Chapter 778 Oregon Laws 2003

 

AN ACT

 

HB 3539

 

Relating to construction liens; creating new provisions; amending ORS 87.021, 646.608, 701.100, 701.235, 701.250 and 701.992; repealing sections 5, 6 and 8, chapter 6, Oregon Laws 2002; and declaring an emergency.

 

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

 

          SECTION 1. Section 2 of this 2003 Act is added to and made a part of ORS 87.001 to 87.060 and 87.075 to 87.093.

 

          SECTION 2. (1) This section applies to a sale of the following residential property:

          (a) A new single family residence or a single family residence where the sales price for original construction or contract price for improvements to the residence completed within three months prior to the date of the sale of the property is $50,000 or more.

          (b) A new condominium unit or a condominium unit where the sales price for original construction or contract price for improvements to the condominium unit completed within three months prior to the date of the sale of the property is $50,000 or more. As used in this paragraph, “condominium unit” has the meaning given that term in ORS 100.005.

          (c) A new residential building or a residential building where the sales price for original construction or contract price for improvements to the residential building completed within three months prior to the date of the sale of the property is $50,000 or more. As used in this paragraph, “residential building” means a building or structure containing not more than four dwelling units capable of being used as residences or homes.

          (2) For purposes of protecting purchasers of residential property with respect to claims of lien that arise before the date the sale of the residential property is completed but may be perfected under ORS 87.035 after the date the sale of the property is completed, when an owner of record sells residential property to a purchaser, the owner shall provide such protection by one of the following methods:

          (a) Purchase or otherwise provide title insurance on behalf of the purchaser by a policy issued:

          (A) Without exception for filed and unfiled claims of construction lien existing at the date of closing of the purchase; and

          (B) On forms and at rates filed with, but not disapproved by, the Director of the Department of Consumer and Business Services.

          (b) Retain in escrow, as defined in ORS 696.505, an amount of funds that is not less than 25 percent of the sale price of the residential property. The funds shall be maintained in or released from escrow pursuant to written instructions to the escrow agent from the owner that sold the property and the purchaser. The written instructions shall provide that any claims of lien that are perfected after the date of the sale of the property and that are not paid by the owner that sold the property shall be paid upon demand by the purchaser from the amount maintained in escrow. The escrow agent shall release the unused funds from escrow to the owner that sold the property if the escrow agent receives a request from the owner that sold the property and the owner provides documentation from a title company that:

          (A) Claims of lien have not been perfected against the property and 90 days have passed since the date that construction was completed; or

          (B) One or more claims of lien have been perfected against the property, that 135 days have passed since the date that each such claim of lien was filed and that all such perfected claims of lien have been released or waived.

          (c) Maintain a bond or letter of credit in an amount that is not less than 25 percent of the sale price of the property. The Construction Contractors Board shall prescribe by rule the amount, terms and conditions of the bond or letter of credit to be maintained under this paragraph.

          (d) Obtain written waivers from every person claiming a lien or liens in an aggregate amount that exceeds $5,000 with respect to the property under ORS 87.010, 87.021 or 87.035, and provide copies of the waivers to the purchaser not later than the date the sale of the property is completed.

          (e) Complete the sale of the residential property after the deadline for perfecting all claims of liens under ORS 87.035 with respect to the property.

          (f) Obtain a signed written waiver from the purchaser of the residential property. The waiver shall be in a form described in section 9 of this 2003 Act and shall specify that the provisions of paragraphs (a) to (e) of this subsection do not apply to the sale of the residential property. The waiver must be printed on a form that is separate from any residential property sales contract or agreement and may be signed by the purchaser at any time after the purchaser enters into the sales contract or agreement with respect to the residential property and before closing of the transaction.

          (3) Not later than the date the sale of the residential property is completed, the owner who sold the property shall complete, sign and deliver to the purchaser a form specifying the method that the owner has selected to comply with the requirements of subsection (2) of this section or that subsection (2) of this section does not apply to the sale of the property. The notice shall be in a form designated by the Construction Contractors Board by rule under ORS 701.235.

          (4) A real estate licensee, as defined in ORS 696.010, acting in the professional capacity of a licensee may not be liable in any criminal, civil or administrative proceeding arising out of the failure of an owner of record to comply with subsection (2) or (3) of this section.

          (5) Violation of subsection (3) of this section is a Class A violation.

          (6) In addition to any other remedy or penalty provided by law, a purchaser may bring an action to recover up to twice the amount of actual damages caused by a violation of subsection (2) of this section. The court may award to the prevailing party, in addition to costs and disbursements, reasonable attorney fees. Any action brought under this subsection must be commenced not later than two years after the date the sale of the property is completed.

          (7) For purposes of subsections (5) and (6) of this section and ORS 646.608:

          (a) It is a defense to a violation of subsection (2) or (3) of this section that there is no enforcement or attempted enforcement of any claim of lien against the property that is the subject of the sale arising before the date the sale of the property is completed; and

          (b) As to any claim of lien, it is a defense to a violation of subsection (2) or (3) of this section if the owner that sold the property:

          (A) Proves that the claim of lien against the property that is the subject of the sale is invalid; or

          (B) Satisfies the claim of lien or obtains a release from the claim of lien on the property that is the subject of the sale.

          (8) A violation of subsection (2) or (3) of this section is not considered to have occurred with respect to a lien described in ORS 87.010 during the period that the validity of the lien is disputed in a judicial proceeding or a proceeding described in ORS chapter 701.

          (9) Nothing in this section requires the payment of a lien that is not otherwise valid. This section does not apply to claims of lien perfected by persons furnishing any materials, equipment, services or labor at the request of the purchaser of the residential property.

 

          SECTION 3. ORS 701.100 is amended to read:

          701.100. (1) The failure of a contractor to comply with the provisions of this section and ORS 656.021, 657.665, 670.600, 701.035, 701.065 to 701.075, 701.135, 701.240 and 701.250 and section 2 (2) of this 2003 Act or to be in conformance with the provisions of ORS chapter 316, 656 or 657 or ORS chapter 455 and the rules adopted thereunder is a basis for suspension of the contractor’s license, revocation of the contractor’s license, refusal to issue or reissue a contractor’s license, assessment of a civil penalty as set forth in ORS 701.992 or a combination of these sanctions.

          (2) Any action against a contractor under this section shall be conducted in conformance with the provisions of ORS 183.413 to 183.497.

 

          SECTION 4. ORS 646.608 is amended to read:

          646.608. (1) A person engages in an unlawful practice when in the course of the person’s business, vocation or occupation the person does any of the following:

          (a) Passes off real estate, goods or services as those of another.

          (b) Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of real estate, goods or services.

          (c) Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another.

          (d) Uses deceptive representations or designations of geographic origin in connection with real estate, goods or services.

          (e) Represents that real estate, goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, quantities or qualities that they do not have or that a person has a sponsorship, approval, status, qualification, affiliation, or connection that the person does not have.

          (f) Represents that real estate or goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand.

          (g) Represents that real estate, goods or services are of a particular standard, quality, or grade, or that real estate or goods are of a particular style or model, if they are of another.

          (h) Disparages the real estate, goods, services, property or business of a customer or another by false or misleading representations of fact.

          (i) Advertises real estate, goods or services with intent not to provide them as advertised, or with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity.

          (j) Makes false or misleading representations of fact concerning the reasons for, existence of, or amounts of price reductions.

          (k) Makes false or misleading representations concerning credit availability or the nature of the transaction or obligation incurred.

          (L) Makes false or misleading representations relating to commissions or other compensation to be paid in exchange for permitting real estate, goods or services to be used for model or demonstration purposes or in exchange for submitting names of potential customers.

          (m) Performs service on or dismantles any goods or real estate when not authorized by the owner or apparent owner thereof.

          (n) Solicits potential customers by telephone or door to door as a seller unless the person provides the information required under ORS 646.611.

          (o) In a sale, rental or other disposition of real estate, goods or services, gives or offers to give a rebate or discount or otherwise pays or offers to pay value to the customer in consideration of the customer giving to the person the names of prospective purchasers, lessees, or borrowers, or otherwise aiding the person in making a sale, lease, or loan to another person, if earning the rebate, discount or other value is contingent upon occurrence of an event subsequent to the time the customer enters into the transaction.

          (p) Makes any false or misleading statement about a prize, contest or promotion used to publicize a product, business or service.

          (q) Promises to deliver real estate, goods or services within a certain period of time with intent not to deliver them as promised.

          (r) Organizes or induces or attempts to induce membership in a pyramid club.

          (s) Makes false or misleading representations of fact concerning the offering price of, or the person’s cost for real estate, goods or services.

          (t) Concurrent with tender or delivery of any real estate, goods or services fails to disclose any known material defect or material nonconformity.

          (u) Engages in any other unfair or deceptive conduct in trade or commerce.

          (v) Violates any of the provisions relating to auction sales, auctioneers or auction marts under ORS 698.640, whether in a commercial or noncommercial situation.

          (w) Manufactures mercury fever thermometers.

          (x) Sells or supplies mercury fever thermometers unless the thermometer is required by federal law, or is:

          (A) Prescribed by a person licensed under ORS chapter 677; and

          (B) Supplied with instructions on the careful handling of the thermometer to avoid breakage and on the proper cleanup of mercury should breakage occur.

          (y) Sells a thermostat that contains mercury unless the thermostat is labeled in a manner to inform the purchaser that mercury is present in the thermostat and that the thermostat may not be disposed of until the mercury is removed, reused, recycled or otherwise managed to ensure that the mercury does not become part of the solid waste stream or wastewater. For purposes of this paragraph, “thermostat” means a device commonly used to sense and, through electrical communication with heating, cooling or ventilation equipment, control room temperature.

          (z) Violates the provisions of ORS 803.375, 803.385 or 815.410 to 815.430.

          (aa) Violates ORS 646.850 (1).

          (bb) Violates any requirement of ORS 646.661 to 646.686.

          (cc) Violates the provisions of ORS 128.801 to 128.898.

          (dd) Violates ORS 646.883 or 646.885.

          (ee) Violates any provision of ORS 646.195.

          (ff) Violates ORS 646.569.

          (gg) Violates the provisions of ORS 646.859.

          (hh) Violates ORS 759.290.

          (ii) Violates ORS 646.872.

          (jj) Violates ORS 646.553 or 646.557 or any rule adopted pursuant thereto.

          (kk) Violates ORS 646.563.

          (LL) Violates ORS 759.690 or any rule adopted pursuant thereto.

          (mm) Violates the provisions of ORS 759.705, 759.710 and 759.720 or any rule adopted pursuant thereto.

          (nn) Violates ORS 646.892 or 646.894.

          (oo) Violates any provision of ORS 646.249 to 646.259.

          (pp) Violates ORS 646.384.

          (qq) Violates ORS 646.871.

          (rr) Violates ORS 822.046.

          (ss) Violates ORS 128.001.

          (tt) Violates ORS 646.649 (2) to (4).

          (uu) Violates ORS 646.877 (2) to (5).

          (vv) Violates ORS 87.686.

          (ww) Violates ORS 646.651.

          (xx) Violates ORS 646.879.

          (yy) Violates ORS 646.402 or any rule adopted under ORS 646.402 or 646.404.

          (zz) Violates section 2 (2) or (3) of this 2003 Act.

          (2) A representation under subsection (1) of this section or ORS 646.607 may be any manifestation of any assertion by words or conduct, including, but not limited to, a failure to disclose a fact.

          (3) In order to prevail in an action or suit under ORS 646.605 to 646.652, a prosecuting attorney need not prove competition between the parties or actual confusion or misunderstanding.

          (4) No action or suit shall be brought under subsection (1)(u) of this section unless the Attorney General has first established a rule in accordance with the provisions of ORS 183.310 to 183.550 declaring the conduct to be unfair or deceptive in trade or commerce.

 

          SECTION 5. ORS 646.608, as amended by section 13, chapter 924, Oregon Laws 2001, is amended to read:

          646.608. (1) A person engages in an unlawful practice when in the course of the person’s business, vocation or occupation the person does any of the following:

          (a) Passes off real estate, goods or services as those of another.

          (b) Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of real estate, goods or services.

          (c) Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another.

          (d) Uses deceptive representations or designations of geographic origin in connection with real estate, goods or services.

          (e) Represents that real estate, goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, quantities or qualities that they do not have or that a person has a sponsorship, approval, status, qualification, affiliation, or connection that the person does not have.

          (f) Represents that real estate or goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand.

          (g) Represents that real estate, goods or services are of a particular standard, quality, or grade, or that real estate or goods are of a particular style or model, if they are of another.

          (h) Disparages the real estate, goods, services, property or business of a customer or another by false or misleading representations of fact.

          (i) Advertises real estate, goods or services with intent not to provide them as advertised, or with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity.

          (j) Makes false or misleading representations of fact concerning the reasons for, existence of, or amounts of price reductions.

          (k) Makes false or misleading representations concerning credit availability or the nature of the transaction or obligation incurred.

          (L) Makes false or misleading representations relating to commissions or other compensation to be paid in exchange for permitting real estate, goods or services to be used for model or demonstration purposes or in exchange for submitting names of potential customers.

          (m) Performs service on or dismantles any goods or real estate when not authorized by the owner or apparent owner thereof.

          (n) Solicits potential customers by telephone or door to door as a seller unless the person provides the information required under ORS 646.611.

          (o) In a sale, rental or other disposition of real estate, goods or services, gives or offers to give a rebate or discount or otherwise pays or offers to pay value to the customer in consideration of the customer giving to the person the names of prospective purchasers, lessees, or borrowers, or otherwise aiding the person in making a sale, lease, or loan to another person, if earning the rebate, discount or other value is contingent upon occurrence of an event subsequent to the time the customer enters into the transaction.

          (p) Makes any false or misleading statement about a prize, contest or promotion used to publicize a product, business or service.

          (q) Promises to deliver real estate, goods or services within a certain period of time with intent not to deliver them as promised.

          (r) Organizes or induces or attempts to induce membership in a pyramid club.

          (s) Makes false or misleading representations of fact concerning the offering price of, or the person’s cost for real estate, goods or services.

          (t) Concurrent with tender or delivery of any real estate, goods or services fails to disclose any known material defect or material nonconformity.

          (u) Engages in any other unfair or deceptive conduct in trade or commerce.

          (v) Violates any of the provisions relating to auction sales, auctioneers or auction marts under ORS 698.640, whether in a commercial or noncommercial situation.

          (w) Manufactures mercury fever thermometers.

          (x) Sells or supplies mercury fever thermometers unless the thermometer is required by federal law, or is:

          (A) Prescribed by a person licensed under ORS chapter 677; and

          (B) Supplied with instructions on the careful handling of the thermometer to avoid breakage and on the proper cleanup of mercury should breakage occur.

          (y) Sells a thermostat that contains mercury unless the thermostat is labeled in a manner to inform the purchaser that mercury is present in the thermostat and that the thermostat may not be disposed of until the mercury is removed, reused, recycled or otherwise managed to ensure that the mercury does not become part of the solid waste stream or wastewater. For purposes of this paragraph, “thermostat” means a device commonly used to sense and, through electrical communication with heating, cooling or ventilation equipment, control room temperature.

          (z) Sells or offers for sale a motor vehicle manufactured after January 1, 2006, that contains mercury light switches.

          (aa) Violates the provisions of ORS 803.375, 803.385 or 815.410 to 815.430.

          (bb) Violates ORS 646.850 (1).

          (cc) Violates any requirement of ORS 646.661 to 646.686.

          (dd) Violates the provisions of ORS 128.801 to 128.898.

          (ee) Violates ORS 646.883 or 646.885.

          (ff) Violates any provision of ORS 646.195.

          (gg) Violates ORS 646.569.

          (hh) Violates the provisions of ORS 646.859.

          (ii) Violates ORS 759.290.

          (jj) Violates ORS 646.872.

          (kk) Violates ORS 646.553 or 646.557 or any rule adopted pursuant thereto.

          (LL) Violates ORS 646.563.

          (mm) Violates ORS 759.690 or any rule adopted pursuant thereto.

          (nn) Violates the provisions of ORS 759.705, 759.710 and 759.720 or any rule adopted pursuant thereto.

          (oo) Violates ORS 646.892 or 646.894.

          (pp) Violates any provision of ORS 646.249 to 646.259.

          (qq) Violates ORS 646.384.

          (rr) Violates ORS 646.871.

          (ss) Violates ORS 822.046.

          (tt) Violates ORS 128.001.

          (uu) Violates ORS 646.649 (2) to (4).

          (vv) Violates ORS 646.877 (2) to (5).

          (ww) Violates ORS 87.686.

          (xx) Violates ORS 646.651.

          (yy) Violates ORS 646.879.

          (zz) Violates ORS 646.402 or any rule adopted under ORS 646.402 or 646.404.

          (aaa) Violates section 2 (2) or (3) of this 2003 Act.

          (2) A representation under subsection (1) of this section or ORS 646.607 may be any manifestation of any assertion by words or conduct, including, but not limited to, a failure to disclose a fact.

          (3) In order to prevail in an action or suit under ORS 646.605 to 646.652, a prosecuting attorney need not prove competition between the parties or actual confusion or misunderstanding.

          (4) No action or suit shall be brought under subsection (1)(u) of this section unless the Attorney General has first established a rule in accordance with the provisions of ORS 183.310 to 183.550 declaring the conduct to be unfair or deceptive in trade or commerce.

 

          SECTION 6. ORS 701.235 is amended to read:

          701.235. (1) The Construction Contractors Board shall adopt rules to carry out the provisions of this chapter including, but not limited to, rules that:

          (a) Establish language for surety bonds;

          (b) Establish processing requirements for different types of claims described in this chapter;

          (c) Limit whether a claim may be processed by the board if there is no direct contractual relationship between the claimant and the contractor; [and]

          (d) Notwithstanding ORS 701.146 (7) and 701.150 (4) and subject to ORS 701.150 (6), exclude or limit recovery from the contractor’s bond required by ORS 701.085, of damages awarded by a court or arbitrator for interest, service charges, costs and attorney fees arising from filing and proving the claim; and

          (e) Designate a form to be used by an owner of residential property under section 2 of this 2003 Act for the purpose of indicating the method the owner has selected to comply with the requirements of section 2 (2) of this 2003 Act or to indicate that section 2 (2) of this 2003 Act does not apply.

          (2) The board may adopt rules prescribing terms and conditions under which a contractor may substitute a letter of credit from a bank authorized to do business in this state instead of the bond requirements prescribed in ORS 701.085.

 

          SECTION 7. ORS 701.992 is amended to read:

          701.992. (1) Except as provided in [subsection (4)] subsections (4) and (7) of this section, any person who violates any provision of this chapter or any rule adopted thereunder shall forfeit and pay into the General Fund of the State Treasury a civil penalty in an amount determined by the Construction Contractors Board of not more than $5,000 for each offense.

          (2) Civil penalties under this section shall be imposed as provided in ORS 183.090.

          (3) The provisions of this section are in addition to and not in lieu of any other penalty or sanction provided by law.

          (4) Penalties shall be imposed for violation of ORS 701.135 (1)(h) on both the person to whom the contract is awarded and the person who awards the contract as follows:

          (a) A fine not less than $500 nor more than $1,000 for the first offense;

          (b) A fine not less than $1,000 nor more than $2,000 for the second offense;

          (c) Suspension of the person’s license for six months for a third offense; and

          (d) Revocation of the person’s license for three years for a fourth offense.

          (5) The board shall provide by rule a process and criteria that must be met for restoration of a license that has been revoked.

          (6) If at any time following restoration of a license of a person who has violated ORS 701.135 (1)(h), the person is found to have again violated ORS 701.135 (1)(h), the person’s license shall be permanently revoked.

          (7) The board may impose a civil penalty not to exceed $100 for each violation of section 2 (3) of this 2003 Act.

 

          SECTION 8. Section 9 of this 2003 Act is added to and made a part of ORS 87.075 to 87.093.

 

          SECTION 9. (1) A written waiver described in section 2 (2) of this 2003 Act and signed by the purchaser of residential real property shall include the information described in subsection (2) of this section. The waiver shall be printed as a separate document and in at least 12-point boldfaced type.

          (2) The waiver described in subsection (1) of this section shall include, but not be limited to, the following information and shall be in substantially the following form:

____________________________________________________________________________

 

WAIVER OF PROTECTIONS

FROM SUBCONTRACTORS’ LIENS.

WARNING: READ THIS NOTICE.

PROTECT YOURSELF FROM

PAYING ANY CONTRACTOR

OR SUPPLIER TWICE

FOR THE SAME SERVICE.

 

          This is to inform you that if you are purchasing residential real property within 75 days after completion of construction, the property you are purchasing may be subject to construction liens that are not yet recorded on the date of sale. The property is located at _____.

          Under Oregon law, those who work on your property or provide materials, equipment, labor or services and are not paid have a right to enforce their claim for payment against the property. This claim is known as a construction lien.

          If a contractor fails to pay subcontractors, material suppliers, rental equipment suppliers, laborers or service providers or neglects to make other legally required payments, any person who is owed money can look to the property for payment, even if the contractor has been paid in full.

 

OREGON LAW PROVIDES

THE FOLLOWING PROTECTIONS:

 

          Under Oregon Law, the seller of residential real property is required to take one of the following actions to protect you from construction liens that are not yet recorded on the date of sale:

          - PURCHASE or PROVIDE title insurance to help cover any construction liens that are recorded after you complete the purchase of the residential real property.

          - RETAIN money in escrow until the status of all construction liens is resolved after the purchase of the residential real property is complete.

          - MAINTAIN a bond or letter of credit until the status of all construction liens is resolved after the purchase of the residential real property is complete.

          - GET waivers from every person claiming a right to a lien against the property in an aggregate amount of $5,000 or more.

          - WAIT to close the purchase of the residential real property until 75 days after the completion of construction.

 

WAIVER OF RIGHTS

 

          Under Oregon law, you may waive the requirements that apply to the seller of the residential real property. By signing this document, you agree to waive these protections and accept the risk that the property you are purchasing may be subject to a lien that is recorded after the date of sale. By waiving your rights, you may become liable for payment of the lien even if the contractor has been paid in full. Before signing this waiver, you may wish to consult an attorney.

____________________________________________________________________________

 

          I have read this statement and understand the risks it describes. I hereby choose to assume those risks and waive the protections provided under section 2 of this 2003 Act by signing this form.

__________(Signature of purchaser)

________, 2___

____________________________________________________________________________

 

          SECTION 10. ORS 87.021, as amended by sections 1 and 4, chapter 6, Oregon Laws 2002, is amended to read:

          87.021. (1) Except when material, equipment, services or labor described in ORS 87.010 (1) to (3), (5) and (6) is furnished at the request of [an] the owner [who is not the original contractor], a person furnishing any materials, equipment, services or labor described in ORS 87.010 (1) to (3), (5) and (6) for which a lien may be perfected under ORS 87.035 shall give a notice of right to a lien to the owner of the site. The notice of right to a lien may be given at any time during the progress of the improvement, but the notice only protects the right to perfect a lien for materials, equipment and labor or services provided after a date which is eight days, not including Saturdays, Sundays and other holidays as defined in ORS 187.010, before the notice is delivered or mailed. However, no lien is created under ORS 87.010 (5) or (6) for any services provided for an owner-occupied residence at the request of an agent of the owner.

          (2) The notice required by subsection (1) of this section shall be substantially in the form set forth in ORS 87.023.

          (3)(a) Except as provided in paragraph (b) of this subsection, a lien created under ORS 87.010 (1) to (3), (5) or (6) may be perfected under ORS 87.035 only to the extent that the notice required by subsection (1) of this section is given.

          (b) A person who performs labor upon a commercial improvement or provides labor and material for a commercial improvement or who rents equipment used in the construction of a commercial improvement need not give the notice required by subsection (1) of this section in order to perfect a lien created under ORS 87.010. As used in this paragraph:

          (A) “Commercial improvement” means any structure or building not used or intended to be used as a residential building, or other improvements to a site on which such a structure or building is to be located.

          (B) “Residential building” means a building or structure that is or will be occupied by the owner as a residence and that contains not more than four units capable of being used as residences or homes.

          (4) Unless otherwise agreed or the lien claimant who is required to give the notice under subsection (1) of this section is in privity with the original contractor, when a provision in an agreement for the construction of a commercial improvement requires the original contractor to hold an owner harmless or to indemnify an owner for a lien created under ORS 87.010 and perfected under ORS 87.035, that provision is not enforceable as to any lien which requires that a notice under this section be given to the owner unless a copy of the notice is delivered pursuant to ORS 87.018 to the original contractor not later than 10 days after its receipt by the owner.

 

          SECTION 11. ORS 701.250, as amended by sections 2 and 7, chapter 6, Oregon Laws 2002, is amended to read:

          701.250. (1) Any individual may request and the Construction Contractors Board shall provide notification of the status of one or more licensees. Status information provided by the board shall include any professional credentials earned by the contractor as described in ORS 701.120.

          (2) The board may charge a standard fee for the notification described in subsection (1) of this section not to exceed the cost of preparation and provision of such notices.

          [(3) An individual may request and the board shall provide the individual with a cautionary notice required by section 6, chapter 6, Oregon Laws 2002, that informs a purchaser that under certain circumstances a mortgagee or lienholder may encumber or claim a lien upon real property after a sale to the purchaser for a transaction or activity that occurred before the sale.]

 

          SECTION 12. Sections 5, 6 and 8, chapter 6, Oregon Laws 2002, are repealed.

 

          SECTION 13. Section 2 of this 2003 Act applies only to sales of residential property that occur on or after the operative date of section 2 of this 2003 Act.

 

          SECTION 14. (1) Except as provided in subsection (2) of this section, sections 2 and 9 of this 2003 Act and the amendments to ORS 646.608, 701.100, 701.235 and 701.992 by sections 3 to 7 of this 2003 Act become operative on January 1, 2004.

          (2) The Construction Contractors Board may adopt any rule or take any action under sections 2 and 9 of this 2003 Act and ORS 646.608, 701.100, 701.235 and 701.992 as amended by sections 3 to 7 of this 2003 Act prior to the operative date specified in subsection (1) of this section that is necessary to enable the board to exercise, on and after the operative date specified in subsection (1) of this section, all the duties, functions and powers conferred on the board by sections 2 and 9 of this 2003 Act and the amendments to ORS 646.608, 701.100, 701.235 and 701.992 by sections 3 to 7 of this 2003 Act.

 

          SECTION 15. This 2003 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2003 Act takes effect on its passage.

 

Approved by the Governor September 17, 2003

 

Filed in the office of Secretary of State September 18, 2003

 

Effective date September 17, 2003

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