties having an interest in the trust funds.
(6) A real estate broker or principal real estate broker is not entitled to any part of any
interest earnings on trust funds deposited under subsection (5) of this section
or to any part of the earnest money or other money paid to the broker in
connection with any real estate transaction as part or all of the broker’s
commission or fee until the transaction has been completed or terminated. The
question of the disposition of forfeited earnest money shall be negotiated
between [a] the real estate broker or
principal real estate broker and the
seller at the time of executing any listing agreement or earnest money
agreement. The result of such negotiation shall be filled in on the agreement
form at the time of signing by the seller and either separately initialed by
the seller or placed immediately above the signature of the seller.
(7) Clients’ Trust Account funds are not subject to
execution or attachment on any claim against [the] a real estate
broker or principal real estate broker.
(8) No person shall knowingly keep or cause to be kept any
funds or money in any bank under the heading of Clients’ Trust Account or any
other name designating such funds or money as belonging to the clients of any
real estate broker or principal real
estate broker, except actual trust funds deposited with the broker.
(9) The agency may provide by rules for other records to be
maintained and for the manner in which trust funds are deposited, held and
disbursed.
SECTION 22.
ORS 696.243 is amended to read:
696.243. (1) Any real estate broker, principal real estate broker, real estate property manager or
escrow agent who is required by the Real Estate Commissioner to maintain the
canceled checks used to disburse moneys from the licensee’s clients’ trust
account may substitute a copy of the original canceled check, if the copy is provided by a bank and is produced
by optical imaging or other process that accurately reproduces the original or
forms a durable medium for reproducing the original, and the copy is at least
300 dots per inch in quality.
(2) A real estate broker, principal real estate broker, real estate property manager or
escrow agent may use electronic fund transfers for the deposit into or for
withdrawal from a clients’ trust account established under ORS 696.241 or
696.578, if the bank furnishes to the licensee an accurate paper record of the
deposits and withdrawals.
(3) As used in subsection (2) of this section, “electronic
fund transfer” has the meaning set forth in section 903 of the Electronic
Transfer Act (P.L. 90-321, 15 U.S.C. §1693a).
SECTION 23.
ORS 696.245 is amended to read:
696.245. (1) Each real estate broker who is a sole practitioner and each principal real estate broker,
at the time a Clients’ Trust Account is opened under ORS 696.241, shall provide
the bank in which the account is opened with a notice in substantially the
following form:
______________________________________________________________________________
NOTICE OF CLIENTS’ TRUST
ACCOUNT
To: (name of bank)
_____________
Under the Oregon Real Estate License Law, I am the real
estate broker, [designated] principal real estate broker or
designated real estate appraiser for (licensed name of broker or [organization] business) ________________.
Further, under ORS 696.241, I am required to maintain in
Oregon a Clients’ Trust Account for the purpose of holding funds belonging to
others.
With regard to the account(s) numbered ____________ which
is/are designated as a Clients’ Trust Account, the account(s) is/are maintained
with you as a depository for money belonging to persons other than myself and
in my fiduciary capacity as a real estate broker or principal real estate broker established by client agreements
in separate documents.
Dated: (insert date)
______________________
(signature of broker)
ACKNOWLEDGMENT OF RECEIPT
I, ____________, a duly
authorized representative of (bank) ____________, do hereby acknowledge receipt
of the above NOTICE OF CLIENTS’ TRUST ACCOUNT on (date)________.
__________________
(signature)
__________________
(title)
______________________________________________________________________________
(2) The acknowledged copy of the notice described in
subsection (1) of this section shall be retained by the real estate broker or principal real estate broker as
provided in ORS 696.241 for the retention of trust account records, subject to
inspection by the Real Estate Commissioner or the commissioner’s authorized
representative.
SECTION 24.
ORS 696.265 is amended to read:
696.265. Notwithstanding
ORS 696.040 to 696.235 and 696.255, the Real Estate Commissioner may
prescribe by rule the terms and conditions for license recognition of a nonresident real estate broker or salesperson
and for reciprocity agreements with other states and countries, including
but not limited to application procedures, license qualifications, license
maintenance, limitations on activities and license renewal requirements.
SECTION 25.
ORS 696.270 is amended to read:
696.270. The maximum fees described in this section may be
charged by and paid to the Real Estate Agency. Actual fees shall be prescribed
by the Real Estate Commissioner with approval of the Oregon Department of
Administrative Services. This section applies to the following fees:
(1) For each licensing examination [described in ORS 696.130 (1), (2) or (3)] applied for, $75 or, for each licensing examination applied
for under ORS 696.235, $40. [For each
prescribed examination to show competence in a required area of real estate
knowledge or each licensing examination prescribed in ORS 696.235 applied for,
$40.]
(2) For each real estate broker’s, [real estate organization] principal
real estate broker’s or real estate property manager’s license, $230[; and for each biennial renewal of a real
estate license thereafter, $230].
(3) For each renewal
of a real estate broker’s, principal real estate broker’s or real estate
property manager’s license, $230.
(4) For each
notification of the opening or closing of a registered branch office of a real
estate broker or principal real estate broker, at times other than the time of
issuing or renewing the broker’s license, $10.
[(3) For each license
as a real estate broker or real estate property manager issued to a designated
real estate broker or real estate property manager in a real estate
organization, $230; and for each biennial renewal of such license thereafter,
$230.]
[(4) For each
associate broker’s license a fee of $230 and for each biennial renewal a fee of
$230.]
[(5) For each real
estate salesperson’s license, $180; and for each biennial renewal of such
license thereafter, $180.]
[(6) For each
additional office or place of business, a biennial fee of $230.]
[(7)] (5) For each change of name or address
of a broker on the records of the agency, $10.
[(8)] (6) For each duplicate license, [where] when the original license is lost or destroyed and affidavit made
thereof, $20.
[(9) For each
salesperson’s or associate broker’s license issued when change of business
location or change of name, $10.]
[(10)] (7) For each transfer of a [designated] real estate broker’s,
principal real estate broker’s or [designated]
real estate property manager’s
license within the same license status [and
for each transfer of an associate broker’s or salesperson’s license], $10.
[(11)] (8) For the renewal of a real estate
broker’s, principal real estate broker’s
or real estate property manager’s inactive license, $110.
[(12) For the renewal
of a salesperson’s inactive license, $90.]
[(13)] (9) For the reactivation of a real
estate broker’s, principal real estate
broker’s or real estate property manager’s inactive license, $75[, for the reactivation of an associate
broker’s inactive license, $75, and for the reactivation of a salesperson’s
inactive license, $75].
[(14)] (10) In addition to the [biennial] renewal fee, for late renewal,
$30.
[(15)] (11) For a temporary license issued
under ORS 696.205, $40, and for an extension thereof, $40.
(12) For initial
registration of a business name, $230.
[(16) For each real
estate professional corporation registration, $20, and each biennial renewal of
the registration thereafter, $20.]
SECTION 26.
ORS 696.280 is amended to read:
696.280. (1) [Every
person licensed as] A real estate broker or principal real estate broker shall maintain within this state complete and adequate records of all
professional real estate activity conducted by or through the broker. The Real Estate Agency shall specify by
rule the records required to establish complete and adequate records of a
broker’s professional real estate activity. The agency may not require by rule
the use or generation of documents not otherwise required by law or voluntarily
generated during a real estate transaction. [A broker shall keep records of offers handled by or through the broker
on a prospective sale, purchase, lease option or exchange of real estate where
the prospective transaction fails. The records shall include a consecutively
numbered file for each offer or transaction which involves the actual sale,
purchase, lease option or exchange of real property, which file shall contain,
where applicable:]
[(a) A copy of any
listing agreement, which shall evidence the signatures of the parties;]
[(b) A copy of any
earnest money agreement, which shall evidence the signature of the party or
parties;]
[(c) A copy of any
receipt issued by the broker to evidence acceptance of funds or documents;]
[(d) In any real
estate transaction in which the broker performed the closing, a copy of any
closing statements showing all receipts, disbursements and adjustments, which
shall evidence the signature of the seller or sellers, the buyer or buyers; and]
[(e) A copy of any
vouchers of bills or obligations paid by the broker for the account of the
seller(s) or buyer(s).]
(2)(a) The records
of a principal real estate broker or a real estate broker who is a sole
practitioner shall include records of attendance in continuing education
courses by the broker. The records of attendance shall state the name of the
broker and the date of the broker’s attendance, and shall be the basis for
self-certification under ORS 696.174.
(b) [Every person licensed as a real estate broker, when engaged in
professional real estate activity other than that described in subsection (1)
of this section shall maintain within this state adequate records of all
professional real estate activity. Those] A principal real estate broker’s records shall [also] include records of attendance [at educational sessions] in continuing education courses by
licensees [licensed] associated with the principal broker. The record of attendance shall state the name of
the licensee and the date of the licensee’s attendance, and shall be the basis
for the certificate of attendance submitted under ORS 696.174 [(4) and (5)].
(3) [Such] The records shall at all times be open
for inspection by the Real Estate Commissioner or the commissioner’s [duly] authorized representatives. The
records of each transaction shall be maintained by the licensee for a period of
not less than six years after the date of the transaction. The records may be maintained in any format that allows for inspection
and copying by the commissioner or the commissioner’s representatives, as
determined by the commissioner by rule.
SECTION 27.
ORS 696.290 is amended to read:
696.290. (1) [No] A real estate licensee shall not offer, promise, allow, give, pay or
rebate, directly or indirectly, any part or share of the licensee’s commission
or compensation arising or accruing from any real estate transaction or pay a
finder’s fee to any person who is not a real estate licensee licensed under [ORS 696.010 to 696.490, 696.600 to 696.730,
696.800 to 696.855 and 696.995]
section 9 of this 2001 Act. However, a real estate broker or principal real estate broker may pay
a finder’s fee or a share of the commission on a cooperative sale where such
payment is made to a licensed real estate broker in another state or country
provided that the state or country in which that broker is licensed has a law
permitting real estate brokers to cooperate with real estate brokers or principal real estate brokers in
this state and that such nonresident real estate broker does not conduct in
this state any acts constituting professional real estate activity and for
which compensation is paid. If a country
does not license real estate brokers, the payee must be a citizen or resident
of the country and represent that the payee is in the business of real estate
brokerage in the other country. [No
real estate salesperson or associate]
A real estate broker associated with
a principal real estate broker shall not
[be engaged by, or] accept
compensation from[,] any person other
than the principal real estate
broker [under] with whom the [salesperson or
associate] real estate broker is
[licensed] associated at the time.
[, and no] A principal real estate broker shall not make payment to the [salesperson
or associate] real estate broker
of another principal real estate
broker except through the principal real
estate broker with whom [such] the real estate [salesperson or associate] broker is [licensed] associated.
Nothing in this section prevents payment of a commission or fee earned by [such] a real estate [salesperson or
associate] broker or principal real
estate broker while licensed, because of change of affiliation or
inactivation of the [salesperson’s or
associate] broker’s license.
(2) Nothing in subsection (1) of this section is intended
to prohibit a real estate licensee who has a written property management
agreement with the owner of a residential building or facility from authorizing
the payment of a referral fee, rent credit or other compensation to an existing
tenant of the owner or licensee, or a former tenant if the former tenant
resided in the building or facility within the previous six months, as
compensation for referring new tenants to the licensee.
(3) Nothing in subsection (1) of this section is intended
to prevent an Oregon real estate broker or
principal real estate broker from sharing a commission on a cooperative
nonresidential real estate transaction with a person who holds an active real
estate license in another state or country, provided:
(a) Before the out-of-state real estate licensee performs
any act in this state that constitutes professional real estate activity, the
licensee and the cooperating Oregon real estate broker or principal real estate broker agree in writing that the acts
constituting professional real estate activity conducted in this state will be
under the supervision and control of the cooperating Oregon broker and will
comply with all applicable Oregon laws;
(b) The cooperating Oregon real estate broker or [a] principal
real estate broker [engaged by the
cooperating broker] accompanies the out-of-state real estate licensee and
the client during any property showings or negotiations conducted in this
state; and
(c) All property showings and negotiations regarding
nonresidential real estate located in this state are conducted under the
supervision and control of the cooperating Oregon real estate broker or [a]
principal real estate broker [engaged
by the cooperating broker].
(4) Nothing in
subsection (1) of this section is intended to prohibit a real estate licensee
from directly compensating a licensed personal assistant if permitted by the
terms, conditions and requirements of a licensed personal assistant agreement
under section 30 of this 2001 Act.
[(4)] (5) As used in subsection (3) of this section,
“nonresidential real estate” means any real property that is improved or
available for improvement by commercial structures or five or more residential
dwelling units.
SECTION 28.
ORS 696.301 is amended to read:
696.301. The Real Estate Commissioner may suspend or revoke
the real estate license of any real estate licensee, reprimand any licensee or
deny the issuance or renewal of a license to an applicant who has done any of
the following:
(1) Knowingly or negligently pursued a continued course of
material misrepresentation in matters related to professional real estate
activity, whether or not damage or injury resulted, or knowingly or negligently
made any material misrepresentation or false promise in a matter related to
professional real estate activity, if the material misrepresentation or
material false promise created a reasonable probability of damage or injury,
whether or not damage or injury actually resulted.
(2) Accepted a commission or other valuable consideration
as a real estate [salesperson or
associate real estate broker] licensee
for the performance of any professional real estate activity from any person,
except the principal real estate
broker with whom the [real estate
salesperson or associate real estate broker] licensee is [licensed] associated. Nothing in this subsection is intended to prevent a real estate broker
from directly compensating a licensed personal assistant if permitted by the
terms, conditions and requirements of a licensed personal assistant agreement
under section 30 of this 2001 Act.
(3) Represented or attempted to represent a principal real estate broker other
than the principal real estate
broker with whom the real estate [salesperson
or associate real estate] broker is [licensed] associated.
(4) Failed, within a reasonable time, to account for or to
remit any moneys or to surrender to the rightful owner any documents or other
valuable property coming into the licensee’s possession which belongs to
others.
(5) Disregarded or violated any provisions of ORS 696.010
to 696.490, 696.600 to 696.730, 696.800 to 696.855 and 696.995.
[(6) Knowingly or
negligently made, printed, distributed or in any manner published materially
misleading or untruthful advertising, descriptions or promises, of such
character as reasonably to induce any person to act to the damage or injury of
the person, whether or not actual damage or injury resulted.]
(6) Knowingly or
negligently authorized, directed, made, printed, distributed, circulated or
published, in the course of the licensee’s business, materially misleading or
untruthful advertising, descriptions, statements, representations or promises
of such character as reasonably to induce a person to act in a manner that may
lead to damage or injury to the person, whether or not damage or injury
actually occurred.
(7) Guaranteed, authorized or permitted any person to
guarantee future profits which may result in the resale of real property.
(8) Placed a sign on any property offering it for sale or
for rent without the written authority of the owner or the owner’s authorized
agent.
(9) Failed for any reason to pay to the commissioner the
license registration or renewal fee as specified in ORS 696.270 within the time
specified in that section.
(10) Commingled the money or other property of the
principal or client with the licensee’s own.
(11) Failed or refused upon demand to produce or to supply
true copies of any document, book or record in the licensee’s possession or
control, or required [by the provisions
of] pursuant to ORS 696.280
concerning any real estate business transacted by the licensee, for inspection
by the Real Estate Commissioner or the commissioner’s authorized
representative.
(12) Failed to maintain at all times [in the licensee’s principal place of business] a complete record as
required [by law] under ORS 696.280 and rules of the Real Estate Agency of every
transaction which comes within the provisions of ORS 696.010 to 696.490,
696.600 to 696.730, 696.800 to 696.855 and 696.995.
(13) Violated ORS 659.033.
(14) Acted for more than one party in a transaction, in the
negotiation of a transaction, without the knowledge and written permission of
all parties for whom the licensee acted.
(15) Acted in the dual capacity of agent and undisclosed
principal in any transaction.
(16) Induced or
attempted to induce any party to an
employment agreement, [a]
contract, sale or lease to break such contract for the purpose of substituting
in lieu thereof a new contract with the same principal or different principal.
(17) Offered real estate for sale or lease without the
knowledge and consent of the owner or the owner’s authorized agent or on terms
other than those authorized by the owner or the owner’s authorized agent.
(18) Negotiated or
attempted to negotiate a purchase,
sale, exchange, lease option or lease of real estate directly with an owner, purchaser or lessor knowing that such
owner, purchaser or lessor had a
written outstanding contract for
exclusive representation with another real estate broker or principal real
estate broker to represent the owner, purchaser, or lessor in negotiations
in connection with such property[,
granting an exclusive agency or an exclusive right to sell to another real
estate broker] without the prior
written consent of the other broker.
(19) Accepted employment or compensation for:
(a) The preparation of a competitive market analysis or
letter opinion, the representation of a taxpayer under ORS 305.230, 306.115 or
309.100 or the giving of an opinion in any administrative or judicial proceeding
regarding the value of real estate for taxation contingent upon the reporting
of a predetermined value; or
(b) The preparation of a competitive market analysis or
letter opinion, the representation of a taxpayer under ORS 305.230, 306.115 or
309.100 or the giving of an opinion in any administrative or judicial
proceeding regarding the value of real estate for taxation for real estate in
which the licensee had an undisclosed interest.
(20) Failed to maintain on deposit in a bank account or
neutral escrow depository funds entrusted to the licensee as a real estate
broker or principal real estate broker
by the principal or other as required by ORS 696.241 and [the] rules of the Real Estate Agency.
(21) Paid a commission or compensation to any person,
performing professional real estate activity who has not first secured a
license under this chapter or is a nonresident real estate broker licensed in
another state or country and not licensed in this state, except as permitted by
ORS 696.290.
(22) Failed to deliver within a reasonable time a completed
copy of any purchase agreement or offer to buy or sell real estate to the
purchaser and to the seller.
(23) Failed to ensure, in any real estate transaction[,] in which such real estate broker or principal real estate broker performed
the closing, that the buyer and seller each received a complete detailed
closing statement showing the amount and purpose of all receipts, adjustments
and disbursements.
(24) [If] Failed, as [an associate] a real
estate broker [or real estate salesperson] associated with a principal real estate
broker, [failed] to place, as
soon after receipt as practicable, in the custody of the principal real estate broker [with
which the licensee is licensed], any deposit money or other money or funds
entrusted to the [licensee] real estate broker by any person
dealing with the [licensee] real estate broker as a representative
of [such licensed broker] the principal real estate broker.
(25) Procured or attempted to procure[,] a real estate license for personal use or use of any [associate broker or salesperson] other person by fraud,
misrepresentation[,] or deceit or by
making any material misstatement of fact in an application for a real estate
license.
(26) Entered a plea of nolo contendere, or has been found
guilty of, or been convicted of, a felony or misdemeanor substantially related
to the licensee’s trustworthiness or competence to engage in professional real
estate activity.
[(27) Knowingly
authorized, directed or aided in the publication, advertisement, distribution
or circulation of any material false statement or misrepresentation concerning
the licensee’s business or any real estate offered for sale.]
(27) Violated or
disregarded any rule of the Real Estate Agency.
(28) Demonstrated negligence, [or] incompetence or untrustworthiness in performing any
act for which the licensee is required to hold a license.
(29) [If] Failed, as a principal real estate broker [licensee],
[failed] to exercise supervision over
the activities of real estate [salespersons,
associate real estate] brokers or employees. For the purposes of this
subsection, “supervision” means [that]
management by a principal real estate broker
that is reasonably designed [and
implemented] to result in compliance by the broker’s [real estate salespersons, associate] real estate brokers and
employees with ORS 696.010 to 696.490, 696.600 to 696.730, 696.800 to 696.855
and 696.995 and any administrative rules adopted thereunder. Written agreements and office policies
described in ORS 696.310 (1) and section 8 of this 2001 Act that are
established and implemented by the principal real estate broker, and the
reasonableness of the principal real estate broker’s actions taken to carry out
the agreements and policies, shall be the bases for determining whether the
principal real estate broker’s supervision was adequate under the
circumstances.
(30) Violated any of the terms, conditions, restrictions
and limitations contained in any order [granting
a limited license] issued by the
commissioner.
(31) Committed
any act or conduct, whether of the same or of a different character, specified in this section which
constitutes or demonstrates bad faith[,
incompetency or untrustworthiness,] or dishonest[,] or fraudulent [or improper] dealings.
(32) [If] Violated, as a reciprocal real estate
broker or [salesperson licensee] principal real estate broker, [violated] any of the terms, conditions
or requirements of this section,[and] ORS [696.050,] 696.200 and 696.255 or rules adopted under ORS 696.265.
(33) Failed to comply with ORS 696.805, 696.810, 696.815, 696.820, 696.845 or 696.870.
SECTION 29.
Section 30 of this 2001 Act is added to
and made a part of the Oregon Real Estate License Law.
SECTION 30.
The Real Estate Commissioner may
prescribe by rule the terms and conditions for licensed personal assistant
agreements including, but not limited to, the duties and responsibilities of,
the limitations on the activities of, and the nature and scope of the business
relationship between a real estate licensee and a licensed personal assistant.
SECTION 31.
ORS 696.310 is amended to read:
696.310. (1) [All
designated real estate brokers of a real estate organization shall] If two or more principal real estate
brokers are in business together, the brokers may have equal supervisory
control over and shall be equally responsible for the conduct of other [designated] principal real estate brokers[,]
or [the associate] real estate
brokers [or real estate salespersons
licensed with such real estate organization] associated with the principal real estate brokers, or other
employees employed by [such real estate
organization] the principal real
estate brokers. The principal real estate brokers shall execute a written
agreement between them and establish office policies specifying the supervisory
control and responsibility for each principal real estate broker who is a party
to the agreement.
[(2) The real estate
organization may, by appropriate internal action or agreement, provide for the
management and control over the activities of the real estate organization and
delegate the area of management functions or responsibilities as among the
designated brokers of such real estate organization. Such internal action or
agreement shall not, however, dilute the equal responsibility of each
designated broker under subsection (1) of this section.]
[(3)] (2) An act constituting a violation of
any of the provisions of ORS 696.010 to 696.490, 696.600 to 696.730, 696.800 to
696.855 and 696.995 or of any rule adopted thereunder by any licensee is not
cause for the suspension or revocation of a license of any real estate licensee
associated with or engaged by such licensee, unless it appears to the
satisfaction of the Real Estate Commissioner that such associated or engaged
real estate licensee had guilty knowledge of the act. A course of dealing shown
to have been persistently and consistently followed by any real estate licensee
shall constitute prima facie evidence of such knowledge upon the part of any
real estate licensee associated with or engaged by that licensee. [In the event of the revocation or suspension
of the license issued to any member of a partnership or to any officer of an
association or corporation, the license issued to such partnership, association
or corporation shall be revoked by the commissioner, unless, within a time
fixed by the commissioner, where a partnership, the member whose license has
been suspended or revoked agrees to and does terminate any control over the
professional real estate activity of the partnership during the member’s
suspension period or until the member’s license is reinstated, or, where an
association or corporation, the officer whose license has been suspended or
revoked agrees to and does terminate any control over the professional real
estate activity of the association or corporation during the officer’s
suspension period or until the officer’s license is reinstated. However, such
member or officer may retain an ownership interest in the partnership,
association or corporation during and may reassume control over the
professional real estate activity of the partnership, association or
corporation following termination of the member’s or officer’s suspension or
the reinstatement of the member’s or officer’s license.]
SECTION 32.
ORS 696.320 is amended to read:
696.320. [(1)]
The suspension or revocation of a
principal real estate broker’s license shall suspend automatically every
license of [salespersons and associate] real estate brokers engaged by the principal real estate broker pending a
[change of principal real estate broker
or the issuance of a new license] transfer
of the license. [Such new] A license shall be [issued] transferred if requested within 30 days after the effective date of
the suspension or revocation of the
principal real estate broker’s license, upon payment of a transfer fee and
upon the receipt of the [salesperson’s or
associate] broker’s original license.
[(2) Subsection (1)
of this section does not apply to the licenses of a real estate organization if
the suspended or revoked designated real estate broker is replaced by the
organization prior to the effective date of the suspension or revocation.]
SECTION 33.
ORS 696.361 is amended to read:
696.361. A real estate property manager is regulated and
bound as a real estate broker and as a
principal real estate broker [except
by ORS 696.320 and 696.359].
SECTION 34.
ORS 696.375 is amended to read:
696.375. (1) The Real Estate Agency is established.
(2) The Real Estate Agency shall be under the supervision
and control of an administrator who shall be known as the Real Estate
Commissioner. The Governor shall appoint the Real Estate Commissioner who shall
have been, before the date of appointment, for five years a real estate broker or principal real estate broker
actively engaged in business as such in this state [or a person who has been actively connected with the administration of
the Real Estate Agency, or a predecessor thereof, for at least one year]. The Governor also may appoint a person who
has been actively connected with the administration of the agency for at least
one year as acting or temporary commissioner. The commissioner shall hold
office at the pleasure of the Governor and shall be responsible for the
performance of the duties imposed upon the agency. The Real Estate Commissioner
shall receive such salary as may be provided by law.
(3) The appointment of the commissioner is subject to
confirmation by the Senate in the manner prescribed in ORS 171.562 and 171.565.
(4) Before entering upon the duties of office the
commissioner shall give to the state a fidelity bond with one or more corporate
sureties authorized to do business in this state, or an irrevocable letter of
credit issued by an insured institution, as defined in ORS 706.008, in either
case in the sum fixed by the Governor. The premium for the bond or the fee for
the letter of credit shall be paid by the agency.
SECTION 35.
ORS 696.430 is amended to read:
696.430. Copies of all records and papers in the office of
the Real Estate Commissioner duly certified and authenticated by the seal of
the commissioner shall be received in evidence in all courts equally and with
like effect as the original. Except for
records of open investigations, all records kept in the office of the
commissioner under authority of ORS 696.010 to 696.490, 696.600 to 696.730,
696.800 to 696.855 and 696.995 shall be open to public inspection under such
reasonable rules and regulations as shall be prescribed by the commissioner.
SECTION 36.
ORS 696.511 is amended to read:
696.511. (1) [No] A person [directly or indirectly] shall not
directly or indirectly engage in or carry on, or purport to engage in or
carry on the business or act in the capacity of an escrow agent without first
obtaining a license as an escrow agent under the provisions of ORS 696.505 to
696.590.
(2) Every escrow agent before engaging in the escrow
business shall file in the office of the Real Estate Commissioner an
application for a license, in writing, verified by the applicant and in the
form prescribed by the commissioner. It shall state the location of the agent’s
principal office and all branch offices in this state, the name or style of
doing business, the names, resident and business addresses of all persons
interested in the business as principals, partners, elected officers, trustees
and directors, specifying as to each the person’s capacity and title, the
general plan and character of business and the length of time the agent has
been engaged in business. Notification of changes in the information contained
in the application or in the ownership of the business must be immediately
filed with the commissioner.
(3) The commissioner may require additional information the
commissioner considers necessary in connection with any application for a
license under this section, including but not limited to verified current
financial statements of the escrow agent, the escrow agent’s principals,
partners, officers, trustees or directors and the fingerprints and the criminal
offender information of the applicant. For purposes of requiring fingerprints
and criminal offender information, “applicant” means any person having more
than five percent ownership interest in the escrow agency and the corporate
officers in direct control of escrow operations.
(4) The commissioner shall examine the application for a
license and, if satisfied that the applicant should not be refused a license
under ORS 696.535, the commissioner shall issue the license.
(5) To qualify for
an escrow agent’s license or for renewal of an escrow agent’s license, an
applicant must make full payment of any outstanding civil penalties or other
moneys due and owing to the Real Estate Agency except civil penalties or other
moneys due that are the subject of judicial or administrative review on the
date of the application for license or license renewal.
SECTION 37.
ORS 696.520 is amended to read:
696.520. The provisions of ORS 696.505 to 696.590 do not
apply to and the term “escrow agent” does not include:
(1) Any person doing business under the laws of this state
or the United States relating to banks, mutual savings banks, trust companies,
savings and loan associations, consumer finance companies, or insurance
companies except to the extent that the person provides real estate closing
escrow services other than those permitted under subsection (3) of this
section.
(2) An attorney at law rendering services in the
performance of duties as attorney at law.
(3) Any firm or corporation lending money on real or
personal property and which firm or corporation is subject to licensing,
supervision or auditing by a federal or state agency but only to the extent of
closing a loan transaction between such firm or corporation and a borrower, and
seller, if a fee for escrow services is not charged to the seller.
(4) Any person doing any of the acts specified in ORS
696.505 (2) under order of any court.
(5) Any real estate broker or principal real estate broker licensed under [ORS 696.010 to 696.490, 696.600 to 696.627,
696.800 to 696.855 and 696.995] section
9 of this 2001 Act who performs the closing for the principals in a real
estate transaction handled by the broker, if the principals are not charged a
separate fee for escrow services.
(6) Any collection agency registered under ORS 697.015 that
is engaged in any collection or billing activity without holding documents
relating to the debt.
SECTION 38.
ORS 696.535 is amended to read:
696.535. (1) The Real Estate Commissioner may refuse to
license any escrow agent, or may suspend or revoke any license, by entering an
order to that effect, with the commissioner’s findings in respect thereto, if
upon examination into the affairs of the applicant or licensee, either in the
performance of routine duties, or upon field examination, or upon hearing, it
is determined that the applicant or licensee:
(a) Has, under generally accepted accounting principles, a
deficit net worth;
(b) Has demonstrated unworthiness to transact the business
of agent;
(c) Does not conduct business in accordance with law, or
has violated any provisions of ORS 696.505 to 696.590;
(d) Has committed fraud in connection with any transaction
governed by ORS 696.505 to 696.590;
(e) Has made any misrepresentations or false statement of
an essential or material fact to, or concealed any essential or material fact
from, any person in the course of the escrow business;
(f) Has knowingly made or caused to be made to the
commissioner any false representation of a material fact, or has suppressed or
withheld from the commissioner any information which the applicant or licensee
possesses, and which if submitted would have disqualified the applicant or
licensee from original or renewed licensing under ORS 696.505 to 696.590;
(g) Has failed to account to the principals or persons
entitled thereto in a real estate transaction for the moneys, documents or
other things of value received in the transaction;
(h) Has not delivered, after a reasonable time, to persons
entitled thereto, moneys, documents or other things of value held or agreed to
be delivered by the licensee, as and when paid for and due to be delivered;
(i) Has refused to permit an examination by the
commissioner of the escrow agent’s books and affairs, or has refused or failed,
within a reasonable time, to furnish any information, records or files or make
any report that may be required by the commissioner under the provisions of ORS
696.505 to 696.590; or
(j) Has been convicted of a felony or any misdemeanor that
is substantially related to the escrow agent’s competency or trustworthiness to
engage in the business of an escrow agent.
(2) It is sufficient cause for refusal or revocation of a
license in case of a partnership or corporation or any unincorporated
association, if any member of a partnership or any officer or director of the
corporation or association has been guilty of any act or omission which would
be cause for refusing or revoking the registration of an individual agent.
(3) All escrow agents shall keep and maintain at all times
in their licensed offices, complete and suitable records of all escrow
transactions made by them and of their business, including but not limited to
books, papers and data clearly reflecting the financial condition of the
business of such agents. Such records shall at all times be open for inspection
by the commissioner or the commissioner’s authorized representatives. Escrow
records shall be kept for a period of six years from the date of the escrow
transaction. The records may be
maintained in any format, as determined by the commissioner by rule, that
allows for inspection and copying by the commissioner or the commissioner’s
representatives. [Where] When an escrow agent acts as a
subservicer for another escrow agent, with respect to subserviced escrow
transactions the subservicer shall
keep the records required to be kept by the escrow agent under this section.
(4) Notwithstanding the provisions of subsection (3) of
this section, an escrow agent may store such records at a place in this state
other than the licensed office of the escrow agent if the escrow agent provides
prior written notice to the Real Estate Commissioner of the location and means
of access to the records.
SECTION 39.
ORS 696.541 is amended to read:
696.541. (1) The Real Estate Commissioner shall have
general supervision and control over all escrow agents doing business in this
state. Subject to ORS 183.310 to 183.550, the commissioner may adopt such rules
as reasonably necessary for the enforcement of ORS 696.505 to 696.590.
(2) All such escrow agents shall be subject to audits or
examinations by the commissioner, or the commissioner’s authorized
representatives at any time the commissioner considers advisable. The
commissioner may collect from each escrow agent the reasonable expenses of such
audit or examination including but not limited to any administrative expense
for travel.
(3) The provisions of this section and of any other section
relating to the examination of the affairs of an escrow agent shall extend to
an escrow agent whose license has expired or been revoked or suspended, if in
the judgment of the commissioner, such agent has violated [any condition of the license or] any provisions of ORS 696.505 to
696.590.
SECTION 40.
ORS 696.555 is amended to read:
696.555. (1) When the Real Estate Commissioner ascertains
by examination or otherwise that the assets or capital of any agent are
impaired, as described in ORS 696.535 (1)(a), the commissioner may immediately
take possession of all the property, business and assets of the agent which are
located in this state and retain possession of them pending the further
proceedings specified in this section. [Should
the board of directors or any officer or person in charge of the offices of
such agent refuse to permit the commissioner to take possession, the
commissioner shall communicate the fact to the Attorney General, whereupon it
shall become the duty of the Attorney General at once to institute such
proceedings as may be necessary to carry out the purposes of this section.]
(2) Pursuant to subsection (1) of this section, the
commissioner may apply to the circuit court of the county in which the agent’s
principal place of business is located for an order directing the agent to show
cause why a receiver should not be appointed to take charge of and manage or
liquidate if necessary the assets of the agent utilized in professional escrow
activity in such a manner as to prevent or minimize such financial loss to
others.
(3) If the court is satisfied from reading the
commissioner’s petition that the facts therein alleged, if established, warrant
such receivership action, the court shall issue such order to show cause. The
court may at such time, without notice, issue a temporary injunction
restraining such agent, or any of the agent’s officers, directors, stockholders,
members, agents or employees, from the transaction of any professional escrow
activity, or the waste or disposition of any such assets until further order of
the court. Should such an injunction be issued, a hearing on whether the
injunction shall be continued shall be held within five business days of its
service.
(4) On return of the order to show cause, and after a full
hearing, the court shall either deny the application or grant the same,
together with such other relief as the court may deem necessary.
(5) Notwithstanding any other provision of law, no bond
shall be required of the commissioner or the commissioner’s authorized
representatives as a prerequisite for the issuance of any injunction or other
order pursuant to this section.
(6) At any time during such proceedings, the agent may
satisfy the court that the activity which prompted such proceedings has been
rectified or that financial loss to others no longer will likely occur, in
which case the court may dismiss such proceedings.
(7) The expenses of the receiver, compensation of the legal
counsel of the receiver, as well as all expenditures of the receiver required
in such proceedings shall be fixed by the court and shall be paid out of funds
in the hands of the receiver or entered as a judgment against such licensee.
SECTION 41.
ORS 696.582 is amended to read:
696.582. (1) An escrow agent shall hold, as provided in subsection (3) of this section, the amount of
money or other property agreed to as a commission in a written real estate
broker’s or principal real estate
broker’s commission agreement, if the escrow agent has at the office at
which the escrow is being closed, before the date of closing:
(a) A written notice of demand, signed by the real estate broker or principal real estate broker who
is authorized under rules adopted by the commissioner to enter into the
commission agreement and sign the written notice of demand, in
substantially the form set out in subsection (2) of this section; and
(b) The written closing instructions of the principals
which do not honor the amount and terms of payment in the notice of demand.
(2) The notice of demand required by subsection (1) of this
section may not be incorporated into any document of agreement between the
principals or between the broker and a principal, and shall be in substantially
the following form:
______________________________________________________________________________
Notice of Demand for
Real Estate Commission
To: ____________________
(Name of Escrow Company)
Re: _____________________
(Names of Principals to
Transaction)
Your Escrow Number: _______
The undersigned real estate
broker or principal real estate broker
states that such broker has a valid
written commission agreement with
_____________ (Name of Principal), one of the principals to the transaction
referred to above, and that such principal [will]
is obligated to pay the broker [a]
the commission on account of that transaction. The commission amount is
$______ and is to be paid on the following terms: ______________. Demand is
hereby made that the commission be paid in that amount and on those terms, out
of escrow and as a part of your closing of that transaction.
_____________________________________
(Name and Signature of Real
Estate Broker
or Principal Real Estate Broker)
______________________________________________________________________________
(3) An escrow agent in a transaction described in
subsection (1) of this section may only disburse the moneys or other property
to:
(a) The broker and [seller] principal, based upon a written
agreement between those parties and directed to the escrow agent as
disbursement instructions;
(b) Any persons, as directed by order of a court of
competent jurisdiction; or
(c) The court, upon filing by the escrow agent of an
interpleader action for the moneys or property.
(4) At the time of filing a notice of demand with an escrow
agent under subsection (1) of this section, the real estate broker or principal real estate broker filing
the notice shall deliver a copy of the notice to the principal identified in
the notice.
SECTION 42.
ORS 696.609 is amended to read:
696.609. ORS 696.392, 696.600 to 696.627 and 696.995 do not
apply to a person licensed under [ORS
696.025 (1) to (4) or (6) or]
section 9 of this 2001 Act or to those persons exempt under ORS 696.030
from licensing under ORS 696.020.
SECTION 43.
ORS 696.710 is amended to read:
696.710. (1) [No] A person engaged in the business of,
or acting in the capacity of, a real estate broker or principal real estate broker within this state shall not bring or maintain any action in
the courts for the collection of compensation without alleging and proving that
the person was a [duly] licensed [real estate] broker at the time the
alleged cause of action arose.
(2) [No] An action in the courts for collection
of compensation for an individual engaged in the business of, or acting in the
capacity of a real estate [salesperson or
associate] broker associated with a
principal real estate broker may not
be brought or maintained except by the [duly
licensed] principal real estate
broker with whom the [salesperson or
associate] real estate broker
was [engaged] associated at the time the alleged cause of action arose.
SECTION 44.
ORS 696.800 is amended to read:
696.800. As used in ORS 696.392, 696.600 to 696.627,
696.800 to 696.855 and 696.995, unless the context requires otherwise:
(1) “Agent” means:
(a) A real estate broker [licensed under ORS 696.025 (1)]
or principal real estate broker who has entered into:
(A) A listing agreement with a seller;
(B) A service contract with a buyer to represent the buyer;
or
(C) [An in-company] A disclosed limited agency agreement;
or
(b) A [real estate
licensee licensed under ORS 696.025 (2), (4) or (6)] person licensed under section 9 of this 2001 Act who has entered
into a written contract with a real estate broker or principal real estate broker to act as the [real estate] broker’s agent in
connection with acts requiring a real estate license and to function under the
[real estate] broker’s supervision.
(2) “Buyer” means a potential transferee in a real property
transaction, and includes a person who:
(a) Executes an offer to purchase real property from a
seller through an agent; or
[(b) Makes a
substantive contact.]
[(3) “First
substantive contact” includes, but is not limited to, the first face-to-face
contact or first written communication, whichever occurs first, in which a
prospective buyer’s or seller’s specific real property needs or financial
information is discussed.]
[(4) “In-company,” as
used in “in-company agreement,” “in-company representation” and “in-company
sales,” means occurring within the same real estate organization.]
(b) Enters into an
exclusive representation contract or buyer’s service agreement with a real
estate broker or principal real estate broker, whether or not a sale or
transfer of property results.
(3) “Confidential
information” means information communicated to a real estate licensee or the
licensee’s agent by the buyer or seller of one to four residential units
regarding the real property transaction, including but not limited to price,
terms, financial qualifications or motivation to buy or sell. “Confidential
information” does not mean information that:
(a) The buyer instructs
the licensee or the licensee’s agent to disclose about the buyer to the seller
or the seller instructs the licensee or the licensee’ agent to disclose about
the seller to the buyer; and
(b) The licensee or the
licensee’s agent knows or should know failure to disclose would constitute
fraudulent representation.
(4) “Disclosed limited
agency” means a real property transaction in which the representation of a
buyer and seller or the representation of two buyers occurs within the same
real estate business.
(5) “Listing agreement” means a contract between a seller
of real property and a real estate broker
or principal real estate broker by which the [real estate] broker has been authorized to act as an agent of the
seller for compensation to offer the real property for sale or to find and
obtain a buyer.
(6) “Listing price” means the amount expressed in dollars,
specified in the listing agreement, for which the seller is willing to sell the
real property through the listing agent.
(7) “Offer” means a written proposal executed by a buyer
for the sale or lease of real property.
(8) “Offering price” is the amount expressed in dollars
specified in an offer to purchase for which the buyer is willing to buy the
real property.
(9) “Principal” means the person who has permitted or
directed an agent to act on the principal’s behalf. In a real property
transaction, this generally means the buyer or the seller.
(10) “Real property” means any estate in real property,
including a condominium as defined in ORS 100.005, a timeshare property as
defined in ORS 94.803 and the granting of an option or right of first refusal.
“Real property” also includes a mobile home or manufactured dwelling owned by
the same person who owns the land upon which the mobile or manufactured home is
situated. “Real property” does not include a leasehold in real property.
(11) “Real property transaction” means a transaction
regarding real property in which an agent is employed by one or more of the
principals to act in that transaction and includes but is not limited to listing agreements, buyer’s service agreements, exclusive representation contracts and
offers to purchase.
(12) “Sale” or “sold” refers to a transaction for the
transfer of real property from the seller to the buyer and includes:
(a) Exchanges of real property between the seller and the
buyer and third parties; and
(b) Land sales contracts.
(13) “Seller” means a potential transferor in a real
property transaction and includes an owner:
(a) Who enters into a listing
agreement with a real estate broker or
principal real estate broker, whether or not a transfer results[,];
or
(b) Who receives
an offer to purchase real property, of which the seller is the owner, from an
agent acting on behalf of a buyer.
SECTION 45.
ORS 696.805 is amended to read:
696.805. (1) A real estate licensee who acts under a
listing agreement with the seller acts as the seller’s agent only.
[(2) A seller’s agent
has an affirmative obligation to the seller of the fiduciary duties of loyalty,
obedience, disclosure, confidentiality, reasonable care and diligence and
accounting in dealings with the seller.]
[(3) A seller’s agent
has an affirmative obligation to the buyer and the seller of honest dealing and
disclosure.]
(2) A seller’s agent
owes the seller, other principals and the principals’ agents involved in a real
estate transaction the following affirmative duties:
(a) To exercise
reasonable care and diligence;
(b) To deal honestly and
in good faith;
(c) To present all
written offers, written notices and other written communications to and from
the parties in a timely manner without regard to whether the property is
subject to a contract for sale or the buyer is already a party to a contract to
purchase;
(d) To disclose material
facts known by the seller’s agent and not apparent or readily ascertainable to
a party;
(e) To account in a
timely manner for money and property received from or on behalf of the seller;
(f) To be loyal to the
seller by not taking action that is adverse or detrimental to the seller’s
interest in a transaction;
(g) To disclose in a
timely manner to the seller any conflict of interest, existing or contemplated;
(h) To advise the seller
to seek expert advice on matters related to the transaction that are beyond the
agent’s expertise;
(i) To maintain
confidential information from or about the seller except under subpoena or
court order, even after termination of the agency relationship; and
(j) Unless agreed
otherwise in writing, to make a continuous, good faith effort to find a buyer
for the property, except that a seller’s agent is not required to seek
additional offers to purchase the property while the property is subject to a
contract for sale.
(3) A seller’s agent may
show properties owned by another seller to a prospective buyer and may list
competing properties for sale without breaching any affirmative duty to the
seller.
(4) Except as provided
in subsection (2)(j) of this section, an affirmative duty may not be waived.
(5) Nothing in this
section implies a duty to investigate matters that are outside the scope of the
real estate licensee’s expertise unless the licensee or the licensee’s agent
agrees in writing to investigate a matter.
SECTION 46.
ORS 696.810 is amended to read:
696.810. (1) A real estate licensee other than the seller’s
agent may agree with the buyer to act as the buyer’s agent only. [However,] The buyer’s agent is not
representing the seller, even if the buyer’s agent is receiving compensation
for services rendered, either in full or in part, from the seller or through
the seller’s agent.
[(2) A buyer’s agent
has an affirmative obligation to the buyer of the fiduciary duties of loyalty,
obedience, disclosure, confidentiality, reasonable care and diligence and
accounting in dealing with the buyer.]
[(3) A buyer’s agent
has an affirmative obligation to the buyer and the seller of honest dealing and
disclosure.]
(2) A buyer’s agent
owes the buyer, other principals and the principals’ agents involved in a real
estate transaction the following affirmative duties:
(a) To exercise
reasonable care and diligence;
(b) To deal honestly and
in good faith;
(c) To present all
written offers, written notices and other written communications to and from
the parties in a timely manner without regard to whether the property is
subject to a contract for sale or the buyer is already a party to a contract to
purchase;
(d) To disclose material
facts known by the buyer’s agent and not apparent or readily ascertainable to a
party;
(e) To account in a
timely manner for money and property received from or on behalf of the buyer;
(f) To be loyal to the
buyer by not taking action that is adverse or detrimental to the buyer’s
interest in a transaction;
(g) To disclose in a
timely manner to the buyer any conflict of interest, existing or contemplated;
(h) To advise the buyer
to seek expert advice on matters related to the transaction that are beyond the
agent’s expertise;
(i) To maintain
confidential information from or about the buyer except under subpoena or court
order, even after termination of the agency relationship; and
(j) Unless agreed
otherwise in writing, to make a continuous, good faith effort to find property
for the buyer, except that a buyer’s agent is not required to seek additional
properties for the buyer while the buyer is subject to a contract for purchase or
to show properties for which there is no written agreement to pay compensation
to the buyer’s agent.
(3) A buyer’s agent may
show properties in which the buyer is interested to other prospective buyers
without breaching an affirmative duty to the buyer.
(4) Except as provided
in subsection (2)(j) of this section, an affirmative duty may not be waived.
(5) Nothing in this
section implies a duty to investigate matters that are outside the scope of the
real estate licensee’s expertise unless the licensee or the licensee’s agent
agrees in writing to investigate a matter.
SECTION 47.
ORS 696.815 is amended to read:
696.815. (1) [Notwithstanding
ORS 696.805 (1) and 696.810 (1),] A real estate licensee[, either acting alone or through one or more
real estate licensees licensed within the same real estate organization,]
may represent both the seller and the buyer in a real estate transaction under a disclosed limited agency agreement,
with full disclosure of the relationship
under [subsection (2) of this section and
ORS 696.830 (3)] the agreement.
(2) [An agent] A real estate licensee acting pursuant
to [an in-company] a disclosed limited agency agreement
has the following [affirmative] duties and obligations [to both the seller and the buyer]:
[(a) Loyalty,
obedience, disclosure, confidentiality and accounting in dealings with both the
seller and the buyer. However, in representing both the seller and the buyer,
the agent shall not, without the express written permission of the respective
person, disclose to the other person:]
(a) To the seller,
the duties under ORS 696.805;
(b) To the buyer, the
duties under ORS 696.810; and
(c) To both seller and
buyer, except with express written permission of the respective person, the
duty not to disclose to the other person:
(A) That the seller will accept a price lower [than] or terms less favorable than the
listing price or terms;
(B) That the buyer will pay a price greater or terms more
favorable than the offering price or terms; or
(C) Specific confidential information as defined in ORS 696.800 (3) [previously
designated as such in writing by the buyer or seller, other than price and
terms].
[(b) Reasonable care
and diligence.]
[(c) Honest dealing.]
(3) Nothing in this
section implies a duty to investigate matters that are outside the scope of the
real estate licensee’s expertise unless the licensee agrees in writing to
investigate a matter.
(4) In a real estate
transaction in which different real estate brokers associated with the same
principal real estate broker establish agency relationships with different
parties to the real estate transaction, the principal real estate broker shall
be the only broker acting as a disclosed limited agent representing both seller
and buyer. Other brokers shall continue to represent only the party with whom
the broker has an agency relationship unless all parties agree otherwise in
writing.
(5) The principal real
estate broker and the real estate licensees representing either seller or buyer
shall owe the following duties to the seller and buyer:
(a) To disclose a
conflict of interest in writing to all parties;
(b) To take no action
that is adverse or detrimental to either party’s interest in the transaction;
and
(c) To obey the lawful
instructions of both parties.
SECTION 48.
ORS 696.820 is amended to read:
696.820. [An agent
shall personally provide each seller and each buyer in a real property
transaction with a copy of the disclosure form set forth in ORS 696.830 and,
except as provided in subsection (3) of this section, shall obtain a signed
acknowledgment of receipt from the seller and the buyer, as set forth in ORS
696.830 (2). The agent shall provide the disclosure form as follows:]
[(1) The listing
agent, if any, shall provide the disclosure form to the seller prior to
entering into the listing agreement.]
[(2) The selling real
estate licensee shall provide the disclosure form to the seller at or before
the first substantive contact, unless the selling real estate licensee
previously provided the seller with a copy of the disclosure form pursuant to
subsection (1) of this section.]
[(3) When the selling
real estate licensee cannot personally provide the disclosure form to the
seller:]
[(a) The listing
agent may provide to the seller the disclosure form prepared by the selling
agent and obtain acknowledgment of receipt from the seller; or]
[(b) The selling real
estate licensee may provide the disclosure form by certified mail addressed to
the seller at the seller’s last-known address, in which case no signed
acknowledgment of receipt is required.]
[(4) The selling real
estate licensee shall provide the disclosure form to the buyer at or before the
first substantive contact.]
[(5) An agent
exclusively representing the buyer shall provide the disclosure form to the
buyer at or before the first substantive contact.]
[(6) The real estate
licensee presenting the disclosure form shall sign and date the disclosure
form.]
[(7) If the first
substantive contact occurs by telephone, the real estate licensee shall provide
the written disclosure promptly by mail or facsimile to the address provided by
the prospective buyer or seller or at the first face-to-face contact with the
prospective buyer or seller.]
(1) The Real Estate
Commissioner shall prescribe by rule the format and content of an initial
agency disclosure pamphlet. The rules must provide that the initial agency
disclosure pamphlet is informational only and may not be construed to be
evidence of intent to create an agency relationship.
(2) An agent shall
provide a copy of the initial agency disclosure pamphlet at the first contact
with each represented party to a real property transaction, including but not
limited to contacts in person, by telephone, over the Internet or the World
Wide Web, or by electronic mail, electronic bulletin board or a similar
electronic method.
SECTION 49.
ORS 696.845 is amended to read:
696.845. At the time of signing an offer to purchase, each
buyer shall acknowledge the existing agency [relationship] relationships,
if any. At the time a seller accepts an offer to purchase, each seller shall
acknowledge the existing agency [relationship] relationships, if any. An agent to the
real property transaction shall obtain the signatures of the buyers and the
sellers to the [confirmation] acknowledgment, which shall be
incorporated into or attached as an addendum to the offer to purchase or to the
acceptance. The acknowledgment shall be printed in substantially the following
form:
______________________________________________________________________________
TO BE COMPLETED
[The following agency
relationship(s) in this transaction is (are) hereby consented to and
acknowledged:]
______________________
(subject property address or legal description)
The following agency
relationship(s) in this transaction is (are) hereby consented to and
acknowledged:
(a) ________________________
(selling real estate licensee) is the agent of (check one):
____ the buyer exclusively
as an agent of the buyer.
____ the seller exclusively
as an agent of the seller.
____ both the seller and the
buyer as set out in the [in-company] disclosed limited agency agreement.
(b) _______________________
(listing agent if not the same as selling agent) is the agent of (check one):
____ the seller exclusively
as seller’s agent.
____ both the seller and the
buyer as set out in the [in-company] disclosed limited agency agreement.
Both the buyer and the seller acknowledge having received the initial
agency disclosure pamphlet required by ORS 696.820.
ACKNOWLEDGED
Buyer: ______________ Dated:
___________
Buyer: ______________ Dated:
___________
Seller: ______________
Dated: ___________
Seller: ______________
Dated: ___________
______________________________________________________________________________
SECTION 49a.
ORS 696.855 is amended to read:
696.855. (1) ORS 696.301, 696.392, 696.600 to 696.627[, 696.800 to 696.855] and 696.995 [shall] do not directly, indirectly or by implication limit or alter any
preexisting common law or statutory right or remedy including actions for
fraud, negligence or equitable relief.
(2) The terms “loyalty,” “obedience,” “disclosure,”
“confidentiality,” “reasonable care and diligence” and “accounting in dealings”
shall be interpreted under the common law of agency.
(3) Common law and statutory remedies are not affected by
ORS 696.301, 696.392, 696.600 to 696.627[,
696.800 to 696.855] and 696.995.
SECTION 50.
ORS 696.870 is amended to read:
696.870. (1)(a)
A real estate licensee representing a seller of real property [under this section and ORS 105.465 to
105.490 and 696.301] has a duty to inform each represented seller [represented
by the real estate licensee] of the seller’s duties created by this section
and ORS 105.465 to 105.490 and 696.301.
(b) A real
estate licensee representing a buyer of real property has a duty to inform each
represented buyer [represented by the real estate licensee]
of the buyer’s rights under this section and ORS 105.465 to 105.490 and
696.301.
(2) If a real estate licensee performs the duties set forth
in subsection (1) of this section, the real estate licensee shall have no
further duties under this section.
(3) Notwithstanding
subsections (1) and (2) of this section, for the purposes of ORS 696.301, a
real estate licensee:
(a) Representing a
seller by written agreement or course of conduct is bound by the standards of
conduct and duties created under ORS 696.805;
(b) Representing a buyer
by written agreement or course of conduct is bound by the standards of conduct
and duties created under ORS 696.810; and
(c) Acting as a
disclosed limited agent by a written agreement or course of conduct is bound by
the standards of conduct and duties created under ORS 696.815.
SECTION 51.
Section 52 of this 2001 Act is added to
and made a part of the Oregon Real Estate License Law.
SECTION 52.
(1) A principal is not liable for an
act, error or omission by an agent or subagent of the principal arising out of
an agency relationship established under ORS 696.805, 696.810, 696.815 or
696.820:
(a) Unless the principal
participates in or authorizes the act, error or omission; and
(b) Only to the extent
that:
(A) The principal
benefited from the act, error or omission; and
(B) A court or arbitrator
determines that it is highly probable that the claimant would be unable to
enforce a judgment against the agent or subagent of the principal.
(2) A real estate
licensee is not liable for an act, error or omission by a principal or an agent
of a principal that is not related to the licensee unless the licensee
participates in or authorizes the act, error or omission. This subsection does
not limit the liability of a principal real estate broker for an act, error or
omission by a real estate licensee under the principal broker’s supervision.
(3) Unless acknowledged
by a principal in writing, facts known by an agent or subagent of the principal
may not be imputed to the principal if the principal does not have actual
knowledge.
(4) Unless acknowledged
by a real estate licensee in writing, facts known by a principal or an agent of
the principal may not be imputed to the licensee if the licensee does not have
actual knowledge. This subsection does not limit the knowledge imputed to a
principal real estate broker of facts known by a real estate licensee under the
supervision of the principal real estate broker.
SECTION 53.
ORS 59.720 is amended to read:
59.720. The provisions of ORS 59.710 to 59.830 shall not
apply to any contract, agreement, sale, purchase, lease, conveyance or mortgage
pertaining to real estate situated in this state, nor to the business of real
estate brokers [and salesmen] or principal real estate brokers, as
defined in ORS 696.010, in so far as such business pertains to real estate located
in this state.
SECTION 54.
ORS 94.977 is amended to read:
94.977. (1) Unless the transaction is exempt under ORS
94.962, it is unlawful for any person to act as a salesperson or membership
camping contract broker in this state without first registering as a
salesperson or membership camping contract broker as provided in ORS 94.980.
Persons licensed as real estate brokers or [real
estate salespersons] principal real
estate brokers under ORS chapter 696 are exempt from registration under
this section.
(2) A violation of this section is a Class A misdemeanor.
SECTION 55.
ORS 657.085 is amended to read:
657.085. “Employment” does not include service performed by
any person as a newspaper advertising salesperson, real estate broker, [real estate salesperson, real estate agent,] principal real estate broker,
insurance agent, insurance solicitor or securities salesperson or agent to the
extent that the person is compensated by commission.
SECTION 56.
ORS 659.430 is amended to read:
659.430. (1) [No] A person, because of a disability of a
purchaser, lessee or renter, a disability of a person residing in or intending
to reside in a dwelling after it is sold, rented or made available or a
disability of any person associated with a purchaser, lessee or renter, shall not discriminate by:
(a) Refusing to sell, lease, rent or otherwise make
available any real property to a purchaser, lessee or renter;
(b) Expelling a purchaser, lessee or renter;
(c) Making any distinction or restriction against a purchaser,
lessee or renter in the price, terms, conditions or privileges relating to the
sale, rental, lease or occupancy of real property or the furnishing of any
facilities or services in connection therewith; or
(d) Attempting to discourage the sale, rental or lease of
any real property.
(2) For purposes of this subsection, discrimination
includes:
(a) A refusal to permit, at the expense of the disabled
person, reasonable modifications of existing premises occupied or to be
occupied by such person if such modifications may be necessary to afford such
person full enjoyment of the premises, except that, in the case of a rental,
the landlord may, [where] when it is reasonable to do so,
condition permission for a modification on the renter agreeing to restore the
interior of the premises to the condition that existed before the modification,
reasonable wear and tear excepted; or
(b) A refusal to make reasonable accommodations in rules,
policies, practices or services when such accommodations may be necessary to afford
such person equal opportunity to use and enjoy a dwelling.
(3) [No] A person shall not publish, circulate, issue or display or cause to be published,
circulated, issued or displayed any communication, notice, advertisement, or
sign of any kind relating to the sale, rental or leasing of real property which
indicates any preference, limitation, specification or discrimination against a
disabled person.
(4) [No] A person or other entity whose
business includes engaging in residential real estate related transactions, as
defined in ORS 659.033 (2)(b), shall not
discriminate against any person in making available such a transaction, or in
the terms or conditions of such a transaction, because of a disability.
(5) [No] A real estate broker or [salesperson] principal real estate broker shall not accept or retain a listing of real property for sale, lease or
rental with an understanding that the purchaser, lessee or renter may be
discriminated against solely because a person is a disabled person.
(6) [No] A person shall not assist, induce, incite or coerce another person to permit an
act or engage in a practice that violates this section.
(7) [No] A person shall not coerce, intimidate, threaten or interfere with any person in
the exercise or enjoyment of, or on account of having exercised or enjoyed, or
on account of having aided or encouraged any other person in the exercise or
enjoyment of, any right granted or protected by this section.
(8) [No] A person shall not, for profit, induce or attempt to induce any other person to
sell or rent any dwelling by representations regarding the entry or prospective
entry into the neighborhood of a disabled person or persons.
(9) Any violation of this section is an unlawful practice.
SECTION 57.
ORS 9.166 is amended to read:
9.166. (1) If the board has reason to believe that a person
is practicing law without a license, the board may maintain a suit for
injunctive relief in the name of the Oregon State Bar against any person
violating ORS 9.160. The court shall enjoin any person violating ORS 9.160 from
practicing law without a license. Any person who has been so enjoined may be
punished for contempt by the court issuing the injunction. An injunction may be
issued without proof of actual damage sustained by any person. The court may
also order restitution to any victim of any person violating ORS 9.160. The
prevailing party may recover its costs and attorney fees in any suit for
injunctive relief brought under this section in which the board is the
plaintiff.
(2) A person licensed under [ORS 696.025] section 9 of
this 2001 Act acting in the scope of the person’s license to arrange a real
estate transaction, including the sale, purchase, exchange, option or lease
coupled with an option to purchase, lease for a term of one year or longer or
rental of real property, is not engaged in the practice of law in violation of
ORS 9.160.
SECTION 58.
ORS 93.265 is amended to read:
93.265. (1) A [licensed]
real estate property manager, as [described] defined in ORS [696.025] 696.010, may
request notice of any pending action, claim, lien or proceeding relating to a
parcel of real property by recording in the county clerk’s office of the county
in which any portion of the real property is situated a request for any notice
required by law to be provided to the owner.
(2) A request submitted as allowed under subsection (1) of
this section shall include the name and address of the property manager, the
address and legal description of the property in question, the signature and
real estate license number of the requester and the date of the request. The
request for notification shall be valid for one year from filing.
(3) Compliance with subsection (1) of this section shall be
deemed adequate upon mailing, by first class mail with postage prepaid, to the
address provided in the form required under subsection (2) of this section.
(4) The county assessor of the county in which the notice
is recorded shall note on the tax roll, prepared pursuant to ORS chapter 311,
the filing made under subsection (1) of this section.
(5) No request, statement or notation filed under
subsection (1) of this section shall affect title to the property or be deemed
notice to any person that any person so recording the request has any right,
title, interest in, lien or charge upon the property referred to in the request
for notice.
SECTION 59.
ORS 305.230 is amended to read:
305.230. Notwithstanding ORS 9.320:
(1) Any person who is duly qualified to practice law or
public accountancy in this state or the authorized employee of a taxpayer who
is regularly employed by the taxpayer in tax matters may represent the taxpayer
before a tax court magistrate or the Department of Revenue in any conference or
proceeding with respect to the administration of any tax.
(2) Any person who is duly licensed by the State Board of
Tax Service Examiners or who is exempt from such licensing requirement as
provided for and limited by ORS 673.610 may represent a taxpayer before a tax
court magistrate or the department in any conference or proceeding with respect
to the administration of any tax on or measured by net income.
(3) Any shareholder of an S corporation, as defined in
section 1361 of the Internal Revenue Code, as amended and in effect on December
31, 1998, may represent the corporation in any proceeding before a tax court
magistrate or the department in the same manner as if the shareholder were a
partner and the S corporation were a partnership. The S corporation must
designate in writing a tax matters shareholder authorized to represent the S
corporation.
(4) Any person who is licensed as a real estate broker or principal real estate broker under
[ORS 696.025] section 9 of this 2001 Act or is a state certified appraiser or
state licensed appraiser under ORS 674.310 or is a registered appraiser under
ORS 308.010 may represent a taxpayer before a tax court magistrate or the
department in any conference or proceeding with respect to the administration
of any ad valorem property tax.
(5) A general partner who has been designated by members of
a partnership as their tax matters partner under ORS 305.242 may represent
those partners in any conference or proceeding with respect to the
administration of any tax on or measured by net income.
(6) In a small claims procedure, a taxpayer may be
represented by any of the persons described in subsections (1) to (5) of this
section or by any other person permitted by the tax court.
(7) No person shall be recognized as representing a
taxpayer pursuant to this section unless there is first filed with the
magistrate or department a written authorization, or unless it appears to the
satisfaction of the magistrate or department that the representative does in
fact have authority to represent the taxpayer. A person recognized as an authorized
representative under rules or procedures adopted by the tax court shall be
considered an authorized representative by the department.
(8) A taxpayer represented by someone other than an
attorney is bound by all things done by the authorized representative, and may
not thereafter claim any proceeding was legally defective because the taxpayer
was not represented by an attorney.
(9) Prior to the holding of a conference or proceeding
before the tax court magistrate or department, written notice shall be given by
the magistrate or department to the taxpayer of the provisions of subsections
(6) and (8) of this section.
SECTION 60.
ORS 309.100 is amended to read:
309.100. (1) The owner or an owner of any taxable property
or any person who holds an interest in the property that obligates the person
to pay taxes imposed on the property, may petition the board of property tax
appeals for relief as authorized under ORS 309.026. As used in this subsection,
an interest that obligates the person to pay taxes includes a contract, lease
or other intervening instrumentality.
(2) Petitions filed under this section shall be filed with
the clerk of the board during the period following the date the tax statements
are mailed for the current tax year and ending December 31.
(3) Each petition shall:
(a) Be made in writing.
(b) State the facts and the grounds upon which the petition
is made.
(c) Be signed and verified by the oath of a person
described in subsection (1) or (4) of this section.
(d) State the address to which notice of the action of the
board shall be sent. The notice may be sent to the address of the owner, the
person in whose name the property is assessed or to the address of the person
described in subsection (4) of this section.
(e) State if the petitioner or a representative desires to
appear at a hearing before the board.
(4)(a) The following persons may sign a petition and appear
before the board on behalf of a person described in subsection (1) of this
section:
(A) A relative, as defined by rule adopted by the
Department of Revenue, of an owner of the property.
(B) A person duly qualified to practice law or public
accountancy in this state.
(C) A legal guardian or conservator who is acting on behalf
of an owner of the property.
(D) A [licensed]
real estate broker or principal real
estate broker licensed under [ORS
696.025] section 9 of this 2001 Act.
(E) A state certified appraiser or a state licensed
appraiser under ORS 674.310 or a registered appraiser under ORS 308.010.
(F) The lessee of the property.
(b) A petition signed by a person described in this
subsection, other than a legal guardian or conservator of a property owner or a
person duly qualified to practice law in this state, shall include written and
signed authorization from the owner or other person described in subsection (1)
of this section for the person to act on their behalf.
(c) In the case of a petition signed by a legal guardian or
conservator, the board may request the guardian or conservator to authenticate
the guardianship or conservatorship.
(5) If the petitioner has requested a hearing before the
board, the board shall give such petitioner at least five days’ written notice
of the time and place to appear. If the board denies any petition upon the
grounds that it does not meet the requirements of subsection (3) of this
section, it shall issue a written order rejecting the petition and set forth in
the order the reasons the board considered the petition to be defective.
(6) Notwithstanding ORS 9.320, the owner or other person
described in subsection (1) of this section may appear and represent himself or
herself at the hearing before the board, or may be represented at the hearing
by any authorized person described in subsection (4) of this section.
SECTION 61.
ORS 316.209 is amended to read:
316.209. (1) For purposes of ORS 316.162 to 316.212, in the
case of services performed as a qualified real estate [agent] broker, qualified
principal real estate broker or as a direct seller:
(a) The individual performing the services shall not be
treated as an employee; and
(b) The person for whom the services are performed shall
not be treated as an employer.
(2) As used in this section, “qualified real estate [agent] broker” or “qualified principal real estate broker” means any
individual if:
(a) The individual is a real estate licensee under ORS
696.010 to 696.490, 696.600 to 696.627, 696.800 to 696.855 and 696.995;
(b) Substantially all of the remuneration (whether or not
paid in cash) for the services performed by the individual as a real estate
licensee is directly related to sales or other output (including the
performance of services) rather than to the number of hours worked; and
(c) The services performed by the individual are performed
pursuant to a written contract between the individual and the real estate
broker, principal real estate broker or
real estate appraiser [or real estate
organization] for whom the services are performed and the contract provides
that the individual will not be treated as an employee with respect to the
services for Oregon tax purposes.
(3) As used in this section, “direct seller” means any
individual if:
(a) The individual is:
(A) Engaged in the trade or business of selling, or
soliciting the sale of, consumer products to any buyer on a buy-sell basis, a
deposit-commission basis or any similar basis, which the Department of Revenue
prescribes by rule, for resale by the buyer or any other person, in the home or
otherwise than in a permanent retail establishment; or
(B) Engaged in the trade or business of selling, or
soliciting the sale of, consumer products in the home or otherwise than in a
permanent retail establishment;
(b) Substantially all the remuneration (whether or not paid
in cash) for the performance of the services described in paragraph (a) of this
subsection is directly related to sales or other output (including the
performance of services) rather than to the number of hours worked; and
(c) The services performed by the individual are performed
pursuant to a written contract between the individual and the person for whom
the services are performed and the contract provides that the individual will
not be treated as an employee with respect to the services for Oregon tax
purposes.
SECTION 62.
ORS 674.100 is amended to read:
674.100. (1)(a) No person shall engage in, carry on,
advertise or purport to engage in or carry on real estate appraisal activity
within this state without first obtaining certification or licensure as
provided for in ORS 674.310.
(b) Real estate appraisal activity is the preparation,
completion and issuance of an opinion as to the value on a given date or at a
given time of real property or any interest in real property, whether such
activity is performed in connection with a federally related transaction or is
not performed in connection with a federally related transaction.
Notwithstanding any other provision of law, a state certified appraiser or a
state licensed appraiser:
(A) Is not required to be licensed under [ORS 696.025] section 9 of this 2001 Act to perform any real estate appraisal
activity or any other activity that constitutes the giving of an opinion as to
the value of real property or any interest in real property; and
(B) Is not subject to regulation under ORS 696.010 to
696.495 and 696.600 to 696.995 in connection with the performance of any real
estate appraisal activity or the performance of any activity which constitutes
the giving of an opinion as to the value of real estate or any interest in real
estate.
(2) Real estate appraisal activity excludes any activity
that is not performed in connection with a federally related transaction and
that:
(a) Is performed by a nonlicensed regular full-time
employee of a single owner of real estate, if the activity involves the real
estate of the employer and is incidental to the employee’s normal, nonreal
estate activities;
(b) Is performed by a nonlicensed regular full-time
employee whose activity involves the real estate of the employer, when such
activity is the employee’s principal activity, but the employer’s principal
activity or business is not the appraisal of real estate;
(c) Is performed by any attorney at law rendering services
in the performance of duties as an attorney at law;
(d) Is performed by any registered geologist, registered
professional engineer or architect rendering services as a registered
geologist, registered professional engineer or architect;
(e) Is performed by a certified public accountant rendering
services as a certified public accountant;
(f) Is performed by a mortgage banker rendering services as
a mortgage banker;
(g) Constitutes a letter opinion or a competitive market
analysis as those terms are defined in ORS 696.010 that, by administrative or
judicial order or subpoena, is compelled from a person licensed to engage in
real estate activity under [the
provisions of ORS 696.007 to 696.495, 696.600 to 696.627 and 696.800 to 696.855] section 9 of this 2001 Act;
(h) Is performed by any salaried employee of the State of
Oregon or any of its political subdivisions while engaged in the performance of
the duties of such employee;
(i) Is limited to analyzing or advising of permissible land
use alternatives, environmental impact, building and use permit procedures or
demographic market studies, if the performance of such activities does not
involve the rendering of an opinion as to the value of the real estate in
question;
(j) Is performed by a professional forester appraising or
valuing timber, timberland or both as part of services performed as a private
consultant in forest management, but only if, in the case of timberland, the
appraisal or valuation is limited to the use of the land as forestland;
(k) Is limited to the giving of an opinion in any
administrative or judicial proceeding regarding the value of real estate for
taxation;
(L) Is limited to a person not licensed under ORS chapter
696 who is giving an opinion regarding the value of real estate if the person’s
business is not the appraisal, selling or listing of real estate, and such
activity is performed without compensation. This paragraph does not apply to a
person conducting transactional negotiations on behalf of another person for
transfer of an interest in real property; or
(m) Is limited to a person not licensed under ORS chapter
696 who is transferring or acquiring an interest in real estate.
(3)(a) “Real estate appraisal activity” does not include an
analysis, evaluation, opinion, conclusion, notation or compilation of data
prepared by a financial institution or affiliate, a consumer finance company
licensed under ORS chapter 725, or by an insurance company or affiliate, made
for internal use only by the financial institution or affiliate, consumer
finance company or by the insurance company or affiliate, concerning an
interest in real estate for ownership or collateral purposes by the financial
institution or affiliate, by the consumer finance company licensed under ORS
chapter 725, or by the insurance company or affiliate. Nothing in this
subsection shall be construed to excuse a financial institution or affiliate
from complying with the provisions of Title XI of the federal Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (12 U.S.C. 3310 et
seq.).
(b) As used in this section, “evaluation” means a study of
the nature, quality or utility of a parcel of real estate or interests in, or
aspects of, real property in which a value estimate is not necessarily
required.
(4)(a) As used in this section, “purport to engage in or
carry on real estate appraisal activity” means the display of a card, sign,
advertisement or other printed, engraved or written instrument bearing the
person’s name in conjunction with the term “appraiser,” “licensed appraiser,”
“certified appraiser” or “appraisal” or any oral statement or representation of
certification or licensure by the Appraiser Certification and Licensure Board
made by a person.
(b) Each display or statement described in paragraph (a) of
this subsection by a person not licensed or certified by the board is a
separate violation under ORS 674.990.
(c) In any proceeding under ORS 674.990, a display or
statement described in paragraph (a) of this subsection shall be considered
prima facie evidence that the person named in the display or making the
statement purports to engage in or carry on real estate appraisal activity.
SECTION 63.
ORS 696.232 is amended to read:
696.232. (1) An employee or officer of the Real Estate
Agency licensed as a real estate licensee under this chapter shall return the
employee’s or officer’s license to the agency at the time of [commencement of the] commencing employment. The agency shall
hold the license as [a suspended license] an active license held in suspense. At
the termination of an employee’s or officer’s employment, the license may be [reissued] returned to the licensee as an active or inactive license. The
license shall be [reissued] returned to the licensee without
payment of further fee and shall expire on the date on which it would have
expired if the license had not been [suspended] held in suspense.
(2) Except as stated in subsection (1) of this section, the
[reissuance] return of the license to
the licensee and all renewals shall be subject to the provisions of ORS
696.010 to 696.490, 696.600 to 696.730, 696.800 to 696.855 and 696.995.
SECTION 64.
ORS 696.445 is amended to read:
696.445. (1) Pursuant to ORS 696.385 (2), the Real Estate
Agency shall provide for the advancement of education and research in
connection with the educational requirements for the securing of licenses for
real estate licensees under ORS 696.010 to 696.490, 696.600 to 696.627, 696.800
to 696.855 and 696.995.
(2) The Real Estate Commissioner may assign and reassign
staff in the agency to perform such duties as the commissioner considers
necessary to carry out subsection (1) of this section, including but not
limited to the preparation and distribution of a periodic publication to be
known as the Oregon Real Estate News Journal and the preparation and
publication of other printed matter of an educational nature for the benefit of
real estate licensees.
(3) The commissioner shall publish in the Oregon Real
Estate News Journal the names and addresses of all applicants for real estate
or escrow licenses whose licenses have been refused, of real estate licensees
who have been reprimanded, of real estate and escrow licensees whose licenses
have been suspended or revoked and of real
estate and escrow licensees who have been assessed civil penalties. Each
such publication shall include a brief description of the situation involved
and the grounds for the commissioner’s action.
SECTION 65.
ORS 696.600 is amended to read:
696.600. As used in ORS 696.392, 696.600 to 696.627 and
696.995:
(1) “Employee” includes an individual who has an
independent contractual relationship with a real estate marketing organization
and performs real estate marketing activity.
(2) “Real estate marketing activity” means procuring or
offering to procure prospects to purchase, sell, lease or rent real estate by
telemarketing, mail or otherwise.
(3) “Real estate marketing organization” means any person,
including a partnership, association, corporation, limited liability company or
other organization, other than a real estate marketing employee, that engages
in real estate marketing activity and is licensed under ORS 696.606.
(4)(a) “Real estate marketing employee” means an individual
who receives compensation from a real estate marketing organization for
performing real estate marketing activity.
(b) “Real estate marketing employee” does not include a
person licensed under [ORS 696.025 (1) to
(4) or (6)] section 9 of this 2001
Act.
SECTION 66.
ORS 696.603 is amended to read:
696.603. (1) [No] A person may not engage in real estate marketing activity unless that person
is:
(a) Licensed under ORS 696.606;
(b) Licensed under [ORS
696.025 (1) to (4) or (6)] section 9
of this 2001 Act; or
(c) Registered by a person licensed under ORS 696.606.
(2) No person may employ an individual as a real estate
marketing employee unless the person registers the individual with the Real
Estate Commissioner as the employee of the real estate marketing organization
before the individual commences real estate marketing activity.
(3) This section applies to persons who:
(a) Initiate real estate marketing activity in this state;
or
(b) Initiate real estate marketing activity in another
state that includes contacting persons in this state.
(4) One act or transaction of real estate marketing
activity is sufficient to constitute engaging in real estate marketing activity
within the meaning of this section.
SECTION 67.
ORS 696.621 is amended to read:
696.621. The Real Estate Marketing Account is established
as an account in the General Fund of the State Treasury. All moneys received by
the Real Estate Agency pursuant to ORS [696.010,]
696.392, 696.600 to 696.627 and 696.995 shall be paid into the State Treasury
and credited to the account. All moneys in the account are appropriated
continuously to the Real Estate Agency to carry out the provisions of ORS [696.010,] 696.392, 696.600 to 696.627
and 696.995.
SECTION 68.
ORS 696.990 is amended to read:
696.990. (1) Violation of any provision of ORS 696.010 to
696.165, [696.169,] 696.180 to
696.226, 696.241 to 696.375, 696.392, 696.395 to 696.435, 696.490, 696.600 to
696.730 and 696.995 is a Class A misdemeanor.
(2) Any officer, director or shareholder or agent of a
corporation, or member or agent of a partnership or association, who personally
participates in or is an accessory to any violation of ORS 696.010 to 696.165,
[696.169,] 696.180 to 696.226,
696.241 to 696.375, 696.392, 696.395 to 696.435, 696.490, 696.600 to 696.730
and 696.995 by the partnership, association or corporation, is subject to the
penalties prescribed in subsection (1) of this section.
(3) A violation of any one of the provisions of ORS 696.505
to 696.590 is a Class A misdemeanor.
(4) Any person who violates ORS 696.020 (1) may be required
by the commissioner to forfeit and pay to the General Fund of the State
Treasury a civil penalty in an amount determined by the commissioner of:
(a) Not less than $100 nor more than $500 for the first
offense of unlicensed professional real estate activity; and
(b) Not less than $500 nor more than $1,000 for the second
and subsequent offenses of unlicensed professional real estate activity.
(5) In addition to the civil penalty set forth in
subsection (4) of this section, any person who violates ORS 696.020 may be
required by the commissioner to forfeit and pay to the General Fund of the
State Treasury a civil penalty in an amount determined by the commissioner but
not to exceed the amount by which such person profited in any transaction which
violates ORS 696.020.
(6) Civil penalties under this section shall be imposed as
provided in ORS 183.090.
(7) The civil penalty provisions of subsections (4) and (5)
of this section are in addition to and not in lieu of the criminal penalties
for unlicensed professional real estate activity in subsections (1) and (2) of
this section.
SECTION 69.
ORS 105.480 is amended to read:
105.480. (1) The representations contained in a seller’s
disclosure statement and in any amendment to the disclosure statement are the
representations of the seller only, and no financial institution that may have
made or that may make a loan pertaining to the property covered by a seller’s
disclosure statement, or that may have or take a security interest in the
property covered by a seller’s disclosure statement, is bound by or has any
liability with respect to any representation, misrepresentation, omission,
error or inaccuracy contained in another party’s disclosure statement required
by ORS 105.465 or any amendment to the disclosure statement.
(2) For purposes of ORS 105.465 to 105.490, [696.301 and 696.870,] “financial
institution” has the meaning given that term in ORS 706.008 and also includes
mortgage bankers and mortgage brokers as those terms are defined in ORS 59.840,
and consumer finance companies licensed under ORS chapter 725.
SECTION 70.
ORS 443.738 is amended to read:
443.738. (1) Except as provided in subsection (3) of this
section, all providers, resident managers and substitute caregivers for adult
foster homes shall satisfactorily meet all educational requirements established
by the department. After consultation with representatives of providers,
educators, residents’ advocates and the Long Term Care Ombudsman, the
department shall adopt by rule standards governing the educational
requirements. The rules shall require that no person may provide care to any
resident prior to acquiring education or supervised training designed to impart
the basic knowledge and skills necessary to maintain the health, safety and
welfare of the resident. Each provider shall document compliance with the
educational requirements for persons subject thereto.
(2) The rules required under subsection (1) of this section
shall include but need not be limited to the following:
(a) A requirement that, before being licensed, a provider
successfully completes training that satisfies a defined curriculum, including
demonstrations and practice in physical caregiving, screening for care and
service needs, appropriate behavior towards residents with physical, cognitive
and mental disabilities and issues related to architectural accessibility; and
(b) A requirement that a provider pass a test before being
licensed or becoming a resident manager. The test shall evaluate the ability to
understand and respond appropriately to emergency situations, changes in
medical conditions, physicians’ orders and professional instructions,
nutritional needs, residents’ preferences and conflicts.
(3) After consultation with representatives of providers,
educators, residents’ advocates and the Long Term Care Ombudsman, the
department may adopt by rule exceptions to the training requirements of
subsections (1) and (2) of this section for persons who are appropriately
licensed medical care professionals in Oregon or who possess sufficient
education, training or experience to warrant an exception. The department shall
not make any exceptions to the testing requirements.
(4) The department may permit a person who has not
completed the training or passed the test required in subsection (2) of this
section to act as a resident manager until the training and testing are
completed or for 60 days, whichever is shorter, if the department determines
that an unexpected and urgent staffing need exists. The licensed provider must
notify the department of the situation and demonstrate that the provider is
unable to find a qualified resident manager, that the person has met the
requirements for a substitute caregiver for the adult foster home and that the
provider will provide adequate supervision.
(5) Providers shall serve three nutritionally balanced
meals to residents each day. A menu for the meals for the coming week shall be
prepared and posted weekly.
(6) Providers shall make available at least six hours of
activities each week which are of interest to the residents, not including
television or movies. The department shall make information about resources for
activities available to providers upon request. Providers or substitute
caregivers shall be directly involved with residents on a daily basis.
(7) Providers shall give at least 30 days’ written notice
to the residents, and to the legal representative, guardian or conservator of
any resident, before selling, leasing or transferring the adult foster home
business or the real property on which the adult foster home is located.
Providers shall inform real estate [agents] licensees, prospective buyers, lessees
and transferees in all written communications that the license to operate an
adult foster home is not transferable and shall refer them to the department
for information about licensing.
(8) If a resident dies, or leaves an adult foster home for
medical reasons and indicates in writing the intent to not return, the provider
shall not charge the resident for more than 15 days or the time specified in
the provider contract, whichever is less, after the resident has left the adult
foster home. The provider has an affirmative duty to take reasonable actions to
mitigate the damages by accepting a new resident. However, if a resident dies
or leaves an adult foster home due to neglect or abuse by the provider or due
to conditions of imminent danger to life, health or safety, the provider shall
not charge the resident beyond the resident’s last day in the home. The
provider shall refund any advance payments within 30 days after the resident
dies or leaves the adult foster home.
(9) Chemical and physical restraints may be used only after
considering all other alternatives and only when required to treat a resident’s
medical symptoms or to maximize a resident’s physical functioning. Restraints
may not be used for discipline of a resident or for the convenience of the
adult foster home. Restraints may be used only as follows:
(a) Psychoactive medications may be used only pursuant to a
prescription that specifies the circumstances, dosage and duration of use.
(b) Physical restraints may be used only pursuant to a
qualified practitioner’s order that specifies the type, circumstances and
duration of use in accordance with rules adopted by the department. The rules
adopted by the department relating to physical restraints shall include
standards for use and training.
(10) If the physical characteristics of the adult foster
home do not encourage contact between caregivers and residents and among
residents, the provider shall demonstrate how regular positive contact will
occur. Providers shall not place residents who are unable to walk without
assistance in a basement, split-level, second story or other area that does not
have an exit at ground level. Nonambulatory residents shall be given first
floor rooms.
(11) The provider shall not transfer or discharge a resident
from an adult foster home unless the transfer or discharge is necessary for
medical reasons, for the welfare of the resident or for the welfare of other
residents, or due to nonpayment. In such cases, the provider shall give the
resident written notice as soon as possible under the circumstances.
(a) The provider shall give the resident and the resident’s
legal representative, guardian or conservator written notice at least 30 days
prior to the proposed transfer or discharge, except in a medical emergency
including but not limited to a resident’s experiencing an increase in level of
care needs or engaging in behavior that poses an imminent danger to self or
others. In such cases, the provider shall give the resident written notice as
soon as possible under the circumstances.
(b) The resident shall have the right to an administrative
hearing prior to an involuntary transfer or discharge. If the resident is being
transferred or discharged for a medical emergency, or to protect the welfare of
the resident or other residents, as defined by rule, the hearing must be held
within seven days of the transfer or discharge. The provider shall hold a space
available for the resident pending receipt of an administrative order. ORS
441.605 (4) and the rules thereunder governing transfer notices and hearings
for residents of long term care facilities shall apply to adult foster homes.
(12) The provider shall not include any illegal or
unenforceable provision in a contract with a resident and shall not ask or
require a resident to waive any of the resident’s rights.
(13) Any lessor of a building in which an adult foster home
is located shall not interfere with the admission, discharge or transfer of any
resident in the adult foster home unless the lessor is a provider or coprovider
on the license.
SECTION 71.
ORS 656.037 is amended to read:
656.037. A person contracting to pay remuneration for
professional real estate activity as defined in ORS chapter 696 to a qualified
real estate [agent] broker or qualified principal real estate
broker, as defined in ORS 316.209, is not an employer of that qualified [real estate agent] broker under the Workers’ Compensation Law. A qualified real estate
[agent] broker or qualified principal real estate broker is not entitled to
benefits under the Workers’ Compensation Law unless such individual has
obtained coverage for such benefits pursuant to ORS 656.128.
SECTION 72.
ORS 696.525 is amended to read:
696.525. (1)(a) At the time of filing an application for an
escrow agent’s license, the applicant shall deposit with the Real Estate
Commissioner a corporate surety bond running to the State of Oregon, executed
by a surety company satisfactory to the commissioner, in the amount as provided
in paragraph (b) of this subsection.
(b) If the total annual receipts of client trust funds, as
reported in the required annual report of the escrow agent, are:
(A) Less than $100 million, the bond or deposit shall be
$25,000.
(B) $100 million but less than $300 million, the bond or
deposit shall be $50,000.
(C) $300 million but less than $1 billion, the bond or
deposit shall be $75,000.
(D) $1 billion or more, the bond or deposit shall be
$100,000.
(c) The provisions of the corporate surety bond shall be in
the form substantially as follows:
______________________________________________________________________________
Know All Persons by These Presents, That we, __________ as
principal, and __________, a corporation, qualified and authorized to do
business in the State of Oregon as surety, are held and firmly bound unto the
State of Oregon for the use and benefit of any interested person, in the sum of
$_______, lawful money of the United States of America, to be paid to the State
of Oregon for the use and benefit aforesaid, for which payment well and truly
to be made, we bind ourselves, our heirs, executors, administrators,
successors, and assigns, jointly and severally, firmly by these presents.
The condition of the above obligation is such that: Whereas
the above-named principal has made application for registration as an escrow
agent within the meaning of ORS 696.505 to 696.590 and is required by the
provisions of ORS 696.505 to 696.590 to furnish a bond in the sum above named,
conditioned as herein set forth:
Now, therefore, if the principal, the principal’s agents
and employees, shall strictly, honestly and faithfully comply with the
provisions of ORS 696.505 to 696.590, and shall pay all actual damages suffered
by any person by reason of the violation of any of the provisions of ORS 696.505
to 696.590, now or hereafter enacted, or by reason of any fraud, dishonesty,
misrepresentation or concealment of material facts growing out of any
transaction governed by the provisions of ORS 696.505 to 696.590, then this
obligation shall be void; otherwise to remain in full force and effect.
This bond shall become effective on the ________ day of
____, 2__, and shall remain in force until the surety is released from
liability by the commissioner, or until this bond is canceled by the surety.
The surety may cancel this bond and be relieved of further liability hereunder
by giving 30 days’ written notice to the principal and to the commissioner.
This bond shall be one continuing obligation, and the
liability of the surety for the aggregate of any and all claims which may arise
hereunder shall in no event exceed the amount of the penalty hereof.
In witness whereof, the seal and signature of the principal
hereto is affixed, and the corporate seal and the name of the surety hereto is
affixed and attested by its duly authorized officers at _________________,
Oregon, this _____ day of ____________, 2__.
____________(Seal)
Principal
____________(Seal)
Surety
By ____________
______________________________________________________________________________
(2) The surety bond required in subsection (1) of this
section, or deposit required in ORS 696.527, shall entitle the escrow agent,
when properly licensed, to operate from one business location. [In order to operate from additional office
locations, a branch office license shall first be obtained.] The escrow
agent, when registering a branch office,
shall [accompany each application for a
branch office license with] provide
evidence that the liability amount of the required surety bond[,] or the amount of deposit, or combination thereof, has been increased in a sum equal to
$10,000 for each additional business location.
SECTION 73.
ORS 696.880 is amended to read:
696.880. Nothing in ORS 181.586, 181.587, 181.588, 181.589,
696.301, 696.805, 696.810, 696.815 or 696.855 creates an obligation on the part
of a [real estate agent] person licensed under this chapter to
disclose to a potential purchaser of residential property that a convicted sex
offender registered under ORS 181.595, 181.596 or 181.597 resides in the area.
SECTION 74.
ORS 105.465 is amended to read:
105.465. (1) The provisions of ORS 105.465 to 105.490,
696.301 and 696.870:
(a) Apply to the real property described in subparagraphs
(A) to (D) of this paragraph unless the buyer indicates to the seller, which
indication shall be conclusive, that the buyer will use the real property for
purposes other than a residence for the buyer or the buyer’s spouse, parent or
child:
(A) Real property consisting of or improved by one to four
dwelling units;
(B) A condominium unit as defined in ORS 100.005 and not
subject to disclosure under ORS 100.705;
(C) A timeshare property as defined in ORS 94.803 and not
subject to disclosure under ORS 94.829; and
(D) A manufactured dwelling, as defined in ORS 446.003,
that is owned by the same person who owns the land upon which the manufactured
dwelling is situated.
(b) Do not apply to a leasehold in real property.
(2) A seller shall deliver one of the following to each
buyer who makes a written offer to purchase real property in this state:
(a) A written disclaimer that the seller makes no
representations or warranties as to the condition of the real property or any
improvement thereon and that the buyer will be purchasing the property “as is,”
that is, with all defects, if any; or
(b) A seller’s property disclosure statement in
substantially the following form:
______________________________________________________________________________
SELLER’S PROPERTY DISCLOSURE
STATEMENT
(NOT A WARRANTY)
(105.465)
INSTRUCTIONS TO THE SELLER
Please complete the
following form. Do not leave any spaces blank unless the question clearly does
not apply to the property. Please refer to the line number(s) of the
question(s) when you provide your explanation(s). For your protection you must
date and sign each page of this disclosure statement and each attachment.
THE FOLLOWING
REPRESENTATIONS ARE MADE BY THE SELLER(S), CONCERNING THE CONDITION OF THE
PROPERTY LOCATED AT ____________ (“THE PROPERTY”).
DISCLOSURES CONTAINED IN
THIS FORM ARE PROVIDED BY THE SELLER ON THE BASIS OF SELLER’S ACTUAL KNOWLEDGE
OF THE PROPERTY AT THE TIME OF DISCLOSURE. YOU HAVE FIVE BUSINESS DAYS FROM THE
SELLER’S DELIVERY OF THIS SELLER’S DISCLOSURE STATEMENT TO REVOKE YOUR OFFER BY
DELIVERING YOUR SEPARATE SIGNED WRITTEN STATEMENT OF REVOCATION TO THE SELLER,
UNLESS YOU WAIVE THIS RIGHT AT OR PRIOR TO ENTERING INTO A SALE AGREEMENT.
FOR A MORE COMPREHENSIVE
EXAMINATION OF THE SPECIFIC CONDITION OF THIS PROPERTY YOU ARE ADVISED TO
OBTAIN AND PAY FOR THE SERVICES OF A QUALIFIED SPECIALIST TO INSPECT THE
PROPERTY ON YOUR BEHALF, FOR EXAMPLE, ARCHITECTS, ENGINEERS, PLUMBERS,
ELECTRICIANS, ROOFERS, BUILDING INSPECTORS, OR PEST AND DRY ROT INSPECTORS.
Seller _______ is/_______ is
not occupying the property.
I. SELLER’S
REPRESENTATIONS:
The following are representations
made by the seller and are not the
representations of any financial
institution that may have made or
may make a loan pertaining to
the property, or that may have or
take a security interest in the
property.
1. TITLE
[ ]Yes[ ]No A. Do
you have legal
authority to sell the
property?
[ ]Yes[ ]No *B. To
your knowledge, is
title to the property
subject to any of the
following:
(1) First right of refusal
(2) Option
(3) Lease or rental
agreement
(4) Other listing
(5) Life estate?
[ ]Yes[ ]No *C. Are
you aware of any
encroachments, bound-
ary agreements, bound-
ary disputes or recent
boundary changes?
[ ]Yes[ ]No *D. Are
you aware of any
rights of way, ease-
ments or licenses
(access limitations)
that may affect your
interest in the
property?
[ ]Yes[ ]No *E. Are
you aware of any
written agreements for
joint maintenance of
an easement or right
of way?
[ ]Yes[ ]No F. Are
you aware of any
governmental study,
survey or notices that
would affect the
property?
[ ]Yes[ ]No G. Are
you aware of any
pending or existing
assessments against the
property?
[ ]Yes[ ]No H. Are
you aware of any
zoning violations or
nonconforming uses?
[ ]Yes[ ]No *I. Are
you aware of a
boundary survey for the
property?
[ ]Yes[ ]No *J. Are
you aware of any
covenants, conditions
or restrictions which
affect the property?
2. WATER
A. Household
Water
(1) The source of the
water is:
[ ]Public [ ]Community
[ ]Private[ ]Shared
(2) Water source infor-
mation:
[ ]Yes[ ]No * a. Are you aware
of any written
agreements for
shared water
source?
[ ]Yes[ ]No * b. To your knowl-
edge, is there
an easement
(recorded or
unrecorded)
for access to
and/or main-
tenance of the
water source?
[ ]Yes[ ]No c. Are any known
problems or
repairs needed?
[ ]Yes[ ]No (3) Are you aware of
any water treat-
ment systems for
the property?
[ ]Leased [ ]Owned
B. Irrigation
[ ]Yes[ ]No (1) Are you aware of
any water rights
for the property?
[ ]Yes[ ]No *(2) If there exist any,
to your knowledge,
have the water
water rights been
used during the last
five-year period?
[ ]Yes[ ]No *(3) If so, is the certi-
ficate available?
C. Outdoor
Sprinkler
system
[ ]Yes[ ]No (1) To your knowledge,
is there an outdoor
sprinkler system for
the property?
[ ]Yes[ ]No (2) To your knowledge,
has a back flow
valve been
installed?
[ ]Yes[ ]No (3) To your knowledge,
is the outdoor
sprinkler system
operable?
3. SEWAGE
[ ]Yes[ ]No A. To
your knowledge, is
the property connected
to a sanitary sewer?
[ ]Yes[ ]No B. Are
you aware of any
sanitary sewer
proposed for the
property?
[ ]Yes[ ]No C. To
your knowledge, is
the property connected
to a septic system or
cesspool?
[ ]Yes[ ]No D. Are
you aware of any
problems or repairs
needed?
[ ]Yes[ ]No E. To
your knowledge,
does your sewage
system require on-site
pumping to another
level?
4. INSULATION
A. To
your knowledge, is
there insulation in the:
[ ]Yes[ ]No (1) Ceiling?
[ ]Yes[ ]No (2) Exterior walls?
[ ]Yes[ ]No (3) Floors?
[ ]Yes[ ]No B. To
your knowledge,
are there any
defective insulated
windows?
5. STRUCTURAL
[ ]Yes[ ]No *A. To
your knowledge,
has the roof leaked?
[ ]Yes[ ]No If yes, has it been
repaired?
[ ]Yes[ ]No B. Additions/conversions/
remodeling?
[ ]Yes[ ]No * If yes, are you aware
of whether a building
permit was obtained?
[ ]Yes[ ]No Was final inspection
obtained?
[ ]Yes[ ]No C. To
your knowledge,
are there smoke
alarms?
[ ]Yes[ ]No If there are, which are
electrical (hard-wired)?
__________
[ ]Yes[ ]No D. To
your knowledge, is
there a woodstove?
Make __________
[ ]Yes[ ]No Was it installed with a
permit?
[ ]Yes[ ]No *E. Are
you aware of
whether a pest or
dry rot, structural
or “whole house”
inspection has
been done?
[ ]Yes[ ]No *F. Are
you aware of any
moisture problems in the
structure (especially
in the basement)? If
yes, explain frequency
and extent of prob-
lem on attached sheet
[ ]Yes[ ]No G. Are
you aware of a
sump pump on the
property?
6. SYSTEMS
AND FIXTURES
If the following systems or
fixtures are included in the
purchase price, are they, to
your knowledge, in good
working order on the date
this form is signed?
[ ]Yes[ ]No A. Electrical
system,
including wiring,
switches, outlets
and service
[ ]Yes[ ]No B. Plumbing
system,
including pipes,
faucets, fixtures
and toilets
[ ]Yes[ ]No C. Hot
water tank
[ ]Yes[ ]No D. Garbage
disposal
[ ]Yes[ ]No E. Built-in
range and oven
[ ]Yes[ ]No F. Built-in
dishwasher
[ ]Yes[ ]No G. Sump
pump
[ ]Yes[ ]No H. Heating
and cooling
systems
[ ]Yes[ ]No I. Security
system
[ ]Owned [ ]Leased
7. COMMON
INTEREST
[ ]Yes[ ]No A. Home
Owners’
Association?
Name of Association
________________
Contact Person
________________
Address
________________
Phone Number
________________
[ ]Yes[ ]No B. Regular
periodic
assessments: $______
per [ ] Month [ ] Year
[ ] Other ________
[ ]Yes[ ]No C. Are
you aware of any
pending special
assessments?
[ ]Yes[ ]No D. Are
you aware of any
shared “common
areas” or any joint
maintenance agree-
ments (facilities such
as walls, fences, pools,
tennis courts, walk-
ways or other areas
co-owned in undivided
interest with others)?
8. GENERAL
[ ]Yes[ ]No A. Are
you aware of any
settling, soil, standing
water or drainage
problems on the
property or in the
immediate area?
[ ]Yes[ ]No B. To
your knowledge,
does the property
contain fill?
[ ]Yes[ ]No C. Are
you aware of any
material damage to the
property or any of the
structure from fire,
wind, floods, beach
movements, earthquake,
expansive soils
or landslides?
[ ]Yes[ ]No D. To
your knowledge, is
the property in a
designated flood plain?
[ ]Yes[ ]No E. To
your knowledge, is
the property in a
designated slide zone?
[ ]Yes[ ]No F. Are
you aware of any
substances, materials
or products that may
be an environmental
hazard such as, but
not limited to,
asbestos, formaldehyde,
radon gas, lead based
paint, fuel or
chemical storage
tanks, and contaminated
soil or water on the
subject property?
[ ]Yes[ ]No G. Are
you aware of any
tanks or underground
storage tanks (e.g.,
septic, chemical, fuel,
etc.) on the property?
[ ]Yes[ ]No H. To
your knowledge,
has the property ever
been used as an
illegal drug manu-
facturing site?
9. FULL
DISCLOSURE BY SELLERS
A. Other
conditions or
defects
[ ]Yes[ ]No Are you aware of any
other material defects
affecting this prop-
erty or its value that
a prospective buyer
should know about?
B. Verification
The foregoing answers
and attached explan-
ations (if any) are
complete and correct
to the best of my/our
knowledge and I/we
have received a copy
hereof. I/we authorize
all of my/our agents
to deliver a copy of
this disclosure state-
ment to other real
estate licensees and
all prospective buyers
of the property.
DATE _________ SELLER
_____________
SELLER
___________________________
II. BUYER’S
ACKNOWLEDGMENT
A. As
buyer(s), I/we
acknowledge the duty
to pay diligent
attention to any
material defects which
are known to me/us or
can be known by me/us
by utilizing diligent
attention and observation.
B. Each
buyer acknowledges
and understands that the
disclosures set forth in
this statement and in any
amendments to this
statement are made only
by the seller and are not
the representations of any
financial institution that
may have made or may
make a loan pertaining to
the property, or that may
have or take a security
interest in the property
and no such financial
institution shall be
bound by or have any
liability with respect to
any representation, mis-
representation, omission,
error or inaccuracy
contained in another
party’s disclosure state-
ment required by this
section or any amendment
to the disclosure
statement.
C. Buyer
(which term includes
all persons signing the
“buyer’s acceptance”
portion of this disclosure
statement below) hereby
acknowledges receipt of
a copy of this disclosure
statement (including
attachments, if any)
bearing seller’s signature.
DISCLOSURES CONTAINED IN
THIS FORM ARE PROVIDED BY THE SELLER ON THE BASIS OF SELLER’S ACTUAL KNOWLEDGE
OF THE PROPERTY AT THE TIME OF DISCLOSURE. YOU, THE BUYER, HAVE FIVE BUSINESS
DAYS FROM THE SELLER’S DELIVERY OF THIS SELLER’S DISCLOSURE STATEMENT TO REVOKE
YOUR OFFER BY DELIVERING YOUR SEPARATE SIGNED WRITTEN STATEMENT OF REVOCATION
TO THE SELLER UNLESS YOU WAIVE THIS RIGHT AT OR PRIOR TO ENTERING INTO A SALE
AGREEMENT.
BUYER HEREBY ACKNOWLEDGES
RECEIPT OF A COPY OF THIS SELLER’S DISCLOSURE STATEMENT.
DATE _____________
BUYER __________________
BUYER __________________
Agent to sign and date:
__________________ Real
Estate Licensee
__________________ Real
Estate [Organization] Business
*If yes, attach a copy or
explain on attached sheet
______________________________________________________________________________
SECTION 75.
ORS 279.712 is amended to read:
279.712. (1) The Oregon Department of Administrative
Services shall purchase or otherwise provide for the acquisition or furnishing
of all supplies, materials, equipment and services, including architectural,
engineering and other personal services, required by state agencies, except to
the extent the department authorizes a state agency to purchase directly in
accordance with ORS 279.727.
(2) Subsection (1) of this section does not apply to:
(a) Purchases of alcoholic liquor by the Oregon Liquor
Control Commission;
(b) Agreements entered into by the Department of Education
for the purchase or distribution of textbooks;
(c) Personal service and public improvement contracts of
the Department of Transportation relating to maintenance or construction of
highways, bridges, parks or other transportation facilities;
(d) Personal service and public improvement contracts of
the State Department of Fish and Wildlife for dams, fishways, ponds and related
fish and game propagation facilities;
(e) Insurance and service contracts to provide medical
assistance as provided for under ORS 414.115, 414.125, 414.135 and 414.145;
(f) Personal service and public improvement contracts of
the Economic and Community Development Department relating to its foreign trade
offices operating outside the state;
(g) Personal service contracts of the Attorney General
relating to attorney services required by law to be performed by the Attorney
General;
(h) Personal service contracts entered into by the Director
of Veterans’ Affairs for real estate broker or principal real estate broker services; and
(i) A contract of any other state agency when the agency is
specifically authorized by any provisions of law other than this chapter to
enter into the contract.
(3) The following requirements and procedures apply to
personal service contracts:
(a) Except as provided in subsection (2) of this section,
the Oregon Department of Administrative Services shall execute all personal
service contracts of state agencies, and all requisite approvals must be
obtained, including the approval of the Attorney General, if applicable, before
any state agency personal service contract becomes binding upon the state and
before any service may be performed or payment may be made under the contract,
unless the contract is exempt from the prohibition against services being
performed before review for legal sufficiency is obtained under ORS 291.047
(6).
(b) The department shall by rule set forth the requirements
necessary to implement the provisions of this subsection, including but not
limited to rules establishing:
(A) The type of documentation that must accompany contracts
submitted to the department for procurement.
(B) A reporting system for personal service contracts. A
state agency shall submit to the department personal service contract
information as directed by the department.
(C) Procedures for the screening and selection of persons
to perform personal services when the department authorizes a state agency to
contract directly pursuant to ORS 279.051.
(D) Procedures to permit services to be performed when
circumstances exist that create substantial risk of loss, damage, interruption
of services or threat to public health or safety and that require prompt action
to protect the interests of this state.
(c) The department may exempt certain personal service
contracts or classes of personal service contracts, in whole or in part, from
the requirements of this subsection if the department finds that:
(A) It is unlikely that an exemption will encourage
favoritism in the awarding of a personal service contract or will substantially
diminish competition for personal service contracts; and
(B) The awarding of a personal service contract pursuant to
the exemption will result in substantial cost savings to the state agency.
(d) In making its findings under paragraph (c) of this
subsection, the department may consider the type, cost and amount of the
contract, number of persons available to contract and such other factors as the
department considers appropriate.
(e) Each state agency shall file with the department a copy
of each personal service contract entered into by the agency, including
appropriate documentation as required by the department. The department shall
keep the copy of the contract and its documentation on file for three years,
after which the department may destroy the file.
(f) The department shall maintain a system for filing
copies of personal service contracts and documentation submitted to it under
paragraph (e) of this subsection.
(g) The department shall submit a biennial report to the
Legislative Assembly concerning the use of personal service contracts by state
agencies. The report shall specify the name of each contracting agency, the
amount paid under each personal service contract entered into by the agency,
the name of the contractor, the duration of the contract and the contract’s
basic purpose. The report also shall include the total dollar figure of all
personal service contracts for each year of the preceding biennium.
(h) The department may not approve any personal service
contract before the contract has been reviewed for legal sufficiency and
approved by the Attorney General, if such review and approval are required
under ORS 291.047.
(i) Whenever a state agency pays more in a calendar year
under a personal service contract for services historically performed by state
employees than the agency would have paid to its employees performing the same
work, the agency shall so report to the department and include in the report a
statement of justification for the greater costs.
(j) The department shall notify all state agencies of the
requirements of this section.
SECTION 76.
ORS 426.508 is amended to read:
426.508. (1) Notwithstanding ORS 421.611 to 421.630 or any
actions taken under ORS 421.611 to 421.630, the Department of Corrections shall
transfer the real property known as the F. H. Dammasch State Hospital and all
improvements to the Oregon Department of Administrative Services to be sold for
the benefit of the Mental Health and Developmental Disability Services
Division.
(2)(a) Notwithstanding ORS 270.100 to 270.190, and except
as provided in subsection (4) of this section, the Oregon Department of
Administrative Services shall sell or otherwise convey the real property known
as the F. H. Dammasch State Hospital in a manner consistent with the provisions
of this section. Conveyance shall not include transfer to a state agency. The
sale price of the real property shall equal or exceed the fair market value of
the real property. The department shall engage the services of a licensed real
estate broker or [real estate
organization] principal real estate
broker to facilitate the sale of the real property.
(b) The Oregon Department of Administrative Services shall
retain from the sale or other conveyance of the real property those costs
incurred by the state in selling or conveying the real property, including
costs incurred by the Department of Corrections in transferring the real
property to the Oregon Department of Administrative Services. The remaining
proceeds from the sale or other conveyance shall be transferred to the
Community Housing Trust Account created under ORS 426.506 (3).
(3) Redevelopment of the real property formerly occupied by
the F. H. Dammasch State Hospital shall be consistent with the Dammasch Area
Transportation Efficient Land Use Plan developed by Clackamas County, the City
of Wilsonville, the Oregon Department of Administrative Services, the
Department of Land Conservation and Development, the Department of
Transportation, the State Housing Council, the Mental Health and Developmental
Disability Services Division and the Division of State Lands.
(4) The Oregon Department of Administrative Services shall
reserve from the sale of the real property under subsection (2) of this section
not more than 10 acres. The real property reserved from sale shall be
transferred to the Mental Health and Developmental Disability Services Division
for use by the division to develop community housing for chronically mentally
ill persons. The department and the division shall jointly coordinate with the
City of Wilsonville to identify the real property reserved from sale under this
subsection.
SECTION 77.
ORS 646.382 is amended to read:
646.382. As used in ORS 646.382 to 646.396:
(1) “Consumer” means any individual who is solicited to
purchase or who purchases the services of a credit services organization.
(2)(a) “Credit services organization” means any person who,
with respect to the extension of credit by others, sells, provides, performs,
or represents that the organization can or will sell, provide or perform, in
return for the payment of money or other valuable consideration, any of the
following services:
(A) Improving, saving or preserving a consumer’s credit
record, history or rating.
(B) Obtaining an extension of credit for a consumer.
(C) Providing advice, assistance, instruction or
instructional materials to a consumer with regard to either subparagraph (A) or
(B) of this paragraph.
(b) “Credit services organization” does not include:
(A) Any person authorized to make loans or extensions of
credit under the laws of this state or the United States who is subject to
regulation and supervision by this state or the United States or a lender
approved by the Secretary of Housing and Urban Development for participation in
any mortgage insurance program under the National Housing Act.
(B) Any financial institution or bank holding company as
those terms are defined in ORS 706.008 or any subsidiary or affiliate of a
financial institution or bank holding company.
(C) A mortgage banker or mortgage broker as defined in ORS
59.840.
(D) Any nonprofit organization exempt from taxation under
section 501(c)(3) of the Internal Revenue Code, provided that the organization
does not require a fee for its services and does not receive any money or other
valuable consideration prior to the rendering of any services by the
organization for the consumer.
(E) Any person licensed as a real estate broker or principal real estate broker by this
state if the person is acting within the course and scope of that license.
(F) Any person licensed to practice law in this state if
the person renders services within the course and scope of practice as an
attorney.
(G) Any broker-dealer registered with the Securities and
Exchange Commission or the Commodity Futures Trading Commission if the
broker-dealer is acting within the course and scope of that regulation.
(H) Any consumer reporting agency as defined in the Federal
Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.
(I) Any licensee licensed under ORS chapter 725.
(3) “Department” means the Department of Consumer and
Business Services.
(4) “Director” means the director of the department or the
director’s designees.
(5) “Extension of credit” means the right to defer payment
of debt or to incur debt and defer its payment offered or granted primarily for
personal, family or household purposes.
SECTION 78.
ORS 696.365 is amended to read:
696.365. (1) A city or county shall not impose or collect a
business license tax from a person licensed as a [real estate salesperson or associate] real estate broker who
engages in professional real estate activity only as an agent of a principal real estate broker [or real estate organization].
(2) As used in this section, “business license tax” has the
meaning given that term in ORS 701.015.
SECTION 79.
ORS 696.730 is amended to read:
696.730. Any court of competent jurisdiction, including a
justice court, has full power to hear any violation of ORS 696.010 to 696.490,
696.600 to 696.730, 696.800 to 696.855 and 696.995 by persons licensed under section 9 of this 2001 Act, and, upon
finding such violation, the court may, at its discretion and in addition to the
other penalties imposed, revoke the license of the person or persons found to
have violated any provision of ORS 696.010 to 696.490, 696.600 to 696.730,
696.800 to 696.855 and 696.995. The clerk of the court shall forward a copy of
any order revoking a real estate license to the Real Estate Commissioner.
SECTION 80.
ORS 702.005 is amended to read:
702.005. As used in ORS 702.005 to 702.063 and 702.991:
(1) “Agent contract” means a contract or agreement pursuant
to which a person authorizes or empowers an athlete agent to negotiate or
solicit on behalf of a person with one or more professional sports teams or
organizations for the employment of the person:
(a) By one or more professional sports teams or
organizations; or
(b) As a professional athlete.
(2)(a) “Athlete agent” means any person or an employee or
representative of a person who:
(A) Directly or indirectly, recruits or solicits a student
athlete to enter into an agent contract, endorsement contract or professional
sports services contract; or
(B) For compensation offers, promises, attempts or
negotiates to obtain employment or procures employment for a student athlete
with a professional sports team or organization or as a professional athlete.
(b) “Athlete agent” does not include:
(A) A person licensed as an attorney or a dealer in
securities, financial planner, insurance agent, real estate broker, principal real estate broker, sales
agent, tax consultant or any other professional person when the person offers
or provides the type of services customarily provided by that profession,
except to the extent that the person acts as an athlete agent as defined in
paragraph (a) of this subsection;
(B) A person acting solely on behalf of a professional
sports team or organization; or
(C) Parents who act as athlete agents for their children.
(3) “Educational institution” means any elementary school,
secondary school, college, university or other educational institution.
(4) “Endorsement contract” means a contract or agreement
pursuant to which a person is employed or receives remuneration for any value
or utility that the person may have because of publicity, reputation, fame or
following obtained because of athletic ability or performance.
(5) “Professional sports services contract” means any
contract or agreement pursuant to which a person is employed or agrees to
render services as a player for a professional sports team or organization or
as a professional athlete.
(6)(a) “Student athlete” means an individual admitted to or
enrolled in an educational institution who participates, or has informed the
institution of an intention to participate, in a sports program that includes
competition with other educational institutions. “Student athlete” includes a
student who has entered into one or more valid agent contracts, endorsement
contracts or professional sports services contracts that allow athlete agent
representation for a specific sport, as long as that student is eligible to
participate in other sports for which the student has no athlete agent
representation.
(b) “Student athlete” does not include:
(A) A person who has entered into a valid agent contract,
endorsement contract or professional sports services contract that covers all
sports in which the student is eligible to participate; or
(B) A student of a college or university whose eligibility
to participate in an intercollegiate sport has terminated.
SECTION 81.
ORS 709.030 is amended to read:
709.030. (1) Except as provided in subsection (4) of this
section, no person other than a trust company shall transact a trust business
in this state. Except as provided in subsection (4) of this section, before a
person transacts any trust business in this state, the person shall obtain the
approval of the Director of the Department of Consumer and Business Services if
required under ORS 709.005 and shall deposit with the director, as security and
as a pledge for the faithful conduct of its trust business:
(a) Cash or interest-bearing securities, which securities
shall have a ready market value;
(b) A surety bond issued by a surety company authorized to
transact business in this state and in a form approved by the director, under
which the principal and surety indemnify the several owners of the fund held in
trust against loss due to the failure of the trust company;
(c) An irrevocable letter of credit issued by an insured
institution, as defined in ORS 706.008; or
(d) Any combination of cash, letters of credit,
interest-bearing securities and surety bond.
(2) If the cash and securities held in trust amount to less
than $1,000,000, the deposit, bond, letters of credit or combination thereof
shall be $50,000. If the cash and securities held in trust amount to $1,000,000
but do not exceed $1,500,000, the deposit, bond, letters of credit or
combination thereof shall be $100,000. For each $500,000 or fraction thereof in
excess of $1,500,000 held in trust, the deposit, bond, or letters of credit or
combination thereof shall be increased an additional $25,000; except a trust
company shall not be required to increase the deposit, bond, letters of credit
or combination thereof to an amount in excess of $1,000,000.
(3) The securities shall be deposited with the director and
held by the director as trustee for the beneficiaries of the trust funds held
by the trust company.
(4) A person shall not be required to be a trust company if
the person:
(a) Does not and will not regularly transact trust business
in the ordinary course of the person’s business;
(b) Acts in a manner authorized by law and in the scope of
authority as an agent of a trust company;
(c) Is an attorney rendering a service customarily
performed by an attorney;
(d) Is acting as trustee under a deed of trust;
(e) Is a licensed real estate broker or principal real estate broker rendering a service customarily
performed by a [real estate] broker;
(f) Is a licensed escrow agent rendering a service
customarily performed by an escrow agent; or
(g) Is exempt from the provisions of subsection (1) of this
section by rule of the director.
SECTION 82.
ORS 696.265 and 696.495 are added to and
made a part of ORS 696.010 to 696.490.
SECTION 83.
ORS 696.710, 696.720, 696.730, 696.775
and 696.785 are added to and made a part of ORS 696.600 to 696.627.
SECTION 84.
ORS 696.025, 696.050, 696.060, 696.080,
696.085, 696.100, 696.120, 696.141, 696.150, 696.160, 696.165, 696.169,
696.176, 696.180, 696.210, 696.224, 696.228, 696.258, 696.355, 696.359,
696.435, 696.825 and 696.830 are repealed.
SECTION 85.
(1) Sections 6 to 9, 15, 29, 30, 51, 52,
82 and 83 of this 2001 Act, the amendments to statutes by sections 10 to 14, 16
to 28, 31 to 50 and 53 to 81 of this 2001 Act and the repeal of statutes by
section 84 of this 2001 Act become operative on July 1, 2002.
(2) Notwithstanding
subsection (1) of this section, during the period between the effective date of
this 2001 Act and the operative date of sections 6 to 9, 15, 29, 30, 51, 52, 82
and 83 of this 2001 Act, the amendments to statutes by sections 10 to 14, 16 to
28, 31 to 50 and 53 to 81 of this 2001 Act and the repeal of statutes by
section 84 of this 2001 Act, the Real Estate Agency and the Real Estate
Commissioner may take such action as necessary to implement the provisions of
this 2001 Act, including but not limited to adopting administrative rules,
issuing temporary licenses, preparing forms, prescribing required courses,
providing for the availability of required courses and administering
examinations.
Approved by the Governor
June 5, 2001
Filed in the office of
Secretary of State June 5, 2001
Effective date January 1,
2002
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