72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
HA to HB 2590
LC 1739/HB 2590-4
HOUSE AMENDMENTS TO
HOUSE BILL 2590
By COMMITTEE ON JUDICIARY
April 30
On page 1 of the printed bill, delete lines 4 through 31 and
delete pages 2 through 5 and insert:
' { + SECTION 1. + } { + As used in sections 1 to 4 of this
2003 Act:
' (1) 'Commercial real estate' means real estate located in
Oregon except:
' (a) Real estate on which no buildings or structures are
located and that is zoned for single-family residential use;
' (b) Real estate containing one to four residential units; or
' (c) Single-family residential units such as condominiums,
town houses or homes in a subdivision when leased on a
unit-by-unit basis.
' (2) 'County clerk' means the county clerk of the county or
counties in which the commercial real estate is located.
' (3) 'Principal real estate broker' means a person licensed as
a principal real estate broker under ORS 696.022.
' (4) 'Real estate' has the meaning given in ORS 696.010 (14).
' (5) 'Transfer' means a transfer of commercial real estate or
an interest in commercial real estate under a lease. + }
' { + SECTION 2. + } { + (1) If commercial real estate or an
interest in commercial real estate is the subject of a lease to a
lessee, a principal real estate broker shall have a lien upon
that commercial real estate in the amount that the principal real
estate broker is due under a written instrument signed by the
lessor of the commercial real estate, or the authorized agent of
the lessor.
' (2) The lien is available to the principal real estate broker
named in the instrument signed by the lessor or authorized agent.
The lien is not available to an employee or independent
contractor of the principal real estate broker.
' (3) The lien attaches on the recording date of the notice of
lien and does not relate back to the date of the written
instrument.
' (4) The lien shall attach to the commercial real estate or an
interest in the commercial real estate if:
' (a) A principal real estate broker becomes entitled to a fee
or commission under a written instrument signed by the lessor or
authorized agent of the lessor; and
' (b) A principal real estate broker records a notice of lien
with the county clerk as provided in subsections (5) to (8) of
this section.
' (5) Except as provided in subsections (6) to (8) of this
section, a principal real estate broker shall record a notice of
lien within 45 days after the lessee takes possession of the
leased premises.
' (6) If the lessor personally serves written notice of the
execution of the lease upon the principal real estate broker at
least 10 days prior to the date the lessee takes possession of
the leased premises, the notice of lien must be recorded before
the date indicated in the written notice for the lessee to take
possession.
' (7)(a) If, pursuant to a written instrument signed by the
lessor or authorized agent, a principal real estate broker may be
due any additional fee or commission as a result of future events
or occurrences, including the exercise of an option to expand the
leased premises or renew or extend a lease, the principal real
estate broker may record the notice of lien after execution of
the lease or other written instrument that contains the options
but within 45 days after the event or occurrence on which the
additional fee or commission is claimed.
' (b) Notwithstanding subsection (10) of this section, an
action to foreclose a lien to collect additional fees or
commissions must be commenced within 120 days after the event or
occurrence on which the additional fees or commissions are
claimed.
' (8)(a) If the commercial real estate is subsequently sold or
otherwise conveyed prior to the date on which additional fees or
commissions are due and if the principal real estate broker has
filed a valid notice of lien prior to the sale or other
conveyance of the commercial real estate, the purchaser or
transferee is considered to have notice of the lien and takes
title to the commercial real estate subject to the lien.
' (b) If a principal real estate broker claiming additional
fees or commissions does not record the notice of lien for the
additional fees or commissions prior to the recording of a deed
conveying legal title to the commercial real estate to the
purchaser or transferee, the principal real estate broker may not
claim a lien on the commercial real estate.
' (c) Nothing in this subsection limits or otherwise affects
claims or defenses a principal real estate broker, owner or other
affected party may have on any other basis.
' (9)(a) Except as provided in paragraph (b) of this
subsection, the principal real estate broker shall personally
serve or mail a copy of the notice of lien to the owner of record
of the commercial real estate or the owner's authorized agent.
The copy of the notice must be served or mailed within 10 days
after the date the lien is recorded. The copy must be served or
mailed by registered or certified mail to the address stated in
the written instrument on which the claim of lien is based or, if
no address is given, to the address of the commercial real estate
on which the claim of lien is based. The copy of the notice of
claim of lien is effective upon personal service or mailing with
postage prepaid.
' (b) If a principal real estate broker subject to this
subsection does not comply with the requirements of this
subsection, the lien claimed by the principal real estate broker
is not enforceable.
' (10)(a) Within 120 days after recording the notice of lien, a
principal real estate broker may file suit to enforce the lien in
the circuit court of a county in which the commercial real estate
is located by filing a complaint and sworn affidavit that the
lien has been recorded. If the real estate broker does not file
suit within 120 days after recording the notice of lien, the lien
is extinguished, a subsequent notice of lien may not be given for
the same claim and the claim may not be asserted in a proceeding
under sections 1 to 4 of this 2003 Act.
' (b) If the lien is based upon an option or other right to
lease, a principal real estate broker may file suit to enforce
the lien within 120 days after the date of transfer of the
commercial real estate. The suit shall be filed in the manner
described in paragraph (a) of this subsection. If the real estate
broker does not file suit within 120 days after the date of the
transfer, the lien is extinguished, subsequent notice of lien may
not be given for the same claim and the claim may not be asserted
in a proceeding under sections 1 to 4 of this 2003 Act.
' (c) The complaints described in this subsection shall
include:
' (A) A brief statement of the instrument on which the lien is
founded;
' (B) The date when the instrument was made;
' (C) A description of the services performed;
' (D) The amounts due and unpaid;
' (E) A description of the commercial real estate that is
subject to the lien; and
' (F) Other facts necessary for a full understanding of the
rights of the parties.
' (d) In addition to the requirements of ORS 88.030, the
plaintiff shall make all known interested parties defendants in
the action and shall issue summonses and provide service of
summonses as provided in ORCP 7 D. All liens claimed under
sections 1 to 4 of this 2003 Act shall be foreclosed in a suit in
the circuit court under ORS chapter 88.
' (11) Any notice of lien recorded under this section shall:
' (a) State the name of the claimant and owner of record;
' (b) Provide a description of the commercial real estate upon
which the lien is claimed;
' (c) State the amount for which the lien is claimed;
' (d) Provide the real estate license number of the principal
real estate broker;
' (e) Recite that the information contained in the notice is
true and accurate to the knowledge of the signatory; and
' (f) Be signed by the principal real estate broker or the
authorized agent of the principal real estate broker.
' (12) If a notice of lien has been filed with the county clerk
and a condition occurs that would preclude the principal real
estate broker from receiving compensation under the terms of the
principal real estate broker's written instrument, within 10 days
after receiving a written demand by the owner of record of the
commercial real estate, or the owner's authorized agent, the
principal real estate broker shall provide to the owner or agent
a written release or satisfaction of the lien.
' (13)(a) If the principal real estate broker and the party or
parties from whom the fee or commission is claimed agree to
alternative dispute resolution, the claim shall be heard and
resolved in the forum on which the parties have agreed.
' (b) The court before which the lien foreclosure proceeding is
brought shall retain jurisdiction to enter judgment on the award
or other result made or reached through alternative dispute
resolution by the parties to the foreclosure. The principal real
estate broker's notice of lien shall remain of record and the
foreclosure proceeding shall be stayed during the alternative
dispute resolution process.
' (14) Upon written demand of the owner of record of the
commercial real estate, or the owner's authorized agent, served
upon the principal real estate broker claiming the lien, a suit
shall be commenced or answer filed within 30 days after receipt
of the written demand or the lien shall be extinguished. The
demand may be served by registered or certified mail, return
receipt requested, or by personal service.
' (15) The principal real estate broker shall acknowledge
satisfaction or release of the lien in writing:
' (a) Within five days after payment and upon written demand of
the owner of the commercial real estate, or the owner's
authorized agent, if a notice of lien has been filed with the
county clerk and the claimed fee or commission has been paid to
the principal real estate broker claiming the lien; or
' (b) Within five days after expiration of the time in which to
file the lien if there is failure to institute a suit to enforce
the lien within the time provided by this section.
' (16) The court shall award to the prevailing party the cost
of proceedings brought under sections 1 to 4 of this 2003 Act,
including reasonable attorney fees, costs and prejudgment
interests. + }
' { + SECTION 3. + } { + A prior recorded encumbrance on the
commercial real estate shall have priority over a lien created
under section 2 of this 2003 Act, including a prior recorded
construction lien as described in ORS 87.001 to 87.093. + }
' { + SECTION 4. + } { + (1) Except as provided in section 2
of this 2003 Act, if a notice of claim of lien has been filed
that would otherwise prevent a commercial real estate transfer,
the lessor of the commercial real estate shall establish an
escrow account with the clerk of the circuit court in the county
where the commercial real estate is located, from the proceeds of
the transfer, in an amount sufficient to release the claim of
lien.
' (2) The requirement to establish an escrow account is not
cause for any party to refuse to close the transfer.
' (3) Proceeds held in the escrow account shall be held by the
clerk until the parties' rights to the escrow funds have been
determined by written agreement of the parties, by a final
judgment of the circuit court or by other process as may be
agreed upon by the parties.
' (4) If proceeds sufficient to satisfy the amount claimed in
the lien have been deposited in the escrow account, the principal
real estate broker shall release the claim of lien on the
commercial real estate and the lien shall attach to the proceeds
upon deposit. The lien on the commercial real estate shall be
released within 10 days after the principal real estate broker
receives written notice that proceeds sufficient to satisfy the
claim have been deposited into the escrow account. The commercial
real estate described in the claim of lien shall thereafter be
entirely free of the lien and the commercial real estate shall in
no way be involved in subsequent proceedings.
' (5) When an escrow account is established under this section,
if, in a suit to enforce the lien for which the account is
established, the court allows the lien, the lien shall be
satisfied out of proceeds in the account. The court shall include
as part of its judgment an order for the return to the person who
deposited the proceeds of any amount remaining after the lien is
satisfied.
' (6) When an escrow account is established under this section,
if, in a suit to enforce the lien for which the account is
established, the court disallows the lien, the court shall
include as part of its judgment an order for the return of the
proceeds to the person who deposited the proceeds in the
account. + }
' { + SECTION 5. + } { + Sections 1 to 4 of this 2003 Act
are added to and made a part of ORS chapter 87. + }
' { + SECTION 6. + } { + Sections 1 to 4 of this 2003 Act
apply to liens that may be claimed by a principal real estate
broker based on a written instrument signed by the lessor of
commercial real estate, or the authorized agent of the lessor, on
or after the effective date of this 2003 Act. + } ' .
----------