Chapter 347 Oregon Laws 2003

AN ACT

SB 34

Relating to professional real estate activity; creating new provisions; amending ORS 696.010 and 696.030; and declaring an emergency.

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

SECTION 1. ORS 696.030 is amended to read:

696.030. (1) ORS 696.010 to 696.375, 696.392, 696.395 to 696.430, 696.490, 696.600 to 696.785, 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] real estate activity involves the real estate of the employer and [are]:

(A) Is incidental to the employee’s normal, nonreal estate activities; or [a nonlicensed regular full-time employee whose activity involving such real estate]

(B) 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] A 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] a contract for the sale, leasing or exchanging of real estate if the power of attorney was executed prior to July 1, 2002, in compliance with the requirements of law at the time of execution or 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] real estate 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] as a device to engage in professional real estate activity without obtaining the necessary real estate license.

(c) A nonlicensed person acting as attorney in fact under a duly executed power of attorney in which the authorized agent is the spouse of the principal, or the child, grandchild, parent, grandparent, sibling, aunt, uncle, niece or nephew of the principal or of the spouse of the principal, authorizing real estate activity if the power of attorney is recorded in the office of the recording officer for the county in which the real estate to be sold, leased or exchanged is located.

[(c)] (d) [Any] An attorney at law rendering services in the performance of duties as an attorney at law.

[(d)] (e) [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] A person acting in the person’s official capacity as a receiver, a conservator, a trustee in bankruptcy, a personal representative or a trustee, or a regular salaried employee of the trustee, acting under a trust agreement, deed of trust or will.

[(e)] (f) [Any] A person [doing any of the acts] performing an act of professional real estate activity under order of [any] a court.

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

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

[(h)] (i) A nonlicensed individual employed by a real estate broker or principal real estate broker and acting as a manager for [any] real estate [whose activities are] if the real estate activity of the nonlicensed individual is limited to negotiating rental or lease agreements, [the] checking [of] tenant and credit references, [the physical maintenance of] physically maintaining the real estate, conducting tenant relations, [and the collection of] collecting the rent[,] and [the supervision of] supervising the premises’ managers.

[(i)] (j) [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] A person, or an employee of the person, selling or leasing cemetery lots, parcels or units while engaged in the disposition of human bodies under ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990.

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

[(k)] (L) [Any] A nonlicensed person, [organization, or any] or a regular full-time employee [thereof] of the person, [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)] (m) [Any] A hotelkeeper or innkeeper as defined by ORS 699.005 [while] arranging the rental of transient lodging at a hotel or inn in the course of business as a hotelkeeper or innkeeper.

[(m)] (n) [Any] A travel agent [who, in the course of business as a travel agent for compensation, arranges] arranging the rental of transient lodging at a hotel or inn as defined in ORS 699.005 in the course of business as a travel agent for compensation. For the purpose of this paragraph, “travel agent” means a person, [including employees thereof] and employees of the person, 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)] (o) [Any] A common carrier [while in the course of business as a common carrier in arranging for compensation] arranging the rental of transient lodging at a hotel or inn as defined in ORS 699.005 in the course of business as a common carrier. For the purpose of this paragraph, “common carrier” means a person who transports[,] or purports to be willing to transport persons[,] from place to place by rail, motor vehicle, boat or aircraft for hire, compensation or consideration [by rail, motor vehicle, boat or aircraft from place to place].

[(o)] (p) [Any] A 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 in the course of business as a hotel representative. 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)] (q) A nonlicensed person transferring or acquiring [any] an interest in real estate owned or to be owned by the person.

[(q)] (r) [Any] A 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)] (s) A membership camping contract broker or salesperson registered with the Real Estate Agency [when engaged in the sale of] selling membership camping contracts.

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

[(t)] (u) [Any] A 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)] (v) [Any] A nonlicensed person [who, for compensation, refers] referring a new tenant for compensation to a real estate licensee acting as the property manager for [the person’s] a 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)] (w) [Any] A nonlicensed person [who gives] giving an opinion in an administrative or judicial proceeding regarding the value of real estate for taxation[,] or [who represents] representing a taxpayer under ORS 305.230 or 309.100.

(x) A nonlicensed person acting as a paid fiduciary whose real estate activity is limited to negotiating or closing a transaction to obtain the services of a real estate licensee.

(y) A nonlicensed person acting as a fiduciary under a court order, without regard to whether the court order specifically authorizes real estate activity.

(z) A financial institution or trust company, as those terms are defined in ORS 706.008, acting as attorney in fact under a duly executed power of attorney from the owner or purchaser authorizing real estate activity, if the power of attorney is recorded in the office of the county clerk for the county in which the real estate to be sold, leased or exchanged is located.

(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 2. ORS 696.010 is amended to read:

696.010. As used in ORS 696.010 to 696.495, 696.600 to 696.785, 696.800 to 696.855, 696.990 and 696.995, unless the context requires otherwise:

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

(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;

(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;

(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.

(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.

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

(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.

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

(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.

(16) “Real estate licensee” means a real estate broker, principal real estate broker or real estate property manager.

(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 3. The amendments to ORS 696.030 (1)(c) and (y) by section 1 of this 2003 Act apply to real estate activity performed by a person who qualifies under ORS 696.030 (1)(c) and (y) on or after July 1, 2002.

SECTION 4. 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 June 13, 2003

Filed in the office of Secretary of State June 13, 2003

Effective date June 13, 2003

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