72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 459
B-Engrossed
Senate Bill 34
Ordered by the House May 13
Including Senate Amendments dated February 10 and House
Amendments
dated May 13
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Joint Interim Committee on
Judiciary for Oregon State Bar Elder Law Section)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Exempts specified persons who may be engaged in professional
real estate activity from requirement to obtain real estate
license.
Applies to specified persons performing real estate activity on
or after July 1, 2002.
Declares emergency, effective on passage.
A BILL FOR AN ACT
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. s80b-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;
(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.
(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 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. + }
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