Chapter 319
AN ACT
SB 167
Relating to real estate activity; creating new provisions; amending ORS
9.160, 31.350, 94.977, 270.120, 305.230, 446.676, 646.382, 646.605, 674.100,
696.010, 696.020, 696.022, 696.026, 696.030, 696.110, 696.205, 696.241,
696.280, 696.301, 696.315, 696.365, 696.375, 696.398, 696.511, 696.600,
696.609, 696.710, 696.730, 696.775, 696.800, 696.990 and 744.056; and declaring
an emergency.
Be It Enacted by the People of
the State of
SECTION 1. 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 696.870, 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)(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] that 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 dissemination and distribution
[and dissemination], so long as the
unit is at all times available for sale, lease, lease option or exchange.
(5) “Commissioner” means
the Real Estate Commissioner.
(6) “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.
(7) “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.
(8) “Expired” means,
in the context of a real estate licensee, that the license has not been renewed
in a timely manner, but may still be renewed.
(9) “Inactive” means, in
the context of a real estate licensee, that the license has been returned to the agency to be held until the licensee
reactivates the license or the license expires or lapses.
(10) “Lapsed” means, in
the context of a real estate licensee, that the license has not been renewed in
a timely manner and is not eligible for renewal.
[(8)] (11) “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] has the meaning
given that term in section 3 of this 2007 Act.
[(9)] (12) “Management of rental real estate” means:
(a) 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) Providing staff and
services to accommodate the tax reporting and other financial or accounting
needs of the real estate;
(L) Providing copies of
records of acts performed on behalf of the owner of the real estate; and
(M) Offering or
attempting to do any of the acts described in this paragraph for the owner of
the real estate; or
(b) 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.
(13) “Nonlicensed
individual” means an individual:
(a) Who has not obtained
a real estate license; or
(b) Whose real estate
license is lapsed, expired, inactive, suspended, surrendered or revoked.
[(10)] (14) “Principal real estate broker” means an
individual who [is licensed] holds
an active license as a principal real estate broker and who employs,
engages or supervises the professional real estate activity of another
real estate licensee.
[(11)] (15) “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], except when
the activity is 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)(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[.]; or
(n) Performs real estate
marketing activity as described in ORS 696.600.
[(12)] (16) “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.
[(13)] (17) “Real estate broker” means [a person] an individual who engages in professional real
estate activity and who [is licensed]
holds an active license as a real estate broker.
[(14)] (18) “Real estate licensee” means an individual who
holds an active license as a real estate broker, principal real estate
broker or real estate property manager.
[(15)] (19) “Real estate property manager” means a real
estate licensee who is authorized to engage in management of rental real
estate.
[(16)] (20) “Registered business name” means a name
registered with the Real Estate Agency under which the [person] individual registering the name engages in
professional real estate activity.
[(17)] (21) “Sole practitioner” means a real estate broker
conducting professional real estate activity not in conjunction with other real
estate brokers or principal real estate brokers.
SECTION 2. Section 3 of this 2007 Act is added to and
made a part of ORS 696.010 to 696.495.
SECTION 3. (1) As used in this section, “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.
(2) The Real Estate
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.
SECTION 4. ORS 696.020 is amended to read:
696.020. (1) The Real
Estate Agency may issue a real estate license only to an individual.
[(1)] (2) [No person
shall] An individual may not engage in, carry on, advertise or
purport to engage in or carry on professional real estate activity, or act in
the capacity of[,] a real estate
licensee, within this state [without
first obtaining a] unless the individual holds an active license as
provided for in this chapter.
[(2)] (3) A real estate licensee [shall be] is bound by and subject to the requirements of ORS
696.010 to 696.495, 696.600 to 696.785, 696.800 to 696.870, 696.990 and 696.995
[in] while:
(a) Engaging in [any] professional real estate activity; or
(b) [while] Acting [in] on the licensee’s own behalf in the [offer to, negotiations for, or] sale,
exchange, lease option or purchase of real estate or in the offer or
negotiations for the sale, exchange, lease option or purchase of real estate.
(4) The agency by
rule may establish provisions for a nonlicensed individual whose license is
inactive or suspended and who acts on the licensee’s own behalf in the sale,
exchange, lease option or purchase of real estate or in the offer or
negotiations for the sale, exchange, lease option or purchase of real estate.
SECTION 5. ORS 696.022 is amended to read:
696.022. (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;
(d) The term of a
license in each category; and
(e) Terms and conditions
under which the license of a real estate licensee must be returned or
transferred to the Real Estate Commissioner for purposes including, but not
limited to, inactivation, suspension or termination of the license.
(2)(a) A real estate
broker may engage in [all of the
professional activities of a real estate broker described in this chapter]
professional real estate activity. A real estate broker may not employ,
engage or [otherwise] supervise the
professional real estate [activities]
activity of another real estate [broker
or principal real estate broker] licensee.
(b) In order to qualify
for a real estate broker’s license, an applicant must furnish proof
satisfactory to the 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.
(c) A real estate broker
may conduct professional real estate [activities]
activity as a sole practitioner after:
(A) The [person] individual has acquired
three years of active experience as a real estate broker; or
(B) The [person] individual has acquired
three years of active experience as a real estate salesperson as defined in ORS
696.025 (1999 Edition) and has successfully completed the real estate broker’s
examination required by rule of the agency.
(3)(a) A principal real
estate broker may engage in [all of the
professional activities of a real estate broker described in this chapter]
professional real estate activity. A principal real estate broker may
conduct professional real estate [activities]
activity in conjunction with other real estate brokers or principal real
estate brokers. In addition, a principal real estate broker [may] must employ, engage [and otherwise] or supervise the
professional real estate [activities of]
activity of another real estate [brokers
or principal real estate brokers] licensee.
(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
the brokerage administration and sales supervision course, as required by
agency rule, and has:
(A) Three years of
active experience as a licensed real estate broker; or
(B) Three years of
active experience as a real estate salesperson as defined in ORS 696.025 (1999
Edition) and has successfully completed the real estate broker’s examination
required by rule of the agency.
(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] an individual 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] that the
commissioner deems necessary to protect the public interest.
(b) In implementing this
subsection, the commissioner shall require fingerprints and criminal offender
information of an applicant for initial licensing and may require fingerprints
and criminal offender information of an applicant for license renewal.
Fingerprints acquired under this subsection may be used for the purpose of
requesting a state or nationwide criminal records check under ORS 181.534.
(6) A license may be
issued under this section only to [persons
who are] an individual who is 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 or a real estate broker’s license has experience related to
professional real estate activity that is equivalent to the experience required
under subsection (2) or (3) of this section.
SECTION 6. ORS 696.026 is amended to read:
696.026. (1) A real
estate broker or principal real estate broker may conduct professional real
estate activity under the broker’s name, a registered business name or a name
prescribed by agency rule. The business name under which a broker conducts
professional real estate activity has no license standing independent of the
broker.
(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 sole practitioner or a principal
real estate broker.
(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] individual 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) 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.
(8) Notwithstanding any
other provision of ORS 696.010 to 696.495, 696.600 to 696.785, 696.800 to
696.870, 696.990 and 696.995, a broker associated with a principal broker may
create a corporation, limited liability company,
limited liability partnership or any other lawfully constituted business
organization for the purpose of receiving commission payments from the
principal broker. A business organization created under this subsection may not
be licensed under ORS 696.022 or conduct in its own name professional real
estate activity requiring a real estate license.
SECTION 7. 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] individual who is a full-time
employee of a single owner of real estate whose real estate activity involves
the real estate of the employer and:
(A) Is incidental to the
employee’s normal, nonreal estate activities; or
(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) A [nonlicensed person acting as attorney in
fact under a duly executed power] nonlicensed individual who acts 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 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 real estate is located;
(B) The power of
attorney specifically describes the real estate; and
(C) The [person] individual does not use
the power of attorney 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] nonlicensed individual who acts 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.
(d) A nonlicensed
individual who is an attorney at law rendering services in the performance
of duties as an attorney at law.
(e) A [person acting] nonlicensed individual
who acts in the [person’s] individual’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.
(f) A [person performing] nonlicensed
individual who performs an act of professional real estate activity under
order of a court.
(g) A nonlicensed individual
who is a regular full-time employee of a single [nonlicensed] corporation, partnership, association or nonlicensed
individual owner of real property acting for the corporation, partnership,
association or nonlicensed individual owner in the rental or
management of the real property, but not in the sale, exchange, lease option or
purchase of the real property.
(h) An individual who
is a registered professional engineer or architect rendering services in
performance of duties as a professional engineer or architect.
(i) A nonlicensed
individual who is employed by a real estate broker or principal real
estate broker and [acting] who
acts as a manager for real estate if the real estate activity of the
nonlicensed individual is limited to negotiating rental or lease agreements,
checking tenant and credit references, physically maintaining the real estate,
conducting tenant relations, collecting the rent, supervising the premises’
managers and discussing financial matters relating to management of the real
estate with the owner.
(j) [A person, or an employee of the person,
selling or leasing] An individual who sells or leases 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 or an employee of the nonlicensed individual performing similar
activities.
(k) An individual who
is a salaried employee of the State of Oregon, or any of its political
subdivisions, engaging in professional real estate activity as a part of such
employment.
(L) A nonlicensed [person, or a regular full-time employee of
the person, analyzing or advising of] individual who analyzes or
provides advice regarding permissible land use alternatives, environmental
impact, building and use permit procedures or demographic market studies, or
a regular full-time employee of the nonlicensed individual performing similar
activities. This exclusion does not apply to the handling of transactional
negotiations for transfer of an interest in real estate.
(m) An individual who
is a hotelkeeper or innkeeper as defined by ORS 699.005 arranging the
rental of transient lodging at a hotel or inn in the course of business as a
hotelkeeper or innkeeper.
(n) An individual who
is a travel agent
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, and employees of the
person, regularly representing and selling travel services to the public
directly or indirectly through other travel agents.
(o) An individual who
is a common carrier
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]
that transports or purports to be willing to transport [persons] individuals from place to
place by rail, motor vehicle, boat or aircraft for hire, compensation or
consideration.
(p) An individual who
is a hotel representative
arranging 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] that provides reservations or sale services to
independent hotels, airlines, steamship companies and government tourist
agencies.
(q) A nonlicensed [person] individual transferring
or acquiring an interest in real estate owned or to be owned by the [person] individual.
(r) An individual who
is a general partner for a domestic or foreign limited partnership duly
registered and operating within this state under ORS chapter 70 engaging in the
sale of limited partnership interests and the acquisition, sale, exchange,
lease, transfer or management of the real estate of the limited partnership.
(s) An individual who
is a membership camping contract broker or salesperson registered with the
Real Estate Agency selling membership camping contracts.
(t) An individual who
is a professional forester or farm manager engaging in property management
activity on [forest or farm land] forestland
or farmland when the activity is incidental to the nonreal estate duties
involving overall management of forest or farm resources.
(u) An individual who
is a registered investment adviser under the Investment Advisers Act of
1940, 15 U.S.C. §80b-1 et seq., rendering real estate investment services for
the office of the State Treasurer or the Oregon Investment Council.
(v) A nonlicensed [person referring] individual who
refers a new tenant for compensation to a real estate licensee acting as
the property manager for a residential building or facility while the [person] individual resides in the
building or facility or within six months after termination of the [person’s] individual’s tenancy.
(w) A nonlicensed [person giving] individual who gives
an opinion in an administrative or judicial proceeding regarding the value of
real estate for taxation or representing a taxpayer under ORS 305.230 or
309.100.
(x) A nonlicensed [person] individual 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] individual who is
a fiduciary under a court order, without regard to whether the court order
specifically authorizes real estate activity.
(z) An individual who
is a representative of a financial institution or trust company, as those
terms are defined in ORS 706.008, [acting
as] that is 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 8. ORS 696.205 is amended to read:
696.205. (1) If a real
estate licensee who is a sole practitioner or who is the sole principal real
estate broker of a real estate business dies or becomes incapacitated, the Real
Estate Commissioner may issue a temporary license to the executor,
administrator or personal representative of the estate of the deceased real
estate licensee or to the court-appointed fiduciary of the incapacitated real
estate licensee, or to some other [person]
individual designated by the commissioner, in order to continue to
transact the real estate business in the case of the incapacitated real estate
licensee or to wind up the affairs of the deceased or incapacitated real estate
licensee. The term of a temporary license issued under this section may not
exceed one year from the date of issuance unless the commissioner, in the
discretion of the commissioner, extends the term of the temporary license based
on sufficient cause provided by the temporary licensee to the commissioner.
(2) The Real Estate
Agency may adopt administrative rules to administer this section or to
authorize [a person] an individual
to transact or wind up real estate business on behalf of the deceased or
incapacitated real estate licensee.
SECTION 9. ORS 696.241 is amended to read:
696.241. (1) Each 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 sole practitioner
or 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 sole
practitioner 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 sole
practitioner 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 sole
practitioner 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 the records required by the
provisions of ORS 696.280 are maintained in the main office of the sole
practitioner or broker.
(5) Trust funds received
by a sole practitioner or principal real estate broker may be placed by the
sole practitioner or 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 sole
practitioner 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) With prior written
notice to all parties who have an interest in the trust funds, a sole
practitioner or principal real estate broker may place trust funds received by
the sole practitioner or principal real estate broker in a federally insured
interest-bearing bank account that is designated a Clients’ Trust Account and
the earnings of which inure to the benefit of a public benefit corporation, as
defined in ORS 65.001, for distribution to organizations and individuals for
first-time homebuying assistance and for development of affordable housing. The
sole practitioner or principal real estate broker shall select a qualified
public benefit corporation to receive the interest earnings.
(7) A sole practitioner
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 sole practitioner or
broker in connection with any real estate transaction as part or all of the
sole practitioner’s or 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 the sole practitioner 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.
(8) Clients’ Trust
Account funds are not subject to execution or attachment on any claim against a
sole practitioner or principal real estate broker.
(9) [No person shall] A sole practitioner
or principal real estate broker may not 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 sole practitioner or principal real estate broker, except actual trust
funds deposited with the sole practitioner or broker.
(10) The agency by rule
shall establish a procedure for disbursal of disputed funds from a Clients’
Trust Account to the person who delivered the funds to the sole practitioner or
principal real estate broker. The procedure shall allow disbursal not more than
20 days after a request is made for the disbursal. Any disbursal pursuant to
the procedure does not affect the claim of any other person to the funds.
(11) The agency may
provide by [rules] rule for
other records to be maintained and for the manner in which trust funds are
deposited, held and disbursed.
SECTION 9a. ORS 696.280 is amended to read:
696.280. (1) A real
estate broker or principal real estate broker shall maintain within this state,
except as provided in subsection (4) of this section, 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 only documents the agency may require by rule a real estate
broker or principal real estate broker to use or generate are documents that
are otherwise required by law or are voluntarily generated during a real estate
transaction.
(2)(a) The records of a
principal real estate broker or a sole practitioner shall include records of
attendance in continuing education courses by the sole practitioner or broker.
The records of attendance shall state the name of the sole practitioner or
broker and the date of the sole practitioner’s or broker’s attendance, and
shall be the basis for self-certification under ORS 696.174.
(b) A principal real
estate broker’s records shall include records of attendance in continuing
education courses by real estate licensees 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.
(3) The records shall at
all times be open for inspection by the Real Estate Commissioner or the
commissioner’s 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 the transaction closed or failed. 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.
(4) The agency may
prescribe by rule terms and conditions under which a real estate broker or
principal real estate broker may maintain records outside this state.
SECTION 10. ORS 696.301 is amended to read:
696.301. Subject to ORS
696.396, 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) Created a reasonable
probability of damage or injury to a person by making one or more material
misrepresentations or false promises in a matter related to professional real
estate activity.
(2) Represented,
attempted to represent or accepted a commission or other compensation from a
principal real estate broker other than the principal real estate broker with
whom the real estate broker is associated.
(3) Disregarded or
violated any provision of ORS 659A.421, 696.010 to 696.495, 696.600 to 696.785
and 696.800 to 696.870 or any rule of the Real Estate Agency.
(4) Knowingly or
recklessly published materially misleading or untruthful advertising.
(5) Acted as an agent
and an undisclosed principal in any transaction.
(6) Intentionally
interfered with the contractual relations of others concerning real estate or
professional real estate activity.
(7) Intentionally
interfered with the exclusive representation or exclusive brokerage
relationship of another licensee.
(8) Accepted employment
or compensation for the preparation of a competitive market analysis or letter
opinion that is contingent upon reporting a predetermined value or for real
estate in which the licensee had an undisclosed interest.
(9) Represented a
taxpayer as described in ORS 305.230 or 309.100, contingent upon reporting a
predetermined value or for real estate in which the licensee had an undisclosed
interest.
(10) Failed to ensure,
in any real estate transaction in which the licensee performed the closing,
that the buyer and seller received a complete detailed closing statement
showing the amount and purpose of all receipts, adjustments and disbursements.
(11) Has been convicted
of a felony or misdemeanor substantially related to the licensee’s
trustworthiness or competence to engage in professional real estate activity.
(12) Demonstrated
incompetence or untrustworthiness in performing any act for which the licensee
is required to hold a license.
(13) Violated a term,
condition, restriction or limitation contained in an order issued by the
commissioner.
(14) Committed an act of
fraud or engaged in dishonest conduct substantially related to the fitness of
the applicant or licensee to conduct professional real estate activity, without
regard to whether the act or conduct occurred in the course of professional
real estate activity.
(15) Engaged in any
conduct that is below the standard of care for the practice of professional
real estate activity in
SECTION 11. ORS 696.315 is amended to read:
696.315. [No] A real estate licensee [shall] may not knowingly permit [any person whose license has been revoked or
suspended] a nonlicensed individual to engage in professional real
estate activity, with or on behalf of the licensee.
SECTION 12. ORS 696.365 is amended to read:
696.365. (1) A city or
county [shall] may not impose a
business license tax on or collect a business license tax from [a person] an individual licensed
as a real estate broker who engages in professional real estate activity only
as an agent of a principal real estate broker.
(2) As used in this
section, “business license tax” has the meaning given that term in ORS 701.015.
SECTION 13. 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. The Governor also may appoint [a person] an individual 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 14. ORS 696.398 is amended to read:
696.398. (1) The Real
Estate Commissioner may delegate to any of the officers and employees of the
Real Estate Agency to exercise or discharge in the commissioner’s name any
power, duty or function vested in or imposed upon the commissioner under this
chapter. The power to administer oaths and affirmations, subpoena witnesses,
take evidence and require the production of books, papers, correspondence,
memoranda, agreements or other documents or records, and to sign notices and
orders may be exercised by an officer or employee of the agency only when
specified in writing by the commissioner and filed in the records of the Real
Estate Agency.
(2) An official act of [a person] an individual acting in
the commissioner’s name and by authority of the commissioner shall be deemed to
be an official act of the commissioner.
SECTION 15. ORS 696.511 is amended to read:
696.511. (1) A person
may not directly or indirectly engage in or carry on, or purport to engage in
or carry on, the business of an escrow agent, or act in the capacity of
an escrow agent,[without first
obtaining a] unless the person holds an active license as an escrow
agent under the provisions of ORS 696.505 to 696.590.
(2)(a) 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. The application
must include the location of the agent’s main 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.
(b) If the applicant is
an individual, the applicant must be 18 years of age or older.
(3) For the initial
license of an escrow agent, the commissioner may require information and
evidence the commissioner considers necessary to demonstrate the applicant’s
qualifications to transact escrow business including, but not limited to,
information regarding the applicant’s financial resources, the applicant’s
escrow business in another state or the experience or training of employees in
escrow business, or a testimonial of an escrow agent licensed in this state.
Subject to subsection (4) of this section, an applicant:
(a) Who is an individual
must demonstrate a minimum of three years of experience in the administration
of escrows within Oregon or a state with comparable escrow laws; or
(b) Who is not an
individual must demonstrate a minimum collective experience among its personnel
of three years in the administration of escrows within
(4) The commissioner may
waive the three-year experience requirement in subsection (3) of this section
for an applicant who demonstrates other qualifications sufficient to ensure the
protection of the public.
(5) For the initial
license or license renewal of an escrow agent, the commissioner shall require
fingerprints and a state or nationwide criminal records check under ORS 181.534
of an applicant for an initial license and may require fingerprints and a state
or nationwide criminal records check under ORS 181.534 of an applicant for
license renewal. The commissioner may require additional information for an
initial license or license renewal under this subsection that the commissioner
considers necessary for protecting the public. For purposes of requiring
fingerprints and a criminal records check, “applicant” means [a person] an individual who has
more than five percent ownership interest in the escrow agency and the
corporate officers in direct control of escrow operations.
(6) For license renewal,
an escrow agent shall provide:
(a) A certification of
training, by which the applicant certifies that the applicant provides escrow
agency staff within Oregon with an average of six hours or more of training per
year per permanent, full-time employee in subjects that bear directly on the
administration of escrows; and
(b) A statement
identifying by name, address and telephone number one or more individuals who
can respond to the inquiries of or referrals by the commissioner or the
commissioner’s authorized representative regarding the applicant’s escrow
business.
(7) The commissioner, if
satisfied that the applicant should not be refused a license under ORS 696.535,
shall issue or renew an escrow agent license for an applicant that complies
with the requirements of ORS 696.505 to 696.590.
(8) To qualify for
issuance or renewal of an escrow agent license, an applicant shall pay 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 16. ORS 696.600 is amended to read:
696.600. As used in ORS
696.392, 696.600 to 696.785 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] mean an individual licensed under ORS 696.022.
SECTION 17. ORS 696.609 is amended to read:
696.609. ORS 696.392,
696.600 to 696.785 and 696.995 do not apply to [a person] an individual licensed under ORS 696.022 or to
those persons exempt under ORS 696.030 from licensing under ORS 696.020.
SECTION 18. ORS 696.710 is amended to read:
696.710. (1) [A person] An individual engaged
in the business of, or acting in the capacity of, a real estate broker or
principal real estate broker within this state [shall] may not bring or maintain any action in the courts
for the collection of compensation without alleging and proving that the [person] individual was a licensed
broker [at the time] when the
alleged cause of action arose.
(2) 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 broker associated with a
principal real estate broker may not be brought or maintained except by the
principal real estate broker with whom the real estate broker was associated [at the time] when the alleged
cause of action arose.
SECTION 19. 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 696.495, 696.600 to 696.785, 696.800 to 696.870 and
696.995 by [persons] an individual
licensed under ORS 696.022, and, upon finding [such] a violation, the court may, at its discretion and in
addition to the other penalties imposed, revoke the license of the [person or persons] individual
found to have violated any provision of ORS 696.010 to 696.495, 696.600 to
696.785, 696.800 to 696.870 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 20. ORS 696.775 is amended to read:
696.775. The lapsing,
expiration, revocation or suspension of a real estate license,
whether by operation of law, order of the Real Estate Commissioner[,] or decision of a court of law,
or the inactive status of the license or voluntary surrender of the license
by the real estate licensee, does not deprive the commissioner of
jurisdiction to:
(1) Proceed with an
investigation of the licensee;
(2) Conduct disciplinary
proceedings relating to the licensee;
(3) Take action against
a licensee, including assessment of a civil penalty against the licensee for a
violation of ORS 696.020 [(1)] (2);
or
(4) Revise or render
null and void an order suspending or revoking a license.
SECTION 21. ORS 696.800 is amended to read:
696.800. As used in ORS
696.392, 696.600 to 696.785, 696.800 to 696.870 and 696.995, unless the context
requires otherwise:
(1) “Agent” means:
(a) A real estate broker
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) A disclosed limited
agency agreement; or
(b) [A person] An individual licensed
under ORS 696.022 who has entered into a written contract with a real estate
broker or principal real estate broker to act as the broker’s agent in
connection with acts requiring a real estate license and to function under the
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) 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 or more 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 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 manufactured
structure, as defined in ORS 446.561, owned by the same person who owns the
land upon which the manufactured structure 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) “
(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 22. ORS 696.110 is amended to read:
696.110. The provisions
of ORS 696.010 to 696.495, 696.600 to 696.785, 696.800 to 696.870 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] individuals licensed
under ORS 696.022. Nothing in this 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 23. ORS 696.990 is amended to read:
696.990. (1) Violation
of any provision of ORS 696.010 to 696.130, 696.200, 696.205, 696.241 to
696.375, 696.392, 696.395 to 696.430, 696.490, 696.600 to 696.785 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 696.130, 696.200, 696.205, 696.241 to
696.375, 696.392, 696.395 to 696.430, 696.490, 696.600 to 696.785 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] that violates ORS 696.020 [(1)] (2) may be required by the
Real Estate 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] that 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] that violates ORS 696.020.
(6) Civil penalties
under this section shall be imposed as provided in ORS 183.745.
(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.
(8) For the purposes of
subsection (4) of this section, any violation of ORS 696.020 [(1)] (2) that results from a failure
of a real estate licensee to renew a license within the time allowed by law
constitutes a single offense of unlicensed professional real estate activity
for each 30-day period after expiration of the license during which the [person] individual engages in
professional real estate [activities]
activity. A civil penalty imposed for a violation of ORS 696.020 [(1)] (2) that results from a
failure of a real estate licensee to renew a license within the time allowed by
law is not subject to the minimum dollar amounts specified in subsection (4) of
this section.
(9) Subsection (5) of
this section does not apply to a violation of ORS 696.020 [(1)] (2) that results from a failure of a real estate
licensee to renew a license within the time allowed by law.
SECTION 24. ORS 9.160 is amended to read:
9.160. (1) Except as
provided in this section, a person may not practice law or represent that
person as qualified to practice law unless that person is an active member of
the Oregon State Bar.
(2) Subsection (1) of
this section does not affect the right to prosecute or defend a cause in person
as provided in ORS 9.320.
(3) [A person] An individual licensed
under ORS 696.022 acting in the scope of the [person’s] individual’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 subsection (1) of this
section.
(4) A title insurer
authorized to do business in this state, a title insurance agent licensed under
the laws of this state or an escrow agent licensed under the laws of this state
is not engaged in the practice of law in violation of subsection (1) of this
section if, for the purposes of a transaction in which the insurer or agent
provides title insurance or escrow services, the insurer or agent:
(a) Prepares any
satisfaction, reconveyance, release, discharge, termination or cancellation of
a lien, encumbrance or obligation;
(b)
Acts pursuant to the instructions of the principals to the transaction as
scrivener to fill in blanks in any document selected by the principals;
(c) Presents to the
principals to the transaction for their selection any blank form prescribed by
statute, rule, ordinance or other law; or
(d) Presents to the
principals to the transaction for their selection a blank form prepared or
approved by a lawyer licensed to practice law in this state for one or more of
the following:
(A) A mortgage.
(B) A trust deed.
(C) A promissory note.
(D) An assignment of a
mortgagee’s interest under a mortgage.
(E) An assignment of a
beneficial interest under a trust deed.
(F) An assignment of a
seller’s or buyer’s interest under a land sale contract.
(G) A power of attorney.
(H) A subordination
agreement.
(I) A
memorandum of an instrument that is to be recorded in place of the instrument
that is the subject of the memorandum.
(5) In performing the
services permitted in subsection (4) of this section, a title insurer, a title
insurance agent or an escrow agent may not draft, select or give advice
regarding any real estate document if those activities require the exercise of
informed or trained discretion.
(6) The exemption
provided by subsection (4) of this section does not apply to any acts relating
to a document or form that are performed by an escrow agent under subsection
(4)(b), (c) or (d) of this section unless the escrow agent provides to the
principals to the transaction a notice in at least 12-point type as follows:
______________________________________________________________________________
YOU WILL BE REVIEWING,
APPROVING AND SIGNING IMPORTANT DOCUMENTS AT CLOSING. LEGAL
CONSEQUENCES FOLLOW FROM THE SELECTION AND USE OF THESE DOCUMENTS. THESE
CONSEQUENCES AFFECT YOUR RIGHTS AND OBLIGATIONS. YOU MAY CONSULT AN ATTORNEY
ABOUT THESE DOCUMENTS. YOU SHOULD CONSULT AN ATTORNEY IF YOU HAVE QUESTIONS OR
CONCERNS ABOUT THE TRANSACTION OR ABOUT THE DOCUMENTS. IF YOU WISH TO REVIEW
TRANSACTION DOCUMENTS THAT YOU HAVE NOT YET SEEN, PLEASE CONTACT THE ESCROW
AGENT.
______________________________________________________________________________
(7) The exemption
provided by subsection (4) of this section does not apply to any acts relating
to a document or form that are performed by an escrow agent under subsection (4)(b), (c) or (d) of this section for a real estate sale and
purchase transaction in which all or part of the purchase price consists of
deferred payments by the buyer to the seller unless the escrow agent provides
to the principals to the transaction:
(a) A copy of any
proposed instrument of conveyance between the buyer and seller to be used in
the transaction;
(b) A copy of any
proposed deferred payment security instrument between the buyer and seller to
be used in the transaction; and
(c) A copy of any
proposed promissory note or other evidence of indebtedness between the buyer
and seller to be used in the transaction.
(8) The notice and
copies of documents that must be provided under subsections (6) and (7) of this
section must be delivered in the manner most likely to ensure receipt by the
principals to the transaction at least three days before completion of the
transaction. If copies of documents have been provided under subsection (7) of
this section and are subsequently amended, copies of the amended documents must
be provided before completion of the transaction.
(9) Failure of any
person to comply with the requirements of subsections (3) to (8) of this
section does not affect the validity of any transaction and may not be used as
a basis to challenge any transaction.
SECTION 25. ORS 31.350 is amended to read:
31.350. (1) As used in this section, “real estate licensee” has the
meaning given that term in ORS 696.010.
(2) A complaint,
cross-claim, counterclaim or third-party complaint asserting a claim of
professional negligence against a real estate licensee for conduct occurring
within the course and scope of the [activities]
professional real estate activity for which the [person] individual is licensed may not be filed unless the
claimant’s attorney certifies that the attorney has consulted a real estate
licensee who is qualified, available and willing to testify to admissible facts
and opinions sufficient to create a question of fact as to the liability of the
real estate licensee. The certification required by this section must be filed
with or be made part of the original complaint, cross-claim, counterclaim
or third-party complaint. The certification must contain a statement that a
real estate licensee who is qualified to testify as to the standard of care
applicable to the alleged facts, is available and willing to testify that:
(a) The alleged conduct
of the real estate licensee failed to meet the standard of professional care
applicable to the real estate licensee in the circumstances alleged; and
(b) The alleged conduct
was a cause of the claimed damages, losses or other harm.
(3) In lieu of providing
the certification described in subsection (2) of this section, the claimant’s
attorney may file with the court at the time of filing a complaint,
cross-claim, counterclaim or third-party complaint an affidavit that states:
(a) The applicable
statute of limitations is about to expire;
(b) The certification
required under subsection (2) of this section will be filed within 30 days
after filing the complaint, cross-claim, counterclaim or third-party complaint
or such longer time as the court may allow for good cause shown; and
(c) The attorney has
made such inquiry as is reasonable under the circumstances and has made a good
faith attempt to consult with at least one real estate licensee who is
qualified to testify as to the standard of care applicable to the alleged
facts, as required by subsection (2) of this section.
(4) Upon motion of the
real estate licensee, the court shall enter judgment dismissing any complaint,
cross-claim, counterclaim or third-party complaint
against any real estate licensee who fails to comply with the requirements of
this section.
(5) This section applies
only to a complaint, cross-claim, counterclaim or
third-party complaint against a real estate licensee by any plaintiff who:
(a) Has contracted with
or otherwise employed the real estate licensee; or
(b) Is a person for
whose benefit the real estate licensee performed services.
SECTION 26. 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] Individuals
licensed as real estate brokers or 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 27. ORS 270.120 is amended to read:
270.120. (1) In
exercising certain of its functions under ORS 184.634, 270.005 to 270.015,
270.100 to 270.190, 273.416, 273.426 to 273.436 and 273.551, the Oregon
Department of Administrative Services shall be advised by an advisory committee
consisting of seven members appointed by the Governor.
(2) The advisory
committee appointed under subsection (1) of this section shall consist of two
members of the Legislative Assembly, one [person
who is licensed] real estate licensee under ORS 696.020, two persons
who serve in the executive branch of state government, one person qualified as
a land use planner, and one person qualified as a real estate management
expert.
(3) Members of the
advisory committee shall meet at such times and places and elect such officers
and make such rules for the conduct of committee business as the committee may
specify.
(4) Members of the
advisory committee who are not members of the Legislative Assembly are entitled
to compensation under ORS 292.495. Members of the advisory committee who are
members of the Legislative Assembly shall be paid compensation and expense
reimbursement as provided in ORS 171.072, payable from funds appropriated to
the Legislative Assembly.
(5) Expenses of the
committee shall be paid from funds appropriated to the department to carry out
subsection (6) of this section.
(6)(a) The advisory
committee shall advise the department on the acquisition, exchange or disposal
of real property valued at $100,000 or more.
(b) The department may
request the advice of the committee involving any real property transaction
valued less than $100,000.
SECTION 28. ORS 305.230 is amended to read:
305.230. (1) Notwithstanding
ORS 9.320:
(a) Any person who is
qualified to practice law or public accountancy in this state, any person who
has been granted active enrollment to practice before the Internal Revenue
Service and who is qualified to prepare tax returns in this state or any person
who is the authorized employee of a taxpayer and 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.
(b) Any person who is
licensed by the State Board of Tax Practitioners 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.
(c) Any shareholder of
an S corporation, as defined in section 1361 of the Internal Revenue Code, as
amended and in effect on December 31, 2004, 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.
(d) [Any person] An individual who is
licensed as a real estate broker or principal real estate broker under ORS
696.022 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.
(e) 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.
(f) Any person authorized
under rules adopted by the department may represent a taxpayer before the
department in any conference or proceeding with respect to any tax. Rules adopted under this paragraph, to the extent feasible, shall
be consistent with federal law that governs representation before the Internal
Revenue Service, as federal law is amended and in effect on December 31, 2004.
(g) Any person
authorized under rules adopted by the tax court may represent a taxpayer in a
proceeding before a tax court magistrate.
(2) A person may not 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.
(3) 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.
(4) 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 subsection (3) of this section.
SECTION 29. ORS 446.676 is amended to read:
446.676. ORS 446.671
does not apply to the following manufactured structures or persons:
(1) A unit of government
or a public or private utility.
(2) The owner of a
manufactured structure, as shown by a document evidencing ownership issued by
any jurisdiction if the person owned the manufactured structure for personal,
family or household purposes. If the person sells, trades, displays or offers
for sale, trade or exchange two or more manufactured structures during a
calendar year, the person has the burden of proving that the person owned the
structures primarily for personal, family or household purposes.
(3) A conservator,
receiver, trustee, personal representative or public officer while performing
any official duties. The exemption provided by this subsection applies to
actions taken for the purposes of winding up the affairs of a manufactured
structure dealer or dealership and not to the continuing operation of a
dealership.
(4) A real estate
licensee representing a buyer or seller in a transaction involving real
property under ORS 308.875 or a manufactured structure that is recorded in the
deed records of a county.
(5) An escrow agent
making an application for an ownership document as described under ORS 446.591
(5).
(6) The security
interest holder of a manufactured structure as shown by a document evidencing
ownership issued by any jurisdiction.
(7) The sale of a
manufactured structure by the manufacturer to a manufactured structure dealer.
However, a manufacturer must obtain a manufactured structure dealer license
under ORS 446.691 in order to sell manufactured structures to retail customers.
(8) An insurance
adjuster authorized to do business under ORS 744.505 or 744.515 who is
disposing of a manufactured structure for salvage.
(9) A person who sells
or trades or offers to sell or trade a manufactured structure that has been
used in the operation of the person’s business unless the person’s business is
the buying, selling, brokering, trading or exchanging of manufactured
structures, displaying new or used manufactured structures for sale or acting
as agent for an owner selling a manufactured structure or for a person
interested in buying a manufactured structure.
(10) A person who is
licensed as a manufactured structure dealer in another jurisdiction and is
participating in a temporary exhibition of manufactured structures, if the
exhibition includes at least two other manufactured structure dealers licensed
in this state or another jurisdiction, lasts 10 days or less and charges
admission to the public. An exemption may be claimed under this subsection for
a total of not more than 10 days during a calendar year.
(11) A person who
receives no money, goods or services, either directly or indirectly, for
displaying a manufactured structure or acting as an agent in the selling or
buying of a manufactured structure.
(12) A manufactured
dwelling park or mobile home park owner that consigns a manufactured structure
for sale by a licensed manufactured structure dealer.
(13) The sale of an
abandoned manufactured dwelling by a manufactured dwelling park owner pursuant
to ORS 90.675 (10) if the park owner makes a reasonable effort to transfer the
title for the manufactured dwelling to the purchaser.
(14) A licensed real
estate [agent] broker acting
in the employ of, on behalf of or under the supervision of [a person that] an individual who
is both a licensed principal real estate broker and a licensed
manufactured structure dealer.
(15) A financial
institution or trust company acting as attorney in fact under a duly executed
power of attorney from the owner or purchaser authorizing the selling, leasing
or exchanging of the owner’s or purchaser’s assets. As used in this subsection,
“financial institution” and “trust company” have the meanings given those terms
in ORS 706.008.
SECTION 30. ORS 646.382 is amended to read:
646.382. As used in ORS
646.382 to 646.398:
(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
(B) Any financial
institution, financial holding company or bank holding company as those terms
are defined in ORS 706.008 or any subsidiary or affiliate of a financial
institution, financial holding company 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] An individual
licensed as a real estate broker or principal real estate broker by this state
if the [person] individual 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 31. ORS 646.605 is amended to read:
646.605. As used in ORS
646.605 to 646.652:
(1) “Appropriate court”
means the circuit court of a county:
(a) Where one or more of
the defendants reside;
(b) Where one or more of
the defendants maintain a principal place of business;
(c) Where one or more of
the defendants are alleged to have committed an act prohibited by ORS 646.605
to 646.652; or
(d)
With the defendant’s consent, where the prosecuting attorney maintains an
office.
(2) “Documentary
material” means the original or a copy of any book, record, report, memorandum,
paper, communication, tabulation, map, chart, photograph, mechanical
transcription, or other tangible document or recording, wherever situate.
(3) “Examination” of
documentary material shall include inspection, study, or copying of any such
material, and taking testimony under oath or acknowledgment in respect of any
such documentary material or copy thereof.
(4) “Person” means
natural persons, corporations, trusts, partnerships, incorporated or
unincorporated associations, and any other legal entity except bodies or
officers acting under statutory authority of this state or the
(5) “Prosecuting
attorney” means the Attorney General or the district attorney of any county in
which a violation of ORS 646.605 to 646.652 is alleged to have occurred.
(6) “Real estate, goods
or services” means those which are or may be obtained primarily for personal,
family or household purposes, or which are or may be obtained for any purposes
as a result of a telephone solicitation, and includes franchises,
distributorships and other similar business opportunities, but does not include
insurance. Except as provided in section 2, chapter 658, Oregon Laws 2003, real
estate does not cover conduct covered by ORS chapter 90.
(7) “Telephone
solicitation” means a solicitation where a person, in the course of the person’s
business, vocation or occupation, uses a telephone or an automatic
dialing-announcing device to initiate telephonic contact with a potential
customer and the person is not one of the following:
(a) A person who is a
broker-dealer or salesperson licensed under ORS 59.175, or a mortgage banker or
mortgage broker licensed under ORS 59.850 when the solicitation is for a
security qualified for sale pursuant to ORS 59.055;
(b) [A person who is licensed or] A real
estate licensee or a person who is otherwise authorized to engage in
professional real estate activity pursuant to ORS chapter 696, when the
solicitation involves professional real estate activity;
(c) A person licensed or
exempt from licensure as a builder pursuant to ORS chapter 701, when the
solicitation involves the construction, alteration, repair, improvement or
demolition of a structure;
(d) A person licensed or
otherwise authorized to sell insurance as an insurance producer pursuant to ORS
chapter 744, when the solicitation involves insurance;
(e) A person soliciting
the sale of a newspaper of general circulation, a magazine or membership in a
book or record club who complies with ORS 646.611, when the solicitation
involves newspapers, magazines or membership in a book or record club;
(f) A person soliciting
without the intent to complete and who does not complete the sales presentation
during the telephone solicitation and who only completes the sales presentation
at a later face-to-face meeting between the solicitor and the prospective
purchaser;
(g) A supervised
financial institution or parent, subsidiary or affiliate thereof. As used in
this paragraph, “supervised financial institution” means any financial
institution or trust company, as those terms are defined in ORS 706.008, or any
personal property broker, consumer finance lender, commercial finance lender or
insurer that is subject to regulation by an official or agency of this state or
of the United States;
(h) A person who is
authorized to conduct prearrangement or preconstruction funeral or cemetery
sales, pursuant to ORS chapter 692, when the solicitation involves
prearrangement or preconstruction funeral or cemetery plans;
(i) A person who
solicits the services provided by a cable television system licensed or
franchised pursuant to state, local or federal law, when the solicitation
involves cable television services;
(j) A person or
affiliate of a person whose business is regulated by the Public Utility
Commission of Oregon;
(k) A person who sells
farm products as defined by ORS chapter 576 if the
solicitation neither intends to nor actually results in a sale that costs the
purchaser in excess of $100;
(L) An issuer or
subsidiary of an issuer that has a class of securities that is subject to
section 12 of the Securities Exchange Act of 1934 and that is either registered
or exempt from registration under paragraph (A), (B), (C), (E), (F), (G) or (H)
or subsection (g) of that section;
(m) A person soliciting
exclusively the sale of telephone answering services to be provided by that
person or that person’s employer when the solicitation involves answering
services; or
(n) A telecommunications
utility with access lines of 15,000 or less or a cooperative telephone
association when the solicitation involves regulated goods or services.
(8) “Trade” and “commerce”
mean advertising, offering or distributing, whether by sale, rental or
otherwise, any real estate, goods or services, and includes any trade or
commerce directly or indirectly affecting the people of this state.
(9) “Unconscionable
tactics” include, but are not limited to, actions by which a person:
(a) Knowingly takes
advantage of a customer’s physical infirmity, ignorance, illiteracy or
inability to understand the language of the agreement;
(b) Knowingly permits a
customer to enter into a transaction from which the customer will derive no
material benefit; or
(c) Permits a customer
to enter into a transaction with knowledge that there is no reasonable
probability of payment of the attendant financial obligation in full by the
customer when due.
(10) A willful violation
occurs when the person committing the violation knew or should have known that
the conduct of the person was a violation.
(11) A loan is made “in
close connection with the sale of a manufactured dwelling” if:
(a) The lender directly
or indirectly controls, is controlled by or is under common control with the
seller, unless the relationship is remote and is not a factor in the
transaction;
(b) The lender gives a
commission, rebate or credit in any form to a seller who refers the borrower to
the lender, other than payment of the proceeds of the loan jointly to the
seller and the borrower;
(c) The lender is
related to the seller by blood or marriage;
(d) The seller directly
and materially assists the borrower in obtaining the loan;
(e) The seller prepares
documents that are given to the lender and used in connection with the loan; or
(f) The lender supplies
documents to the seller used by the borrower in obtaining the loan.
SECTION 32. ORS 646.605, as amended by section 12, chapter
658, Oregon Laws 2003, is amended to read:
646.605. As used in ORS
646.605 to 646.652:
(1) “Appropriate court”
means the circuit court of a county:
(a) Where one or more of
the defendants reside;
(b) Where one or more of
the defendants maintain a principal place of business;
(c) Where one or more of
the defendants are alleged to have committed an act prohibited by ORS 646.605
to 646.652; or
(d)
With the defendant’s consent, where the prosecuting attorney maintains an
office.
(2) “Documentary
material” means the original or a copy of any book, record, report, memorandum,
paper, communication, tabulation, map, chart, photograph, mechanical
transcription, or other tangible document or recording, wherever situate.
(3) “Examination” of
documentary material shall include inspection, study, or copying of any such
material, and taking testimony under oath or acknowledgment in respect of any
such documentary material or copy thereof.
(4) “Person” means
natural persons, corporations, trusts, partnerships, incorporated or
unincorporated associations, and any other legal entity except bodies or
officers acting under statutory authority of this state or the
(5) “Prosecuting
attorney” means the Attorney General or the district attorney of any county in
which a violation of ORS 646.605 to 646.652 is alleged to have occurred.
(6) “Real estate, goods
or services” means those which are or may be obtained primarily for personal,
family or household purposes, or which are or may be obtained for any purposes
as a result of a telephone solicitation, and includes franchises,
distributorships and other similar business opportunities, but does not include
insurance. Real estate does not cover conduct covered by ORS chapter 90.
(7) “Telephone
solicitation” means a solicitation where a person, in the course of the person’s
business, vocation or occupation, uses a telephone or an automatic
dialing-announcing device to initiate telephonic contact with a potential
customer and the person is not one of the following:
(a) A person who is a
broker-dealer or salesperson licensed under ORS 59.175, or a mortgage banker or
mortgage broker licensed under ORS 59.850 when the solicitation is for a
security qualified for sale pursuant to ORS 59.055;
(b) [A person who is licensed or] A real
estate licensee or a person who is otherwise authorized to engage in
professional real estate activity pursuant to ORS chapter 696, when the
solicitation involves professional real estate activity;
(c) A person licensed or
exempt from licensure as a builder pursuant to ORS chapter 701, when the
solicitation involves the construction, alteration, repair, improvement or
demolition of a structure;
(d) A person licensed or
otherwise authorized to sell insurance as an insurance producer pursuant to ORS
chapter 744, when the solicitation involves insurance;
(e) A person soliciting
the sale of a newspaper of general circulation, a magazine or membership in a
book or record club who complies with ORS 646.611, when the solicitation
involves newspapers, magazines or membership in a book or record club;
(f) A person soliciting
without the intent to complete and who does not complete the sales presentation
during the telephone solicitation and who only completes the sales presentation
at a later face-to-face meeting between the solicitor and the prospective
purchaser;
(g) A supervised
financial institution or parent, subsidiary or affiliate thereof. As used in
this paragraph, “supervised financial institution” means any financial
institution or trust company, as those terms are defined in ORS 706.008, or any
personal property broker, consumer finance lender, commercial finance lender or
insurer that is subject to regulation by an official or agency of this state or
of the United States;
(h) A person who is
authorized to conduct prearrangement or preconstruction funeral or cemetery
sales, pursuant to ORS chapter 692, when the solicitation involves
prearrangement or preconstruction funeral or cemetery plans;
(i) A person who
solicits the services provided by a cable television system licensed or
franchised pursuant to state, local or federal law, when the solicitation
involves cable television services;
(j) A person or
affiliate of a person whose business is regulated by the Public Utility
Commission of Oregon;
(k) A person who sells
farm products as defined by ORS chapter 576 if the
solicitation neither intends to nor actually results in a sale that costs the
purchaser in excess of $100;
(L) An issuer or
subsidiary of an issuer that has a class of securities that is subject to
section 12 of the Securities Exchange Act of 1934 and that is either registered
or exempt from registration under paragraph (A), (B), (C), (E), (F), (G) or (H)
or subsection (g) of that section;
(m) A person soliciting
exclusively the sale of telephone answering services to be provided by that
person or that person’s employer when the solicitation involves answering
services; or
(n) A telecommunications
utility with access lines of 15,000 or less or a cooperative telephone
association when the solicitation involves regulated goods or services.
(8) “Trade” and “commerce”
mean advertising, offering or distributing, whether by sale, rental or
otherwise, any real estate, goods or services, and includes any trade or
commerce directly or indirectly affecting the people of this state.
(9) “Unconscionable
tactics” include, but are not limited to, actions by which a person:
(a) Knowingly takes
advantage of a customer’s physical infirmity, ignorance, illiteracy or
inability to understand the language of the agreement;
(b) Knowingly permits a
customer to enter into a transaction from which the customer will derive no
material benefit; or
(c) Permits a customer
to enter into a transaction with knowledge that there is no reasonable
probability of payment of the attendant financial obligation in full by the
customer when due.
(10) A willful violation
occurs when the person committing the violation knew or should have known that
the conduct of the person was a violation.
(11) A loan is made “in
close connection with the sale of a manufactured dwelling” if:
(a) The lender directly
or indirectly controls, is controlled by or is under common control with the
seller, unless the relationship is remote and is not a factor in the
transaction;
(b) The lender gives a
commission, rebate or credit in any form to a seller who refers the borrower to
the lender, other than payment of the proceeds of the loan jointly to the
seller and the borrower;
(c) The lender is
related to the seller by blood or marriage;
(d) The seller directly
and materially assists the borrower in obtaining the loan;
(e) The seller prepares
documents that are given to the lender and used in connection with the loan; or
(f) The lender supplies
documents to the seller used by the borrower in obtaining the loan.
SECTION 33. ORS 674.100 is amended to read:
674.100. (1)(a) A person
may not engage in, carry on, advertise or purport to engage in or carry on real
estate appraisal activity within this state without first obtaining
certification, licensure or registration 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 an interest
in real property, whether the 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 696.022 to perform real estate appraisal activity or any
other activity that constitutes the giving of an opinion as to the value of
real property or an 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 real estate appraisal activity or the performance of any other
activity that constitutes the giving of an opinion as to the value of real
estate or an interest in real estate.
(2) Real estate
appraisal activity excludes 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 the 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 an
attorney at law rendering services in the performance of duties as an attorney
at law;
(d) Is performed by a
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] an individual
licensed to engage in professional real estate activity under ORS
696.022;
(h) Is performed by a
salaried employee of the federal government, the State of
(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 the 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 giving an opinion in an administrative or judicial proceeding
regarding the value of real estate for taxation;
(L) Is limited to giving
an opinion regarding the value of real estate by a person who is not licensed
under ORS chapter 696, if the person’s business is not the appraisal, selling
or listing of real estate and the 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;
(m)
Is limited to transferring or acquiring an interest in real estate by a person
who is not licensed under ORS chapter 696; or
(n) Is performed by a
home inspector acting within the scope of a certificate or license issued under
ORS chapter 701.
(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 an
insurance company or affiliate, made for internal use only by the financial
institution or affiliate, consumer finance company or the insurance company or
affiliate, concerning an interest in real estate for ownership or collateral
purposes by the financial institution or affiliate, the consumer finance
company licensed under ORS chapter 725 or 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
subsection, “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,” “appraiser assistant,” “registered
appraiser assistant” or “appraisal” or an oral statement or representation of
certification, licensure or registration 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, certified or registered by the board is a separate violation under
ORS 674.850 or 674.990.
(c) In a proceeding
under ORS 674.850 or 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 34. ORS 744.056 is amended to read:
744.056. (1) ORS 744.052
to 744.089 do not require an insurer to obtain a license as an insurance
producer as required by ORS 744.053. For purposes of this section, the term “insurer”
does not include an insurer’s officers, directors, employees, subsidiaries or
affiliates.
(2) A license as an
insurance producer is not be required of any of the
following:
(a) An officer, director
or employee of an insurer or an insurance producer, if the officer, director or
employee does not receive any commission on or fee for policies written or sold
to insure risks residing, located or to be performed in this state and:
(A) The officer’s,
director’s or employee’s activities are executive, administrative, managerial,
clerical or a combination of these, and are only indirectly related to the
sale, solicitation or negotiation of insurance;
(B) The officer’s,
director’s or employee’s function relates to underwriting, loss control,
inspection or the processing, adjusting, investigating or settling of a claim
on a contract of insurance; or
(C) The officer,
director or employee is acting in the capacity of an agency supervisor
assisting insurance producers when the person’s activities are limited to
providing technical advice and assistance to insurance producers and do not
include the sale, solicitation or negotiation of insurance.
(b) A person who does
either of the following, when the person does not receive any commission or fee
for the service:
(A) Secures and furnishes
information for the purpose of group life insurance, group property and
casualty insurance, group annuities or group or blanket health insurance or for
the purpose of enrolling individuals under plans, issuing certificates under
plans or otherwise assisting in administrative plans; or
(B) Performs
administrative services related to mass-marketed property and casualty
insurance.
(c) An employer or an
association of employers or its officers, directors or employees, or the
trustees of an employee trust plan:
(A) To the extent that
the employers, associations, directors, officers, employees or trustees are
engaged in the administration or operation of a program of employee benefits
for the employer’s or association’s own employees or the employees of its subsidiaries
or affiliates;
(B) To the extent that
the program of employee benefits involves the use of insurance issued by an
insurer; and
(C) As long as the
employers, associations, officers, directors, employees or trustees are not in
any manner compensated, directly or indirectly, by the insurer issuing the
insurance.
(d) An employee of an
insurer or an organization employed by insurers who is engaging in the
inspection, rating or classification of risks, or in the supervision of the
training of insurance producers and who is not individually engaged in the
sale, solicitation or negotiation of insurance.
(e) A person whose
activities in this state are limited to advertising without the intent to
solicit insurance in this state through communications in printed publications
or electronic mass media, the distribution of which is not limited to residents
of this state, but only if the person does not sell, solicit or negotiate
insurance that would insure risks residing, located or to be performed in this state.
(f) A person who is not
a resident of this state who sells, solicits or negotiates a policy of
insurance for commercial property and casualty risks to an insured with risks
located in more than one state insured under that policy, but only if the person
is otherwise licensed as an insurance producer to sell, solicit or negotiate
that insurance in the state where the insured maintains its principal place of
business and the contract of insurance insures risks located in that state.
(g) A salaried full-time
employee who counsels or advises the employer of the employee relative to the
insurance interests of the employer or of the subsidiaries or business
affiliates of the employer, but only if the employee does not sell or solicit
insurance or receive any commission.
(h) An attorney in fact
of an authorized reciprocal insurer, or the salaried representative of the
insurer or attorney who does not receive any commission.
(i) A person engaging in
the lawful transaction of reinsurance.
(j) Salaried employees
of title insurance producers or insurers, except for the individual or
individuals designated as exercising the powers conferred by a title insurance
producer’s license.
(k) Any agent or
representative of persons exempt from the Insurance Code under ORS 731.036 or
holding a certificate of exemption under ORS 731.042, with respect to the
exempted transactions.
(L) Any agent or
representative of a fraternal benefit society who devotes, or intends to
devote, less than 50 percent of the agent’s or representative’s time to the
solicitation and procurement of insurance policies for that society. Any person
who in the preceding calendar year has solicited and procured life insurance
policies on behalf of any fraternal benefit society for an amount of insurance
in excess of $50,000 or, in the case of any other class or classes of insurance
that the society might write, on the persons of more than 25 individuals, and
who has received or will receive a commission or other compensation therefor,
shall be presumed to be devoting, or intending to devote, 50 percent or more of
the person’s time to the solicitation and procurement of insurance policies for
that society.
(m) [A person] An individual engaging
in the lawful transaction of home protection insurance if the [person] individual is a real
estate licensee as defined in ORS 696.010, and if the transaction of such
insurance by the [person] individual
is subject to a written contract, to which the insurer is a party, governing
the [person’s] individual’s
activities in the transaction.
(n) Salaried employees
of a financial institution or trust company, as those terms are defined in ORS
706.008, who, in the regular course of business with the customers of the
financial institution or trust company, present the customers with written
information about savings account annuities issued by an authorized insurer.
Any person who purchases such an annuity may rescind the transaction within 10
days after the issuance of the contract. For purposes of this paragraph, “savings
account annuities” means annuities purchased with the proceeds of a savings
account, certificate or share in a financial institution or trust company.
(3) A person who
provides general insurance advice in connection with providing other
professional services such as legal services, trust services, tax and
accounting services, financial planning or investment advisory services is not
considered to be soliciting the sale of insurance for the purpose of the
definition of “insurance producer” in ORS 731.104.
SECTION 35. This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 2007 Act takes effect on its passage.
Approved by the Governor June 11, 2007
Filed in the office of Secretary of State June 13, 2007
Effective date June 11, 2007
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