74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1533
Senate Bill 324
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary for Joint Interim Task Force on Real Estate Agency
Oversight)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Reorganizes Real Estate Agency. Converts advisory Real Estate
Board into policymaking body regulating real estate licensees.
Gives board oversight role of agency and Director of Real Estate
Agency, formerly known as Real Estate Commissioner. Retains
policymaking role of director with respect to numerous functions,
including regulation of escrow agents, condominiums and
subdivision and partition of land.
A BILL FOR AN ACT
Relating to reorganization of Real Estate Agency; creating new
provisions; amending ORS 92.090, 92.160, 92.305, 92.337,
92.345, 92.355, 92.365, 92.375, 92.385, 92.395, 92.405, 92.410,
92.415, 92.425, 92.455, 92.460, 92.465, 92.490, 92.495, 92.843,
92.990, 94.803, 94.807, 94.823, 94.826, 94.828, 94.829, 94.831,
94.867, 94.871, 94.873, 94.876, 94.881, 94.890, 94.895, 94.900,
94.905, 94.915, 94.920, 94.925, 94.930, 94.940, 94.953, 94.959,
94.965, 94.968, 94.971, 94.974, 94.975, 94.980, 94.986, 94.987,
100.005, 100.015, 100.105, 100.110, 100.135, 100.260, 100.290,
100.310, 100.410, 100.635, 100.640, 100.645, 100.650, 100.655,
100.660, 100.665, 100.670, 100.675, 100.680, 100.700, 100.705,
100.710, 100.720, 100.725, 100.740, 100.750, 100.770, 100.785,
100.900, 100.905, 100.990, 696.010, 696.022, 696.024, 696.026,
696.028, 696.130, 696.174, 696.200, 696.205, 696.241, 696.243,
696.245, 696.255, 696.265, 696.270, 696.280, 696.301, 696.310,
696.375, 696.392, 696.395, 696.396, 696.398, 696.425, 696.430,
696.445, 696.495, 696.505, 696.508, 696.511, 696.525, 696.527,
696.530, 696.532, 696.534, 696.535, 696.541, 696.545, 696.555,
696.570, 696.577, 696.578, 696.581, 696.582, 696.585, 696.590,
696.603, 696.606, 696.612, 696.615, 696.624, 696.627, 696.730,
696.775, 696.785, 696.790, 696.795, 696.820, 696.845, 696.990
and 696.995; and repealing ORS 696.385.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 696.375 is amended to read:
696.375. (1) The Real Estate Agency is established.
{ + (2) The agency consists of the Real Estate Board, the
Director of the Real Estate Agency, who serves at the pleasure of
and reports to the board, and the officers and employees of the
agency, who report to the director. + }
{ - (2) - } { + (3) + } The Real Estate Agency { - shall
be - } { + is + } 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 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
Board.
(4) The board, after consultation with the Governor, shall
appoint a Director of the Real Estate Agency to supervise
day-to-day operations of the agency and to perform the duties
delegated to the director by rule of the board. + }The Real
Estate
{ - Commissioner shall receive such - } { + Agency shall pay
the director a + } 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) - } { + (5) + } Before entering upon the duties of
office { - the commissioner - } { + , the director + } 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 - } { + . The
Governor shall fix the amount of the bond or letter of credit.
The agency shall pay the premium on the bond or the fee for the
letter of credit + }.
SECTION 2. ORS 696.395 is amended to read:
696.395. The { + Director of the + } Real Estate
{ - Commissioner shall have the power to - } { + Agency
may + }:
(1) For the purpose of administration { + and subject to the
approval of the Real Estate Board + }, organize and reorganize
{ - , as necessary, - } the Real Estate Agency in { - the
manner that the commissioner deems necessary to properly - }
{ + a manner that facilitates the + } conduct { + of + } the
work of the agency.
(2) Appoint { - all - } subordinate officers and employees
of the agency { - , or such - } { + or + } other agents or
representatives { - , and - } { + . + } { +
(3) + } Prescribe { - their - } { + the + } duties { + of
officers, employees, agents and representatives of the agency
+ }and fix their compensation, subject to the applicable
provisions of the State Personnel Relations Law. Subject to
{ - any other - } applicable law regulating travel expenses,
the { + director shall pay the + } officers, employees, agents
or representatives of the agency { - shall be allowed such - }
reasonable and necessary travel and other expenses
{ - as may be - } incurred in the performance of their duties.
{ - (3) - } { + (4) + } Require a fidelity bond or an
irrevocable letter of credit issued by an insured
institution { + , + } as defined in ORS 706.008 { + , + } of
{ - any - } { + an + } officer or employee of the agency who
has charge of, handles or has access to any state money or
property, and who is not otherwise required by law to give a bond
or letter of credit. The { + director shall fix the + } amounts
of the bonds or letters of credit { - shall be fixed by the
commissioner - } , except as otherwise provided by law, and
{ + approve + } the sureties or letter of credit issuers { -
shall be approved by the commissioner - } . The agency shall pay
the premium on the bonds and the fees for the letters of credit.
SECTION 3. ORS 696.425 is amended to read:
696.425. (1) The Real Estate Board { - is authorized to
inquire into the needs of the real estate licensees of Oregon,
the functions of the Real Estate Agency and the matter of the
business policy thereof, to confer with and advise the Governor
as to how the agency may best serve the state and the licensees,
and to make recommendations and suggestions of policy to the
agency as the board may deem beneficial and proper for the
welfare and progress of the licensees and of the public and of
the real estate business in Oregon. - }
{ - (2) The board shall - } { + may:
(a) Adopt a seal for the Real Estate Agency by which the board
shall authenticate proceedings of the agency.
(b) Prepare and cause to be printed and circulated among the
real estate licensees of Oregon printed matter the board deems
helpful, educational or proper for the guidance and welfare of
the licensees.
(c) Make and enforce reasonable rules the board deems necessary
to discharge the duties of the agency and to administer and
enforce the provisions of law within the authority of the agency.
(d) Oversee and administer the agency.
(e) Supervise the activities of real estate licensees to ensure
that licensees comply with the provisions of this chapter in the
performance of professional real estate activities.
(f) + } Conduct all examinations for applicants for real estate
licenses, prepare or cause to be prepared the questions to be
asked in the examinations and grade or cause to be graded the
papers of each applicant after the completion of the examination
and file a written report with the agency as to applicants taking
the examination who have passed and who have failed to pass the
examination. The board shall provide the manner and methods for
conducting examinations.
{ + (g) Delegate by rule to the Director of the Real Estate
Agency duties and authorities assigned to the board. + }
{ - (3) - } { + (2) + } The expenses of the board shall be
paid from moneys available to the agency for payment of
administrative expenses relating to the real estate activities of
the agency.
SECTION 4. 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) - } { + (1) + } '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) - } { + (2) + } '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) - } { + (3)(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) - } { + (4) + } '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) - } { + (5) + } '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) - } { + (6) + } '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 7 of this 2007
Act + }.
{ - (9) - } { + (7) + } '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.
{ + (8) '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 or revoked. + }
{ - (10) - } { + (9) + } '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) - } { + (10) + } '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 - } { + an individual + }
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) - } { + (11) + } '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) - } { + (12) + } '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) - } { + (13) + } '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) - } { + (14) + } 'Real estate property manager'
means a real estate licensee who is authorized to engage in
management of rental real estate.
{ - (16) - } { + (15) + } '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) - } { + (16) + } '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 5. { + Section 6 of this 2007 Act is added to and made
a part of the Oregon Real Estate License Law. + }
SECTION 6. { + (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 Board 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 7. ORS 696.022 is amended to read:
696.022. (1) The Real Estate { - Agency - } { + Board + }
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 - } { + board + };
(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 - } { + Agency + } 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. A real estate broker may not employ, engage or otherwise
supervise the professional real estate activities of another real
estate broker or principal real estate broker.
(b) In order to qualify for a real estate broker's license, an
applicant must furnish proof satisfactory to the
{ - commissioner - } { + board + } that the applicant has
successfully completed the basic real estate broker's educational
courses and the examination required by rule of the
{ - agency - } { + board + }. 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 as a sole practitioner after:
(A) The person has acquired three years of active experience as
a real estate broker; or
(B) The person 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 - } { +
board + }.
(3)(a) A principal real estate broker may engage in all of the
professional activities of a real estate broker described in this
chapter. A principal real estate broker may conduct professional
real estate activities in conjunction with other real estate
brokers or principal real estate brokers. In addition, a
principal real estate broker may employ, engage and otherwise
supervise the professional real estate activities of real estate
brokers or principal real estate brokers.
(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 - } { + board + } that the applicant has
successfully completed the brokerage administration and sales
supervision course, as required by { - agency - }
{ + board + } 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 - } { + board + }.
(4) In order to qualify for a real estate property manager's
license, an applicant must furnish proof satisfactory to the
{ - commissioner - } { + board + } 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 - }
{ + board + }. 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 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 - } { + board + } may require { - such - }
proof of competence and trustworthiness as the
{ - commissioner - } { + board + } deems necessary to protect
the public interest.
(b) In implementing this subsection, the { - commissioner - }
{ + board + } 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 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 - } { + board + } 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 - } { + board + }. The
{ - commissioner - } { + board + } 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 8. ORS 696.024 is amended to read:
696.024. To qualify for a real estate license under ORS 696.022
or to renew an active or inactive real estate license, the
applicant must make full payment of any unpaid moneys due and
owing to the Real Estate Agency, including any unpaid civil
penalties assessed under a final order of the Real Estate
{ - Commissioner - } { + Board + }.
SECTION 9. 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 { + of the Real Estate Board + }. The
business name under which a broker conducts professional real
estate activity has no license standing independent of the
broker.
(2) The { - agency - } { + board + } 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 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 10. ORS 696.028 is amended to read:
696.028. The Real Estate { - Commissioner - } { + Board + }
may prescribe by rule the terms and conditions for licensed
personal assistant agreements including, but not limited to, the
duties and responsibilities of, the limitations on the activities
of, and the nature and scope of the business relationship between
a real estate licensee and a licensed personal assistant.
SECTION 11. ORS 696.130 is amended to read:
696.130. (1) If the license of any real estate broker or
principal real estate broker is revoked by the Real Estate
{ - Commissioner, the commissioner - } { + Board, the
board + } may not issue a new license until the individual
complies with the provisions of ORS 696.010 to 696.495, 696.600
to 696.785 and 696.800 to 696.870.
(2) Notwithstanding subsection (1) of this section, the
{ - commissioner - } { + board + } may issue the individual a
limited license if, in the discretion of the
{ - commissioner - } { + board + }, it is in the public
interest to do so. The { - commissioner - } { + board + } may
limit a license issued under this subsection:
(a) By term;
(b) To acts subject to the supervision of a specific principal
real estate broker; or
(c) By conditions to be observed in the exercise and the
privileges granted.
(3) A limited license issued under this section does not confer
any property right in the privileges to be exercised thereunder,
and the holder of a limited license does not have the right to
renewal of such license. A limited license may be suspended or
revoked, or the licensee may be reprimanded, by the
{ - commissioner - } { + board + } on the grounds set out in
ORS 696.301.
SECTION 12. ORS 696.174 is amended to read:
696.174. (1) To qualify an active license for renewal, the real
estate licensee must present evidence of attendance during the
preceding two license years at 30 clock-hours of real estate
oriented continuing education courses, of which a minimum of 15
clock-hours shall be in required course topics.
(2)(a) The Real Estate { - Commissioner - } { + Board + },
with advice from real estate professionals, educators and the
public, may accept a broad range of topics for real estate
oriented continuing education courses. Required course topics
shall be flexible so as to allow for changes in the real estate
profession.
(b) The minimum length of each course, required or elective,
shall be one hour. A standard form, created by the Real Estate
Agency in consultation with real estate professionals, shall be
developed to ensure that licensees have completed the required
number of hours. Certification of attendance by the principal
real estate broker with whom the real estate broker is
associated, or self-certification if the licensee is a sole
practitioner, a principal real estate broker or a real estate
property manager, shall be considered evidence of attendance.
(3) The { - commissioner - } { + board + }, with advice
from real estate professionals, educators and the public, shall
prescribe rules for certifying continuing education courses. The
rules shall provide for correspondence courses and other distance
learning alternatives, including but not limited to rules for
minimum course length, comprehension of written materials and
tests for course completion. The rules shall also provide that
continuing education course topics contain an advanced course in
real estate practices that must be completed by a licensee prior
to the licensee's first renewal of an active license.
(4) The { - commissioner - } { + board + } may waive the
continuing education requirements of subsection (1) of this
section for any licensee who submits satisfactory evidence of
inability to attend such courses because of health or other
circumstances beyond the licensee's control.
SECTION 13. ORS 696.200 is amended to read:
696.200. (1) Except for real estate brokers associated with a
principal real estate broker, every real estate broker and
principal real estate broker shall maintain in this state a place
of business to be designated as the broker's main office and
designate the place of business by a sign that contains the name
under which the broker is licensed.
(2) The place of business must be specified in the application
for a real estate license, and designated in the license. Prior
to the change of a business location, the broker shall notify the
Real Estate { - Commissioner - } { + Agency + } in writing of
the new location. The change of a business location without
notification to the { - commissioner - } { + agency + } is
grounds for revocation of licenses previously issued.
(3) A real estate broker or principal real estate broker may
establish one or more branch offices as separate business
locations under the management of the broker. A broker may
conduct and supervise the business of more than one office,
whether main or branch. The broker shall register each branch
office with the
{ - commissioner - } { + agency + } and designate each branch
office by a sign that contains the name under which the broker is
licensed.
(4) Upon vacating any business location, the broker shall
ensure that the sign containing the broker's name or the name
under which the broker has operated is removed from the location
that the broker has vacated. A broker may not display any name at
the designated places of business named in the broker's license
or licenses other than the name under which the broker is
licensed.
SECTION 14. 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 - } { + Board + } 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 designated by the
{ - commissioner - } { + board + }, 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 - }
{ + board + }, in the discretion of the { - commissioner - }
{ + board + }, extends the term of the temporary license based
on sufficient cause provided by the temporary licensee to the
{ - commissioner - } { + board + }.
(2) The { - Real Estate Agency - } { + board + } may adopt
administrative rules to administer this section or to authorize a
person to transact or wind up real estate business on behalf of
the deceased or incapacitated real estate licensee.
SECTION 15. 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 - } { + Board + }, 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 - } { + board + }, 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 - } { + board + } 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 person 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 - } { + board + } 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 - } { + board + } may provide by rules
for other records to be maintained and for the manner in which
trust funds are deposited, held and disbursed.
SECTION 16. ORS 696.243 is amended to read:
696.243. (1) Any real estate broker, principal real estate
broker, real estate property manager or escrow agent who is
required by the Real Estate { - Commissioner - }
{ + Board + } to maintain the canceled checks used to disburse
moneys from the licensee's clients' trust account may substitute
a copy of the original canceled check, if the copy is provided by
a bank and is produced by optical imaging or other process that
accurately reproduces the original or forms a durable medium for
reproducing the original, and the copy is at least 300 dots per
inch in quality.
(2) A real estate broker, principal real estate broker, real
estate property manager or escrow agent may use electronic fund
transfers for the deposit into or for withdrawal from a clients'
trust account established under ORS 696.241 or 696.578, if the
bank furnishes to the licensee an accurate paper record of the
deposits and withdrawals.
(3) As used in subsection (2) of this section, 'electronic fund
transfer' has the meaning set forth in section 903 of the
Electronic Transfer Act (P.L. 90-321, 15 U.S.C. s1693a).
SECTION 17. ORS 696.245 is amended to read:
696.245. (1) Each sole practitioner and each principal real
estate broker, at the time a Clients' Trust Account is opened
under ORS 696.241, shall provide the bank in which the account is
opened with a notice in substantially the following form:
_________________________________________________________________
NOTICE OF CLIENTS' TRUST ACCOUNT
To: (name of bank) _____
Under the Oregon Real Estate License Law, I am the sole
practitioner, principal real estate broker or designated real
estate appraiser for (licensed name of broker or business)
________.
Further, under ORS 696.241, I am required to maintain in Oregon
a Clients' Trust Account for the purpose of holding funds
belonging to others.
With regard to the account(s) numbered ______ which is/are
designated as a Clients' Trust Account, the account(s) is/are
maintained with you as a depository for money belonging to
persons other than myself and in my fiduciary capacity as a sole
practitioner or principal real estate broker established by
client agreements in separate documents.
Dated: (insert date)
____________
(signature of broker)
ACKNOWLEDGMENT OF RECEIPT
I, ____________, a duly authorized representative of (bank)
____________, do hereby acknowledge receipt of the above NOTICE
OF CLIENTS' TRUST ACCOUNT on (date) ____.
____________
(signature)
____________
(title)
_________________________________________________________________
(2) The acknowledged copy of the notice described in subsection
(1) of this section shall be retained by the sole practitioner or
principal real estate broker as provided in ORS 696.241 for the
retention of trust account records, subject to inspection by the
Real Estate { - Commissioner or the commissioner's - }
{ + Board or the board's + } authorized representative.
SECTION 18. ORS 696.255 is amended to read:
696.255. (1) The acceptance by a nonresident of a real estate
license shall be considered equivalent to an appointment by the
nonresident of the { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } as the nonresident
licensee's true and lawful attorney, upon whom may be served any
lawful summons, process or pleading in any action or suit against
the nonresident licensee in any court of this state, arising out
of any business done by the nonresident licensee as a real estate
licensee in this state. The acceptance shall be considered
equivalent to an agreement by the nonresident licensee that any
summons, process or pleading so served shall be of the same legal
force and validity as if served on the nonresident licensee
personally in this state.
(2) If it appears by the certificate of the sheriff of the
county in which an action or suit has been filed against a
nonresident licensee, that the defendant cannot be found in this
state, service of any summons, process or pleading in the action
or suit may be made by leaving a copy thereof, with a fee of $2,
in the hands of the { - commissioner or in the
commissioner's - } { + director or in the director's + } office.
Such service shall be sufficient and valid personal service upon
the defendant { - ; - } { + , + } provided that:
(a) Notice of the service and copy of the summons, process or
pleading is sent forthwith by registered mail or by certified
mail with return receipt by the plaintiff or the plaintiff's
attorney to the defendant, at the most recent address furnished
to the
{ - commissioner - } { + Real Estate Agency + } by the
nonresident licensee or to the nonresident licensee's last-known
address; and
(b) The affidavit of the plaintiff or the plaintiff's attorney
of the mailing is appended to the summons, process or pleading
and entered as a part of the return thereof.
(3) Notwithstanding any other provision of this section,
personal service outside of the state in accordance with the
statutes relating to personal service of summons outside of the
state shall relieve the plaintiff from the mailing requirement
under this section.
(4) Any summons served as provided in this section shall
require the defendant to appear and answer the complaint within
four weeks after receipt thereof by the { - commissioner - }
{ + director + }.
(5) The fee of $2 paid by the plaintiff to the
{ - commissioner - } { + director + } shall be taxed as costs
in favor of the plaintiff if the plaintiff prevails in the
action.
(6) The { - commissioner - } { + director + } shall keep a
record of each summons, process or pleading served upon the
{ - commissioner - } { + director + } under this section,
showing the day and hour of service.
SECTION 19. ORS 696.265 is amended to read:
696.265. Notwithstanding ORS 696.040 to 696.232 and 696.255,
the Real Estate { - Commissioner - } { + Board + } may
prescribe by rule the terms and conditions for license
recognition of a nonresident real estate broker or salesperson
and for reciprocity agreements with other states and countries,
including but not limited to application procedures, license
qualifications, license maintenance, limitations on activities
and license renewal requirements.
SECTION 20. ORS 696.270 is amended to read:
696.270. The maximum fees described in this section may be
charged by and paid to the Real Estate Agency. Actual fees shall
be prescribed by the Real Estate { - Commissioner - }
{ + Board + } with approval of the Oregon Department of
Administrative Services. This section applies to the following
fees:
(1) For each licensing examination applied for, $75.
(2) For each real estate broker's, principal real estate
broker's or real estate property manager's license, $230.
(3) For each renewal of a real estate broker's, principal real
estate broker's or real estate property manager's license, $230.
(4) For each notification of the opening or closing of a
registered branch office of a real estate broker or principal
real estate broker, at times other than the time of issuing or
renewing the broker's license, $10.
(5) For each change of name or address of a broker on the
records of the agency, $10.
(6) For each duplicate license, when the original license is
lost or destroyed and affidavit made thereof, $20.
(7) For each transfer of a real estate broker's, principal real
estate broker's or real estate property manager's license within
the same license category, $10.
(8) For the renewal of a real estate broker's, principal real
estate broker's or real estate property manager's inactive
license, $110.
(9) For the reactivation of a real estate broker's, principal
real estate broker's or real estate property manager's inactive
license, $75.
(10) In addition to the renewal fee, for late renewal, $30.
(11) For a temporary license issued under ORS 696.205, $40, and
for an extension thereof, $40.
(12) For initial registration of a business name, $230.
SECTION 21. ORS 696.280 is amended to read:
696.280. (1) A real estate broker or principal real estate
broker shall maintain within this state complete and adequate
records of all professional real estate activity conducted by or
through the broker. The Real Estate { - Agency - }
{ + Board + } 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 - } { + board + } 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
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 - }
{ + Agency or the agency'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 - } { + agency or the
agency's + } representatives, as determined by the
{ - commissioner - } { + board + } by rule.
SECTION 22. ORS 696.301 is amended to read:
696.301. Subject to ORS 696.396, the Real Estate
{ - Commissioner - } { + Board + } 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 - } { + Board + }.
(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 - } { +
board + }.
(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 Oregon
as established by the community of persons engaged in the
practice of professional real estate activity in Oregon.
SECTION 23. ORS 696.310 is amended to read:
696.310. (1) If two or more principal real estate brokers are
in business together, the brokers may have equal supervisory
control over and shall be equally responsible for the conduct of
other principal real estate brokers or real estate brokers
associated with the principal real estate brokers, or other
employees employed by the principal real estate brokers. The
principal real estate brokers shall execute a written agreement
between them and establish office policies specifying the
supervisory control and responsibility for each principal real
estate broker who is a party to the agreement.
(2) An act constituting a violation of any of the provisions of
ORS 696.010 to 696.495, 696.600 to 696.785, 696.800 to 696.870
and 696.995 or of any rule adopted thereunder by any licensee is
not cause for the suspension or revocation of a license of any
real estate licensee associated with or engaged by such licensee,
unless it appears to the satisfaction of the Real Estate
{ - Commissioner - } { + Board + } that such associated or
engaged real estate licensee had guilty knowledge of the act. A
course of dealing shown to have been persistently and
consistently followed by any real estate licensee shall
constitute prima facie evidence of such knowledge upon the part
of any real estate licensee associated with or engaged by that
licensee.
SECTION 24. ORS 696.392 is amended to read:
696.392. (1) The Real Estate { - Commissioner - } { + Board
or the Director of the Real Estate Agency + } may administer
oaths, take depositions and issue subpoenas to compel the
attendance of witnesses and the production of books, papers,
records, memoranda or other information necessary to the carrying
out of the laws the
{ - commissioner - } { + Real Estate Agency + } is charged
with administering.
(2) If any person fails to comply with a subpoena issued under
this section or refuses to testify on any matters on which the
person may be lawfully interrogated, the procedure provided in
ORS 183.440 shall be followed to compel obedience.
SECTION 25. ORS 696.396 is amended to read:
696.396. (1) The Real Estate { - Commissioner - }
{ + Board + } shall provide by rule for the progressive
discipline of real estate licensees and an objective method for
investigation of complaints alleging grounds for discipline under
ORS 696.301.
(2) The rules adopted by the { - commissioner - }
{ + board + } under this section:
(a) Must establish procedures for the discovery of material
facts relevant to an investigation and for the reporting of those
facts without conclusions of violation or grounds for discipline
to the { - commissioner or the commissioner's - } { + board
or the board's + } designee by the individual assigned to
investigate the complaint.
(b) Must provide for progressive discipline designed and
implemented to correct inappropriate behavior.
(c) May not authorize imposition of a suspension or a
revocation of a real estate license unless the material facts
establish a violation of a ground for discipline under ORS
696.301 that:
(A) Results in significant damage or injury;
(B) Exhibits incompetence in the performance of professional
real estate activity;
(C) Exhibits dishonesty or fraudulent conduct; or
(D) Repeats conduct or an act that is substantially similar to
conduct or an act for which the real estate licensee was
disciplined previously.
SECTION 26. ORS 696.398 is amended to read:
696.398. (1) The Real Estate { - Commissioner - }
{ + Board + } may delegate to any of the officers and employees
of the Real Estate Agency to exercise or discharge { - in the
commissioner's name any - } { + on behalf of the board a + }
power, duty or function vested in or imposed upon the
{ - commissioner - } { + board + } 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 { + , other than the Director
of the Real Estate Agency, + } only when specified in writing by
the
{ - commissioner - } { + board + } and filed in the records
of the Real Estate Agency.
(2) An official act of a person acting { - in the
commissioner's name - } { + on behalf of the board + } and by
authority of the { - commissioner shall be - } { + board
is + } deemed to be an official act of the
{ - commissioner - } { + board + }.
SECTION 27. ORS 696.430 is amended to read:
696.430. Copies of all records and papers in the office of the
Real Estate { - Commissioner - } { + Agency + } duly
certified and authenticated by the seal of the
{ - commissioner - } { + agency + } shall be received in
evidence in all courts equally and with like effect as the
original. Except for records of open investigations, all records
kept in the office of the { - commissioner - } { + agency + }
under authority of ORS 696.010 to 696.495, 696.600 to 696.785,
696.800 to 696.870 and 696.995 shall be open to public inspection
under such reasonable rules and regulations as shall be
prescribed by the { - commissioner - } { + Real Estate
Board + }.
SECTION 28. ORS 696.445 is amended to read:
696.445. (1) Pursuant to ORS { - 696.385 (2) - } { +
696.425 (1)(b) + }, the Real Estate { - Agency - }
{ + Board + } shall provide for the advancement of education and
research in connection with the educational requirements for the
securing of licenses for real estate licensees under ORS 696.010
to 696.495, 696.600 to 696.785, 696.800 to 696.870 and 696.995.
(2) The { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } may assign and reassign
staff in the agency to perform such duties as the
{ - commissioner - } { + director + } considers necessary to
carry out subsection (1) of this section, including but not
limited to the preparation and distribution of a periodic
publication to be known as the Oregon Real Estate News Journal
and the preparation and publication of other printed matter of an
educational nature for the benefit of real estate licensees.
(3) The { - commissioner - } { + director + } shall publish
in the Oregon Real Estate News Journal the { - names and
addresses of all applicants - } { + name and the city and
county of each applicant + } for { + a + } real estate or escrow
{ - licenses whose licenses have - } { + license whose license
has + } been refused, of { + each + } real estate
{ - licensees who have - } { + licensee who has + } been
reprimanded, of { + each + } real estate { - and - }
{ + or + } escrow { - licensees whose licenses have - }
{ + licensee whose license has + } been suspended or revoked and
of { + each + } real estate { - and - } { + or + } escrow
{ - licensees who have - } { + licensee who has + } been
assessed civil penalties. Each { - such - } publication
{ - shall - } { + must + } include a brief description of the
situation involved and the grounds for the
{ - commissioner's - } { + director's + } action.
SECTION 29. ORS 696.495 is amended to read:
696.495. (1) Upon written request by the Real Estate Agency,
the Oregon Department of Administrative Services shall draw a
warrant on the Real Estate Account, established by ORS 696.490,
for use as a revolving fund. Warrants drawn to establish or
increase the revolving fund, rather than to reimburse the
revolving fund, may not exceed the aggregate sum of $1,500. The
State Treasurer shall hold the revolving fund in a special
account against which the Real Estate Agency may draw checks.
(2) The Real Estate Agency may use the revolving fund for the
purpose of paying witness fees and other administrative expenses.
(3) All claims for reimbursement of moneys paid from the
revolving fund are subject to approval by the Director of the
Oregon Department of Administrative Services and by the
{ + Director of the + } Real Estate { - Commissioner - } { +
Agency + }. When { - such - } claims have been approved, a
warrant covering them shall be drawn in favor of the Real Estate
Agency and used to reimburse the revolving fund.
{ - Such - } Warrants shall be charged against the Real Estate
Account established by ORS 696.490.
SECTION 30. ORS 696.505 is amended to read:
696.505. As used in ORS 696.505 to 696.590, unless the context
requires otherwise:
(1) 'Collection escrow' means an escrow in which the escrow
agent:
(a) Receives:
(A) Installment payments;
(B) Instruments evidencing or securing an obligation; or
(C) Instruments discharging the security interest; and
(b) Disburses the payments or delivers the instruments upon
specified conditions pursuant to the written instructions of an
obligor and obligee.
{ - (2) 'Commissioner' means the Real Estate
Commissioner. - }
{ - (3) - } { + (2) + } 'Escrow' means any transaction
wherein any written instrument, money, evidence of title to real
or personal property or other thing of value is delivered, for
the purpose of paying an obligation or effecting the sale,
transfer, encumbrance or lease of real or personal property, to a
person not otherwise having any right, title or interest therein,
to be held by that person as a neutral third party until the
happening of a specified event or the performance of a prescribed
condition, when it is then to be delivered by the neutral third
party to a grantee, grantor, promisee, promisor, obligee,
obligor, bailee, bailor or any agent or employee of any of them
pursuant to the written instructions of the principals to the
transaction.
{ - (4) - } { + (3) + } 'Escrow agent' means any person who
engages in the business of receiving escrows for deposit or
delivery and who receives or is promised any fee, commission,
salary or other valuable consideration, whether contingent or
otherwise, for or in anticipation of performance.
{ - (5) - } { + (4) + } 'Principal' means:
(a) The buyer and seller, lessor and lessee and the exchanging
parties in an escrow transaction involving the sale, lease,
lease-option or exchange of real property or personal property;
and
(b) The borrower in an escrow transaction involving the
refinancing of real or personal property, including but not
limited to the refinancing of an obligation secured by a land
sale contract requiring a deed to be delivered as part of such
refinancing.
{ - (6) - } { + (5) + } 'Real estate closing escrow' means
an escrow where the escrow fee is paid in whole or in part by the
principals to a real estate transaction and wherein the unpaid
purchase price is delivered to an escrow agent for disbursal
pursuant to the written instructions of the principals to the
transaction simultaneously on the transfer of specified title to
the real property.
{ - (7) - } { + (6) + } 'Subservicer' means an escrow
agent, a financial institution or a trust company, as those terms
are defined in ORS 706.008, or a collection agency registered
under ORS 697.015 when providing, pursuant to written
instructions, a portion of the escrow services for an escrow to
an escrow agent, or a person in the business of receiving escrows
under the laws of another state, that would otherwise provide the
escrow services directly to the principals.
SECTION 31. ORS 696.508 is amended to read:
696.508. (1) The Legislative Assembly finds the activity of
escrow agents in handling large sums of money and important
rights of clients to be of public concern. In order to permit
uniform and equitable regulation of all escrow agents and to
improve the standards of escrow conduct, the provisions of ORS
696.505 to 696.590 shall be construed to grant the Real Estate
{ - Commissioner - } { + Agency + } authority to protect the
public.
(2) ORS 696.505 to 696.590 may be cited as the Oregon Escrow
Law.
SECTION 32. 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 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 - } { + Agency + } an application for a
license, in writing, verified by the applicant and in the form
prescribed by the
{ - commissioner - } { + Director of the Real Estate
Agency + }. 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 - } { + agency + }.
(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 - } { + director + } may require information
and evidence the
{ - commissioner - } { + director + } 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 Oregon or a state with
comparable escrow laws.
(4) The { - commissioner - } { + director + } 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 - } { + director + } 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 - } { + director + } may
require additional information for an initial license or license
renewal under this subsection that the { - commissioner - }
{ + director + } considers necessary for protecting the public.
For purposes of requiring fingerprints and a criminal records
check, ' applicant' means a person 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 - } { + Real Estate Agency
+ }regarding the applicant's escrow business.
(7) The { - commissioner - } { + director + }, 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 33. ORS 696.525 is amended to read:
696.525. (1) At the time of filing an application for an escrow
agent license, the applicant shall deposit with the Real Estate
{ - Commissioner - } { + Agency + } a corporate surety bond
running to the State of Oregon, executed by a surety company
satisfactory to the { - commissioner - } { + Director of the
Real Estate Agency + }, in the amount required by this section.
(2) If the total annual receipts of client trust funds, as
reported in the required annual report of the escrow agent, are:
(a) Less than $30 million, the bond or deposit must be $50,000.
(b) $30 million or more, but less than $60 million, the bond or
deposit must be $125,000.
(c) $60 million or more, but less than $100 million, the bond
or deposit must be $250,000.
(d) $100 million or more, but less than $300 million, the bond
or deposit must be $375,000.
(e) $300 million or more, the bond or deposit must be $500,000.
(3) The provisions of the corporate surety bond must be in the
form substantially as follows:
_________________________________________________________________
Know All Persons by These Presents, That we, ____ as principal,
and ____, a corporation, qualified and authorized to do business
in the State of Oregon as surety, are held and firmly bound unto
the State of Oregon for the use and benefit of any interested
person, in the sum of $____, lawful money of the United States of
America, to be paid to the State of Oregon for the use and
benefit aforesaid, for which payment well and truly to be made,
we bind ourselves, our heirs, executors, administrators,
successors, and assigns, jointly and severally, firmly by these
presents.
The condition of the above obligation is such that: Whereas the
above-named principal has made application for registration as an
escrow agent within the meaning of ORS 696.505 to 696.590 and is
required by the provisions of ORS 696.505 to 696.590 to furnish a
bond in the sum above named, conditioned as herein set forth:
Now, therefore, if the principal, the principal's agents and
employees, shall strictly, honestly and faithfully comply with
the provisions of ORS 696.505 to 696.590, and shall pay all
actual damages suffered by any person by reason of the violation
of any of the provisions of ORS 696.505 to 696.590, now or
hereafter enacted, or by reason of any fraud, dishonesty,
misrepresentation or concealment of material facts growing out of
any transaction governed by the provisions of ORS 696.505 to
696.590, then this obligation shall be void; otherwise to remain
in full force and effect.
This bond shall become effective on the __ day of ____, 2_, and
shall remain in force until the surety is released from liability
by the { - commissioner - } { + Director of the Real Estate
Agency + }, or until this bond is canceled by the surety. The
surety may cancel this bond and be relieved of further liability
hereunder by giving 30 days' written notice to the principal and
to the { - commissioner - } { + director + }.
This bond shall be one continuing obligation, and the liability
of the surety for the aggregate of any and all claims which may
arise hereunder shall in no event exceed the amount of the
penalty hereof.
In witness whereof, the seal and signature of the principal
hereto is affixed, and the corporate seal and the name of the
surety hereto is affixed and attested by its duly authorized
officers at _______, Oregon, this __ day of ______, 2__.
____________ (Seal)
Principal
____________ (Seal)
Surety
By ____________
_________________________________________________________________
SECTION 34. ORS 696.527 is amended to read:
696.527. (1) Any escrow agent may satisfy the requirements of
ORS 696.525 by depositing with the State Treasurer, in an amount
equal to the surety bond required, a deposit consisting only of
the following:
(a) Cash;
(b) Ample secured obligations of the United States, a state or
a political subdivision thereof;
(c) Certificates of deposit or other investments described in
ORS 733.650 (4), to the extent that such investments are insured
by the Federal Deposit Insurance Corporation; or
(d) Any combination of paragraphs (a), (b) or (c) of this
subsection.
(2) The State Treasurer shall accept and hold the deposit for
the faithful performance of escrow activity by the escrow agent.
No claimant or judgment creditor or the escrow agent shall have
the right to attach or levy upon any of the assets or securities
held on deposit.
(3) The { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + }, by order, may authorize
the State Treasurer to use such deposit, as follows:
(a) To satisfy any final judgment entered against the escrow
agent for actual damages suffered by any person by reason of the
violation of any of the provisions of ORS 696.505 to 696.590, now
or hereafter enacted, or by reason of any fraud, dishonesty,
misrepresentation or concealment of material fact growing out of
any escrow transaction;
(b) For use in the liquidation of the escrow agent under the
provisions of ORS 696.555; or
(c) To release any or all of such deposit to the escrow agent
when, in the opinion of the { - commissioner - } { +
director + }, such deposit is no longer necessary to protect the
public.
(4) The { - commissioner - } { + director + } may waive the
requirement of the surety bond or deposit for any escrow agent
that:
(a) Demonstrates to the { - commissioner's - }
{ + director's + } satisfaction that the capital and surplus or
net worth, of such escrow agent as of the end of the previous
business accounting year of the agent is equal to, or greater
than, the average month-end balance of custodial funds held by
such agent during the previous business accounting year;
(b) Provides a certified, annually renewable letter of credit
executed by a financial institution and satisfactory to the
{ - commissioner - } { + director + } in the amount of the
surety bond required by ORS 696.525; or
(c) Provides a certified, personal guarantee executed by one or
more owners of the escrow agency and satisfactory to the
{ - commissioner - } { + director + } in the amount of the
surety bond required by ORS 696.525.
(5) All other claims against the bond or deposit of an escrow
agent must be paid by the { - commissioner - }
{ + director + } only upon the receipt of a final court judgment
against the escrow agent and only in the amount of actual damages
as ordered by the court.
SECTION 35. ORS 696.530 is amended to read:
696.530. (1) The license of an escrow agent expires June 30
next after the date of issuance if it is not renewed by July 1 of
such year. A license may be renewed by filing a renewal
application in writing, verified by the applicant and in the form
prescribed by the { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + }, and paying the annual
license fee for the next succeeding fiscal year.
(2) The filing fees are:
(a) For filing an original or a renewal application, $300 for
the main office and $150 for each branch office.
(b) For filing an application for a duplicate copy of a
license, upon satisfactory showing of loss of the license, the
sum of $20.
(c) For a name change or a change of address of an escrow
agent, $10 for the main office plus $10 for each affected branch
office.
SECTION 36. ORS 696.532 is amended to read:
696.532. (1) The { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } may issue or renew a
limited escrow agent license if:
(a) An applicant elects not to apply for an escrow agent
license; or
(b) An applicant does not qualify for an escrow agent license.
(2) The { - commissioner - } { + director + }may limit a
license issued under this section:
(a) By term;
(b) To activities subject to supervision by a specific escrow
agent;
(c) By conditions to be observed in the exercise of the
privileges granted; or
(d) In other ways determined by the { - commissioner - }
{ + director + } as necessary or appropriate to protect the
public.
(3) A limited licensee shall comply with the requirements of
ORS 696.505 to 696.590 and shall:
(a) Restrict the escrow business of the licensee to those
escrows specified in the application; or
(b) Limit its escrow business to collection escrows.
SECTION 37. ORS 696.534 is amended to read:
696.534. (1) An escrow agent shall keep and maintain at all
times in the licensed office of the agent, complete and suitable
records of escrow transactions made by the agent and of the
business of the agent including, but not limited to, books,
papers and data clearly reflecting the financial condition of the
business of the agent. The records must be open for inspection by
the Real Estate { - Commissioner or the commissioner's
authorized representatives - } { + Agency + } at all times. An
escrow agent shall keep escrow records for a period of six years
from the date the escrow closes or is terminated. An escrow agent
may maintain the records in any format, as determined by the
{ - commissioner - } { + Director of the Real Estate
Agency + } by rule, that allows for inspection and copying by the
{ - commissioner or the commissioner's representatives - }
{ + agency + }. When an escrow agent acts as a subservicer for
another escrow agent, the subservicer shall keep its records in
the manner required for an escrow agent under this section.
(2) Notwithstanding the requirement of subsection (1) of this
section that an escrow agent maintain escrow records in the
agent's licensed office, an escrow agent shall keep escrow
records in the office in which the transaction occurred for one
year from the date the escrow closes or is terminated.
(3) Notwithstanding the requirements of subsections (1) and (2)
of this section to maintain escrow records in specified
locations, an escrow agent may maintain escrow records at another
location satisfactory to the { - commissioner - }
{ + director + } if the escrow agent provides the
{ - commissioner - } { + director + } with prior written
notice of the proposed location.
SECTION 38. ORS 696.535 is amended to read:
696.535. (1) The { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } may refuse to issue or may
suspend or revoke any license by entering an order to that effect
with the { - commissioner's - } { + director's + } findings in
respect thereto if, upon examination into the affairs of the
applicant or licensee in the performance of routine duties, upon
field examination or upon hearing, the
{ - commissioner - } { + director + } determines that the
applicant or licensee:
(a) Has, under generally accepted accounting principles, a
deficit net worth;
(b) Has demonstrated unworthiness to transact the business of
an escrow agent;
(c) Does not conduct business in accordance with law or has
violated any provisions of ORS 696.505 to 696.590;
(d) Has committed fraud in connection with any transaction
governed by ORS 696.505 to 696.590;
(e) Has made any misrepresentations or false statement of an
essential or material fact to, or concealed any essential or
material fact from, any person in the course of the escrow
business;
(f) Has knowingly made or caused to be made to the
{ - commissioner any - } { + Real Estate Agency a + } false
representation of a material fact, or has suppressed or withheld
from the
{ - commissioner - } { + agency + } any information the
applicant or licensee possesses that, if submitted, would have
disqualified the applicant or licensee from original or renewed
licensing under ORS 696.505 to 696.590;
(g) Has failed to account to the principals or persons entitled
thereto in a real estate transaction for the moneys, documents or
other things of value received in the transaction;
(h) Has not delivered, after a reasonable time, to persons
entitled thereto, moneys, documents or other things of value held
or agreed to be delivered by the licensee, as and when paid for
and due to be delivered;
(i) Has caused uncompensated material loss to principals by
engaging in a pattern of failures to act with neutrality between
principals in multiple escrows;
(j) Has refused to permit an examination by the
{ - commissioner - } { + agency + } of the escrow agent's
books and affairs, or has refused or failed, within a reasonable
time, to furnish any information, records or files or make any
report that may be required by the { - commissioner - }
{ + agency + } under the provisions of ORS 696.505 to 696.590;
or
(k) Has been convicted of a felony or any misdemeanor that is
substantially related to the escrow agent's competency or
trustworthiness to engage in the business of an escrow agent.
(2) It is sufficient cause for refusal or revocation of a
license in case of a partnership or corporation or any
unincorporated association, if any member of a partnership or any
officer or director of the corporation or association has been
guilty of any act or omission which would be cause for refusing
or revoking the registration of an individual agent.
SECTION 39. ORS 696.541 is amended to read:
696.541. (1) The { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } shall have general
supervision and control over all escrow agents doing business in
this state. Subject to ORS chapter 183, the
{ - commissioner - } { + director + } may adopt such rules as
reasonably necessary for the administration and enforcement of
ORS 696.505 to 696.590.
(2) All escrow agents are subject to audits or examinations by
the { - commissioner, or the commissioner's authorized
representatives at any time the commissioner - } { + Real
Estate Agency when the director + } considers advisable. The
{ - commissioner - } { + director + } may collect from each
escrow agent the reasonable expenses of such audit or examination
including but not limited to any administrative expense for
travel.
(3) The provisions of this section and of any other section
relating to the examination of the affairs of an escrow agent
shall extend to an escrow agent whose license has expired or been
revoked or suspended, if in the judgment of the
{ - commissioner - } { + director + }, such agent has violated
any provisions of ORS 696.505 to 696.590.
SECTION 40. ORS 696.545 is amended to read:
696.545. (1) The { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } may investigate either upon
complaint or otherwise whenever it appears that an escrow agent
has violated ORS 696.505 to 696.590 or that any person is
engaging in the escrow business without being licensed under the
provisions of ORS 696.505 to 696.590.
(2) { - If upon investigation it appears that such agent is
so conducting business the commissioner - } { + If it appears
upon investigation that an agent is conducting business in
violation of subsection (1) of this section, the director + }
may, in addition to any other remedies, bring action in the name
and on behalf of the State of Oregon against { - such
person - } { + the agent + } and any other person acting in
violation of ORS 696.505 to 696.590 { - , - } to enjoin
{ - such person and such other person from continuing any
act - } { + continuing actions + } in violation of ORS 696.505
to 696.590.
(3) { + In addition to the penalties and other remedies
provided in ORS 696.505 to 696.590, + } the circuit court of any
county of this state { - is vested with jurisdiction to - }
{ + may + } restrain illegal practices or transactions and may
grant injunctions to prevent and restrain { - such - } illegal
practices or transactions { - , in addition to the penalties and
other remedies provided in ORS 696.505 to 696.590. The court
shall have power, - } { + . + } During the pendency of the
proceedings { - before it to - } { + , the court may + } issue
{ - such - } preliminary restraining orders { - as may - }
{ + that + } appear to be just and proper { - ; and - } { + .
+ }The findings of the { - commissioner - } { + director + }
shall be deemed to be prima facie evidence and sufficient ground,
in the discretion of the court, for the issue ex parte of a
preliminary restraining order.
(4) In { - any such court proceedings the commissioner - }
{ + a court proceeding described in this section, the
director + } may apply for and on due showing { - be entitled
to have issued the court's - } { + have the court issue a + }
subpoena requiring { - forthwith - } { + :
(a) + } The appearance of { - any - } { + a + } defendant
and employees of the defendant { - and the production of
documents, books and records as may appear necessary for the
hearing of such petition, - } to testify and give evidence
concerning the acts { - or - } { + , + } conduct or things
complained of in { - such - } { + the + } application for
injunction.
{ + (b) The production of documents, books or records that
appear to be necessary for the hearing of the petition. + }
SECTION 41. ORS 696.555 is amended to read:
696.555. (1) When the { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } ascertains by examination
or otherwise that the assets or capital of any agent are
impaired, as described in ORS 696.535 (1)(a), the
{ - commissioner - } { + director + } may immediately take
possession of all the property, business and assets of the agent
{ - which - } { + that + } are located in this state and
retain possession
{ - of them - } pending the further proceedings specified in
this section.
(2) Pursuant to subsection (1) of this section, the
{ - commissioner - } { + director + } may apply to the
circuit court of the county in which the agent's principal place
of business is located for an order directing the agent to show
cause why a receiver should not be appointed to take charge of
and manage or liquidate if necessary the assets of the agent
utilized in professional escrow activity in { - such a manner
as to prevent or minimize such - } { + a manner that prevents or
minimizes + } financial loss to others.
(3) If the court is satisfied from reading the
{ - commissioner's - } { + director's + } petition that the
facts { - therein - } alleged, if established, warrant
{ - such - } { + the + } receivership action, the court shall
issue { - such - } { + the + } order to show cause. The court
may { - at such time - } , without notice, issue a temporary
injunction restraining { - such agent, or any of - } { + the
agent or + } the agent's officers, directors, stockholders,
members, agents or employees, from the transaction of any
professional escrow activity { - , - } or the waste or
disposition of { - any such - } { + the + } assets until
further order of the court. { - Should such an injunction
be - } { + If an injunction is + } issued, { + the court shall
hold + } a hearing on whether the injunction
{ - shall be continued shall be held - } { + should be
continued + } within five business days of its service.
(4) On return of the order to show cause { - , - } and after
a full hearing, the court shall { - either - } { + grant
or + } deny the application or grant the { - same - } { +
application + }, together with { - such - } other relief
{ - as - } { + that + } the court { - may deem - }
{ + deems + } necessary.
(5) Notwithstanding any other provision of law, { - no bond
shall be required of the commissioner or the commissioner's
authorized representatives - } { + the court may not require a
bond of the Real Estate Agency + } as a prerequisite for the
issuance of { - any - } { + an + } injunction or other order
pursuant to this section.
(6) { + The court may dismiss the proceedings if, + } at any
time during { - such - } { + the + } proceedings, the agent
{ - may satisfy - } { + satisfies + } the court that the
activity { - which - } { + that + } prompted { - such - }
{ + the + } proceedings has been rectified or that financial
loss to others { + is + } no longer { - will - } likely
{ + to + } occur { - , in which case the court may dismiss such
proceedings - } .
(7) The { + court shall fix the amount of + }expenses of the
receiver, compensation of the legal counsel of the receiver,
{ - as well as all - } { + and the + } expenditures of the
receiver required in
{ - such - } { + the + } proceedings { - shall be fixed by
the court and - } { + to be paid. The court + } shall
{ + order that the costs + } be paid out of funds in the hands
of the receiver or { - entered - } { + enter the costs + } as
a judgment against { - such - } { + the + } licensee.
SECTION 42. ORS 696.570 is amended to read:
696.570. (1) All hearings { + conducted + } before the Real
Estate
{ - Commissioner or the commissioner's authorized
representative conducted - } { + Agency + } under the authority
of ORS 696.505 to 696.590
{ - shall - } { + must + } be conducted in accordance with
the provisions of ORS chapter 183.
(2) The { - commissioner, or anyone authorized by the
commissioner, shall have the power to - } { + Director of the
Real Estate Agency, or a designee of the director, may + }
subpoena witnesses and administer oaths in connection with
hearings in the enforcement of ORS 696.505 to 696.590.
SECTION 43. ORS 696.577 is amended to read:
696.577. { - Whenever - } { + If the Director of + } the
Real Estate
{ - Commissioner - } { + Agency + } finds that any person is
offering to engage in or engaging in the business of an escrow
agent without a license as an escrow agent as required under ORS
696.505 to 696.590, the { - commissioner - } { + director + }
may order the person to cease and desist from offering to engage
in or engaging in the business of an escrow agent. Any proceeding
under this section is subject to the requirements of ORS chapter
183.
SECTION 44. ORS 696.578 is amended to read:
696.578. (1) All money deposited in escrow to be delivered upon
the close of the escrow or upon any other contingency shall be
deposited and maintained in a bank authorized to do business
within this state and kept separate, distinct and apart from
funds belonging to the escrow agent. Such funds, when deposited,
are to be designated as trust funds, escrow accounts, or under
some other appropriate name indicating that the funds are not the
funds of the escrow agent.
(2) Trust funds received by an escrow agent may be placed by
the agent 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 may inure to
the benefit of the escrow agent if expressly approved in writing
before deposit of the trust funds by all parties having an
interest in the trust funds.
(3) With prior written notice to all parties who have an
interest in the trust funds, an escrow agent may place trust
funds received by the escrow agent 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 escrow agent shall select a qualified public benefit
corporation to receive the interest earnings.
(4) Any bank services, as defined by rule by the { + Director
of the + } Real Estate { - Commissioner - } { + Agency + },
provided to the escrow agent shall not be considered to affect
the impartiality or neutrality of the escrow agent.
{ - Such - } { + The + } services are permitted with approval
in the written closing instructions of the principals.
(5) Clients' trust funds may be invested in secured obligations
of the United States, if:
(a) The depositing principal gives prior written approval to
the escrow agent for such investment after receiving written
disclosure as may be required by rule adopted by the
{ - commissioner - } { + director + };
(b) The depositing principal releases the escrow agent from any
liability for loss of { - such - } { + the + } funds;
(c) The depositing principal agrees that any loss of funds
shall not be a claim against the bond, deposit, letter of credit
or personal guarantee of the agent under ORS 696.525 and 696.527;
and
(d) The escrow agent does not have any interest in the
investment or earnings from the investment.
(6) If the funds to be invested represent earnest money in a
transaction, both principals in the transaction must give prior
written approval for the investment and are both considered
depositing principals.
SECTION 45. ORS 696.581 is amended to read:
696.581. (1) An escrow agent may not accept funds, property or
documents in any escrow transaction without dated, written escrow
instructions from the principals to the transaction or a dated
executed agreement in writing between the principals to the
transaction.
(2) An escrow agent may not close an escrow or disburse any
funds or property in an escrow without obtaining dated, separate
escrow instructions in writing from the principals to the
transaction adequate to administer and close the transaction or,
in the case of disbursement, to disburse the funds and property.
(3) The following statement or its substantial equivalent shall
appear on or be attached to all written escrow instructions
prepared by an escrow agent for signature of the principals to a
transaction. The statement shall be in at least 10-point bold
type. The statement shall either appear immediately above the
signatures of the principals or be separately initialed by the
principals:
_________________________________________________________________
It is understood by the parties signing the above or attached
instructions that the instructions are the complete instructions
between this firm as an escrow agent and you as a principal to
the escrow transaction. These instructions may not include all
the terms of the agreement which is the subject of this escrow.
Read these instructions carefully, and do not sign them unless
they are acceptable to you.
_________________________________________________________________
(4) An escrow agent may not solicit or accept any original,
amended or supplemental escrow instructions containing any blank
to be filled in after signing. An escrow agent shall not allow
any alteration of original, amended or supplemental escrow
instructions, unless the alteration is signed or initialed by all
principals who signed or initialed the instructions before the
alteration.
(5) An escrow agent may accept client funds, in excess of
earnest money required in transaction documents to be held, as
individual funds of the principal who has paid them into escrow.
Such individual funds may be disbursed with only the separate
written instructions of the principal who deposited the funds
into escrow.
(6) An escrow agent may open a one-sided escrow, as defined by
rule by the { + Director of the + } Real Estate
{ - Commissioner. Such - } { + Agency. The + } escrow funds may
be disbursed with only the separate written instructions of the
principal who deposited the funds into escrow.
SECTION 46. ORS 696.582 is amended to read:
696.582. (1) An escrow agent shall hold, as provided in
subsection (3) of this section, the amount of money or other
property agreed to as a commission in a written real estate
broker's or principal real estate broker's commission agreement,
if the escrow agent has at the office at which the escrow is
being closed, before the date of closing:
(a) A written notice of demand, signed by the real estate
broker or principal real estate broker who is authorized under
rules adopted by the { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } to enter into the
commission agreement and sign the written notice of demand, in
substantially the form set out in subsection (2) of this section;
and
(b) The written closing instructions of the principals which do
not honor the amount and terms of payment in the notice of
demand.
(2) The notice of demand required by subsection (1) of this
section may not be incorporated into any document of agreement
between the principals or between the broker and a principal, and
shall be in substantially the following form:
_________________________________________________________________
Notice of Demand for
Real Estate Commission
To: ________
(Name of Escrow Company)
Re: ________
(Names of Principals to
Transaction)
Your Escrow Number: ____
The undersigned real estate broker or principal real estate
broker states that such broker has a valid written commission
agreement with ____ (Name of Principal), one of the principals to
the transaction referred to above, and that such principal is
obligated to pay the broker the commission on account of that
transaction. The commission amount is $___ and is to be paid on
the following terms: ______. Demand is hereby made that the
commission be paid in that amount and on those terms, out of
escrow and as a part of your closing of that transaction.
____________
(Name and Signature of Real Estate Broker
or Principal Real Estate Broker)
_________________________________________________________________
(3) An escrow agent in a transaction described in subsection
(1) of this section may only disburse the moneys or other
property to:
(a) The broker and principal, based upon a written agreement
between those parties and directed to the escrow agent as
disbursement instructions;
(b) Any persons, as directed by order of a court of competent
jurisdiction; or
(c) The court, upon filing by the escrow agent of an
interpleader action for the moneys or property.
(4) At the time of filing a notice of demand with an escrow
agent under subsection (1) of this section, the real estate
broker or principal real estate broker filing the notice shall
deliver a copy of the notice to the principal identified in the
notice.
SECTION 47. ORS 696.585 is amended to read:
696.585. (1) { - Any - } { + A + } person who violates
{ - any - } { + a + } provision of ORS 696.505 to 696.545,
{ - or any - } { + a + } lawful rule or final order of the
Real Estate { - Commissioner - } { + Agency + } or
{ - any - } { + a + } final judgment made by { - any - }
{ + a + } court upon application of the { - commissioner, - }
{ + director + } may be required to forfeit and pay { + , + } to
the General Fund of the State Treasury, a civil penalty in an
amount determined by the { - commissioner - }
{ + director + } of not more than $3,000 for each offense. Each
violation shall be deemed a separate offense.
(2) In addition to the civil penalty set forth in subsection
(1) of this section, { - any - } { + a + } person who
violates { - any - } { + a + } provision of ORS 696.505 to
696.590, { - any - } { + a + } lawful rule or final order of
the { - commissioner or any - } { + director or a + } final
judgment made by a court upon application { - to the
commissioner, - } { + of the director + } may be required to
forfeit and pay { + , + } to the General Fund of the State
Treasury, a civil penalty in an amount determined by the
{ - commissioner - } { + director + } but not to exceed the
amount by which
{ - such - } { + the + } person profited in { - any - }
{ + a + } transaction { - which violates any such - }
{ + that violates the + } provision, rule, order or judgment.
(3) Civil penalties under this section are imposed as provided
in ORS 183.745.
(4) The provisions of this section are in addition to and not
in lieu of any other enforcement provision contained in ORS
696.505 to 696.590.
SECTION 48. ORS 696.590 is amended to read:
696.590. (1) Any person who violates ORS 696.511 (1) may be
required by the { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } to forfeit and
pay { + , + } to the General Fund of the State Treasury { + , + }
a civil penalty in an amount determined by the
{ - commissioner - } { + director + } of:
(a) Not less than $500 nor more than $1,000 for the first
offense of unlicensed professional escrow activity; and
(b) Not less than $1,000 nor more than $3,000 for the second
and subsequent offenses of unlicensed professional escrow
activity.
(2) In addition to the civil penalty set forth in subsection
(1) of this section, any person who violates ORS 696.511 may be
required by the { - commissioner - } { + director + } to
forfeit and pay { + , + } to the General Fund of the State
Treasury { + , + } a civil penalty in an amount determined by the
{ - commissioner - } { + director + } but not to exceed the
amount by which { - such - } { + the + } person profited in
{ - any - } { + a + } transaction
{ - which - } { + that + } violates ORS 696.511.
(3) Civil penalties under this section must be imposed in the
manner provided in ORS 183.745.
(4) The civil penalty provisions of subsections (1) and (2) of
this section are in addition to and not in lieu of the criminal
penalties for unlicensed professional escrow activity in ORS
696.990 (1) and (2).
SECTION 49. ORS 696.603 is amended to read:
696.603. (1) A person may not engage in real estate marketing
activity unless that person is:
(a) Licensed under ORS 696.606;
(b) Licensed under ORS 696.022; or
(c) Registered by a person licensed under ORS 696.606.
(2) { - No - } { + A + } person may { + not + } employ an
individual as a real estate marketing employee unless the person
registers the individual with the Real Estate
{ - Commissioner - } { + Agency + } as the employee of the
real estate marketing organization before the individual
commences real estate marketing activity.
(3) This section applies to persons who:
(a) Initiate real estate marketing activity in this state; or
(b) Initiate real estate marketing activity in another state
that includes contacting persons in this state.
(4) One act or transaction of real estate marketing activity is
sufficient to constitute engaging in real estate marketing
activity within the meaning of this section.
SECTION 50. ORS 696.606 is amended to read:
696.606. (1) { + As used in this section:
(a) 'Principal' means a person who has permitted or directed
another to act for the person's benefit with respect to a real
estate marketing organization.
(b) 'Satisfactory proof' includes but is not limited to the
fingerprints and a criminal records check of the applicant.
(2) + } In accordance with any applicable provisions of ORS
chapter 183, the { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } shall establish by rule a
system to license real estate marketing organizations. { - Such
a - } { + The + } system shall include but need not be limited
to prescribing:
(a) The form and content of and the times and procedures for
submitting an application for the issuance or renewal of a
license.
(b) The term of the license and the fee for the original issue
and renewal in an amount that does not exceed the cost of
administering the licensing system.
(c) The requirements and procedures to register the names of
and other information regarding the real estate marketing
employees employed by applicants or licensees.
(d) Those actions or circumstances that constitute failure to
achieve or maintain licensing or competency or that otherwise
constitute a danger to the public interest and for which the
{ - commissioner - } { + director + } may refuse to issue or
renew or may suspend or revoke a license or registration or may
impose a penalty.
(e) Those activities of principals of the organization that
constitute a danger to the public interest and for which the
{ - commissioner - } { + director + } may refuse to issue or
renew or may suspend or revoke a registration or may impose a
penalty. { - For purposes of this section, 'principal' means a
person who has permitted or directed another to act for the
person's benefit with respect to a real estate marketing
organization. - }
{ - (2) - } { + (3) + } Licenses for real estate marketing
organizations shall be granted only if the principal persons of
the organization are trustworthy and competent to conduct real
estate marketing activity in such manner as to safeguard the
interests of the public and only after satisfactory proof has
been presented to the
{ - commissioner. As used in this subsection, 'satisfactory
proof ' includes but is not limited to the fingerprints and a
criminal records check of the applicant. For the purpose of
requesting a state or nationwide criminal records check under ORS
181.534, the commissioner may require the fingerprints of the
applicant. - } { + director. + }
{ - (3) - } { + (4) + } At the time of filing an
application for a license as a real estate marketing
organization, the applicant shall deposit with the
{ - commissioner - } { + director + } a corporate surety bond
running to the State of Oregon, executed by a surety company
satisfactory to the { - commissioner - } { + director + }, in
the amount of $35,000 in a form and under terms and conditions
established by the { - commissioner - } { + director + }.
{ - (4) - } { + (5) + } Any real estate marketing
organization may satisfy the requirements of subsection
{ - (3) - } { + (4) + } of this section by depositing with the
{ - commissioner - } { + director + }, in an amount equal to
the surety bond required, a deposit consisting of any of the
following:
(a) Cash;
(b) Ample secured obligations of the United States, a state or
a political subdivision thereof;
(c) Certificates of deposit or other investments described in
ORS 733.650 (4) to the extent that such investments are insured
by the Federal Deposit Insurance Corporation; or
(d) Any combination of paragraphs (a), (b) and (c) of this
subsection.
{ - (5) - } { + (6) + } Any real estate marketing
organization making a deposit with the { - commissioner - }
{ + director + } shall assign in trust, to the { + Director of
the + } Real Estate { - Commissioner - } { + Agency + }, and
the
{ - commissioner's - } { + director's + } successors in
office, all cash certificates or securities deposited in
accordance with this section.
{ - (6) - } { + (7) + } The deposit shall be accepted and
held by the
{ - commissioner - } { + director + } for the faithful
performance of real estate marketing activity by the real estate
marketing organization. { - No - } { + A + } claimant or
judgment creditor of the real estate marketing organization
{ - shall have the right to - } { + may not + } attach or levy
upon any of the assets or securities held on deposit.
{ - (7) - } { + (8) + } The { - commissioner - } { +
director + }, by order, may use
{ - such - } { + the + } deposit under { - subsection (3)
or (4) - } { + subsection (4) or (5) + } of this section, as
follows:
(a) To satisfy any final judgment entered against the real
estate marketing organization for actual damages suffered by any
person by reason of the violation of ORS 696.603, 696.606 or
696.612 or a rule adopted pursuant thereto, or by reason of any
fraud, dishonesty, misrepresentation or concealment of material
fact growing out of any real estate marketing activity.
(b) To satisfy an order of the { - commissioner - }
{ + director + } if the
{ - commissioner - } { + director + } determines that a
violation of ORS 696.603, 696.606 or 696.612 or a rule adopted
pursuant thereto has occurred and directs the payment of a claim
from the deposit provided the following conditions have been met:
(A) The amount of actual damages claimed, excluding attorney
fees, by the consumer is $1,000 or less.
(B) The consumer has first contacted the real estate marketing
organization involved and, in writing, has made demand for
payment of actual damages.
(C) The real estate marketing organization has had 30 calendar
days from the date of the consumer's written demand to deal with
the demand.
(D) The claim is only for actual damages sustained by the
consumer.
{ - (8) - } { + (9) + } All claims against the deposit
under { - subsection (3) or (4) - } { + subsection (4) or
(5) + } of this section of a real estate marketing organization,
other than those described in subsection
{ - (7) - } { + (8) + } of this section, must be paid by the
{ - commissioner - } { + director + } only upon the receipt of
a final court judgment against the real estate marketing
organization and only in the amount of actual damages as ordered
by the court.
SECTION 51. ORS 696.612 is amended to read:
696.612. { + (1) As used in this section, 'supervision' means
management, by an organization, that is reasonably designed and
implemented to result in compliance by the employees of the
organization with this section, ORS 696.603 or 696.606 or any
rule adopted pursuant to these sections.
(2) + } The { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } may suspend or revoke the
license of any real estate marketing organization or reprimand
any licensee, or may deny the issuance or renewal of a license to
an applicant who has done any of the following:
{ - (1) - } { + (a) + } Knowingly or negligently pursued a
course of material misrepresentation in matters related to real
estate marketing activity, whether or not damage or injury
resulted, or knowingly or negligently made any material
misrepresentation or material false promise in a matter related
to real estate marketing activity if the material
misrepresentation or material false promise created a reasonable
probability of damage or injury, whether or not damage or injury
actually resulted.
{ - (2) - } { + (b) + } Failed, within a reasonable time,
to account for or to remit any moneys or to surrender to the
rightful owner any documents or other valuable property coming
into the possession of the real estate marketing organization
that belongs to others.
{ - (3) - } { + (c) + } Disregarded or violated any
provision of this section, ORS 696.603 or 696.606 or any rule
adopted pursuant thereto.
{ - (4) - } { + (d) + } Guaranteed, authorized or permitted
any person to guarantee future profits that may result from the
resale of real property.
{ - (5) - } { + (e) + } Failed or refused upon demand to
produce or to supply true copies of any document, book or record
in the possession or control of the real estate marketing
organization for inspection by the { - commissioner or the
commissioner's authorized representative - } { + Real Estate
Agency + }.
{ - (6) - } { + (f) + } Failed to register and maintain the
current and accurate names of, and information regarding, each
real estate marketing employee of the real estate marketing
organization.
{ - (7) - } { + (g) + } Procured or attempted to procure a
real estate marketing license by fraud, misrepresentation or
deceit or by making any material misstatement of fact in an
application for a real estate marketing license.
{ - (8) - } { + (h) + } Failed to exercise supervision over
the activities of real estate marketing employees. { - For the
purposes of this subsection, 'supervision' means that management
by an organization that is reasonably designed and implemented to
result in compliance by the employees of the organization with
this section, ORS 696.603 or 696.606 or any rule adopted pursuant
thereto. - }
{ - (9) - } { + (i) + } Engaged in any act or conduct,
whether of the same or of a different character specified in this
subsection, that constitutes or demonstrates bad faith,
incompetence, untrustworthiness or dishonest, fraudulent or
improper dealings.
{ - (10) - } { + (j) + } Failed to meet or maintain the
deposit requirements of ORS 696.606 { - (3) or (4) - } { +
(4) or (5) + }.
{ - (11) - } { + (k) + } Failed to pay in full any final
judgment on claims adjudged by the { - commissioner - }
{ + director + } or by a court of competent jurisdiction.
{ - (12) - } { + (L) + }Violated ORS 646.608.
SECTION 52. ORS 696.615 is amended to read:
696.615. The Real Estate { - Commissioner - }
{ + Agency + } shall publish information in local newspapers
pertaining to sanctions imposed for violations of ORS 696.603,
696.606 or 696.612 in a manner allowed under ORS 696.430 and
696.445 (3).
SECTION 53. ORS 696.624 is amended to read:
696.624. (1) Every nonresident real estate marketing
organization, at the time of licensing, shall file with the { +
Director of the + } Real Estate { - Commissioner - }
{ + Agency + } an irrevocable consent that if, in any suit or
action commenced against the nonresident organization in this
state arising out of a violation of any provision of ORS 696.603,
696.606 or 696.612, personal service of summons or process upon
the nonresident organization cannot be made in this state after
the exercise of due diligence, a valid service may be made upon
the nonresident organization by service on the
{ - commissioner - } { + director + }.
(2) The consent shall be in writing, executed and verified by
an officer of the real estate marketing organization and shall
set forth:
(a) The name of the real estate marketing organization.
(b) The address to which documents served upon the
{ - commissioner - } { + director + } are to be forwarded.
(c) If the real estate marketing organization is a corporation
or unincorporated association, that the consent signed by such
officer was authorized by resolution duly adopted by the board of
directors.
(3) The address for forwarding documents served under this
section may be changed by filing a new consent in the form
prescribed in subsection (2) of this section.
(4) Service on the { - commissioner - } { + director + } of
any summons or process shall be made by delivery to the
{ - commissioner - } { + director + } or a clerk on duty in
any office of the { - commissioner - } { + director + }, and
shall include duplicate copies of such summons or process,
together with duplicate copies of any papers required by law to
be delivered in connection with such service.
(5) When the { - commissioner - } { + director + }is
served with any such summons or process, the
{ - commissioner - } { + director + } shall immediately cause
one of the copies { - thereof - } , with any accompanying
papers, to be forwarded by registered or certified mail, return
receipt requested, to the real estate marketing organization at
the address set forth in the consent.
(6) The { - commissioner - } { + director + } shall keep a
record of all summonses and processes, notices and demands served
upon the
{ - commissioner - } { + director + } under this section, and
shall record therein the time of such service and the action with
reference thereto.
SECTION 54. ORS 696.627 is amended to read:
696.627. (1) The { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } may make an on-site
inspection of any real estate marketing organization.
(2) When an on-site inspection under subsection (1) of this
section is to be made, the { - commissioner - }
{ + director + } may require the organization to advance a
deposit not to exceed $200 per day, in addition to any other fee,
for making the on-site inspection. Any unexpended portion of the
deposit shall be refunded to the organization.
SECTION 55. 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 licensed under ORS 696.022, and, upon finding
such violation, the court may, at its discretion and in addition
to the other penalties imposed, revoke the license of the person
or persons 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 - }
{ + Agency + }.
SECTION 56. ORS 696.775 is amended to read:
696.775. The lapsing or suspension of a license, whether by
operation of law, order of the Real Estate
{ - Commissioner, - } { + Board or the director of the Real
Estate Agency, a + } decision of a court of law, inactive status
of the license or voluntary surrender of the license by the
licensee, does not deprive the { - commissioner - } { + Real
Estate Agency + } 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); or
(4) Revise or render null and void an order suspending or
revoking a license.
SECTION 57. ORS 696.785 is amended to read:
696.785. (1) When the Real Estate { - Commissioner - }
{ + Board + } ascertains by audit, investigation or otherwise
that a real estate licensee has commingled trust funds with
personal funds or has embezzled trust funds and that such
activity is likely to cause significant financial loss to others
as a result of professional real estate activity engaged in by
{ - such - } { + the + } licensee, the
{ - commissioner - } { + board + } may communicate
{ - such - } { + that + }fact to the Attorney General,
whereupon it shall become the duty of the Attorney General to
{ - forthwith - } assist the { - commissioner in instituting
such - } { + board to institute the + } proceedings { - as
may be - } { + that are + } necessary to carry out the purposes
of this section.
(2) Pursuant to subsection (1) of this section, the
{ - commissioner - } { + board + } may apply to the circuit
court of the county in which the licensee's principal place of
business is located for an order directing the licensee to show
cause why a receiver should not be appointed to take charge of
and manage or liquidate if necessary the assets of the licensee
utilized in professional real estate activity in such a manner as
to prevent or minimize such financial loss to others.
(3) If the court is satisfied from reading the
{ - commissioner's - } { + board's + } petition that the
facts therein alleged, if established, warrant { - such - }
{ + the + } receivership action, the court shall issue
{ - such - } { + the + } order to show cause. The court may
{ - at such time - } , without notice, issue a temporary
injunction restraining
{ - such - } { + the + } licensee, or any of the licensee's
officers, directors, stockholders, members, agents or employees,
from the transaction of any professional real estate activity
{ - , - } or the waste or disposition of { - any such - }
{ + the + } assets until further order of the court.
{ - Should such an injunction be issued, - } { + If the court
issues an injunction, the court shall hold + } a hearing on
whether the injunction { - shall - } { + should + } be
continued { - shall be held - } within five business days of
its service.
(4) On return of the order to show cause { - , - } and after
a full hearing, the court shall { - either - } { + grant
or + } deny the application or grant the { - same - } { +
application + }, together with { - such - } other relief
{ - as the court may deem - } { + that the court deems + }
necessary.
(5) Notwithstanding any other provision of law, { - no bond
shall be required of the commissioner or the commissioner's
authorized representatives - } { + the court may not require a
bond of the Real Estate Agency + } as a prerequisite for the
issuance of any injunction or other order pursuant to this
section.
(6) { + The court may dismiss the proceedings if + } at any
time during { - such - } { + the + } proceedings, the
licensee { - may satisfy - } { + satisfies + } the court that
the activity { - which - } { + that + } prompted
{ - such - } { + the + } proceedings has been rectified or that
financial loss to others { + is + } no longer { - will - }
likely { + to + } occur { - , in which case the court may
dismiss such proceedings - } .
(7) The { + court shall fix the amount of the + } expenses of
the receiver, compensation of the legal counsel of the receiver
{ - , as well as all - } { + and other + } expenditures of the
receiver required in
{ - such - } { + the + } proceedings { - shall be fixed by
the court and - } { + to be paid. The court + } shall
{ + order that the costs + } be paid out of funds in the hands
of the receiver or { - entered - } { + enter the costs + } as
a judgment against such licensee.
SECTION 58. ORS 696.790 is amended to read:
696.790. For the purpose of requesting a state or nationwide
criminal records check under ORS 181.534, the Real Estate
{ - Commissioner - } { + Agency + }may require any applicant
or licensee regulated under this chapter to provide fingerprints.
SECTION 59. ORS 696.795 is amended to read:
696.795. (1) For the purpose of an investigation or proceeding
under this chapter, the { - commissioner - } { + Real Estate
Board + } may administer oaths and affirmations, subpoena
witnesses, compel their attendance, take evidence and require the
production of books, papers, correspondence, memoranda,
agreements or other documents or records { - which the
commissioner - } { + that the board + } deems relevant or
material to the inquiry. Each witness who appears before the
{ - commissioner - } { + board + } under a subpoena shall
receive the fees and mileage provided for witnesses in civil
cases.
(2) If a person fails to comply with a subpoena { - so
issued - } or a party or witness refuses to testify on any
matters, the judge of the circuit court or of any county, on the
application of the
{ - commissioner - } { + board + }, shall compel obedience by
proceedings for contempt as in the case of disobedience of the
requirements of a subpoena issued from such court or a refusal to
testify therein.
SECTION 60. ORS 696.820 is amended to read:
696.820. (1) The Real Estate { - Commissioner - }
{ + Board + } shall prescribe by rule the format and content of
an initial agency disclosure pamphlet. The rules must provide
that the initial agency disclosure pamphlet is informational only
and may not be construed to be evidence of intent to create an
agency relationship.
(2) An agent shall provide a copy of the initial agency
disclosure pamphlet at the first contact with each party to a
real property transaction, including but not limited to contacts
in person, by telephone, over the Internet or the World Wide Web,
or by electronic mail, electronic bulletin board or a similar
electronic method.
SECTION 61. ORS 696.845 is amended to read:
696.845. When signing an offer to purchase, each buyer shall
acknowledge the existing agency relationships, if any. When a
seller accepts or rejects an offer to purchase in writing, each
seller shall acknowledge the existing agency relationships, if
any. An agent to the real property transaction shall obtain the
signatures of the buyers and the sellers to the acknowledgment,
which shall be incorporated into or attached as an addendum to
the offer to purchase or to the acceptance. The Real Estate
{ - Agency - } { + Board + } shall prescribe by rule the form
and content of the acknowledgment of existing agency
relationships.
SECTION 62. 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 violates ORS 696.020 (1) may be required by
the Real Estate { - Commissioner - } { + Board + } to forfeit
and pay { + , + } to the General Fund of the State
Treasury { + , + } a civil penalty in an amount determined by the
{ - commissioner - } { + board + } 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 violates ORS 696.020 may be
required by the { - commissioner - } { + board + } to forfeit
and pay { + , + } to the General Fund of the State
Treasury { + , + } a civil penalty in an amount determined by the
{ - commissioner - } { + board + } but not to exceed the
amount by which { - such - } { + the + } 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) 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 engages in professional real
estate activities. A civil penalty imposed for a violation of ORS
696.020 (1) 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) that results from a failure of a
real estate licensee to renew a license within the time allowed
by law.
SECTION 63. ORS 696.995 is amended to read:
696.995. (1) Any person who violates ORS 696.603, 696.606 or
696.612 may be required by the Real Estate { - Commissioner - }
{ + Board + } to forfeit and pay { + , + } to the General Fund
of the State Treasury { + , + } a civil penalty in an amount
determined by the { - commissioner - } { + board + } of:
(a) Not less than $100 nor more than $500 for the first
violation of ORS 696.603, 696.606 or 696.612 or a rule adopted
pursuant thereto; or
(b) Not less than $500 nor more than $1,000 for the second and
subsequent violations of ORS 696.603, 696.606 or 696.612 or a
rule adopted pursuant thereto.
(2) In addition to the civil penalty set forth in subsection
(1) of this section, any person who violates ORS 696.603 may be
required by the { - commissioner - } { + board + } to forfeit
and pay { + , + } to the General Fund of the State
Treasury { + , + } a civil penalty in an amount determined by the
{ - commissioner - } { + board + } but not to exceed the
amount by which { - such - } { + the + } person profited from
the transaction in violation of ORS 696.603.
(3) Civil penalties under this section shall be imposed as
provided in ORS 183.745.
(4) The civil penalty provisions of this section are in
addition to and not in lieu of other administrative sanctions.
SECTION 64. ORS 92.090 is amended to read:
92.090. (1) Subdivision plat names shall be subject to the
approval of the county surveyor or, in the case where there is no
county surveyor, the county assessor. { - No - } { + A + }
tentative subdivision plan or subdivision plat { - of a
subdivision shall - } { + may not + } be approved
{ - which - } { + if the plan or plat + } bears a name similar
to or pronounced the same as the name of any other subdivision in
the same county, unless the land platted is contiguous to and
platted by the same party that platted the subdivision bearing
that name or unless the party files and records the consent of
the party that platted the contiguous subdivision bearing that
name. All subdivision plats must continue the lot numbers and, if
used, the block numbers of the subdivision plat of the same name
last filed. On or after January 1, 1992, any subdivision
submitted for final approval shall not use block numbers or
letters unless such subdivision is a continued phase of a
previously recorded subdivision, bearing the same name, that has
previously used block numbers or letters.
(2) No tentative plan for a proposed subdivision and no
tentative plan for a proposed partition shall be approved unless:
(a) The streets and roads are laid out so as to conform to the
plats of subdivisions and partitions already approved for
adjoining property as to width, general direction and in all
other respects unless the city or county determines it is in the
public interest to modify the street or road pattern.
(b) Streets and roads held for private use are clearly
indicated on the tentative plan and all reservations or
restrictions relating to such private roads and streets are set
forth thereon.
(c) The tentative plan complies with the applicable zoning
ordinances and regulations and the ordinances or regulations
adopted under ORS 92.044 that are then in effect for the city or
county within which the land described in the plan is situated.
(3) No plat of a proposed subdivision or partition shall be
approved unless:
(a) Streets and roads for public use are dedicated without any
reservation or restriction other than reversionary rights upon
vacation of any such street or road and easements for public
utilities.
(b) Streets and roads held for private use and indicated on the
tentative plan of such subdivision or partition have been
approved by the city or county.
(c) The subdivision or partition plat complies with any
applicable zoning ordinances and regulations and any ordinance or
regulation adopted under ORS 92.044 that are then in effect for
the city or county within which the land described in the
subdivision or partition plat is situated.
(d) The subdivision or partition plat is in substantial
conformity with the provisions of the tentative plan for the
subdivision or partition, as approved.
(e) The subdivision or partition plat contains a donation to
the public of all common improvements, including but not limited
to streets, roads, parks, sewage disposal and water supply
systems, the donation of which was made a condition of the
approval of the tentative plan for the subdivision or partition.
(f) Explanations of all common improvements required as
conditions of approval of the tentative plan of the subdivision
or partition have been recorded and referenced on the subdivision
or partition plat.
(4) Subject to any standards and procedures adopted pursuant to
ORS 92.044, no plat of a subdivision shall be approved by a city
or county unless the city or county has received and accepted:
(a) A certification by a city-owned domestic water supply
system or by the owner of a privately owned domestic water supply
system, subject to regulation by the Public Utility Commission of
Oregon, that water will be available to the lot line of each and
every lot depicted in the proposed subdivision plat;
(b) A bond, irrevocable letter of credit, contract or other
assurance by the subdivider to the city or county that a domestic
water supply system will be installed by or on behalf of the
subdivider to the lot line of each and every lot depicted in the
proposed subdivision plat; and the amount of any such bond,
irrevocable letter of credit, contract or other assurance by the
subdivider shall be determined by a registered professional
engineer, subject to any change in such amount as determined
necessary by the city or county; or
(c) In lieu of paragraphs (a) and (b) of this subsection, a
statement that no domestic water supply facility will be provided
to the purchaser of any lot depicted in the proposed subdivision
plat, even though a domestic water supply source may exist. A
copy of any such statement, signed by the subdivider and
{ - indorsed - } { + endorsed + } by the city or county, shall
be filed by the subdivider with the Real Estate
{ - Commissioner - } { + Agency + } and shall be included by
the { - commissioner - } { + agency + } in any public report
made for the subdivision under ORS 92.385. If the making of a
public report has been waived or the subdivision is otherwise
exempt under the Oregon Subdivision Control Law, the subdivider
shall deliver a copy of the statement to each prospective
purchaser of a lot in the subdivision at or prior to the signing
by the purchaser of the first written agreement for the sale of
the lot. The subdivider shall take a signed receipt from the
purchaser upon delivery of such a statement, shall immediately
send a copy of the receipt to the { - commissioner - }
{ + agency + } and shall keep any such receipt on file in this
state, subject to inspection by the { - commissioner - } { +
agency + }, for a period of three years after the date the
receipt is taken.
(5) Subject to any standards and procedures adopted pursuant to
ORS 92.044, no plat of a subdivision shall be approved by a city
or county unless the city or county has received and accepted:
(a) A certification by a city-owned sewage disposal system or
by the owner of a privately owned sewage disposal system that is
subject to regulation by the Public Utility Commission of Oregon
that a sewage disposal system will be available to the lot line
of each and every lot depicted in the proposed subdivision plat;
(b) A bond, irrevocable letter of credit, contract or other
assurance by the subdivider to the city or county that a sewage
disposal system will be installed by or on behalf of the
subdivider to the lot line of each and every lot depicted on the
proposed subdivision plat; and the amount of such bond,
irrevocable letter of credit, contract or other assurance shall
be determined by a registered professional engineer, subject to
any change in such amount as the city or county considers
necessary; or
(c) In lieu of paragraphs (a) and (b) of this subsection, a
statement that no sewage disposal facility will be provided to
the purchaser of any lot depicted in the proposed subdivision
plat, where the Department of Environmental Quality has approved
the proposed method or an alternative method of sewage disposal
for the subdivision in its evaluation report described in ORS
454.755 (1)(b). A copy of any such statement, signed by the
subdivider and
{ - indorsed - } { + endorsed + } by the city or county shall
be filed by the subdivider with the Real Estate
{ - Commissioner - } { + Agency + } and shall be included by
the { - commissioner - } { + agency + } in the public report
made for the subdivision under ORS 92.385. If the making of a
public report has been waived or the subdivision is otherwise
exempt under the Oregon Subdivision Control Law, the subdivider
shall deliver a copy of the statement to each prospective
purchaser of a lot in the subdivision at or prior to the signing
by the purchaser of the first written agreement for the sale of
the lot. The subdivider shall take a signed receipt from the
purchaser upon delivery of such a statement, shall immediately
send a copy of the receipt to the { - commissioner - }
{ + agency + } and shall keep any such receipt on file in this
state, subject to inspection by the
{ - commissioner - } { + agency + }, for a period of three
years after the date the receipt is taken.
(6) Subject to any standards and procedures adopted pursuant to
ORS 92.044, no plat of a subdivision or partition located within
the boundaries of an irrigation district, drainage district,
water control district, water improvement district or district
improvement company shall be approved by a city or county unless
the city or county has received and accepted a certification from
the district or company that the subdivision or partition is
either entirely excluded from the district or company or is
included within the district or company for purposes of receiving
services and subjecting the subdivision or partition to the fees
and other charges of the district or company.
SECTION 65. ORS 92.160 is amended to read:
92.160. If the comprehensive plan and land use regulations of a
city or county have not been acknowledged under ORS 197.251, the
city engineer, city surveyor or county surveyor shall immediately
notify the Real Estate { - Commissioner - } { + Agency + } in
writing of receipt for approval of any subdivision plat pursuant
to ORS 92.100 (1). The notification shall include a general
description of the land with the number of lots and total acreage
covered by the subdivision plat and the names of the persons
submitting the subdivision plat for approval.
SECTION 66. ORS 92.305 is amended to read:
92.305. As used in ORS 92.305 to 92.495:
(1) 'Blanket encumbrance' means a trust deed or mortgage or any
other lien or encumbrance, mechanic's lien or otherwise, securing
or evidencing the payment of money and affecting more than one
interest in subdivided or series partitioned land, or an
agreement affecting more than one such lot, parcel or interest by
which the subdivider, series partitioner or developer holds such
subdivision or series partition under an option, contract to sell
or trust agreement.
{ - (2) 'Commissioner' means the Real Estate
Commissioner. - }
{ - (3) - } { + (2) + } Except as otherwise provided in ORS
92.325 (2), ' developer' means a person who purchases a lot,
parcel or interest in a subdivision or series partition that does
not have a single family residential dwelling or duplex thereon
to construct a single family residential dwelling or duplex on
the lot, parcel or interest and to resell the lot, parcel or
interest and the dwelling or duplex for eventual residential use
purposes. { - Developer - } { + ' Developer' + } also
includes a person who purchases a lot, parcel or other interest
in a subdivision or series partition that does not have a single
family residential dwelling or duplex thereon for resale to
another person. ' Developer' does not mean a 'developer' as that
term is defined in ORS 100.005.
{ - (4) - } { + (3) + } 'Interest' includes a lot or
parcel, and a share, undivided interest or membership which
includes the right to occupy the land overnight, and lessee's
interest in land for more than three years or less than three
years if the interest may be renewed under the terms of the lease
for a total period more than three years. 'Interest' does not
include any interest in a condominium as that term is defined in
ORS 100.005 or any security interest under a land sales contract,
trust deed or mortgage. ' Interest' does not include divisions
of land created by lien foreclosures or foreclosures of recorded
contracts for the sale of real property.
{ - (5) - } { + (4) + } 'Negotiate' means any activity
preliminary to the execution of a binding agreement for the sale
or lease of land in a subdivision or series partition, including
but not limited to advertising, solicitation and promotion of the
sale or lease of such land.
{ - (6) - } { + (5) + } 'Lot,' 'parcel' and 'partition'
have the meaning given those terms in ORS 92.010.
{ - (7) - } { + (6) + } 'Person' includes a natural person,
a domestic or foreign corporation, a partnership, an association,
a joint stock company, a trust and any unincorporated
organization. As used in ORS 92.305 to 92.495 the term 'trust'
includes a common law or business trust, but does not include a
private trust or a trust created or appointed under or by virtue
of any last will and testament, or by a court.
{ - (8) - } { + (7) + } 'Real property sales contract'
means an agreement wherein one party agrees to lease or to convey
title to real property to another party upon the satisfaction of
specified conditions set forth in the contract.
{ - (9) - } { + (8) + } 'Sale' or 'lease' includes every
disposition or transfer of land in a subdivision or a series
partition, or an interest or estate therein, by a subdivider or
series partitioner or a developer, or their agents, including the
offering of such property as a prize or gift when a monetary
charge or consideration for whatever purpose is required by the
subdivider, series partitioner or developer or their agents.
{ - (10) - } { + (9) + } 'Series partitioned lands' and
'series partition' mean a series of partitions of land located
within this state resulting in the creation of four or more
parcels over a period of more than one calendar year.
{ - (11) - } { + (10) + } 'Series partitioner' means any
person who causes land to be series partitioned into a series
partition, or who undertakes to develop a series partition, but
does not include a public agency or officer authorized by law to
make partitions.
{ - (12) - } { + (11) + } 'Subdivided lands' and
'subdivision' mean improved or unimproved land or lands divided,
or created into interests or sold under an agreement to be
subsequently divided or created into interests, for the purpose
of sale or lease, whether immediate or future, into 11 or more
undivided interests or four or more other interests. 'Subdivided
lands' and 'subdivision ' include but are not limited to a
subdivision of land located within this state subject to an
ordinance adopted under ORS 92.044 and do not include series
partitioned lands. 'Subdivided lands ' and 'subdivision' do not
mean property submitted to ORS 100.005 to 100.910 or property
located outside this state which has been committed to the
condominium form of ownership in accordance with the laws of the
jurisdiction within which the property is located.
{ - (13) - } { + (12) + } 'Subdivider' means any person who
causes land to be subdivided into a subdivision, or who
undertakes to develop a subdivision, but does not include a
public agency or officer authorized by law to make subdivisions.
SECTION 67. ORS 92.337 is amended to read:
92.337. (1) The { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } shall grant an exemption
pursuant to this section if a subdivider or series partitioner
submits on a form prepared by the
{ - commissioner - } { + director + }, verification that:
(a) The subdivision or series partition is recorded pursuant to
ORS 92.010 to 92.190;
(b) Each lot or parcel is situated on a surfaced roadway which,
together with means for operation and maintenance, meets the
standards of the governing body of the local jurisdiction and is
either a concrete or asphalt surface road which has right of way
and improvements, including curbs and necessary and adequate
drainage structures, or a road which meets alternative standards
of the governing body of the local jurisdiction;
(c) The subdivision or series partition, where necessary, has
drainage structures and fill designed to prevent flooding and
approved by the appropriate governing body;
(d) Energy sources and telephone services for normal domestic
use are economically available to the subdivision or series
partition and are ready for hookup for each lot or parcel at time
of sale or lease;
(e) Water is available for each lot or parcel at the time of
sale or lease of each lot or parcel in quantity and quality for
domestic use as determined by the Department of Human Services;
(f) A municipally owned disposal system, an individual or
collective subsurface sewage disposal system to serve the lot or
parcel, or a privately owned sewage disposal system is available
for each lot or parcel at the time of sale or lease of each lot
or parcel which meets the requirements of the Environmental
Quality Commission;
(g) A surety bond, or bonds, or other security or agreements to
complete the improvements is provided by the subdivider or series
partitioner to the city or county having jurisdiction so that all
of the subdivision or series partition improvements committed by
the subdivider or series partitioner to the city or county will
be completed; and
(h) Provisions, satisfactory to the { - commissioner - }
{ + director + }, have been made for satisfaction of all liens
and encumbrances existing against the subdivision or series
partition which secure or evidence the payment of money.
(2) A subdivision or series partition granted exemption under
this section shall be exempt from the provisions of ORS 92.305 to
92.495 and 92.820 except ORS 92.375, 92.385, 92.425, 92.427,
92.430, 92.433, 92.455, 92.460, 92.465, 92.475, 92.485, 92.490
and 92.495.
(3) The { - commissioner - } { + director + } may withdraw
the exemption provided by this section if the
{ - commissioner - } { + director + } determines that the
subdivider or series partitioner has provided false information
or omitted to state material facts to obtain the exemption or has
failed to comply with any provision to which the subdivider or
series partitioner is subject under subsections (1) and (2) of
this section.
(4) In the event that any provision under subsection (1) of
this section is not or cannot be satisfied and without invoking
the power granted under subsection (3) of this section, the
{ - commissioner - } { + director + } and the subdivider or
series partitioner may mutually agree in writing upon a written
disclosure of the condition that shall be provided to any
prospective purchaser prior to the sale or lease of any interest
in the subdivision or series partition to carry out the public
policy stated in ORS 92.313.
(5) The form required by subsection (1) of this section shall
be accompanied by a filing fee of $100 plus $10 for each lot,
parcel or interest in the subdivision or series partition, with a
maximum fee of $500.
(6) For purposes of verification by the subdivider or series
partitioner under subsection (1)(b), (c) and (g) of this section,
a copy of the conditions imposed by the appropriate governing
body will be sufficient.
SECTION 68. ORS 92.345 is amended to read:
92.345. (1) Prior to negotiating within this state for the sale
or lease of subdivided lands located outside this state, or prior
to the sale or lease of any subdivided or series partitioned
lands located within this state, the subdivider, series
partitioner or agent of the subdivider or series partitioner
shall by a 'Notice of Intention' notify the Real Estate
{ - Commissioner - } { + Agency + } in writing of the intention
to sell or lease. A notice of intention shall contain true
information as follows:
(a) The name and the business and residence address of the
subdivider or series partitioner;
(b) The names and the business addresses of { - all - }
{ + the real estate + } licensees { - of the commissioner and
of all - } { + and + } other persons selling or leasing, within
this state, interests in the subdivision or series partition;
(c) With respect to subdivided or series partitioned lands
located in this state:
(A) For 'subdivided land' or a 'subdivision' as those terms are
defined, respectively, by ORS 92.010 (15) and (16), a certified
copy of the plat filed for record under ORS 92.120 and a copy of
any conditions imposed by the city or county governing body;
(B) For 'partitioned land' or a 'partition' as those terms are
defined by ORS 92.010 (6) and (7), a certified copy of the plat
filed for record under ORS 92.120 and a copy of any conditions
imposed by the city or county governing body; and
(C) For all other land subject to ORS 92.305 to 92.495, a
survey, diagram, drawing or other writing designating and
describing, including location and boundaries when applicable,
the interests to be sold and a statement from the city or county
governing body that the proposal as depicted on the survey,
diagram, drawing or other writing has received all necessary
local approvals or that no local approval is required;
(d) With respect to subdivided lands located outside this
state:
(A) A copy of the plat, map, survey, diagram, drawing or other
writing designating and describing, including location and
boundaries when applicable, the interests to be sold, in the
final recorded form required by the governing body having
jurisdiction over the property; and
(B) A written statement from the appropriate governing body
that the plat, map, survey, diagram, drawing or other writing is
in compliance with all applicable laws, ordinances and
regulations;
(e) A brief but comprehensive statement describing the land on
and the locality in which the subdivision or series partition is
located;
(f) A statement of the condition of the title to the land;
(g) A statement of the provisions, if any, that have been made
for legal access, sewage disposal and public utilities in the
proposed subdivision or series partition, including water,
electricity, gas and telephone facilities;
(h) A statement of the use or uses for which the proposed
subdivision or series partition will be offered; and
(i) A statement of the provisions, if any, limiting the use or
occupancy of the interests in the subdivision or series
partition.
(2) The notice of intention shall be accompanied by a filing
fee as follows:
(a) For subdivisions or series partitions containing 10 or
fewer lots, parcels or interests, $100.
(b) For subdivisions or series partitions containing over 10
lots, parcels or interests, $100, and $25 for each additional
lot, parcel or interest, but in no case shall the fee be more
than $2,500.
(3) For lands located outside this state, the notice of
intention shall include only the area shown by the plat, survey,
diagram, drawing or other writing required under subsection
(1)(d) of this section. The subdivision of any contiguous lands
located outside this state shall be treated as a separate
subdivision for which an additional complete filing must be made,
even though the plat, map, survey, diagram, drawing or other
writing of the contiguous lands is recorded simultaneously as
part of an overall development.
SECTION 69. ORS 92.355 is amended to read:
92.355. (1) The Real Estate { - Commissioner - }
{ + Agency + } may require the subdivider or series partitioner
to furnish such additional information in a 'Request for Further
Information' as the
{ - commissioner - } { + agency + } determines to be
necessary in the administration and enforcement of ORS 92.305 to
92.495 including but not limited to:
(a) A statement of the terms and conditions on which it is
intended to transfer or dispose of the land or interest therein,
together with copies of any contract, conveyance, lease,
assignment or other instrument intended to be used;
(b) Copies of all sales pamphlets and literature to be used in
connection with the proposed subdivision or series partition; and
(c) Any other information that the subdivider or series
partitioner may desire to present.
(2) The subdivider's or series partitioner's reply to the first
request for further information required by the
{ - commissioner - } { + agency + } under subsection (1) of
this section shall be accompanied by proof of the financial
ability of the subdivider or series partitioner to complete
improvements and facilities which are:
(a) Required by the appropriate state, city and county
authorities; and
(b) Promised to prospective purchasers.
SECTION 70. ORS 92.365 is amended to read:
92.365. (1) The information required under ORS 92.345 and
92.355 shall be kept current by the subdivider or series
partitioner. Any material change in the information furnished to
the Real Estate { - Commissioner shall - } { + Agency
must + } be reported by the subdivider or series partitioner
within 10 days after the change occurs.
(2) A subdivider or series partitioner shall be responsible for
the accuracy of and for providing all information required by ORS
92.345, 92.355 and this section for as long as the subdivider or
series partitioner retains any unsold lot, parcel or interest in
the subdivision or series partition to which the information
pertains.
(3) A developer who acquires a lot, parcel or interest in a
subdivision or series partition shall be responsible for as long
as the developer retains any unsold lot, parcel or interest in
the subdivision or series partition for all material changes in
the information contained in the public report which the
developer receives on acquisition of the property:
(a) Which the developer causes by action of the developer; and
(b) Concerning the zoning, sewage disposal and water supply
which substantially affect the intended use of the property as
stated in the public report.
(4) A developer shall accurately report to the
{ - commissioner - } { + agency + } a material change specified
in subsection (3) of this section within 10 days after the change
occurs. However, a developer who acquires less than 11 lots,
parcels or interests in a subdivision or series partition during
a six consecutive month period shall only be responsible for a
material change specified in subsection (3)(b) of this section
and may revise a public report to reflect { - such - }
{ + the + } material change without reporting the material
change to the { - commissioner - } { + agency + }.
(5) The { - commissioner - } { + Director of the Real
Estate Agency + } shall require a fee sufficient to recover any
administrative expenses after receipt of a material change notice
if, because of the changes, a public report must be issued or
revised by the
{ - commissioner - } { + agency + }. The fee is subject to
prior approval of the Oregon Department of Administrative
Services and a report to the Emergency Board prior to adopting
the fee and shall be within the budget authorized by the
Legislative Assembly as that budget may be modified by the
Emergency Board.
SECTION 71. ORS 92.375 is amended to read:
92.375. (1) Every nonresident subdivider or series partitioner,
at the time of filing the notice of intention and information
required by ORS 92.345 and 92.355, and every nonresident
developer who acquires more than 10 lots or parcels in a
subdivision or series partition during a six consecutive month
period, at the time the developer acquires the lots, parcels or
interests in a subdivision or series partition, shall also file
with the { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } an irrevocable consent
that if, in any suit or action commenced against the developer,
subdivider or series partitioner in this state arising out of a
violation of ORS 92.305 to 92.495, personal service of summons or
process upon the developer, subdivider or series partitioner
cannot be made in this state after the exercise of due diligence,
a valid service may thereupon be made upon the developer,
subdivider or series partitioner by service on the
{ - commissioner - } { + director + }.
(2) The consent shall be in writing executed and verified by an
officer of a corporation or association, a general partner of a
partnership or by an individual subdivider, series partitioner or
developer and shall set forth:
(a) The name of the subdivider, series partitioner or
developer.
(b) The address to which documents served upon the
{ - commissioner - } { + director + } are to be forwarded.
(c) If the subdivider, series partitioner or developer is a
corporation or unincorporated association, that the consent
signed by such officer was authorized by resolution duly adopted
by the board of directors.
(3) The address for forwarding documents served under this
section may be changed by filing a new consent in the form
prescribed in subsection (2) of this section.
(4) Service { + of process + } on the { - commissioner of
any such process shall - } { + director may + } be made by
delivery to the
{ - commissioner - } { + director + } or a clerk on duty in
any office of the
{ - commissioner - } { + director + }, duplicate copies of
{ - such - } { + the + } process, with duplicate copies of any
papers required by law to be delivered in connection with
{ - such - } { + the + } service.
(5) When served with { - any such - } { + the + } process,
the
{ - commissioner - } { + director + } shall immediately cause
one of the copies thereof, with any accompanying papers, to be
forwarded by registered mail or by certified mail with return
receipt to the subdivider, series partitioner or developer at the
address set forth in the consent.
(6) The { - commissioner - } { + director + } shall keep a
record of all processes, notices and demands served upon the
{ - commissioner - } { + director + } under this section, and
shall record therein the time of such service and action with
reference thereto.
SECTION 72. ORS 92.385 is amended to read:
92.385. (1) The Real Estate { - Commissioner - }
{ + Agency + } may make an examination of any subdivision or
series partition subject to ORS 92.305 to 92.495 to be offered
for sale or lease and may make a public report of the
{ - commissioner's - } { + agency's + } findings. If a
subdivision or series partition is located within this state and
if no report is made within 45 days after examination of the
subdivision or series partition, the report shall be deemed
waived.
(2) The { - commissioner - } { + Director of the Real
Estate Agency + } may waive an examination of a real estate
subdivision located in another state only when that state has an
existing subdivision law which provides for the examination of
and a public report on the real estate subdivision and only where
that state will waive examination of a real estate subdivision or
series partition located within this state and will accept in
lieu thereof a report prepared by the { - commissioner - }
{ + agency + } under subsection (1) of this section.
SECTION 73. ORS 92.395 is amended to read:
92.395. With respect to any subdivision or series partition
within this state, if, after examination of the preliminary
notice of intention required by ORS 92.345 or the reply to the
Real Estate { - Commissioner's - } { + Agency's + } request
for further information, the { - commissioner - }
{ + agency + } concludes that the sale or lease of any portion
of such subdivision or series partition would be reasonably
certain not to involve any misrepresentation, deceit or fraud,
the { - commissioner - } { + Director of the Real Estate
Agency + } shall waive all of the provisions of ORS 92.305 to
92.495, except ORS 92.475 to 92.495 and 92.990 (2), { - which
the commissioner - } { + that the director + } considers
unnecessary for the protection of the public from fraud, deceit
or misrepresentation. The { - commissioner - } { + agency + }
shall notify the subdivider or series partitioner within 15 days
of receipt of the preliminary notice of intention of the approval
or disapproval of any waiver. However, the { - commissioner - }
{ + director + } may, for good and sufficient cause, revoke any
waiver at any time upon 10 days' notice and a hearing held for
{ - such - } { + the + } purpose.
SECTION 74. ORS 92.405 is amended to read:
92.405. (1) Unless the making of a public report has been
waived, a person may not sell or lease a lot, parcel or interest
in a subdivision or series partition prior to the issuance of the
report.
(2) A copy of the public report, when issued, must be given to
the prospective purchaser by the subdivider, series partitioner
or developer, or their agents, prior to the execution of a
binding contract or agreement for the sale or lease of a lot,
parcel, or interest in a subdivision or series partition. The
subdivider, series partitioner or developer, or their agents,
shall take a receipt from the prospective purchaser or lessee
upon delivery of a copy of the Real Estate
{ - Commissioner's - } { + Agency's + } public report, and the
receipt must be kept on file within this state in the possession
of the subdivider, series partitioner or developer subject to
inspection by the { - commissioner - } { + agency + } for a
period of three years from the date the receipt is taken.
(3) The { - commissioner's - } { + agency's + } public
report may not be used for advertising purposes unless the report
is used in its entirety. { - No - } { + A + } portion of the
report { - shall - } { + may not + } be underscored,
italicized or printed in larger or heavier type than the balance
of the report unless the true copy of the report so emphasizes
{ - such - } { + the + } portion.
(4) The { - commissioner - } { + agency + } may furnish at
cost copies of the public report for the use of subdividers,
series partitioners and developers.
(5) The requirements of this section extend to lots, parcels or
other interests sold by the subdivider, series partitioner or
developer after repossession.
(6) In addition to other sanctions provided by law, a violation
of subsection (1), (2) or (3) of this section is an unlawful
practice subject to ORS 646.608.
SECTION 75. ORS 92.410 is amended to read:
92.410. (1) Notwithstanding the effective date of chapter 643,
Oregon Laws 1975, prior to February 1, 1976, the Real Estate
{ - Commissioner - } { + Agency + } may review any
subdivision for which a public report has been issued and is
dated prior to September 13, 1975, and when the
{ - commissioner - } { + Director of the Real Estate
Agency + } considers it necessary for the protection of the
public from fraud, deceit or misrepresentation, the
{ - commissioner - } { + agency + } may, after notice to the
subdivider, issue a revised public report for the subdivider and
subsequent developers of interests in the subdivision to comply
with the provisions of ORS 92.305 to 92.495 as though the public
report had been issued and dated after September 13, 1975.
(2) Any subdivision for which a public report has been issued
and is dated prior to September 13, 1975, and for which the
{ - commissioner - } { + agency + } has not issued a revised
public report under subsection (1) of this section prior to
February 1, 1976, shall not be required to comply with the
amendments to ORS 92.305 to 92.495 and made by chapter 643,
Oregon Laws 1975.
SECTION 76. ORS 92.415 is amended to read:
92.415. When an examination is to be made of subdivided or
series partitioned lands situated in the State of Oregon, or of
subdivided lands situated outside the state which will be offered
for sale or lease within this state, the Real Estate
{ - Commissioner - } { + Agency + }, in addition to the
filing fee provided in ORS 92.355, may require the subdivider or
series partitioner to advance payment of an amount estimated by
the { - commissioner - } { + agency + } to be the expense
incurred in going to and returning from the location of the
project, and an amount estimated to be necessary to cover the
additional expense of { - such - } { + the + } examination,
subject to prior approval of the Oregon Department of
Administrative Services and a report to the Emergency Board prior
to adopting the fee and shall be within the budget authorized by
the Legislative Assembly as that budget may be modified by the
Emergency Board. The amounts estimated by the
{ - commissioner, - } { + agency + } under this section shall
be based upon any applicable limits established and regulated by
the Oregon Department of Administrative Services under ORS
292.220.
SECTION 77. ORS 92.425 is amended to read:
92.425. (1) { - No - } { + A + } lot, parcel or interest in
a subdivision or series partition { - shall - } { + may
not + } be sold by a subdivider, series partitioner or developer
by means of a land sale contract unless a collection escrow is
established within this state with a person or firm authorized to
receive escrows under the laws of this state and all of the
following are deposited in the escrow:
(a) A copy of the title report or abstract, as it relates to
the property being sold.
(b) The original sales document or an executed copy
{ - thereof - } relating to the purchase of real property in the
subdivision or series partition clearly setting forth the legal
description of the property being purchased, the principal amount
of the encumbrance outstanding at the date of the sales document
and the terms of the document.
(c) A commitment to give a partial release for the lot, parcel
or other interest being sold from the terms and provisions of any
blanket encumbrance as described in ORS 92.305 (1). Except as
otherwise provided in subsection (4) of this section, the
commitment shall be in a form satisfactory to the { + Director
of the + } Real Estate { - Commissioner - } { + Agency + }.
(d) A commitment to give a release of any other lien or
encumbrance existing against such lot, parcel or other interest
being sold as revealed by such title report. Except as otherwise
provided in subsection (4) of this section, the commitment shall
be in a form satisfactory to the { - commissioner - } { +
director + }.
(e) A warranty or bargain and sale deed in good and sufficient
form conveying merchantable and marketable title to the purchaser
of such lot, parcel or other interest.
(2) The subdivider, series partitioner or developer shall
submit written authorization allowing the { - commissioner - }
{ + Real Estate Agency + } to inspect all escrow deposits
established pursuant to subsection (1) of this section.
(3) In lieu of the procedures provided in subsection (1) of
this section, the subdivider, series partitioner or developer
shall conform to { - such - } { + an + } alternative
requirement or method
{ - which the commissioner may deem - } { + that the director
deems + } acceptable to carry into effect the intent and
provisions of this section.
(4) The requirements of subsection (1)(c) and (d) of this
section relating to use of a commitment form acceptable to the
{ - commissioner - } { + director + } and the provisions of
subsection (2) of this section shall not apply to subdivided or
series partitioned lands described by ORS 92.325 (3)(h).
SECTION 78. ORS 92.455 is amended to read:
92.455. Records of the sale or lease of real property within a
subdivision or series partition shall be subject to inspection by
the Real Estate { - Commissioner - } { + Agency + }.
SECTION 79. ORS 92.460 is amended to read:
92.460. (1) Subject to the provisions of ORS 92.425,
{ - no - } { + a + } lot, parcel or other interest in a
subdivision or series partition
{ - shall - } { + may not + } be sold by a subdivider, series
partitioner or developer subject to a blanket encumbrance unless
there exists in the blanket encumbrance or other supplementary
agreement a provision which by its terms shall unconditionally
provide that the purchaser or lessee of a lot, parcel or other
interest can obtain legal title or other interest bargained for,
free and clear of the blanket encumbrance, upon compliance with
the terms and conditions of the purchase or lease.
(2) In lieu of the requirement of subsection (1) of this
section, the subdivider, series partitioner or developer shall
conform to { - any - } { + an + } alternative requirement or
method { - which the Real Estate Commissioner - } { + that
the Director of the Real Estate Agency + }deems acceptable to
carry into effect the intent and provisions of this section.
SECTION 80. ORS 92.465 is amended to read:
92.465. { - No - } { + A + } person { - shall - } { +
may not + }, in connection with the offer, sale or lease of any
lot, parcel or interest in a real estate subdivision or series
partition, directly or indirectly:
(1) Employ any device, scheme or artifice to defraud;
(2) Make any untrue statement of a material fact or fail to
state a material fact necessary to make the statement made, in
the light of the circumstances under which it is made, not
misleading;
(3) Engage in any act, practice or course of business which
operates or would operate as a fraud or deception upon any
person;
(4) Issue, circulate or publish any prospectus, circular,
advertisement, printed matter, document, pamphlet, leaflet or
other literature which contains an untrue statement of a material
fact or fails to state a material fact necessary in order to make
the statements therein made, in the light of the circumstances
under which they are made, not misleading;
(5) Issue, circulate or publish any advertising matter or make
any written representation, unless the name of the person
issuing, circulating or publishing the matter or making the
representation is clearly indicated; or
(6) Make any statement or representation, or issue, circulate
or publish any advertising matter containing any statement to the
effect that the real estate subdivision or series partition has
been in any way approved or { - indorsed by the Real Estate
Commissioner - } { + endorsed by the Real Estate Agency + }.
SECTION 81. ORS 92.490 is amended to read:
92.490. (1) In addition to any other penalties provided by law,
the { + Director of the + } Real Estate { - Commissioner - }
{ + Agency + } may impose a civil penalty for violation of the
provisions of ORS 92.305 to 92.495. { - No - } { + A + }
civil penalty { - shall - } { + may not + } exceed $1,000 per
violation.
(2) Civil penalties under this section shall be imposed as
provided in ORS 183.745.
SECTION 82. ORS 92.495 is amended to read:
92.495. (1) { - Whenever the Real Estate Commissioner - }
{ + If the Director of the Real Estate Agency + } finds that any
owner, subdivider, series partitioner, developer or other person
is violating any of the provisions of ORS 92.305 to 92.495 or of
the alternative requirements of the { - commissioner - }
{ + director + } prescribed pursuant to ORS 92.425 (3), the
{ - commissioner - } { + director + } may order the persons to
desist and refrain from violating the provisions or requirements,
or from the further sale or lease of lots, parcels or interests
within the subdivision or series partition.
(2) { - Whenever the commissioner - } { + If the
director + } finds that any subdivider, series partitioner,
developer or other person is violating, or has violated or is
about to violate, any of the provisions of ORS 92.305 to 92.495
or the alternative requirements of the { - commissioner - }
{ + director + } prescribed pursuant to ORS 92.425 (3) the
{ - commissioner - } { + director + }may bring proceedings in
the circuit court within the county in which the violation or
threatened violation has occurred or is about to occur, or in the
county where the person, firm or corporation resides or carries
on business, in the name of and on behalf of the people of the
State of Oregon against the person, firm or corporation, and any
other person or persons concerned in or in any way participating
or about to participate in the violation, to enjoin the person,
firm or corporation or any other person from continuing the
violation or engaging in the violation or doing any act or acts
in furtherance of the violation, and to apply for the appointment
of a receiver or conservator of the assets of the defendant where
an appointment is appropriate.
SECTION 83. ORS 92.843 is amended to read:
92.843. (1) A declaration made pursuant to ORS 92.845, or an
amendment to the declaration, may not be recorded unless first
approved by the tax collector for the county where the property
is located and the { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + }.
(2) A tax collector shall approve a declaration or amendment
submitted under this section if:
(a) All ad valorem taxes, special assessments, fees and other
charges required by law to be placed on the tax roll that are or
will become a lien on the property during the tax year have been
paid as required by ORS 92.095; and
(b) Any additional taxes or penalties, and interest on taxes or
penalties, resulting from a disqualification of the property from
special assessment have been paid.
(3) The { - commissioner - } { + director + } shall approve
a declaration or amendment submitted under this section if:
(a) The declaration or amendment complies with ORS 92.835,
92.845 and 94.580; and
(b) The plat executed by the declarant is in conformance with
ORS 92.835 (2).
(4) The { - commissioner's - } { + director's + } approval
of a declaration or amendment under this section expires after
two years if the declaration or amendment has not been recorded.
The { - commissioner - } { + director + } shall specify the
expiration date when approving the declaration or amendment. A
declaration or amendment may not be reapproved after an approval
expires unless the declaration or amendment is resubmitted and
new determinations are made under subsections (2) and (3) of this
section.
SECTION 84. ORS 92.990 is amended to read:
92.990. (1) Violation of any provision of ORS 92.010 to 92.090,
92.100 and 92.120 to 92.170 or of any regulation or ordinance
adopted thereunder, is punishable, upon conviction, by a fine of
not less than $50 nor more than $500 or imprisonment in the
county jail for not less than 25 days nor more than 50 days, or
both.
(2) Any person who violates any of the provisions of ORS 92.325
(1), 92.345 to 92.365, 92.405 (1), (2) and (3), 92.425, 92.433,
92.460 to 92.475 and any alternative requirements of the { +
Director of the + } Real Estate { - Commissioner - }
{ + Agency + } prescribed pursuant to ORS 92.425 (3), not waived
by the { - commissioner - } { + director + } pursuant to ORS
92.395, or who provides false information or omits to state
material facts pursuant to ORS 92.337, shall be punished by a
fine not exceeding $10,000, or by imprisonment in the custody of
the Department of Corrections for a period not exceeding three
years, or in the county jail not exceeding one year, or by both
{ - such - } fine and imprisonment.
SECTION 85. ORS 94.803 is amended to read:
94.803. As used in this section and ORS 94.807 to 94.945:
{ - (1) 'Agency' means the Real Estate Agency. - }
{ - (2) - } { + (1) + } 'Accommodation' means an apartment,
condominium unit, cabin, house, lodge, hotel or motel room or
other private or commercial structure situated on real property
and designed for residential occupancy.
{ - (3) - } { + (2) + } 'Assessment' means the pro rata
share assessed from time to time against each owner of a
timeshare by the managing entity to pay for common expenses.
{ - (4) - } { + (3) + } 'Blanket encumbrance' means a trust
deed or mortgage or any other lien or encumbrance, mechanic's
lien or otherwise, securing or evidencing the payment of money
and affecting more than one timeshare, or an agreement affecting
more than one timeshare by which the developer holds the
timeshare property under an option, leasehold, contract to sell
or trust agreement.
{ - (5) 'Commissioner' means the Real Estate
Commissioner. - }
{ - (6) - } { + (4) + } 'Common expenses' means:
(a) Expenses of administration, maintenance, repair or
replacement of the accommodations and facilities of the timeshare
plan;
(b) Expenses agreed upon as common by all the timeshare owners
in the timeshare plan; and
(c) Expenses declared common by the timeshare instrument or
bylaws of the timeshare plan.
{ - (7) - } { + (5) + } 'Developer' means a person creating
a timeshare plan and a seller of a timeshare plan.
{ - (8) - } { + (6) + } 'Exchange program' means any
opportunity for a purchaser to exchange timeshare periods among
purchasers in the same or other timeshare plans.
{ - (9) - } { + (7) + } 'Facility' means a structure,
service, improvement or real property available for the owner's
use.
{ - (10) - } { + (8) + } 'Fractional interest' means any
undivided fractional ownership of real property which gives each
and every fractional owner full rights to unlimited use and
possession of the real property subject only to such limitation
as the fractional owners may agree to among themselves.
{ - (11) - } { + (9) + } 'Managing entity' means the person
designated in the timeshare instrument or selected by the owners'
association board or by the owners to manage all or a portion of
the timeshare plan.
{ - (12) - } { + (10) + } 'Negotiate' means any activity
preliminary to the execution of a binding agreement for the sale
of a timeshare, including but not limited to advertising,
solicitation and promotion of the sale of the timeshare.
{ - (13) - } { + (11) + } 'Offering' means any
advertisement, inducement, solicitation or attempt to encourage a
person to acquire a timeshare, other than as a security for an
obligation. An advertisement in a newspaper or other periodical
of general circulation, or in any broadcast medium to the general
public, of a timeshare in property located outside this state is
not an offering if the advertisement states that the offering is
valid only if made in compliance with the law of the jurisdiction
in which the offer is disseminated.
{ - (14) - } { + (12) + } 'Owner' means a person, other
than the developer, to whom a timeshare has been conveyed other
than as security for an obligation.
{ - (15) - } { + (13) + } 'Project' means real property
subject to a timeshare instrument. A project may include
accommodations that are not timeshare accommodations.
{ - (16) - } { + (14) + } 'Purchaser' means any person,
other than a developer, who by voluntary transfer acquires an
interest in a timeshare other than as security for an obligation.
{ - (17) - } { + (15) + } 'Sale' means a transaction that
conveys a timeshare other than as security for an obligation,
including, but not limited to a lease or assignment.
{ - (18) - } { + (16) + } 'Seller' means a person who
offers a timeshare for sale to the public. 'Seller' does not
include a person who acquired a timeshare for the person's own
use and later offers it for resale.
{ - (19) - } { + (17) + } 'Timeshare' means a timeshare
estate or a timeshare license.
{ - (20) - } { + (18) + } 'Timeshare agreement' means an
agreement conferring the rights and obligations of the timeshare
plan on a purchaser including but not limited to a deed, lease
and vacation license.
{ - (21) - } { + (19) + } 'Timeshare estate' means a right
to occupy an accommodation during five or more separated
timeshare periods over a period of at least five years, including
renewal options, coupled with a freehold estate or an estate for
years in the timeshare property.
{ - (22) - } { + (20) + } 'Timeshare instrument' means a
document creating or regulating timeshares.
{ - (23) - } { + (21) + } 'Timeshare license' means a right
to occupy an accommodation during five or more separated
timeshare periods over a period of more than three years,
including renewal options, not coupled with a freehold estate or
an estate for years.
{ - (24) - } { + (22) + } 'Timeshare period' means the
period of time when an owner is entitled to possess and occupy
accommodations or facilities of a timeshare plan.
{ - (25) - } { + (23) + } 'Timeshare plan' means an
arrangement, whether by membership, agreement, tenancy in common,
sale, lease, deed, rental agreement, license, right to use
agreement or otherwise, in which an owner receives a timeshare
estate or a timeshare license and the right to use accommodations
and facilities that are part of the timeshare property. A
timeshare plan does not include an exchange program.
{ - (26) - } { + (24) + } 'Timeshare property' means one or
more accommodations subject to the same timeshare instrument and
any other real estate or rights appurtenant to those
accommodations.
SECTION 86. ORS 94.807 is amended to read:
94.807. ORS 94.803, 94.806, 94.811 to 94.863 and 94.869 to
94.945 do not apply to:
(1) Any timeshare plan for which the developer has complied
with the requirements of ORS 92.305 to 92.495 or 100.005 to
100.910 before July 28, 1983.
(2) Any timeshare plan for which the developer has complied
with all applicable local regulations and has submitted a
completed filing under ORS 92.305 to 92.495 or 100.005 to 100.910
before July 28, 1983.
(3) Any subsequent phase or stage of a timeshare plan described
in subsection (1) or (2) of this section that has complied with
the applicable requirements of ORS chapter 92 and this chapter in
effect prior to July 28, 1983. However, the developer of the
phase or stage must comply with the cancellation provisions of
ORS 94.836 and 94.839.
(4) Subdivided land as defined by ORS 92.305, a planned
community as defined by ORS 94.550 and a condominium subject to
ORS 100.005 to 100.910 that does not involve a timeshare plan.
(5) Subdivided land as defined by ORS 92.305, a planned
community as defined by ORS 94.550 and a condominium subject to
ORS 100.005 to 100.910, that involves a timeshare plan to the
extent of the nontimeshare aspects of the development. The
developer of such a development must comply with the applicable
requirements of ORS chapter 92 and this chapter in addition to
ORS 94.803, 94.806 and 94.811 to 94.945.
(6) Any transaction normal and customary in the hotel and motel
business involving the acceptance of advance reservations which
are not entered into for the purpose of evading the provisions of
ORS 92.325, 94.570, 94.803 to 94.945, 100.005, 100.105, 100.200,
100.450 and 696.490.
(7) The offering, sale or transfer of a fractional interest or
a timeshare in a timeshare plan comprised of 12 timeshares or
less unless the { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } determines that the
developer is attempting by a common scheme or course of
development to evade the provisions of ORS 92.325, 94.570, 94.803
to 94.945, 100.005, 100.105, 100.200, 100.450 and 696.490.
(8) The transfer of a timeshare by reason of a foreclosure
action, by deed in lieu of foreclosure, by gift or by devise,
descent or distribution or transfer to an inter vivos trust that
is not made to evade ORS 94.803 and 94.807 to 94.945.
(9) The offering, sale or transfer of a membership or interest
in a recreational vehicle park or campground that provides no
right to use or occupy a residential dwelling structure in the
project overnight.
(10) The offering, sale or transfer of a membership or interest
entitling the purchaser to a timeshare in personal property,
including but not limited to an airplane, boat or recreational
vehicle.
(11) The offering, sale or transfer of a membership or interest
entitling the purchaser to use real property and facilities
without overnight use for dwelling purposes, including but not
limited to commercial office, retail or similar space and golf,
tennis or athletic clubs.
SECTION 87. ORS 94.823 is amended to read:
94.823. A developer shall submit a notice to the Real Estate
{ - Commissioner - } { + Agency + } informing the
{ - commissioner - } { + agency + } of the developer's intent
to sell timeshares in Oregon. The form and content of the notice
shall be established by rule by the
{ - commissioner - } { + Director of the Real Estate
Agency + }, but shall include at least:
(1) The name and business and residence addresses of:
(a) The developer;
(b) The developer's agent;
(c) The designated managing entity; and
(d) Any person selling the timeshare plan within Oregon.
(2) An explanation of the timeshare form of ownership to be
offered under the timeshare plan.
(3) A general description of the timeshare plan, including the
number of timeshares to be offered under the timeshare plan and
the number and description of the accommodations and facilities.
(4) A complete description, including a copy of all necessary
implementing documents, of the methods to be used by the
developer to comply with the requirements of ORS 92.325, 92.425,
94.570, 94.803 to 94.945, 100.005, 100.105, 100.200, 100.450 and
696.490.
(5) A title report for the real property underlying the
timeshare plan, acceptable to the { - commissioner - }
{ + director + } and including a statement of any lien, defect,
judgment or other encumbrance affecting title to the property.
(6) A copy of any judgment against the developer or managing
entity, the status of any pending suit that is material to the
timeshare plan to which the developer or managing entity is a
party and the status of any other suit that is material to the
timeshare plan of which the developer has actual knowledge.
(7) A description of any insurance coverage provided for the
benefit of a purchaser or a statement that no insurance coverage
is provided.
(8) The name and address of the accommodations and facilities
and the schedule for completing any improvements not complete at
the time of filing.
(9) The financial obligation of a purchaser, excluding the
initial purchase price and including:
(a) Additional charges and common expenses to which the
purchaser may be subject, whether or not in the form of an
assessment; and
(b) An estimated operating budget and schedule of estimated
common expenses.
(10) A copy of the timeshare instrument or notice of timeshare
plan as required under ORS 94.818.
(11) A copy of any contract, lease or timeshare agreement to be
signed by the purchaser.
(12) A copy of the rules, limitations or conditions on the use
of accommodations or facilities available to purchasers.
(13) Any restriction on the transfer of any timeshare.
(14) If any portion of the timeshare property is located
outside the state, proof that the developer has recorded the
notice of timeshare plan as required under ORS 94.833 (1).
(15) Any other information the { - commissioner may
determine - } { + director determines + } is necessary.
SECTION 88. ORS 94.826 is amended to read:
94.826. (1) A seller offering an exchange program to a
purchaser in conjunction with a timeshare plan shall provide
written information to the purchaser about the exchange program.
(2) The exchange program information to be provided to the
purchaser shall be established by rule by the { + Director of
the + } Real Estate { - Commissioner - } { + Agency + } and
shall include at least:
(a) The name and address of the exchange company;
(b) Whether or not the purchaser's participation in the
exchange program is dependent upon the timeshare plan's continued
affiliation with the exchange program;
(c) Whether or not the purchaser's participation in the
exchange program is voluntary;
(d) A complete and accurate description of the terms and
conditions of the purchaser's contractual relationship with the
exchange program, and the procedure for modifying the exchange
program contract;
(e) The procedure to qualify for and effectuate an exchange;
(f) A description of any limitation, restriction or priority
system employed in the operation of the exchange program;
(g) The circumstances under which a purchaser may lose the use
and occupancy of the purchaser's accommodation in any properly
applied for exchange through the exchange program;
(h) Any fee for participation in the exchange program; and
(i) Any other information material to the exchange program
which, by omission, tends to make the information otherwise
disclosed misleading.
(3) The exchange program information shall be in addition to
the information found in the public report required under ORS
94.828 (1), (2) and (4) and must be provided to the purchaser
before a contract may be executed between the purchaser and the
company offering the exchange program.
(4) An exchange company offering an exchange program to
purchasers in Oregon shall file the information required in
subsection (2) of this section annually with the
{ - commissioner - } { + Real Estate Agency + }.
(5) Only a timeshare owner and a developer other than a seller
may participate in an exchange program.
SECTION 89. ORS 94.828 is amended to read:
94.828. (1) After the Real Estate { - Commissioner - }
{ + Agency + } receives a completed notice under ORS 94.823 the
{ - commissioner - } { + agency + } shall prepare a public
report on the timeshare plan. In lieu of preparing a report, the
{ - commissioner - } { + Director of the Real Estate
Agency + } may accept a report prepared by the developer and
issue the report with any changes the { - commissioner - }
{ + director + } considers necessary.
(2) Whether or not the { - commissioner - } { + agency + }
issues a public report on a timeshare plan { + , + } the
developer shall report to the
{ - commissioner any - } { + agency a + } material change in
the timeshare plan or in the marketing program for the timeshare
plan within 10 days after the change occurs.
(3) The { - commissioner - } { + agency + } may examine a
timeshare plan subject to ORS 94.803 and 94.807 to 94.945 to be
offered for sale and make a public report of the findings. If a
timeshare plan is located within this state and no report is made
within 45 days after the { - commissioner - } { + agency
+ }receives a completed timeshare filing, the report shall be
considered waived.
(4) As used in this section, 'material change' includes, but is
not limited to:
(a) The addition or deletion of a timeshare accommodation or
facility.
(b) A change in the method of marketing or conveyancing the
timeshare plan.
(c) A change in the purchase money handling procedure
previously approved by the { - commissioner - } { +
agency + }, including but not limited to:
(A) A change in the escrow depository; or
(B) A change in or creation of an encumbrance affecting more
than one timeshare.
(d) A change in the developer or, if the developer is an
entity, a change in the name, form of organization or status of
the developer.
(e) A revision of the timeshare plan's annual budget that will
require a regular annual assessment against the owners that is
more than 25 percent greater than the regular annual assessment
indicated in the current public report for the timeshare plan.
(f) Any legal or physical condition rendering a timeshare
accommodation or facility unusable by an owner.
SECTION 90. ORS 94.829 is amended to read:
94.829. (1) { - No - } { + A + }developer or agent of the
developer
{ - shall - } { + may not + } sell a timeshare in a timeshare
plan before the issuance of a public report for the timeshare
plan, unless the public report has been waived under ORS 94.828
(3).
(2) A copy of the public report, when issued, shall be given to
the prospective purchaser of a timeshare by the developer or
agent of the developer prior to the execution of a binding
contract or agreement for the sale of the timeshare. The
developer or the developer's agent shall take a receipt from the
prospective purchaser upon delivery of a copy of the Real Estate
{ - Commissioner's - } { + Agency's + } public report. Each
{ - such - } receipt shall be kept on file by the developer
within this state subject to inspection by the { - commissioner
or the commissioner's authorized representative - }
{ + agency + } for a period of three years from the date the
receipt is taken.
(3) The { - commissioner's - } { + agency's + } public
report shall not be used for advertising purposes unless the
report is used in its entirety. No portion of the public report
shall be underscored, italicized or printed in larger or heavier
type than the balance of the public report unless the true copy
of the report emphasizes the portion.
(4) The { - commissioner - } { + agency + } may furnish, at
cost, copies of a public report for the use of a developer.
(5) The requirements of this section extend to timeshares sold
by the developer after repossession.
(6) Remedies and sanctions available for violation of ORS
646.605 to 646.656 are available for violation of this section,
in addition to any other remedies or sanctions provided by law.
SECTION 91. ORS 94.831 is amended to read:
94.831. (1) The notice required under ORS 94.823 shall be
accompanied by a filing fee as follows:
(a) For a timeshare plan developed in a single phase, $500 plus
$10 for each timeshare but in no case shall the fee exceed
$3,000.
(b) For a timeshare plan developed in two or more phases, $500
plus $10 for each timeshare in the first phase, and $5 for each
additional timeshare developed in a subsequent phase of the same
development, but in no case shall the fee exceed $3,000 for each
phase.
(2) For a material change notice submitted under ORS 94.828
(1), (2) and (4), the Real Estate { - Commissioner - }
{ + Agency + } may charge a fee not to exceed $100 for each page
of the public report that must be revised, but in no case shall
the fee for a material change exceed $500.
(3) When an examination is to be made of timeshare property
located in the State of Oregon, or timeshare property located
outside Oregon that will be offered for sale to persons within
Oregon, the { - commissioner - } { + agency + }, in addition
to the filing fee provided in subsections (1) and (2) of this
section, may require the developer to advance payment of an
amount estimated by the
{ - commissioner - } { + agency + } to be the expense
incurred in going to and returning from the timeshare property,
and an amount estimated to be necessary to cover the additional
expense of the examination not to exceed $200 a day for each day
consumed in the examination of the timeshare property. The
amounts estimated by the
{ - commissioner - } { + agency + } under this subsection
shall be based upon any applicable limits established and
regulated by the Oregon Department of Administrative Services
under ORS 292.220.
(4) The moneys received under subsections (1) to (3) of this
section shall be paid into the State Treasury and placed in the
General Fund to the credit of the Real Estate Account established
under ORS 696.490.
SECTION 92. ORS 94.867 is amended to read:
94.867. (1) A court of competent jurisdiction, upon petition by
timeshare owners constituting at least 10 percent of the total
number of timeshare owners in a timeshare plan, may declare a
failure in the management of the timeshare plan and timeshare
property and appoint a trustee to assume the duties of a managing
entity for the timeshare plan, if the court finds that:
(a) The management of the timeshare plan and timeshare property
has failed to carry out the duties of a managing entity under the
timeshare instrument and ORS 94.846 to 94.858;
(b) The rights of the timeshare owners under the timeshare
instrument will be substantially impaired if a trustee is not
appointed; and
(c) No reasonable alternative exists to appointment of a
trustee to perform the functions of a managing entity.
(2) The court may attach such conditions and terms to its
appointment of a trustee under subsection (1) of this section as
the court considers necessary to protect the rights of timeshare
owners under the timeshare instrument.
(3) The trustee shall send a copy of the court's decision to
the Real Estate { - Commissioner - } { + Agency + }.
SECTION 93. ORS 94.871 is amended to read:
94.871. (1) Unless a lien payment trust is established under
ORS 94.890, { - no - } { + a + } timeshare estate
{ - shall - } { + may not + } be sold by a developer by means
of a purchase money agreement as defined in ORS 94.890 unless a
collection escrow is established within this state with a person
or firm authorized to receive escrows under the laws of this
state and all of the following are deposited in the escrow:
(a) A copy of the title report or abstract, as it relates to
the timeshare estate being sold.
(b) The original or an executed copy of the sales document
relating to the purchase of the timeshare estate clearly setting
forth the legal description of the interest being purchased, the
principal amount of any blanket encumbrance outstanding on the
date of the sales document and the terms of the sales document.
(c) A commitment in a form satisfactory to the { + Director of
the + } Real Estate { - Commissioner - } { + Agency + } to
give a partial release for the interest being sold from the terms
and provisions of any blanket encumbrance on or before full
payment of the purchase price by the purchaser.
(d) A commitment in a form satisfactory to the
{ - commissioner - } { + director + } to give a release of any
other lien or encumbrance existing against the timeshare estate
being sold.
(e) A warranty or bargain and sale deed in good and sufficient
form conveying to the purchaser merchantable and marketable title
to the timeshare estate.
(2) The developer shall submit written authorization allowing
the { - commissioner - } { + agency + } to inspect any escrow
deposit established under subsection (1) of this section.
(3) In lieu of the procedures provided in subsection (1) of
this section, the developer shall conform to an alternative
requirement or method if the { - commissioner - }
{ + director + } finds that the alternative requirement or
method carries out the intent and provisions of this section.
SECTION 94. ORS 94.873 is amended to read:
94.873. (1) All funds, negotiable instruments, purchase money
agreements and credit card authorizations and proceeds thereof
received in this state by a developer from or on behalf of a
purchaser or prospective purchaser in connection with the
purchase or reservation of a timeshare must be placed in an
escrow account with an escrow agent authorized under ORS 94.881
or the trustee of a lien payment trust established under ORS
94.890.
(2) The establishment of an escrow account under subsection (1)
of this section shall be by written agreement between the
developer and the escrow agent. The escrow agreement must provide
for the handling of a purchaser's funds, negotiable instruments,
purchase money agreements and credit card authorizations and
proceeds as required by ORS 94.873 to 94.905.
(3) A purchaser's funds, negotiable instruments, purchase money
agreements, credit card authorizations and any proceeds may be
released from escrow without a closing only as follows:
(a) If the purchaser gives a valid notice of cancellation under
ORS 94.836, to the purchaser within 15 days after the notice of
cancellation is received.
(b) If the purchaser or developer properly terminates a sales
agreement under its terms or terminates a reservation agreement,
to the purchaser or developer according to the terms of the sales
agreement or reservation agreement.
(c) If the purchaser or developer defaults in performing an
obligation under the sales agreement, to the purchaser or
developer according to the terms of the sales agreement.
(4) After an escrow closing for the sale of a timeshare, a
purchaser's funds, negotiable instruments, purchase money
agreements and credit card authorizations and proceeds shall be
delivered by the escrow agent:
(a) To the trustee of a lien payment trust established under
ORS 94.890 to protect the purchaser from any blanket encumbrance.
(b) As provided by an alternative arrangement approved by the
{ + Director of the + } Real Estate { - Commissioner - }
{ + Agency + } under ORS 94.900.
(c) To the seller if the timeshare is conveyed to the purchaser
free and clear of any blanket encumbrance or as provided in ORS
94.876.
(5) Under no circumstances may the escrow agent release a
purchaser's funds, negotiable instruments, purchase money
agreements or credit card authorizations or proceeds from the
escrow account to anyone except the purchaser until:
(a) The five-day cancellation period under ORS 94.836 expires
as to the purchaser whose funds, instruments, agreements,
authorizations or proceeds are being released;
(b) The escrow agent receives a written statement from the
developer that no valid cancellation notice under ORS 94.836 has
been received from the purchaser involved or from the purchaser
that the purchaser has not given such a notice; and
(c) The escrow agent receives a written statement from the
developer that no other cancellation notice was received during
the five-day cancellation period from the purchaser involved.
(6) The purpose of any escrow established under this section
shall be to protect a purchaser's right to a refund if the
purchaser cancels the timeshare sales agreement during the
five-day cancellation period under ORS 94.836, or if a
prospective purchaser cancels a reservation agreement for the
purchase of a timeshare.
(7) As used in this section 'reservation agreement' means an
agreement relating to the future sale of a timeshare that is not
binding on the purchaser which grants the purchaser the right to
cancel the agreement for any reason without penalty and to obtain
a refund of any funds deposited at any time until the purchaser
executes a timeshare sales agreement.
SECTION 95. ORS 94.876 is amended to read:
94.876. (1) Subject to the requirements of ORS 94.871 and
94.873, an escrow for the sale of a timeshare estate may close
only if one of the following alternatives for protecting the
purchaser is satisfied:
(a) The timeshare estate is conveyed to the purchaser free and
clear of any blanket encumbrance;
(b) The timeshare property in which the timeshare estate is
granted is conveyed to a trustee under a lien payment trust
established under ORS 94.890 and every person holding an interest
in a blanket encumbrance against the timeshare property executes
and records a nondisturbance agreement;
(c) The timeshare estate is conveyed to the purchaser subject
only to a blanket encumbrance in which every person holding an
interest in the blanket encumbrance executes and records a
nondisturbance agreement or the { + Director of the + } Real
Estate
{ - Commissioner - } { + Agency + } accepts a surety bond as
an alternative arrangement under ORS 94.900 in an amount that is
sufficient to satisfy the blanket encumbrance; or
(d) All requirements of an alternative arrangement approved by
the { - commissioner - } { + director + } under ORS 94.900
are satisfied.
(2) Subject to the requirements of ORS 94.873, an escrow for
the sale of a timeshare license may close only if one of the
following alternatives for protecting the purchaser is satisfied:
(a) The timeshare property is conveyed to a trustee free and
clear of any blanket encumbrance;
(b) The timeshare property is conveyed to a trustee under a
lien payment trust established under ORS 94.890 and every person
holding an interest in a blanket encumbrance against the
timeshare property executes and records a nondisturbance
agreement;
(c) Every person holding an interest in a blanket encumbrance
against the timeshare property executes and records a
nondisturbance agreement and the { - commissioner - }
{ + director + } accepts a recorded surety bond in an amount
that is sufficient to satisfy the blanket encumbrance; or
(d) The requirements of an alternative arrangement approved by
the { - commissioner - } { + director + }under ORS 94.900
are satisfied.
SECTION 96. ORS 94.881 is amended to read:
94.881. (1) Funds placed into escrow under ORS 94.873 shall be
placed into an escrow account established solely for that purpose
with one of the following acting as an escrow agent:
(a) An attorney who is a member of the Oregon State Bar;
(b) An insured institution, as defined in ORS 706.008, that is
authorized to accept deposits in this state;
(c) A trust company, as defined in ORS 706.008, that is
authorized to transact trust business in this state; or
(d) An escrow agent licensed under ORS 696.505 to 696.590.
(2) In connection with sales of timeshares made outside of this
state for the use of timeshare property located within this
state, the escrow agent required under ORS 94.871 and 94.873 may
be located in and the purchasers' funds, negotiable instruments,
purchase money contracts and credit card authorizations may be
held by the out-of-state escrow agent, if the law of the state in
which the sales are made requires impoundment in that state and
the out-of-state escrow agent is approved by the Real Estate
{ - Commissioner - } { + Agency + }.
SECTION 97. ORS 94.890 is amended to read:
94.890. (1) A lien payment trust may be established with a
trust company as defined in ORS 706.008 that is authorized to
transact trust business in this state, for the conveyance of
timeshare property to the trustee under ORS 94.876 if the trust
instrument provides for at least the following:
(a) Title to the timeshare property must be transferred to the
trustee before the purchaser's funds, negotiable instruments,
purchase money agreements or credit card authorizations or
proceeds are disbursed by the escrow agent.
(b) The trustee shall not convey or transfer all or any portion
of the timeshare property except for an accommodation in which no
owner has any further right of occupancy or as permitted at
termination of the trust.
(c) The trustee shall not encumber the timeshare property
without the consent of the { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + }.
(d) The association, if any, and all timeshare owners are made
third party beneficiaries of the trust.
(e) Notice of the trustee's intention to resign must be given
to the { - commissioner - } { + director + } at least 90 days
before the resignation takes effect.
(f) The trust instrument may not be amended to adversely affect
the interests or rights of a timeshare owner without the written
approval of the association or, if no association, a majority of
the timeshare owners.
(g) { - Require the deposit into trust of - } A lien payment
deposit, as required by subsection (3) of this section, { + must
be deposited into the trust + } before the closing of the first
timeshare sale.
(h) { - Require the deposit into trust before closing the
first timeshare sale, and the intention to maintain for the
duration of the trust, - } An installment payment reserve
{ + must be deposited into the trust before closing the first
timeshare sale, with the intent that the reserve be maintained
for the duration of the trust, + } consisting of funds in an
amount sufficient at all times:
(A) To pay the total of three successive monthly installments
of debt service on each blanket encumbrance or, if installments
of debt services are not payable monthly or in equal
installments,
{ - such funds as the commissioner determines reasonably
necessary to assure - } { + to ensure + } that the trustee will
have sufficient cash to make any payment under the blanket
encumbrances when due; and
(B) To create a sinking fund to extinguish the debt at its
maturity if the blanket encumbrance against the trust property is
an interest only loan, contains a balloon payment provision or is
otherwise not fully amortized under the terms for repayment.
(i) { - Authorize - } The trustee { + must be
authorized + } to sell, transfer, hypothecate, encumber, or
otherwise dispose of the purchase money agreement or any other
asset composing the lien payment deposit or any portion thereof
if, in the trustee's judgment, such action is necessary to enable
the trustee to make all payments required under the blanket
encumbrances to prevent foreclosure of the blanket encumbrance.
(j) { - Require - } The developer { + must be required + }
to replenish the funds and assets in the trust whenever the lien
payment deposit or the funds in the installment payment reserve
fail to meet the requirements set forth in this subsection.
(k) { - Provide that the trustee periodically shall - }
{ + The trustee must periodically be required to + } disburse
funds in the trust as follows: { - First, - }
{ + (A) + } To pay real property taxes, governmental
assessments, and lease rent, if any; { - second, - }
{ + (B) + } To pay current payments due on the blanket
encumbrances, in their order of priority; { - third, - }
{ + (C) + } To any sinking fund established for the payment
of blanket encumbrances, including any prepayment penalties and
release prices; { - fourth, - }
{ + (D) + } To pay any service charge and cost payable to the
trustee and its collection agent, if any, under the trust
instrument; and
{ - fifth, - }
{ + (E) + } To the developer or as directed by the developer.
(L) { - Contain - } Any other provisions required by the
{ - commissioner - } { + agency + } under rules adopted under
ORS 94.915 (2) and (3) { + must be included in the trust + }.
(2) Every purchase money agreement delivered to the trustee of
a lien payment trust must contain a notice to the holder that the
trustee may make demand of the holder to deliver to the trustee
all payments made by the owner after the trustee mails notice
that the funds and other assets in the trust are inadequate to
meet the lien payment deposit requirements. Following such
demand, the holder must immediately deliver all subsequent
payments of the owner to the trustee and continue to deliver the
payments until the lien payment deposit is replenished.
(3)(a) The lien payment deposit shall consist of either
nondelinquent purchase money agreements from timeshare owners in
the timeshare plan or other assets deposited into the trust by
the developer and approved by the { - commissioner - } { +
director + }. The purchase money agreements must have an
aggregate remaining principal balance of not less than, and any
other assets deposited must have a liquidated value of not less
than, 110 percent of the difference between the aggregate
remaining balance owing under blanket encumbrances against the
timeshare property, including any prepayment penalties, release
prices or similar charges, and the amount of money or its
equivalent in the trust and available at any time to be applied
to the reduction of the principal balance of the blanket
encumbrance. The developer shall have the burden of establishing
the liquidated value of assets other than purchase money
agreements from timeshare owners in the timeshare plan.
(b) If the blanket encumbrance payment deposit consists of
purchase money agreements, the payments required to be made by
owners under the agreements shall:
(A) Be due on or before the date payments become due on the
blanket encumbrances;
(B) If paid when due as provided in subsection (4) of this
section, be equal to at least 110 percent of the amount required
to be paid on the blanket encumbrances on such date; and
(C) Be sufficient to pay, in full, during the term of the
purchase money agreements all amounts secured by the blanket
encumbrances, including prepayment penalties and release prices,
if any, and all service charges payable to the trustee, any
collection agent, and any other servicing agent under the trust
agreement.
(c) If the developer proposes to deposit into trust assets
other than purchase money agreements, the assets must be
sufficient to pay debt service installments on the blanket
encumbrance as they become due and to create a sinking fund or
other arrangement adequate to extinguish the debt secured by the
blanket encumbrance at its maturity.
(4) For the purposes of this section, 'purchase money
agreement' means and includes a purchase money mortgage, a
purchase money trust deed and a purchase contract.
(5) For the purpose of this section, a purchase money agreement
is considered delinquent when an installment payment is more than
59 days past due.
SECTION 98. ORS 94.895 is amended to read:
94.895. (1) Except as provided in subsection (2) of this
section:
(a) If a trust is established for timeshare property subject to
timeshare licenses, the trust for the timeshare property shall be
irrevocable during the time that any purchaser of a timeshare
license has a right to the use of the timeshare property.
(b) If a trust is established for timeshare property subject to
timeshare estates, the trust for the timeshare property shall be
irrevocable until all blanket encumbrances are extinguished.
(2) The { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } may approve an alternative
arrangement that permits termination of the trust.
SECTION 99. ORS 94.900 is amended to read:
94.900. (1) If it is impossible or impractical for a developer
to satisfy any of the requirements of ORS 94.890 because of
factors over which the developer has little or no control, the
{ + Director of the + } Real Estate { - Commissioner - }
{ + Agency + } may accept arrangements other than those
prescribed by ORS 94.890 { - which in the commissioner's
judgment will - } { + that will, in the director's
judgment, + } give rights and remedies affording equivalent
benefits and protection to timeshare owners and { - which - }
{ + that + } are at least comparable in scope though not
necessarily in nature to those afforded by ORS 94.890.
(2) If the { - commissioner - } { + director + } is asked
to accept alternative arrangements under this section, the
{ - commissioner - } { + director + } may contract with an
attorney and with any other private consultant the
{ - commissioner - } { + director + } considers necessary or
advisable, in connection with the review of the proposed
arrangements for protecting purchasers. The attorney shall
thoroughly review the timeshare plan for the purpose of examining
the purchaser protections, including the documentation used in
the timeshare plan and the disclosure thereof in the developer's
public report. After completing the review the attorney shall
provide a written analysis of the nature and extent of the
protection that the proposal affords a purchaser against blanket
encumbrances. The cost of retaining the attorneys and other
consultants shall be paid by the developer.
SECTION 100. ORS 94.905 is amended to read:
94.905. Any surety bond furnished to the Real Estate
{ - Commissioner - } { + Agency + } under ORS 94.890 must be
in an amount
{ - which - } { + that + } is not less than 110 percent of
the remaining principal balance of every indebtedness secured by
a blanket encumbrance affecting the timeshare property. The
surety bond must be issued by a surety authorized to do business
in Oregon and having sufficient net worth to be acceptable to the
{ - commissioner - } { + Director of the Real Estate
Agency + }. The bond shall provide for payment, up to the limit
of the bond, of all amounts secured by the blanket encumbrance,
including costs, expenses and legal fees of the lienholder, if
for any reason the blanket encumbrance is enforced. The obligee
of the surety bond shall be the
{ - commissioner - } { + director + } on behalf of the
timeshare owners. The bond may be reduced periodically in
proportion to the reduction of the remaining principal balance of
the indebtedness secured by the blanket encumbrances. Upon being
furnished with a surety bond satisfying the foregoing
requirements, the developer shall prepare and the
{ - commissioner - } { + agency + } shall execute and
acknowledge a document in recordable form accepting the surety
bond and identifying the timeshare property to which it applies.
SECTION 101. ORS 94.915 is amended to read:
94.915. (1) Records of the sale of timeshares in a timeshare
plan shall be subject to inspection by the Real Estate
{ - Commissioner - } { + Agency + }.
(2) The { + Director of the + } Real Estate Agency shall adopt
rules necessary to carry out ORS 94.803 and 94.807 to 94.945.
(3) The agency may cooperate with agencies performing similar
functions in other jurisdictions to develop uniform filing
procedures, forms, disclosure standards and administrative
practices.
SECTION 102. ORS 94.920 is amended to read:
94.920. (1) Every nonresident developer, at the time of filing
the notice required by ORS 94.823, also shall file with the { +
Director of the + } Real Estate { - Commissioner - }
{ + Agency + } an irrevocable consent that if, in any suit or
action commenced against the nonresident developer in this state
arising out of a violation of ORS 94.803 and 94.807 to 94.945,
personal service of summons or process cannot be made upon the
developer in this state after the exercise of due diligence, a
valid service may be made upon the developer by service on the
{ - commissioner - } { + director + }.
(2) The consent required under subsection (1) of this section
shall be in writing executed and verified by an officer of a
corporation or association, a general partner of a partnership or
by a developer and shall set forth:
(a) The name of the developer.
(b) The address to which documents served upon the
{ - commissioner - } { + director + } are to be forwarded.
(c) If the developer is a corporation or unincorporated
association, that the officer exercising the consent was
authorized by resolution duly adopted by the board of directors.
(3) The address for forwarding documents served under this
section may be changed by filing a new consent in the form
prescribed in subsection (2) of this section.
(4) Service of process on the { - commissioner - }
{ + director + } under this section shall be made by delivering
to the { - commissioner - } { + director + } or a clerk on
duty in any office of the { - commissioner - }
{ + director + }, duplicate copies of the process, with
duplicate copies of any papers required by law to be delivered in
connection with the service.
(5) When the { - commissioner - } { + director + } is
served with process under the provisions of this section, the
{ - commissioner - } { + director + } shall immediately
forward by registered mail or by certified mail with return
receipt one of the copies with any accompanying papers, to the
developer at the address set forth in the consent.
(6) The { - commissioner - } { + director + } shall keep a
record of each process, notice and demand served under this
section, and shall record the time of each service and the action
taken by the
{ - commissioner - } { + director + } on each service.
SECTION 103. ORS 94.925 is amended to read:
94.925. (1) In addition to any other penalty provided by law,
the Real Estate { - Commissioner - } { + Agency + } may
impose a civil penalty for violation of the provisions of ORS
94.803 and 94.807 to 94.945. No civil penalty shall exceed $1,000
per violation.
(2) Civil penalties under this section shall be imposed as
provided in ORS 183.745.
SECTION 104. ORS 94.930 is amended to read:
94.930. (1) If the { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } finds that an owner,
developer or other person is violating any of the provisions of
ORS 94.803 and 94.807 to 94.945, the
{ - commissioner - } { + director + } may order the person to
desist and refrain from violating the provisions or requirements,
or from the further sale of interests in the timeshare plan.
(2) If the { - commissioner - } { + director + } finds that
a developer or other person is violating, has violated or is
about to violate { - , - } any of the provisions of ORS 94.803
and 94.807 to 94.945, the
{ - commissioner - } { + director + } may bring an action in
the circuit court of the county where the violation or threatened
violation has occurred or is about to occur, or in the county
where the person resides or carries on business, in the name of
and on behalf of the people of the State of Oregon against the
person participating in the violation, to enjoin the person from
continuing or engaging in the violation or doing any act in
furtherance of the violation, and to apply for the appointment of
a receiver or conservator of the assets of the defendant if
appropriate.
SECTION 105. ORS 94.940 is amended to read:
94.940. { - No - } { + A + } person { - shall - } { +
may not + }, in connection with an offering, sale or lease of an
interest in a timeshare plan:
(1) Employ any device, scheme or artifice to defraud;
(2) Make any untrue statement of a material fact;
(3) Fail to state a material fact necessary to make a statement
clear;
(4) Issue, circulate or publish any prospectus, circular,
advertisement, printed matter, document, pamphlet, leaflet or
other literature containing an untrue statement of a material
fact or that fails to state a material fact necessary to make the
statements made in the literature not misleading;
(5) Issue, circulate or publish any advertising matter or make
any written representation, unless the name of the person
issuing, circulating or publishing the matter or making the
representation is clearly indicated; or
(6) Make any statement or representation, or issue, circulate
or publish any advertising matter containing any statement that
the timeshare plan has been in any way approved or { - indorsed
by the Real Estate Commissioner - } { + endorsed by the Real
Estate Agency + } except in conjunction with a public report
issued by the
{ - commissioner - } { + agency + } under ORS 94.828 (1), (2)
and (4).
SECTION 106. ORS 94.953 is amended to read:
94.953. As used in ORS 94.953 to 94.989:
(1) 'Blanket encumbrance' means any mortgage, deed of trust,
option to purchase, vendor's lien or interest under a contract or
agreement of sale, or other material financing lien or
encumbrance which secures or evidences the obligation to pay
money or to sell or convey on any campgrounds offered for sale,
made available to purchasers by the membership camping operator
or any portion thereof, and which authorizes, permits or requires
the foreclosure or other disposition of the campground affected.
(2) 'Campground' means real property owned or operated by a
membership camping operator which is available for camping by
purchasers of membership camping contracts.
(3) 'Camping site' means a space:
(a) Designed and promoted for the purpose of locating a
trailer, tent, tent trailer, recreational vehicle, pickup camper
or other similar device used for camping; and
(b) With no permanent dwelling on it.
{ - (4) 'Commissioner' means the Real Estate
Commissioner. - }
{ - (5) - } { + (4) + } 'Facilities' means any of the
following amenities provided and located on property owned or
operated by a membership camping operator: Camping sites, rental
trailers, swimming pools, sport courts, recreation buildings and
trading posts or grocery stores.
{ - (6) - } { + (5) + } 'Membership camping contract' means
an agreement offered or sold within this state granting the
purchaser the right or license to use for more than 30 days the
campgrounds and facilities of a membership camping operator and
includes a membership which provides for such use.
{ - (7) - } { + (6) + } 'Membership camping contract
broker' means a person who resells a membership camping contract
to a new purchaser on behalf of the prior purchaser, but does not
include a membership camping operator or its agents.
{ - (8) - } { + (7) + } 'Membership camping operator' means
any person, other than an entity that is tax exempt under section
501 (c)(3) of the Internal Revenue Code of 1954, as amended, that
solicits membership camping contracts paid for by a fee or
periodic payments and has as one purpose camping or outdoor
recreation, including use of camping sites primarily by
purchasers. ' Membership camping operator' does not include:
(a) Mobile home and manufactured dwelling parks or camping or
recreational vehicle parks which are open to the general public
and do not solicit purchases of membership camping contracts, but
rather contain only camping sites rented for per use fee; or
(b) Any person who engages in the business of arranging and
selling reciprocal programs and who does not own campgrounds and
facilities.
{ - (9) - } { + (8) + } 'Offer' means any solicitation
reasonably designed to result in the entering into of a
membership camping contract.
{ - (10) - } { + (9) + } 'Purchaser' means a person who
enters into a membership camping contract and obtains the right
to use campgrounds and outdoor facilities of a membership camping
operator.
{ - (11) - } { + (10) + } 'Sale' or 'sell' means entering
into, or other disposition of, a membership camping contract for
value; however, the term 'value' does not include a fee to offset
the reasonable costs of transfer of a membership camping
contract.
{ - (12) - } { + (11) + } ' Salesperson' means any
individual, other than a membership camping operator, who offers
to sell or sells membership camping contracts by making a direct
sales presentation to prospective purchasers, but does not
include individuals engaged in the referral of persons without
making any representations about the camping program or a direct
sales presentation to prospective purchasers. 'Salesperson' does
not include a campground manager who is authorized in writing to
act on behalf of a membership camping operator in the operation
of a campground and in the supervision of campground employees
and salespersons and who does not offer to sell or sell
membership camping contracts by making a direct sales
presentation to prospective purchasers.
SECTION 107. ORS 94.959 is amended to read:
94.959. (1) A membership camping operator wishing to offer to
sell or sell a membership camping contract in this state shall
register the contract with the Real Estate { - Commissioner - }
{ + Agency + }. The application for registration shall include
all of the following if it is applicable to the membership
camping operator:
(a) Written disclosures, in { - any format the commissioner
is satisfied - } { + a format that + } accurately and clearly
communicates the required information { - , which - } { + to
the satisfaction of the Director of the Real Estate Agency, that
+ }include:
(A) The name and address of the membership camping operator and
any person who, directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common
control with the membership camping operator;
(B) A brief description of the membership camping operator's
experience in the camping club business;
(C) A brief description of the nature of the purchaser's right
or license to use the campground or facilities;
(D) The location and a brief description of the significant
facilities and recreation services then available for use by
purchasers and those which are represented to purchasers as being
planned, together with a brief description of any significant
facilities or recreation services that are or will be available
to nonpurchasers and the price to nonpurchasers therefor;
(E) A brief description of the membership camping operator's
ownership of or other right to use the campground facilities
represented to be available for use by purchasers, together with
a brief description of the duration of any lease, real estate
contract, license franchise or other agreement entitling the
membership camping operator to use the property, and any material
provisions of the agreements which restrict a purchaser's use;
(F) A brief description of any material encumbrance, including
any mortgage, deed of trust, option to purchase, vendor's lien or
interest under a contract or agreement of sale, or other material
financing lien or encumbrance that secures or evidences the
obligation to pay money or to sell or convey, or which authorizes
or requires the foreclosure or other disposition of the
campground affected;
(G) A brief description of any reciprocal agreement allowing
purchasers to use camping sites, facilities or other properties
owned or operated by any person other than the membership camping
operator with whom the purchaser has entered into a membership
camping contract;
(H) A summary or copy of the articles, bylaws, rules,
restrictions or covenants regulating the purchaser's use of each
campground, the facilities located on each property, and any
recreation services provided, including a statement of whether
and how the articles, bylaws, rules, restrictions or covenants
may be changed;
(I) A brief description of all payments of a purchaser under a
membership camping contract, including initial fees and any
further fees, charges or assessments, together with any
provisions for changing the payments;
(J) A description of any restraints on the transfer of
membership camping contracts;
(K) A brief description of the policies relating to the
availability of camping sites and whether reservations are
required;
(L) A brief description of the membership camping operator's
right to change or withdraw from use all or a portion of the
campgrounds or facilities and the extent to which the membership
camping operator is obliged to replace facilities or campgrounds
withdrawn;
(M) A brief description of any grounds for forfeiture of a
purchaser's membership camping contract; and
(N) A copy of the membership camping contract form;
(b) A statement of the total number of membership camping
contracts then in effect, both within and without this state; and
a statement of the total number of membership camping contracts
intended to be sold, both within and without this state, together
with a commitment that the total number will not be exceeded
unless disclosed by amendment to the registration;
(c) If the campground or campgrounds owned or being purchased
by the membership camping operator at the time of registration
are campgrounds on which the membership camping operator or
another membership camping operator previously registered a
membership camping contract with the State of Oregon and sold
memberships under the registered contract and thereafter went out
of business or filed for bankruptcy, the new membership camping
operator shall file with the { - commissioner - }
{ + agency + } at the time of registration a detailed plan
whereunder all membership purchasers from the prior membership
camping operator or operators for the campground or campgrounds
will be offered memberships by the new membership camping
operator despite any rejection or cancellation of the previous
contracts during bankruptcy proceedings of the prior membership
camping operator or operators. Procedures for written notice to
the purchasers and the material terms and conditions of
membership offered by the new campground operator shall be
included in the detailed plan filed with the
{ - commissioner - } { + agency + }. The material terms and
conditions including but not limited to price and terms of
payment offered by the new campground operator or operators shall
not be materially less favorable than the material terms and
conditions offered to new purchasers; and
(d) Any other material information the { - commissioner - }
{ + director + } may, by rule or order, require for the
protection of the purchasers.
(2) The application shall be signed by the membership camping
operator, an officer or general partner of the membership camping
operator or by another person holding a power of attorney for
such purpose from the membership camping operator. If the
application is signed pursuant to a power of attorney, a copy of
the power of attorney shall be included with the application.
(3) The application shall be submitted with the registration
fee.
(4) An application for registration to offer or sell membership
camping contracts shall be amended when a material change from
the information previously filed occurs. Such amendment shall be
filed with the { - commissioner - } { + agency + } within 10
days after the membership camping operator knows of such change.
(5) In place of the disclosures required with the application
for registration, the { - commissioner - } { + director + }
may accept a public report or other disclosure from another state
in which the membership camping operator has registered.
SECTION 108. ORS 94.965 is amended to read:
94.965. The application for registration shall automatically
become effective upon the expiration of 45 calendar days
following filing of a completed application with the Real Estate
{ - Commissioner - } { + Agency + } unless:
(1) The application for registration is denied under ORS
94.968;
(2) The { - commissioner - } { + agency + } grants the
registration effective as of an earlier date; or
(3) The applicant consents to a delay of the effective date.
SECTION 109. ORS 94.968 is amended to read:
94.968. (1) The { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } may order that a
registration of an offer or sale of membership camping contracts
be denied, suspended or revoked if the { - commissioner - }
{ + director + } makes findings pursuant to ORS 183.430 that any
of the following is true:
(a) The membership camping operator has failed to comply with
any provisions of ORS 94.953 to 94.989 which materially affect
the rights of purchasers or prospective purchasers of membership
camping contracts.
(b) The membership camping operator is representing to
purchasers in connection with the offer or sale of a membership
camping contract that any campground or facilities are planned
without reasonable grounds to believe that the campground or
facilities will be completed within a reasonable time.
(c) The membership camping operator's offering of membership
camping contracts works a fraud on purchasers or owners of
membership camping contracts.
(2) Proceedings for suspending, revoking or denying a
registration shall be governed by ORS chapter 183.
(3) If the { - commissioner - } { + director + } finds that
immediate suspension of a registration is necessary to protect
purchasers or owners from fraud, the { - commissioner - }
{ + director + } may order any person subject to ORS 94.953 to
94.989 to desist from such conduct and may suspend the
registration immediately. Affected persons shall be entitled to a
hearing as in the case of license suspension under ORS 183.430.
(4) If the { - commissioner - } { + director + } finds that
a membership camping operator or other person is violating any of
the provisions of ORS 94.953 to 94.989, the
{ - commissioner - } { + director + } may order the person to
desist and refrain from violating the provisions and from the
further offering and sale of membership camping contracts.
(5) If the { - commissioner - } { + director + } finds that
a membership camping operator or other person is violating, has
violated or is about to violate, any of the provisions of ORS
94.953 to 94.989, the { - commissioner - } { + director + }
may bring an action in the circuit court of the county where the
violation or threatened violation has occurred or is about to
occur, or in the county where the person resides or carries on
business, in the name of and on behalf of the people of the State
of Oregon against the person participating in the violation, to
enjoin the person from continuing or engaging in the violation or
doing any act in furtherance of the violation, and to apply for
the appointment of a receiver or conservator of the assets of the
defendant if appropriate.
SECTION 110. ORS 94.971 is amended to read:
94.971. (1) The fee for registration or amendment of an offer
or sale of a membership camping contract shall be an amount
sufficient to recover any administrative expenses in staff review
and action upon the registration or amendment. The fee is subject
to the review of the Oregon Department of Administrative
Services. The { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } shall set an estimated fee
to be paid with the application. The final fee shall be paid
before final registration becomes effective.
(2) { - No - } { + A + } fee { - shall be - } { + is
not + } required for an amendment unless additional work is
required { + on disclosures + } by { + the + } Real Estate
Agency { - staff on disclosures - } .
(3) The fee for registration or renewal of an existing
registration of a broker or salesperson is $50.
SECTION 111. ORS 94.974 is amended to read:
94.974. (1) Except in a transaction exempt under ORS 94.962,
any person who sells a membership camping contract shall provide
the prospective purchaser with those written disclosures required
under ORS 94.959. Disclosures shall be substantially accurate and
complete and made to a prospective purchaser before the
prospective purchaser signs a membership camping contract or
gives any consideration for the purchase of such contract. The
person shall take a receipt from the prospective purchaser upon
delivery of the disclosures. Each receipt shall be kept on file
by the membership camping operator within this state subject to
inspection by the Real Estate { - Commissioner or the
commissioner's authorized representative - } { + Agency + } for
a period of three years from the date the receipt is taken.
(2) Records of the sale of membership camping contracts shall
be subject to inspection by the { - commissioner or the
commissioner's authorized representative - } { + agency + }.
Any list identifying campground members obtained by the
{ - commissioner or the commissioner's authorized representative
shall be - } { + agency is + } exempt from disclosure, as trade
secrets, to any person, public body or state agency, under ORS
192.501.
SECTION 112. ORS 94.975 is amended to read:
94.975. { - No - } { + A + } person { - shall - } { +
may not + }, in connection with an offering or sale of a
membership camping contract:
(1) Employ any device, scheme or artifice to defraud;
(2) Make any untrue statement of a material fact;
(3) Fail to state a material fact necessary to make a statement
clear;
(4) Issue, circulate or publish any prospectus, circular,
advertisement, printed matter, document, pamphlet, leaflet or
other literature containing an untrue statement of a material
fact or that fails to state a material fact necessary to make the
statements made in the literature not misleading;
(5) Issue, circulate or publish any advertising matter or make
any written representation, unless the name of the person
issuing, circulating or publishing the matter or making the
representation is clearly indicated; or
(6) Make any statement or representation, or issue, circulate
or publish any advertising matter containing any statement that
the membership camping contract has been in any way approved or
{ - indorsed - } { + endorsed + } by the Real Estate
{ - Commissioner - } { + Agency + }.
SECTION 113. ORS 94.980 is amended to read:
94.980. (1) A salesperson or membership camping contract broker
may apply for registration by filing with the Real Estate
{ - Commissioner - } { + Agency + } an application which
includes the following information:
(a) A statement whether or not the applicant has been convicted
of any misdemeanor or felony involving theft, fraud or dishonesty
or whether or not the applicant has been enjoined from, had any
civil penalty assessed for, or been found to have engaged in any
violation of any act designed to protect consumers; and
(b) A statement describing the applicant's employment history
for the past five years and whether or not any termination of
employment during the last five years was occasioned by any
theft, fraud or act of dishonesty.
(2) Each applicant for initial registration shall submit to
fingerprinting and provide to the { - commissioner - }
{ + agency + } as part of the application a recent photograph of
the applicant. The registration must be accompanied by a written
acceptance of the applicant as a salesperson signed by the
membership camping operator with whom the salesperson will be
associated.
(3) The { - commissioner - } { + Director of the Real
Estate Agency + } may deny, suspend or revoke a salesperson's or
membership camping contract broker's application for registration
or the salesperson's or membership camping contract broker's
registration if the { - commissioner - } { + director + }
finds that the order is necessary for the protection of
purchasers or owners of membership camping contracts and that the
applicant or registrant:
(a) Has been convicted of any misdemeanor or felony or has been
enjoined from, had any civil penalty assessed for, or been found
to have engaged in any violation of any act designed to protect
consumers;
(b) Has violated any material provision of ORS 94.925 to
94.983; or
(c) Has engaged in fraudulent or deceitful practices in any
industry involving sales to consumers.
(4) Registration shall be effective for a period of one year.
Registration shall be renewed annually by the filing of a form
prescribed by the { - commissioner - } { + director + } for
that purpose. The completed application for registration or
renewal shall automatically become effective upon the expiration
of 30 business days following filing with the
{ - commissioner - } { + agency + }, unless:
(a) The application has been denied under subsection (3) of
this section;
(b) The { - commissioner - } { + agency + } grants the
registration effective as of an earlier date; or
(c) The applicant or registrant consents to delay of the
effective date.
(5) During the effective period of a salesperson's
registration, the salesperson may transfer to a new membership
camping operator by requesting the operator to return the
salesperson's registration to the { - commissioner - }
{ + agency + } and filing with the { - commissioner - }
{ + agency + } a written acceptance of the salesperson's
transfer signed by the membership camping operator with whom the
salesperson will be associated following the transfer. Upon
receipt of the salesperson's registration and payment to the
{ - commissioner - } { + agency + } of a $10 transfer fee, the
{ - commissioner - } { + director + } may issue a
registration for the salesperson to the new membership camping
operator. Upon the request of a salesperson, a membership camping
operator shall promptly return the registration of the
salesperson to the
{ - commissioner - } { + agency + }.
(6) A salesperson's registration granted under this section
shall be issued to a membership camping operator who signed the
written acceptance accompanying the initial registration
application or transfer request. A salesperson's registration
entitles the salesperson to sell membership camping contracts
only for any campground operated by the membership camping
operator under the supervision of the operator. If the
salesperson terminates sales activity for any reason, the
membership camping operator shall return the registration of the
salesperson to the
{ - commissioner - } { + agency + } without delay.
(7) If an applicant for registration has an active real estate
license outstanding, the applicant must place the real estate
license on inactive status before issuance of the registration by
the { - commissioner - } { + director + }. A salesperson or
membership camping contract broker may not reactivate an inactive
real estate license during any term of registration as a
salesperson or membership camping contract broker.
SECTION 114. ORS 94.986 is amended to read:
94.986. With respect to any campground offered for sale in this
state and acquired and put into operation by a membership camping
operator after September 1, 1985, the membership camping operator
shall not sell membership camping contracts in this state
granting the right to use such campground until one of the
following requirements has been satisfied:
(1) Each person holding an interest in a blanket encumbrance
executes and delivers to the Real Estate { - Commissioner - }
{ + Agency + } a nondisturbance agreement and records
{ - such - } { + the + } agreement in the real estate records
of the county in which the campground is located. 'Nondisturbance
agreement' means an instrument by which the holder of a blanket
encumbrance agrees that the holder's rights in the campground
shall be subordinate to the rights of any membership camping
contract purchaser. Every nondisturbance agreement must contain a
covenant by the lienholder that the lienholder, its successors,
and anyone who acquires the campground property through the
blanket lien shall not use, or cause or permit the property to be
used in a manner that prevents a membership camping contract
purchaser from using, the campground property in the manner
contemplated by the membership camping contract. The lienholder's
agreement not to disturb a membership camping contract purchaser
may require as a continuing condition that the purchaser perform
all obligations and make all payments due under any membership
camping contract for the purchaser's campground interest and, if
the membership camping contract is held as a leasehold, under the
lease for the purchaser's campground interest. The nondisturbance
agreement shall also contain provisions setting forth each of the
following:
(a) The nondisturbance agreement may be enforced by purchasers
of membership camping contracts. If the membership camping
operator is not in default under its obligations to the holder of
the blanket encumbrance, the agreement may be enforced by both
the membership camping operator and the purchasers.
(b) The nondisturbance agreement is effective as between each
purchaser and the holder of the blanket encumbrance despite any
rejection or cancellation of the purchaser's contract during
bankruptcy proceedings of the membership camping operator.
(c) The agreement is binding upon the successors in interest of
both the membership camping operator and the holder of the
blanket encumbrance.
(d) A holder of the blanket encumbrance who obtains title or
possession, or who causes a change in title or possession in a
campground by foreclosure or otherwise, and who does not continue
to operate the campground upon conditions no less favorable to
members than existed prior to the change of title or possession
shall:
(A) Offer the title or possession of the campground to an
association of members to operate the campground; or
(B) Obtain a commitment from another entity that obtains title
or possession to undertake the responsibility for operation of
the campground.
(2) If a financial institution, acting as hypothecation lender
and providing the major hypothecation loan to the membership
camping operator, has a lien on, or security interest in, the
membership camping operator's interest in the campground, the
financial institution shall execute and deliver to the
{ - commissioner - } { + agency + } a nondisturbance
agreement and record { - such - } { + the + } agreement in the
real estate records of the county in which the campground is
located. In addition, each person holding an interest in any
blanket encumbrance superior to the interest held by the
financial institution shall execute, deliver and record an
instrument stating that such person shall give the financial
institution notice of, and at least 30 days to cure, any default
under the blanket encumbrance before such person commences any
foreclosure action affecting the campground. For the purposes of
this provision, a major hypothecation loan to a membership
camping operator is a loan or line of credit secured by
substantially all of the contracts receivable arising from the
membership camping operator's sale of membership camping
contracts.
(3) There shall have been delivered to and accepted by the
{ - commissioner - } { + Director of the Real Estate
Agency + } a surety bond or letter of credit with the
{ - commissioner - } { + director + } as obligee for the
benefit of purchasers. The bond or letter of credit must be in an
amount { - which - } { + that + } is not less than 105
percent of the remaining principal balance of every indebtedness
secured by the blanket encumbrance affecting the campground. Any
such bond must be issued by a surety authorized to do business in
this state and having sufficient net worth to satisfy the
indebtedness. Any such letter of credit must be irrevocable and
must be drawn upon a bank, savings and loan association or other
financial institution acceptable to the { - commissioner - }
{ + director + }. The bond or letter of credit shall provide
for payment of all amounts secured by the blanket encumbrance,
including costs, expenses and legal fees of the lienholder, if
for any reason the blanket encumbrance is enforced. The bond or
letter of credit may be reduced periodically in proportion to the
reduction of the amounts secured by the blanket encumbrance.
(4) There have been delivered to and accepted by the
{ - commissioner - } { + director + } other financial
assurances { - which the commissioner - } { + that the
director + } finds are acceptable to carry into effect the intent
and provisions of this section.
SECTION 115. ORS 94.987 is amended to read:
94.987. (1)(a) Upon petition by the Real Estate
{ - Commissioner - } { + Agency + } or a majority of active
purchasers not then in default under their membership camping
contracts, a court of competent jurisdiction may declare a
failure of management of the membership camping operator and
appoint a trustee to assume the membership camping operator's
duties under the membership camping contracts, if the court finds
that:
(A) Irreparable injury to the rights of the purchasers is
likely to occur unless a trustee is appointed; and
(B) There is no reasonable alternative to appointment of a
trustee.
(b) For purposes of this subsection, 'active purchaser ' means
a current, dues-paying member of the membership camping operator.
(2) The court may attach such conditions and terms to its
appointment of a trustee under subsection (1) of this section as
the court considers necessary to protect the rights of the
purchasers under the membership camping contract. The trustee
shall provide a copy of the court's decision in such a case to
the
{ - commissioner - } { + agency + }.
(3) If the court petitioned under subsection (1) of this
section finds that there is a reasonable alternative to the
appointment of a trustee, the court may order the membership
camping operator to carry out the reasonable alternative and may
attach to its order such terms and conditions as it considers
necessary to protect the rights of the purchasers under the
membership camping contracts.
SECTION 116. ORS 100.005 is amended to read:
100.005. As used in this chapter, unless the context requires
otherwise:
(1) 'Assessment' means any charge imposed or levied by the
association of unit owners on or against a unit owner or unit
pursuant to provisions of the declaration or the bylaws of the
condominium or provisions of ORS 100.005 to 100.910.
(2) 'Association of unit owners' means the association provided
for under ORS 100.405.
(3) 'Association property' means any real property or interest
in real property acquired, held or possessed by the association
under ORS 100.405.
(4) 'Blanket encumbrance' means a trust deed or mortgage or any
other lien or encumbrance, mechanic's lien or otherwise, securing
or evidencing the payment of money and affecting more than one
unit in a condominium, or an agreement affecting more than one
such unit by which the developer holds such condominium under an
option, contract to sell or trust agreement.
(5) 'Building' means a multiple-unit building or single-unit
buildings, or any combination thereof, comprising a part of the
property. 'Building' also includes a floating structure described
in ORS 100.020 (3)(b)(D).
{ - (6) 'Commissioner' means the Real Estate
Commissioner. - }
{ - (7) - } { + (6) + } 'Common elements' means the general
common elements and the limited common elements.
{ - (8) - } { + (7) + } 'Common expenses' means:
(a) Expenses of administration, maintenance, repair or
replacement of the common elements;
(b) Expenses agreed upon as common by all the unit owners; and
(c) Expenses declared common by ORS 100.005 to 100.625 or by
the declaration or the bylaws of the particular condominium.
{ - (9) - } { + (8) + } 'Condominium' means:
(a) With respect to property located within this state:
(A) The land, if any, whether fee simple, leasehold, easement
or other interest or combination thereof, and whether contiguous
or noncontiguous;
(B) Any buildings, improvements and structures on the property;
and
(C) Any easements, rights and appurtenances belonging to the
property submitted to the provisions of ORS 100.005 to 100.625;
and
(b) With respect to property located outside this state, the
property that has been committed to the condominium form of
ownership in accordance with the jurisdiction within which the
property is located.
{ - (10) - } { + (9) + } 'Conversion condominium' means a
condominium in which there is a building, improvement or
structure that was occupied prior to any negotiation and that is:
(a) Residential in nature, at least in part; and
(b) Not wholly commercial or industrial, or commercial and
industrial, in nature.
{ - (11) - } { + (10) + } 'Declarant' means a person who
records a declaration under ORS 100.100 or a supplemental
declaration under ORS 100.110.
{ - (12) - } { + (11) + } 'Declaration' means the
instrument described in ORS 100.100 by which the condominium is
created and as modified by any amendment recorded in accordance
with ORS 100.135 or supplemental declaration recorded in
accordance with ORS 100.120.
{ - (13) - } { + (12) + } 'Developer' means a declarant or
any person who purchases an interest in a condominium from
declarant, successor declarant or subsequent developer for the
primary purpose of resale.
{ - (14) - } { + (13) + } 'Dwelling unit,' 'premises,'
'rental agreement' and 'tenant' mean those terms as defined in
ORS 90.100.
{ - (15) - } { + (14) + } 'Flexible condominium' means a
condominium containing property that may be reclassified or
withdrawn from the condominium pursuant to ORS 100.150 (1).
{ - (16) - } { + (15) + } 'General common elements,' unless
otherwise provided in a declaration, means all portions of the
condominium that are not part of a unit or a limited common
element, including but not limited to the following:
(a) The land, whether fee simple, leasehold, easement, other
interest or combination thereof, together with any rights and
appurtenances;
(b) The foundations, columns, girders, beams, supports, bearing
and shear walls, roofs, halls, corridors, lobbies, stairs, fire
escapes, entrances and exits of a building;
(c) The basements, yards, gardens, parking areas and outside
storage spaces;
(d) Installations of central services such as power, light,
gas, hot and cold water, heating, refrigeration, air
conditioning, waste disposal and incinerating;
(e) The elevators, tanks, pumps, motors, fans, compressors,
ducts and in general all apparatus and installations existing for
common use;
(f) The premises for the lodging of janitors or caretakers of
the property; and
(g) All other elements of a building and the condominium
necessary or convenient to their existence, maintenance and
safety, or normally in common use.
{ - (17) - } { + (16) + } 'Leasehold' means the interest of
a person, firm or corporation who is the lessee under a lease
from the owner in fee and who files a declaration creating a
condominium under ORS 100.100.
{ - (18) - } { + (17) + } 'Limited common elements' means
those common elements designated in the declaration, as reserved
for the use of a certain unit or number of units, to the
exclusion of the other units.
{ - (19) - } { + (18) + } 'Majority' or 'majority of unit
owners' means more than 50 percent of the voting rights allocated
to the units by the declaration.
{ - (20) - } { + (19) + } 'Negotiation' means any activity
preliminary to the execution by either developer or purchaser of
a unit sales agreement, including but not limited to advertising,
solicitation and promotion of the sale of a unit.
{ - (21) - } { + (20) + } 'Nonwithdrawable property' means
property which pursuant to ORS 100.150 (1)(b):
(a) Is designated nonwithdrawable in the declaration and on the
plat; and
(b) Which may not be withdrawn from the condominium without the
consent of all of the unit owners.
{ - (22) - } { + (21) + } 'Percent of owners' or
'percentage of owners ' means the percent of the voting rights
determined under ORS 100.525.
{ - (23) - } { + (22) + } 'Purchaser' means an actual or
prospective purchaser of a condominium unit pursuant to a sale.
{ - (24) - } { + (23) + } 'Recording officer' means the
county officer charged with the duty of filing and recording
deeds and mortgages or any other instruments or documents
affecting the title to real property.
{ - (25) - } { + (24) + } 'Reservation agreement' means an
agreement relating to the future sale of a unit { - which - }
{ + that + } is not binding on the purchaser and { - which - }
{ + that + } grants purchaser the right to cancel the agreement
without penalty and obtain a refund of any funds deposited at any
time until purchaser executes a unit sales agreement.
{ - (26) - } { + (25) + } 'Sale' includes every disposition
or transfer of a condominium unit, or an interest or estate
therein, by a developer, including the offering of the property
as a prize or gift when a monetary charge or consideration for
whatever purpose is required by the developer. 'Interest or
estate' includes a lessee's interest in a unit for more than
three years or less than three years if the interest may be
renewed under the terms of the lease for a total period of more
than three years. 'Interest or estate' does not include any
interest held for security purposes or a timeshare regulated or
otherwise exempt under ORS 94.803 and 94.807 to 94.945.
{ - (27) - } { + (26) + } 'Special declarant right' means
any right, in addition to the regular rights of the declarant as
a unit owner, reserved for the benefit of or created by the
declarant under the declaration, bylaws or the provisions of this
chapter.
{ - (28) - } { + (27) + } 'Staged condominium' means a
condominium
{ - which - } { + that + } provides for annexation of
additional property pursuant to ORS 100.115 and 100.120.
{ - (29) - } { + (28) + } ' Successor declarant' means the
transferee of any special declarant right.
{ - (30) - } { + (29) + } 'Termination date' means that
date described in ORS 100.105 (2)(b) or (7)(d).
{ - (31) - } { + (30) + } 'Transitional committee' means
the committee provided for under ORS 100.205.
{ - (32) - } { + (31) + } 'Turnover meeting' means the
meeting provided for under ORS 100.210.
{ - (33) - } { + (32) + } 'Unit' or 'condominium unit'
means a part of the property { - which - } { + that + }:
(a) Is described in ORS 100.020 (3);
(b) Is intended for any type of independent ownership; and
(c) The boundaries of which are described pursuant to ORS
100.105 (1)(d).
{ - (34) - } { + (33) + } 'Unit designation' means the
number, letter or combination thereof designating a unit in the
declaration and on the plat.
{ - (35) - } { + (34) + } 'Unit owner' means, except to the
extent the declaration or bylaws provide otherwise, the person
owning fee simple interest in a unit, the holder of a vendee's
interest in a unit under a recorded installment contract of sale
and, in the case of a leasehold condominium, the holder of the
leasehold estate in a unit.
{ - (36) - } { + (35) + } 'Unit sales agreement' means a
written offer or agreement for the sale of a condominium unit
{ - which - } { + that, + } when fully executed { + , + } will
be binding on all parties. 'Unit sales agreement' includes but is
not limited to an earnest money receipt and agreement to purchase
and other such agreements
{ - which - } { + that + } serve as an agreement of sale for
a cash transaction or { - which - } { + that + } are
preliminary to the execution of an installment contract of sale,
but does not include a reservation agreement.
{ - (37) - } { + (36) + } 'Variable property' means
property described in ORS 100.150 (2) and designated as variable
property in the declaration and on the plat.
{ - (38) - } { + (37) + } 'Voting rights' means the portion
of the votes allocated to a unit by the declaration in accordance
with ORS 100.105 (1)(i).
SECTION 117. ORS 100.015 is amended to read:
100.015. The { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } may adopt { - such rules
as - } { + rules that + } are necessary for the administration
of this chapter.
SECTION 118. ORS 100.105 is amended to read:
100.105. (1) A declaration shall contain:
(a) A description of the property, including property on which
a unit or a limited common element is located, whether held in
fee simple, leasehold, easement or other interest or combination
thereof, that is being submitted to the condominium form of
ownership and that conforms to the description in the surveyor's
certificate provided under ORS 100.115 (2).
(b) Subject to subsection (11) of this section, a statement of
the interest in the property being submitted to the condominium
form of ownership, whether fee simple, leasehold, easement or
other interest or combination thereof.
(c) Subject to subsection (5) of this section, the name by
which the property shall be known and a general description of
each unit and the building or buildings, including the number of
stories and basements of each building, the total number of units
and the principal materials of which they are constructed.
(d) The unit designation, a statement that the location of each
unit is shown on the plat, a description of the boundaries and
area in square feet of each unit and any other data necessary for
proper identification. The area of a unit shall be the same as
shown for that unit on the plat described in ORS 100.115 (2).
(e) A description of the general common elements.
(f) An allocation to each unit of an undivided interest in the
common elements in accordance with ORS 100.515 and the method
used to establish the allocation.
(g) The designation of any limited common elements including:
(A) A general statement of the nature of the limited common
element;
(B) A statement of the unit to which the use of each limited
common element is reserved, provided the statement is not a
reference to an assignment of use specified on the plat; and
(C) The allocation of use of any limited common element
appertaining to more than one unit.
(h) The method of determining liability for common expenses and
right to common profits in accordance with ORS 100.530.
(i) The voting rights allocated to each unit in accordance with
ORS 100.525 or in the case of condominium units committed as
property in a timeshare plan defined in ORS 94.803, the voting
rights allocated in the timeshare instrument.
(j) A statement of the use, residential or otherwise, for which
the building or buildings and each of the units is intended.
(k) A statement that the designated agent to receive service of
process in cases provided in ORS 100.550 (1) is named in the
Condominium Information Report { + , + } which will be filed with
the Real Estate Agency in accordance with ORS 100.250 (1)(a).
(L) The method of amending the declaration and the percentage
of voting rights required to approve an amendment of the
declaration in accordance with ORS 100.135.
(m) A statement as to whether or not the association of unit
owners pursuant to ORS 100.405 (5) and (8) has authority to grant
leases, easements, rights of way, licenses and other similar
interests affecting the general and limited common elements of
the condominium and consent to vacation of roadways within and
adjacent to the condominium.
(n) If the condominium contains a floating structure described
in ORS 100.020 (3), a statement regarding the authority of the
board of directors of the association, subject to ORS 100.410, to
temporarily relocate the floating structure without a majority
vote of affected unit owners.
(o) Any restrictions on alienation of units. Any such
restrictions created by documents other than the declaration may
be incorporated by reference in the declaration to the official
records of the county in which the property is located.
(p) Any other details regarding the property that the person
executing the declaration considers desirable. However, if a
provision required to be in the bylaws under ORS 100.415 is
included in the declaration, the voting requirements for amending
the bylaws shall also govern the amendment of the provision in
the declaration.
(2) In the event the declarant proposes to annex additional
property to the condominium under ORS 100.125, the declaration
shall also contain a general description of the plan of
development, including:
(a) The maximum number of units to be included in the
condominium.
(b) The date after which any right to annex additional property
will terminate.
(c) A general description of the nature and proposed use of any
additional common elements which declarant proposes to annex to
the condominium, if such common elements might substantially
increase the proportionate amount of the common expenses payable
by existing unit owners.
(d) A statement that the method used to establish the
allocation of undivided interest in the common elements, the
method used to determine liability for common expenses and right
to common profits and the method used to allocate voting rights
for each unit annexed shall be as stated in the declaration in
accordance with subsection (1)(f), (h) and (i) of this section.
(e) { - Such - } Other information { - as - }
{ + required by + } the Real Estate
{ - Commissioner shall require in order - } { + Agency + } to
carry out the purposes of ORS 100.015, 100.635 to 100.730 and
100.740 to 100.910.
(3) Except where expressly prohibited by the declaration and
subject to the requirements of ORS 100.135 (2) and subsections
(9) and (10) of this section:
(a) Not later than two years following the termination dates
specified in subsections (2)(b) and (7)(d) of this section, such
termination dates may be extended for a period not exceeding two
years; and
(b) The general description under subsection (2)(c) of this
section and the information included in the declaration in
accordance with subsection (7)(c), (g) and (h) of this section
may be changed by an amendment to the declaration.
(4) The information included in the declaration in accordance
with subsection (2)(a) and (d) of this section and subsection
(7)(a), (b), (e), (f) and (k) of this section may not be changed
unless all owners agree to the change and record an amendment to
the declaration in accordance with this chapter.
(5) The name of the property shall include the word '
condominium' or 'condominiums' or the words 'a condominium. '
(6) A condominium may not bear a name { - which - }
{ + that + } is the same as or deceptively similar to the name
of any other condominium located in the same county.
(7) If the condominium is a flexible condominium containing
variable property, the declaration shall also contain a general
description of the plan of development, including:
(a) A statement that the rights provided for under ORS 100.150
(1) are being reserved.
(b) A statement:
(A) Of any limitations on rights reserved under ORS 100.150
(1), including whether the consent of any unit owner shall be
required, and if so, a statement of the method by which the
consent shall be ascertained; or
(B) That there are no limitations on rights reserved under ORS
100.150 (1).
(c) A statement of the total number of tracts of variable
property within the condominium, including:
(A) A designation of each tract as withdrawable or
nonwithdrawable variable property;
(B) Identification of each variable tract by a label in
accordance with ORS 100.115 (2)(i);
(C) A statement of the method of labeling each tract depicted
on the plat in accordance with ORS 100.115 (2)(i); and
(D) A statement of the total number of tracts of each type of
variable property.
(d) The termination date, which is the date or time period
after which any right reserved under ORS 100.150 (1) will
terminate, and a statement of the circumstances, if any, that
will terminate any right on or before the date or time period
specified. The date or time period may not exceed seven years
from the recording of the conveyance of the first unit in the
condominium to a person other than the declarant. Recording shall
be in the county in which the property is located.
(e) The maximum number of units that may be created.
(f) A statement that the method used to establish the
allocations of undivided interest in the common elements, the
method used to determine liability for common expenses and right
to common profits and the method used to allocate voting rights
as additional units are created shall be the same as stated in
the declaration in accordance with subsection (1)(f), (h) and (i)
of this section.
(g) A general description of all existing improvements and the
nature and proposed use of any improvements that may be made on
variable property if the improvements might substantially
increase the proportionate amount of the common expenses payable
by existing unit owners.
(h) A statement of whether or not the declarant reserves the
right to create limited common elements within any variable
property, and if so, a general description of the types that may
be created.
(i) A statement that the plat shows the location and dimensions
of all withdrawable variable property that is labeled '
WITHDRAWABLE VARIABLE PROPERTY. '
(j) A statement that if by the termination date all or a
portion of the withdrawable variable property has not been
withdrawn or reclassified, the withdrawable property shall
automatically be withdrawn from the condominium as of the
termination date.
(k) A statement of the rights of the association under ORS
100.155 (2).
(L) A statement of whether or not all or any portion of the
variable property may not be withdrawn from the condominium and,
if so, with respect to the nonwithdrawable variable property:
(A) A statement that the plat shows the location and dimensions
of all nonwithdrawable property that is labeled ' NONWITHDRAWABLE
VARIABLE PROPERTY. '
(B) A description of all improvements that may be made and a
statement of the intended use of each improvement.
(C) A statement that, if by the termination date all or a
portion of the variable property designated as 'nonwithdrawable
variable property' has not been reclassified, the property shall
automatically be reclassified as of the termination date as a
general common element of the condominium and any interest in
such property held for security purposes shall be automatically
extinguished by such classification.
(D) A statement of the rights of the association under ORS
100.155 (3).
(m) A statement by the local governing body or appropriate
department thereof that the withdrawal of any variable property
designated as 'withdrawable variable property' in the declaration
in accordance with paragraph (L) of this subsection, will not
violate any applicable planning or zoning regulation or
ordinance. The statement may be attached as an exhibit to the
declaration.
(8) The plan of development for any variable property included
in the declaration or any supplemental declaration of any stage
in accordance with subsection (7) of this section shall be
subject to any plan of development included in the declaration in
accordance with subsection (2) of this section, except that the
time limitation specified in subsection (7)(d) of this section
shall govern any right reserved under ORS 100.150 (1) with
respect to any variable property.
(9) The information included in the declaration in accordance
with subsection (7)(j), (k) and (m) of this section may not be
deleted by amendment.
(10) Approval by the unit owners shall not be required to
redesignate variable property as 'nonwithdrawable variable
property' by supplemental declaration or amendment if such
redesignation is required by the local governing body or
appropriate department thereof to comply with any planning or
zoning regulation or ordinance. If as a result of such
redesignation the information required to be included in the
supplemental declaration or an amendment under subsection
(7)(L)(B) of this section is inconsistent with the information
included in the declaration or supplemental declaration in
accordance with subsection (7)(g) of this section, an amendment
to the declaration approved by at least 75 percent of owners
shall be required.
(11) The statement of an interest in property other than fee
simple submitted to the condominium form of ownership and any
easements, rights or appurtenances belonging to property
submitted to the condominium form of ownership, whether leasehold
or fee simple, shall include:
(a) A reference to the recording index numbers and date of
recording of the instrument creating the interest; or
(b) A reference to the law, administrative rule, ordinance or
regulation that creates the interest if the interest is created
under law, administrative rule, ordinance or regulation and not
recorded in the office of the recording officer of the county in
which the property is located.
SECTION 119. ORS 100.110 is amended to read:
100.110. (1) Before a declaration, supplemental declaration or
an amendment thereto may be recorded, it must be approved as
provided in this section by the county assessor and the
{ + Director of the + } Real Estate { - Commissioner - } { +
+ } { + Agency + }. Before a declaration or supplemental
declaration may be recorded, it must be approved by the tax
collector of the county in which the property is located. A
declaration or amendment thereto may not be approved unless the
requirements of subsections (2) to (6) of this section are met.
Approval shall be evidenced by execution of the declaration or
amendment or by a written approval attached thereto.
(2) The county assessor of the county in which the property is
located shall approve a declaration, supplemental declaration or
amendment thereto if:
(a) The name complies with ORS 100.105 (5) and (6); and
(b) The plat and floor plans comply with the requirements of
ORS 100.115.
(3) The tax collector of the county in which the property is
located shall approve the declaration or supplemental
declaration, or an amendment that adds property to the
condominium or changes the boundary of a unit for which a plat is
required under ORS 100.115 (9)(a), if:
(a) All ad valorem taxes, special assessments, fees, or other
charges required by law to be placed upon the tax roll which have
or will become a lien upon the property during the tax year have
been paid;
(b) Advance payment of ad valorem taxes, special assessments,
fees or other charges which are not on the tax roll and for which
payment is required under paragraph (a) of this subsection has
been made to the tax collector utilizing the procedures contained
in ORS 92.095 and 311.370; and
(c) The additional taxes, penalty, and any interest
attributable thereto, required because of disqualification of the
property from any special assessment have been paid.
(4) Subject to subsection (5) of this section, the
{ - commissioner - } { + director + } shall approve the
declaration or amendment thereto if:
(a) The declaration or the amendment thereto complies with the
requirements of ORS 100.105 and 100.135;
(b) The bylaws adopted under ORS 100.410 comply with the
requirements of ORS 100.410 and 100.415;
(c) The plat and floor plans comply with the requirements of
ORS 100.115;
(d) The declaration is for a conversion condominium and the
declarant has submitted:
(A) An affidavit that the notice of conversion was given in
accordance with ORS 100.305 and that the notice period has
expired;
(B) An affidavit that the notice of conversion was given in
accordance with ORS 100.305 and copies of the written consent of
any tenants who received the notice of conversion before
expiration of the notice; or
(C) Any applicable combination of the requirements of
subparagraphs (A) and (B) of this paragraph; and
(e) A paper copy of the plat executed by the declarant and
prepared in conformance with ORS 100.115 and a certification of
plat execution, on a form prescribed and furnished by the
{ - commissioner - } { + director + }, have been submitted
stating that the paper copy is a true copy of the plat signed by
the declarant. The certification may be executed by the
declarant, the professional land surveyor who signed the
surveyor's certificate on the plat, the attorney for the
declarant, a representative of the title insurance company that
issued the information required under ORS 100.640 (5) or 100.660
(2)(d) or another person authorized by the declarant in writing
to execute the certification.
(5) Approval by the { - commissioner shall not be - }
{ + director is not + }required for an amendment to a
declaration transferring the right of use of a limited common
element pursuant to ORS 100.515 (5).
(6) Before the { - commissioner - } { + director + }
approves the declaration or amendment thereto under this section:
(a) The declarant shall pay to the { - commissioner - }
{ + Real Estate Agency + } a fee determined by the
{ - commissioner - } { + director + } under ORS 100.670; and
(b) For an amendment, the Condominium Information Report and
the Annual Report described in ORS 100.260 shall be designated
current by the { - Real Estate - } agency as provided in ORS
100.255 and the fee required under ORS 100.670 shall be paid.
(7) If the declaration or amendment thereto approved by the
{ - commissioner - } { + director + } under subsection (4) of
this section is not recorded in accordance with ORS 100.115
within two years from the date of approval by the
{ - commissioner - } { + director + }, the approval shall
automatically expire and the declaration or amendment
{ - thereto - } must be resubmitted for approval in accordance
with this section. The { - commissioner's - }
{ + director's + } approval shall set forth the date on which
the approval will expire.
SECTION 120. ORS 100.135 is amended to read:
100.135. (1) Unless otherwise provided in the declaration, an
amendment to the declaration may be proposed by a majority of the
board of directors of the association of unit owners or by at
least 30 percent of the unit owners.
(2) Except as otherwise provided in ORS 100.005 to 100.625, an
amendment of the declaration is not effective unless:
(a) The amendment is approved by the unit owners as provided in
this section and the { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + } and county assessor
according to ORS 100.110; and
(b) The amendment, certified by the chairperson and secretary
of the association of unit owners as being adopted in accordance
with the declaration and the provisions of this section and
acknowledged in the manner provided for acknowledgment of deeds,
is recorded notwithstanding a provision in a declaration,
including a declaration recorded before January 1, 2002, that
requires amendments to be executed and acknowledged by all owners
approving the amendment.
(3) Except as otherwise provided in ORS 100.105 or 100.130 or
this section, the declaration may be amended only with the
approval of at least 75 percent of owners, or such greater
percentage as may be required by the declaration.
(4) Unless the declaration requires a greater percentage:
(a) The declaration and plat may be amended to change a general
common element to a limited common element or change the boundary
of a limited common element with the approval of at least 75
percent of owners and approval of the owners of all units to
which the limited common element appertains.
(b) The declaration may be amended to change a limited common
element, or portion thereof, to a general common element with the
approval of the owners of all units to which the limited common
element appertains and the board of directors.
(5)(a) Except as otherwise provided in ORS 100.120, 100.130,
100.515, 100.600, 100.605 and 100.625 and paragraph (b) of this
subsection or other provisions of the Oregon Condominium Act, an
amendment that changes the boundary of the property or a unit
shall be approved by all unit owners. Such amendment shall
constitute a conveyance and shall include words of conveyance. In
addition to the certification required under subsection (2)(b) of
this section, an amendment to the boundary of a unit shall also
be executed by the owners of all affected units.
(b) An amendment that adds property owned by the association to
the condominium as a common element shall constitute a conveyance
and shall:
(A) Be approved by at least 75 percent of owners;
(B) Contain words of conveyance;
(C) Be executed by the chairperson and secretary of the
association on behalf of the unit owners and be certified in
accordance with subsection (2)(b) of this section; and
(D) Be accompanied by a plat amendment in accordance with ORS
100.115.
(c) Nothing in paragraph (b) of this subsection is intended to
require property acquired or held by the association pursuant to
ORS 100.405 (4)(i) to be added to the condominium.
(6) Except as otherwise provided in ORS 100.005 to 100.625, an
amendment may not change the allocation of undivided interest in
the common elements, the method of determining liability for
common expenses, the method of determining the right to common
profits or the method of determining voting rights of any unit
unless such amendment has been approved by the owners of the
affected units.
(7) The declaration may not be amended to limit or diminish any
right of a declarant reserved under ORS 100.105 (2) or (7) or any
other special declarant right without the consent of the
declarant. However, the declarant may waive the declarant's right
of consent.
(8) Nothing in this section shall affect any other approval
that may be required by the declaration, bylaws or other
instrument.
(9) During a period of declarant control reserved under ORS
100.200, voting on an amendment under this section must be
without regard to any weighted vote or other special voting
allocation reserved by the declarant unless the declaration
provides that the declarant has the right to exercise the voting
rights with respect to specifically described amendments. Nothing
in this subsection prohibits a declarant from reserving the right
that declarant's consent is required for an amendment during a
period of declarant control reserved in the declaration.
(10) An amendment to a declaration or a supplemental
declaration shall be conclusively presumed to have been regularly
adopted in compliance with all applicable procedures relating to
such amendment unless an action is brought within one year after
the date such amendment was recorded or the face of the recorded
amendment indicates that the amendment received the approval of
fewer votes than are required for such approval. However, nothing
in this subsection shall prevent the further amendment of an
amended declaration or plat in accordance with ORS 100.005 to
100.625.
(11)(a) The board of directors, by resolution and without the
further approval of the unit owners, may cause a restated
declaration to be prepared and recorded to codify individual
amendments that have been adopted in accordance with this
section.
(b) A declaration restated under this subsection must:
(A) Include all previously adopted amendments that are in
effect and may not include any other changes except to correct
scriveners' errors or to conform format and style;
(B) Include a statement that the board of directors has adopted
a resolution in accordance with paragraph (a) of this subsection
and is causing the declaration to be restated and recorded under
this subsection;
(C) Include a reference to the recording index numbers and date
of recording of the initial declaration and all previously
recorded amendments that are in effect and are being codified;
(D) Include a certification by the chairperson and secretary of
the association that the restated declaration includes all
previously adopted amendments that are in effect, that amendments
were approved by the county assessor and tax collector if
required under ORS 100.110 and that no other changes were made
except, if applicable, to correct scriveners' errors or to
conform format and style;
(E) Be executed and acknowledged by the chairperson and
secretary of the association and recorded in the deed records of
each county in which the condominium is located; and
(F) Be approved by the { - commissioner - } { +
director + }, and by the county assessor and the tax collector
under ORS 100.110 if the restated declaration includes any
amendments required to be approved by the county assessor and the
tax collector under ORS 100.110 but not previously approved.
(c) The board of directors shall cause a copy of the recorded
restated declaration, including the recording information, to be
filed with the { - commissioner - } { + Real Estate
Agency + }.
SECTION 121. ORS 100.260 is amended to read:
100.260. (1) The Condominium Information Report required under
ORS 100.250 (1)(a) shall set forth:
(a) The name of the association;
(b) The name of the condominium and the county in which the
condominium is located;
(c) The mailing address, including the street and number, if
any, and county of the association;
(d) The date the condominium declaration was recorded and the
recording index numbers;
(e) The name and residence or business address, including the
street and number, of the person designated as agent to receive
service of process in cases provided in ORS 100.550 (1) and any
other legal proceeding relating to the condominium or
association; and
(f) The number and type of units as follows:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
No.___
Living Units
No.___
Commercial/Office Units
No.___
Other (describe) _____
________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(2) The Annual Report required under ORS 100.250 (1)(b) shall
set forth:
(a) The information required under subsection (1)(a), (b), (c)
and (e) of this section;
(b) The names and addresses of the chairperson and secretary of
the association; and
(c) If the designated agent is changed, a statement that the
new agent has consented to the appointment.
(3) The amendment required under ORS 100.250 (1)(c) shall set
forth:
(a) The name of the association as shown on the current records
of the Real Estate Agency;
(b) The name of the condominium and county in which the
condominium is located;
(c) A statement of the information as changed; and
(d) If the current designated agent is to be changed, the name
of the new designated agent and residence or business address,
including the street and number, and a statement that the new
agent has consented to the appointment.
(4) The filing by the Real Estate Agency of an amendment
{ - which - } { + that + } changes the designated agent shall
terminate the existing designated agent on the effective date of
the filing and establish the newly appointed designated agent as
that of the association.
(5) The reports and amendment described in this section and an
application for termination described in ORS 100.280 shall be
made on forms prescribed and furnished by the { + Director of
the + } Real Estate Agency and must be accompanied by the correct
filing fee and shall:
(a) Contain information current as of 30 days before delivery
for filing;
(b) Be executed by the designated agent and until the turnover
meeting by the declarant and thereafter by the chairperson or
secretary of the association;
(c) State beneath or opposite the signature the name of the
person and the capacity in which the person signs; and
(d) Contain any additional identifying information that the
{ + Director of the + } Real Estate Agency may require by rule.
SECTION 122. ORS 100.290 is amended to read:
100.290. The { + Director of the + } Real Estate Agency may
adopt rules as are necessary or proper for the administration of
ORS 100.250 to 100.280.
SECTION 123. ORS 100.310 is amended to read:
100.310. (1) Prior to the sale of any dwelling unit
{ - which - } { + that + } is to be retained as a unit in the
conversion condominium without substantial alteration in its
physical layout, the declarant shall first offer to sell the
respective unit to the tenant who occupies the unit. The offer
shall:
(a) Terminate 60 days after its receipt or upon written
rejection of the offer by the tenant, whichever occurs earlier.
(b) Be accompanied by a copy of all applicable disclosure
statements issued by the Real Estate { - Commissioner - }
{ + Agency + } pursuant to ORS 100.700.
(c) Not constitute a notice to terminate the tenancy.
(2) The tenant's dwelling unit may not be shown to any
prospective purchasers of a conversion condominium unit without
the tenant's permission before the termination of the tenancy.
(3) The declarant shall not sell the unit to a person other
than the tenant during the 60 days following the termination of
an offer to the tenant under subsections (1) and (2) of this
section at a price or on terms more favorable to the purchaser
than the price or terms offered to the tenant.
(4) After the property has been submitted to the provisions of
the Oregon Condominium Act, the declarant, until a unit is
offered for sale in accordance with subsections (1) and (2) of
this section, shall notify in writing any prospective tenant,
prior to the commencement of the tenancy, that the property has
been submitted to the provisions of the Oregon Condominium Act
and the rights of a tenant under subsections (1) to (3) of this
section.
SECTION 124. ORS 100.410 is amended to read:
100.410. (1) The declarant shall adopt on behalf of the
association of unit owners the initial bylaws that govern the
administration of the condominium. The bylaws shall be recorded
simultaneously with the declaration as an exhibit or as a
separate instrument.
(2) Unless otherwise provided in the declaration or bylaws,
amendments to the bylaws may be proposed by a majority of the
board of directors or by at least 30 percent of the owners.
(3) Subject to subsections (4) and (5) of this section and ORS
100.415 (20), an amendment of the bylaws is not effective unless
the amendment is:
(a) Approved by at least a majority of the unit owners; and
(b) Certified by the chairperson and secretary of the
association of unit owners as being adopted in accordance with
the bylaws and the provisions of this section, acknowledged in
the manner provided for acknowledgment of instruments and
recorded.
(4) In condominiums that are exclusively residential:
(a) The bylaws may not provide that greater than a majority of
the unit owners is required to amend the bylaws except for
amendments relating to age restrictions, pet restrictions,
limitations on the number of persons who may occupy units and
limitations on the rental or leasing of units.
(b) An amendment relating to a matter specified in paragraph
(a) of this subsection is not effective unless approved by at
least 75 percent of the owners or a greater percentage specified
in the bylaws.
(5) The bylaws may not be amended to limit or diminish any
special declarant right without the consent of the declarant.
However, the declarant may waive the declarant's right of
consent.
(6)(a) For five years after the recording of the initial
bylaws, before any amended bylaw may be recorded, the amended
bylaw must be approved by the { + Director of the + } Real
Estate
{ - Commissioner - } { + Agency + }. The
{ - commissioner - } { + director + } shall approve such
amendment if the requirements of ORS 100.415 and this section
have been satisfied.
(b) The approval by the { - commissioner - }
{ + director + } under paragraph (a) of this subsection is not
required for bylaws restated under subsection (10) of this
section unless the bylaws are restated during the five-year
period after the recording of the initial bylaws.
(7) Before the { - commissioner - } { + director + }
approves amended bylaws or restated bylaws under this section,
the person submitting the amended bylaws or restated bylaws shall
pay to the
{ - commissioner - } { + Real Estate Agency + } the fee
provided by ORS 100.670.
(8) Notwithstanding a provision in the bylaws, including bylaws
adopted prior to July 14, 2003, that requires an amendment to be
executed, or executed and acknowledged, by all owners approving
the amendment, amendments to the bylaws under this section become
effective after approval by the owners if executed and certified
on behalf of the association by the chairperson and secretary in
accordance with subsection (3)(b) of this section.
(9) An amendment to the bylaws must be conclusively presumed to
have been regularly adopted in compliance with all applicable
procedures relating to the amendment unless an action is brought
within one year after the effective date of the amendment or the
face of the amendment indicates that the amendment received the
approval of fewer votes than required for the approval. Nothing
in this subsection prevents the further amendment of an amended
bylaw.
(10)(a) The board of directors, by resolution and without the
further approval of unit owners, may cause restated bylaws to be
prepared and recorded to codify individual amendments that have
been adopted in accordance with this section.
(b) Bylaws restated under this subsection must:
(A) Include all previously adopted amendments that are in
effect, state that the amendments were approved by the
{ - commissioner - } { + director + } as required under this
section and state that no other changes were made except, if
applicable, to correct scriveners' errors or to conform format
and style;
(B) Include a statement that the board of directors has adopted
a resolution in accordance with paragraph (a) of this subsection
and is causing the bylaws to be restated and recorded under this
subsection;
(C) Include a reference to the recording index numbers and date
of recording of the initial bylaws and all previously recorded
amendments that are in effect and are being codified;
(D) Include a certification by the chairperson and secretary of
the association that the restated bylaws include all previously
adopted amendments that are in effect, that amendments were
approved by the { - commissioner - } { + director + } if
required under this section and that no other changes were made
except, if applicable, to correct scriveners' errors or to
conform format and style;
(E) Be executed and acknowledged by the chairperson and
secretary of the association and recorded in the deed records of
each county in which the condominium is located; and
(F) If required under subsection (6) of this section, be
approved by the { - commissioner - } { + director + }.
(c) The board of directors shall cause a copy of the recorded
restated bylaws, including the recording information, to be filed
with the { - commissioner - } { + Real Estate Agency + }.
SECTION 125. ORS 100.635 is amended to read:
100.635. Except as provided by ORS 100.660 and 100.665, prior
to negotiating within this state for the sale of a condominium
unit located in another state, or prior to the sale of any
condominium unit located within this state, the developer shall
file the following information with the Real Estate
{ - Commissioner - } { + Agency + }:
(1) General information on the condominium, including:
(a) The name and address of the condominium and the county in
which the condominium is located; and
(b) The name, address and telephone number of the developer.
(2) Two copies of the disclosure statement for the condominium
prepared in accordance with ORS 100.655.
(3) The documents for and other information on the condominium
as required by ORS 100.640.
(4) The filing shall be accompanied by a fee as provided in ORS
100.670.
SECTION 126. ORS 100.640 is amended to read:
100.640. The following documents and information shall be
submitted to the Real Estate { - Commissioner - }
{ + Agency + } as part of the filing required under ORS 100.635:
(1) A copy of the proposed or recorded declaration or
supplemental declaration of condominium ownership drawn in
conformance with ORS 100.105 or 100.120, or the law applicable in
the state where the condominium was created;
(2) A copy of the proposed or recorded bylaws drawn in
conformance with ORS 100.415 or the law applicable in the state
where the condominium was created;
(3) A copy of the full size plat prepared in conformance with
ORS 100.115 (2) or the law applicable in the state where the
condominium was created, or a copy of the site plan;
(4) A statement from the county assessor or county surveyor
that the name for the condominium is acceptable under ORS 100.105
(6);
(5) A copy of a preliminary title report, title insurance
policy or condominium guarantee that has been issued within the
preceding 30 days, including a map showing the location of
property described in the report, policy or guarantee or other
evidence of title satisfactory to the { - commissioner - }
{ + Director of the Real Estate Agency + };
(6) A copy of all restrictive covenants, reservations or other
documents that may create an encumbrance on or limit the use of
the property other than those restrictions contained in the
declaration or bylaws;
(7) A copy of the reserve study required by ORS 100.175 and
other sources of information that serve as a basis for
calculating reserves in accordance with ORS 100.175 (3), unless
the information is contained in the disclosure statement;
(8) The following sample forms:
(a) Unit sales agreement, including the notice to purchaser of
cancellation rights in accordance with ORS 100.730 and 100.740,
the statement required by ORS 93.040 (1) and any warranty
required under ORS 100.185; and
(b) A receipt for documents required under ORS 100.725;
(9) If required by ORS 100.680:
(a) A copy of the escrow agreement drawn in conformance with
ORS 100.680 and executed by both the declarant and the escrow
agent. If individual escrow agreements or instructions are to be
executed by the purchaser, other than the standard escrow
instruction required by the escrow agent, submit sample form and
a letter from the escrow agent, agreeing to the establishment of
the escrows and the procedure set forth in the sample form; and
(b) A unit sales agreement drawn in conformance with ORS
100.680;
(10) If any of the sales will be by means of an installment
contract of sale:
(a) A copy of the escrow agreement or escrow instructions
executed by the developer and the escrow agent providing for the
establishment of collection escrows and the deposit of documents
in accordance with ORS 100.720; and
(b) The proposed installment contract of sale form, if
available;
(11) Any other documents by which the purchasers will be bound;
(12) Any report or disclosure statement issued for the
condominium, by the federal government and any other state; and
(13) A statement of any additional facts or information
{ - which - } { + that + } the developer desires to submit to
the { - commissioner - } { + agency + }.
SECTION 127. ORS 100.645 is amended to read:
100.645. (1) The information required by ORS 100.635 shall be
kept current by the developer. Any material change in the
information furnished to the Real Estate { - Commissioner - }
{ + Agency + } shall be reported by the developer within 10 days
after the change occurs. The report shall be accompanied by a
filing fee as required by ORS 100.670.
(2) A developer shall be responsible for the accuracy of and
for providing all information required by ORS 100.635 and any
information required under this section for as long as the
developer retains any unsold interest in the condominium to which
the information pertains.
SECTION 128. ORS 100.650 is amended to read:
100.650. (1) Every nonresident developer, at the time of filing
the information required by ORS 100.635, shall also file with the
{ + Director of the + } Real Estate { - Commissioner - }
{ + Agency + } an irrevocable consent that if, in any suit or
action commenced against the nonresident developer in this state
arising out of a violation of any provision of this chapter,
personal service of summons or process upon the nonresident
developer cannot be made in this state after the exercise of due
diligence, a valid service may thereupon be made upon the
nonresident developer by service on the { - commissioner - }
{ + director + }.
(2) The consent shall be in writing executed and verified by an
officer of a corporation or association, a general partner of a
partnership or by an individual developer and shall set forth:
(a) The name of the developer.
(b) The address to which documents served upon the
{ - commissioner - } { + director + } are to be forwarded.
(c) If the developer is a corporation or unincorporated
association, that the consent signed by such officer was
authorized by resolution duly adopted by the board of directors.
(3) The address for forwarding documents served under this
section may be changed by filing a new consent in the form
prescribed in subsection (2) of this section.
(4) Service { + of process + } on the { - commissioner of
any such process - } { + director + } shall be made by delivery
to the { - commissioner - } { + director + } or a clerk on
duty in any office of the { - commissioner - } { +
director + }, duplicate copies of such process, with duplicate
copies of any papers required by law to be delivered in
connection with
{ - such - } { + the + } service.
(5) When the { - commissioner - } { + director + }is
served with { - any such - } { + the + } process, the
{ - commissioner - } { + director + } shall immediately cause
one of the copies { - thereof - } , with any accompanying
papers, to be forwarded by registered mail or by certified mail
with return receipt to the developer at the address set forth in
the consent.
(6) The { - commissioner - } { + director + } shall keep a
record of all processes, notices and demands served upon the
{ - commissioner - } { + director + } under this section
{ - , - } and { - shall - } record { - therein - } the
time of { - such - } service and the action { - with
reference thereto - } { + referenced in the service of
process + }.
SECTION 129. ORS 100.655 is amended to read:
100.655. (1) The disclosure statement submitted to the Real
Estate { - Commissioner - } { + Agency + } as part of a
filing under ORS 100.635 shall contain the following information:
(a) The name and address of the condominium, and the name,
address and telephone number of the developer;
(b) A general narrative description of the condominium stating
the total number of units, a description of the types of units,
the total number of units that may be included in the condominium
pursuant to ORS 100.105 (2), and a precise statement of the
nature of the interest which is being offered;
(c) If at the time of filing:
(A) The construction of the project is not completed, general
disclosure of the status of construction and the actual or
scheduled dates of completion of buildings, recreational
facilities and other common elements, including a statement
describing any recreational facilities or improvements to the
common elements that the developer reserves the right to develop
or promises to develop, or a statement that there are no such
facilities or improvements; or
(B) The construction of the project is completed, the actual
dates of completion of buildings, recreational facilities and
other common elements if known by the developer;
(d) The nature and significant terms of any financing offered
by the developer to purchasers of the condominium units;
(e) Copies of any warranties for structural elements and
mechanical and other systems or a brief description of such
warranties;
(f)(A) A current or projected budget of the association of unit
owners for the operation and maintenance and any other common
expenses of the condominium, including an amount for a subsidy of
the association by the declarant, if any, by a contribution of
funds, goods or services;
(B) A brief statement of the method of determining liability
for common expenses and the right to common profits; and
(C) The following notice in at least 12-point type that is
either all capitals or boldface:
_________________________________________________________________
NOTICE TO PROSPECTIVE PURCHASERS
THE PROJECTION OF THE BUDGET OF THE ASSOCIATION OF UNIT OWNERS
FOR THE OPERATION AND MAINTENANCE AND OTHER COMMON EXPENSES OF
THE CONDOMINIUM IS ONLY AN ESTIMATE, PREPARED WITH DUE CARE.
_________________________________________________________________
(g) If a provision for reserves under ORS 100.175 is included
in the budget disclosed under paragraph (f) of this subsection:
(A) A statement identifying the information constituting the
basis for the reserve assessment under ORS 100.175 (3)(b); and
(B) A statement that the information constituting the basis for
the reserve assessment identified under ORS 100.175 (3)(b) is
available for review upon written request to the declarant or the
designated person, unless included in the disclosure statement;
(h) In the case of a conversion condominium, a statement of:
(A) The present condition of all structural components and
major mechanical and utility installations in the condominium,
including the approximate date of construction and a reasonable
estimate of the remaining useful life of, at a minimum, the roof,
siding, plumbing, electrical, HVAC system, asphalt, sidewalks and
decks;
(B) Whether or not the assessment of conditions under
subparagraph (A) of this paragraph, which shall be in at least
12-point type that is all capitals or boldface, was prepared by a
licensed engineer, architect or home inspector; and
(C) The statutory procedure required to create a conversion
condominium;
(i) A cross-reference to the portions of the declaration, any
supplemental declaration and bylaws containing the general power
and authority of the board of directors, the method of
apportionment of voting rights among the members of the
association of unit owners and a statement of the nature and
extent of control of the board of directors retained by the
developer by voting rights or otherwise;
(j) A list of the documents by which purchasers may be bound,
including the declaration, bylaws, ground leases, management
agreement, easements, covenants, restrictions and conditions;
(k) A statement of whether there are any restrictions on
alienation of units or any use or occupancy restrictions, such as
limitations on residential or commercial use, pets, age of
occupants or number of occupants, and a cross-reference to those
portions of the declaration, any supplemental declaration, bylaws
or any other document containing the principal provisions
relating to those restrictions; and
(L) If the condominium is a staged condominium:
(A) Whether the declarant reserves the right to annex
additional property to the condominium pursuant to ORS 100.125
and, if so:
(i) The maximum number of units;
(ii) The date after which annexation right terminates;
(iii) The description of additional common elements declarant
reserves right to annex to the property and whether such common
elements might substantially increase the proportionate amount of
common expenses by current unit owners; and
(iv) The effect of annexation of additional units on allocation
of interest in the common elements and voting rights.
(B) If the condominium or any stage being filed under ORS
100.635 contains or may contain any variable property, a
statement of the rights reserved by the declarant under ORS
100.150 (1) and the results specified in ORS 100.155 if such
rights are not exercised.
(2) In lieu of the disclosure statement required under
subsection (1) of this section, the { - commissioner - }
{ + agency + } may accept a disclosure report issued or approved
by another state or governmental agency.
(3) No disclosure statement is required for condominiums
described in ORS 100.660.
(4) The declarant is not liable to the association or the
owners with respect to a statement of condition or estimate of
useful life contained in the disclosure statement if:
(a) The declarant did not have actual knowledge of any
inaccuracies in the statement at the time of delivery of the
disclosure statement to the purchaser; and
(b) The declarant relied upon reports prepared by licensed
engineers or architects in making the statement or, if the
condominium has four or fewer units, reports prepared by licensed
engineers, architects or home inspectors.
SECTION 130. ORS 100.660 is amended to read:
100.660. A developer of a condominium located in this state,
that consists exclusively of units to be used for nonresidential
purposes or that consists of units to be offered for sale as a
security under ORS 59.005 to 59.451, 59.660 to 59.830, 59.991 and
59.995, shall submit to the Real Estate { - Commissioner - }
{ + Agency + } a filing that consists of:
(1) General information on the condominium including:
(a) The name and address of the condominium and the county in
which the condominium is located; and
(b) The name, address and telephone number of the developer and
any agent of the developer; and
(2) The following documentation:
(a) The original executed declaration or supplemental
declaration and a copy { - thereof - } , drawn in conformance
with ORS 100.105 and 100.120, if applicable;
(b) The original executed bylaws, and a copy thereof, drawn in
conformance with ORS 100.415;
(c) A copy of the full size plat prepared in conformance with
ORS 100.115;
(d) A copy of a current preliminary title report or title
insurance policy or condominium guarantee that has been issued
within the preceding 30 days, including a map showing the
location of property described therein, or other evidence of
title satisfactory to the { - commissioner - } { + Director
of the Real Estate Agency + };
(e) A copy of all restrictive covenants, reservations or other
documents containing provisions that may create an encumbrance on
or limit the use of the property other than those restrictions
contained in the declaration, supplemental declaration or bylaws;
and
(f) A statement from the county assessor that the name for the
condominium is acceptable under ORS 100.105 (5).
SECTION 131. ORS 100.665 is amended to read:
100.665. A vendor under a land sale contract, a mortgagee of a
mortgage or a beneficiary of a trust deed who becomes a developer
by reason of acquiring a unit or units in a condominium through
foreclosure of its lien or acceptance of a deed in lieu thereof,
is not required to submit a filing to the Real Estate
{ - Commissioner - } { + Agency + } under ORS 100.635, or to
distribute a disclosure statement under ORS 100.705 or provide
the notice to purchaser required under ORS 100.740 if the vendor,
mortgagee or beneficiary sells, in a single sale, all of the
units so acquired to a developer who agrees to comply with the
provisions of ORS 100.635 and 100.705 before negotiating a sale
of the unit or units to others.
SECTION 132. ORS 100.670 is amended to read:
100.670. (1) A developer or other person required to file
materials or information with the Real Estate
{ - Commissioner - } { + Agency + } under ORS 100.005 to
100.910 shall pay to the
{ - commissioner - } { + agency + } a fee as required under
subsections (2) and (3) of this section for the review, approval
and handling of the filings by the { - commissioner - }
{ + agency + } at the time of the initial filing with the
{ - commissioner - } { + agency + }.
(2) A fee charged by the { - commissioner - }
{ + agency + } under subsection (1) of this section shall be
determined by the
{ - commissioner - } { + Director of the Real Estate
Agency + } to cover the costs of the { - commissioner's - }
{ + agency's + } review, approval or revision activity. The fee
shall be based upon an hourly rate that is subject to prior
approval of the Oregon Department of Administrative Services and
a report to the Emergency Board prior to adopting the fee and
shall be within the budget authorized by the Legislative Assembly
as that budget may be modified by the Emergency Board.
(3) The { - commissioner - } { + agency + } shall collect a
deposit of $100 from a developer at the time of submitting a
filing described in subsection (1) of this section. The amount of
the deposit shall be deducted from the final fee computed as
provided in subsection (2) of this section.
SECTION 133. ORS 100.675 is amended to read:
100.675. (1)(a) Upon receipt of an informational filing,
submitted as required under ORS 100.005 to 100.910 and the
prescribed filing fee, within five working days after receipt of
the filing the Real Estate { - Commissioner - }
{ + Agency + } shall inventory the filing and acknowledge
whether the filing contains all required documents and
information. If the filing contains all required documents and
information, the { - commissioner - } { + agency + } shall
issue a notice acknowledging their receipt.
(b) If the filing under paragraph (a) of this subsection does
not contain the required documents and information, the
{ - commissioner - } { + agency + } shall issue a notice of
receipt of a partial filing, a statement itemizing the required
documents and information that must be submitted, and a statement
that the filing will not be acknowledged as containing all
required documents and information until the itemized documents
and information have been received and inventoried by the
{ - commissioner - } { + agency + }.
(c) Within 45 days from the date that the filing has been
inventoried and acknowledged as containing all the required
documents and information, the { - commissioner - }
{ + agency + } shall review the filing to determine whether the
documents and information submitted conform to the statutory
requirements of ORS 100.005 to 100.910 and, upon determination of
their conformity shall adopt and issue the disclosure statement
filed under ORS 100.655.
(2) For any document filed with the { - commissioner - }
{ + agency + } that requires the { - commissioner's - }
{ + agency's + } approval under ORS 100.005 to 100.910, the
{ - commissioner - } { + agency + } shall issue a notice of
receipt for the filing within five days following receipt by the
{ - commissioner - } { + agency + } of the document. The
document shall be considered approved by the
{ - commissioner - } { + agency + } on the expiration of 45
days following issuance by the { - commissioner - }
{ + agency + } of the notice of receipt, unless within the
45-day period:
(a) The { - commissioner - } { + agency + } notifies the
person making the filing in writing of the portions of the
document that do not comply with the applicable requirements of
ORS 100.005 to 100.910; or
(b) The { - commissioner - } { + agency + } notifies the
person making the filing in writing that the document complies
with the applicable requirements of ORS 100.005 to 100.910 and is
approved.
SECTION 134. ORS 100.680 is amended to read:
100.680. (1) Unless the developer of a condominium has complied
with subsections (2) and (3) of this section, the developer and a
purchaser may not enter into a unit sales agreement before the
recording of the declaration or supplemental declaration and plat
under ORS 100.115 or, if the condominium is located outside of
this state, before the condominium has been created under the
laws of the jurisdiction within which the condominium is located.
(2) Any purchaser's funds, the unit sales agreement, any notes
or security documents and any loan commitments shall be placed in
an escrow located within this state with a person or firm
authorized under ORS 696.505 to 696.582. The escrow instructions
may not allow distribution of the purchaser's funds until the
declaration or any applicable supplemental declaration is
recorded and the legal title or other interest bargained for has
been transferred to the purchaser as provided in the unit sales
agreement. If any funds of the purchaser are invested, the funds
shall be invested in federally insured accounts or other
investments approved by the { + Director of the + } Real Estate
{ - Commissioner - } { + Agency + }. If the developer
defaults under the unit sales agreement, the purchaser's funds
held in escrow and all income earned from investment of the funds
held in escrow shall be returned.
(3) A unit sales agreement shall contain:
(a) The unit designation;
(b) The full amount of the purchase price, including the amount
and form of earnest money paid by the purchaser;
(c) The name and address of the escrow agent to hold the
purchaser's funds and a reference to the escrow instructions
controlling the escrow;
(d) If the purchaser's funds are to be invested, the name of
the financial institution where the funds will be deposited and
to whom any interest earnings will accrue under all possible
circumstances;
(e) The date of closing with any conditions and requirements of
closing;
(f) The closing procedure;
(g) Any authority of the developer to terminate the sale and,
in the case of termination, any forfeiture provisions;
(h) If the developer specifies any contingency, the date other
than closing when all purchaser's funds and interest earnings
will be returned to the purchaser if the contingency is not met;
(i) Provision that the purchaser will recover any funds paid to
the developer and any interest earnings upon default by the
developer;
(j) Any rights reserved by the developer to modify the
declaration, any supplemental declaration, bylaws, plat or other
documents by which the purchaser is or will be bound;
(k) Notice to the purchaser of cancellation rights under ORS
100.730 and 100.740;
(L) For the sale of newly constructed units, any express
warranty required under ORS 100.185; and
(m) Any other provisions deemed necessary by the developer and
purchaser.
(4) In lieu of the requirements of subsection (2) of this
section, the { - commissioner - } { + director + } may
approve { - any - } { + an + } alternative requirement or
method { - which the commissioner finds will assure - }
{ + that the director finds will ensure + } the same protection
to the purchaser as the protection provided by the escrow.
SECTION 135. ORS 100.700 is amended to read:
100.700. The Real Estate { - Commissioner - }
{ + Agency + } may make an on-site inspection of any condominium
and require a report of the
{ - commissioner's - } { + agency's + } findings from
{ - such - } { + the + } inspection to be included in the
disclosure statement for use in the sale of the condominium.
SECTION 136. ORS 100.705 is amended to read:
100.705. (1) Except as provided in ORS 100.665, { - no - }
{ + a + } developer or agent of a developer { - shall - }
{ + may not + } enter into a unit sales agreement prior to the
issuance of the disclosure statement for the condominium.
(2) A copy of the disclosure statement for a condominium shall
be given to the prospective purchaser of a unit in the
condominium by the developer or an agent of the developer, not
later than the date the unit sales agreement is fully executed by
all parties. The developer shall take a receipt from the
prospective purchaser upon delivery of a copy of the disclosure
statement, and such receipts shall be kept on file within this
state in the possession of the developer or the agent of the
developer subject to inspection by the Real Estate
{ - Commissioner - } { + Agency + } for a period of three years
from the date the receipt is taken.
(3) The disclosure statement shall not be used for advertising
purposes unless it is used in its entirety. No portion of the
disclosure statement shall be underscored, highlighted,
italicized or printed in larger or heavier type than the balance
of the statement unless the true copy of the statement so
emphasizes such portion.
(4) The { - commissioner - } { + agency + } may furnish at
cost copies of the disclosure statement for the use of
developers.
(5) Violations of this section shall be subject to the
provisions of ORS 646.605 to 646.656, in addition to other
sanctions provided by law.
SECTION 137. ORS 100.710 is amended to read:
100.710. When an on-site inspection under ORS 100.700 is to be
made of a condominium situated in the State of Oregon, or
situated outside the state { - which - } { + that + } will be
offered for sale within this state, the Real Estate
{ - Commissioner - } { + Agency + }, in addition to the fee
provided in ORS 100.670, may require the developer to advance a
deposit. { - Such - } { + The + } deposits shall not exceed
$200 per day for making the on-site inspection. Any unexpended
portion of the deposit shall be refunded to the developer.
SECTION 138. ORS 100.720 is amended to read:
100.720. (1) { - No - } { + A + }condominium unit
{ - shall - } { + may not + } be sold by a developer by means
of a land sale contract unless a collection escrow is established
within this state with a person or firm authorized to receive
escrows under the laws of this state and all of the following are
deposited in the escrow:
(a) A copy of the title report or abstract, as it relates to
the property being sold.
(b) The original sales document or a true copy thereof relating
to the purchase of the condominium unit.
(c) A commitment to give a partial release for the condominium
unit being sold from the terms and provisions of any blanket
encumbrance. The commitment shall be in a form satisfactory to
the { + Director of the + } Real Estate { - Commissioner - }
{ + Agency + }.
(d) A document in good and sufficient form transferring the
interest purchased.
(2) The developer shall submit written authorization allowing
the { - commissioner - } { + director + } to inspect all
escrow deposits established pursuant to subsection (1) of this
section.
(3) In lieu of the procedures provided in subsection (1) of
this section, the developer shall conform to { - such - }
{ + the + } alternative requirement or method { - which the
commissioner may deem - } { + that the director deems + }
acceptable to carry into effect the intent and provisions of this
section.
SECTION 139. ORS 100.725 is amended to read:
100.725. (1) Before the unit sales agreement is fully executed
by all parties, the developer shall deliver to the purchaser a
copy of the declaration and bylaws of the condominium and any
supplements and amendments thereto affecting the unit.
(2) When the unit sales agreement is fully executed by all
parties, the developer shall deliver to the purchaser a copy of
the fully executed agreement which contains the 'Notice to
Purchaser' required by ORS 100.740.
(3) The developer shall deliver to the purchaser prior to the
conveyance of the unit by deed, lease or contract any ground
leases, leases with the association for recreation or parking
facilities and escrow instructions applying to the transaction.
(4) The developer shall take a receipt from the purchaser upon
the delivery of the documents referred to in subsection (1) of
this section, and such receipts shall be kept on file within this
state by the developer or the agent of the developer subject to
inspection by the Real Estate { - Commissioner - }
{ + Agency + } for a period of three years from the date the
receipt is taken.
SECTION 140. ORS 100.740 is amended to read:
100.740. (1) Subject to ORS 100.730 (8), a unit sales agreement
shall contain, either upon the first page or upon a separate
sheet attached to such first page, the following notice in at
least 12-point type that is all capitals or boldface:
_________________________________________________________________
NOTICE TO PURCHASER
(RIGHT OF CANCELLATION)
BY SIGNING A UNIT SALES AGREEMENT YOU ARE INCURRING A
CONTRACTUAL OBLIGATION TO PURCHASE AN INTEREST IN A CONDOMINIUM.
HOWEVER, YOU HAVE THE RIGHT TO CANCEL THIS AGREEMENT FOR ANY
REASON FOR FIVE BUSINESS DAYS (EXCLUDING SATURDAYS AND HOLIDAYS)
AFTER WHICHEVER OF THE FOLLOWING IS LAST TO OCCUR:
(1) SIGNING BY THE PURCHASER OF THE UNIT SALES AGREEMENT;
(2) SIGNING BY THE PURCHASER OF THE RECEIPT FOR THE DISCLOSURE
STATEMENT, IF ANY; OR
(3) SIGNING BY THE PURCHASER OF THE RECEIPT FOR A COPY OF THE
CONDOMINIUM DECLARATION AND BYLAWS AND ANY AMENDMENTS OR
SUPPLEMENTS THERETO AFFECTING THE UNIT.
TO CANCEL THIS AGREEMENT, YOU MUST GIVE WRITTEN NOTICE TO THE
DEVELOPER OR THE AGENT OF THE DEVELOPER AT THE FOLLOWING ADDRESS:
____________
____________
____________
____________
____________
(SUGGESTED PROCEDURE)
BEFORE EXECUTING THIS AGREEMENT, OR BEFORE THE CANCELLATION
PERIOD ENDS, YOU SHOULD DO THE FOLLOWING:
(1) CAREFULLY EXAMINE THE DISCLOSURE STATEMENT, IF ANY, ISSUED
BY THE REAL ESTATE { - COMMISSIONER - } { + AGENCY + } ON THE
CONDOMINIUM AND ALL ACCOMPANYING INFORMATION DELIVERED BY THE
DEVELOPER. OREGON LAW REQUIRES THE DEVELOPER TO DELIVER TO YOU A
COPY OF THE DECLARATION AND BYLAWS OF THE CONDOMINIUM AND ANY
SUPPLEMENTS AND AMENDMENTS THERETO AFFECTING THE UNIT PRIOR TO
THE TIME THE UNIT SALES AGREEMENT IS FULLY EXECUTED BY ALL
PARTIES. A COPY OF THE DECLARATION AND BYLAWS, AND ANY
SUPPLEMENTS AND AMENDMENTS THERETO, ARE AVAILABLE FROM THE
ASSOCIATION FOR EXAMINATION AND DUPLICATION, AT A REASONABLE FEE,
UPON YOUR WRITTEN REQUEST.
(2) INQUIRE OF YOUR LENDER WHETHER YOU CAN GET ADEQUATE
FINANCING ON AN ACCEPTABLE BASIS.
(3) INQUIRE OF THE DEVELOPER AND THE LENDER WHAT THE AMOUNT OF
THE CLOSING COSTS WILL BE.
OREGON LAW REQUIRES THAT YOU IMMEDIATELY BE GIVEN A COPY OF THIS
NOTICE AND A COPY OF THE UNIT SALES AGREEMENT WHEN IT HAS BEEN
FULLY EXECUTED BY ALL PARTIES.
_________________________________________________________________
(2) Except as provided in ORS 100.665, a copy of the notice set
forth in subsection (1) of this section shall be given to each
purchaser at the time of or immediately following the purchaser's
signing of the unit sales agreement, for the use of the
purchaser.
SECTION 141. ORS 100.750 is amended to read:
100.750. Records of the sale of any condominium unit shall be
subject to inspection by the Real Estate { - Commissioner - }
{ + Agency + } and shall be made available to the
{ - commissioner - } { + agency + } in Oregon at the request
of the { - commissioner - } { + agency + }.
SECTION 142. ORS 100.770 is amended to read:
100.770. { - No - } { + A + } developer or agent of a
developer { - shall - } { + may not + }, in connection with
the sale of a condominium unit, directly or indirectly:
(1) Employ any device, scheme or artifice to defraud;
(2) Make any untrue statement of a material fact or fail to
state a material fact necessary to make the statement made, in
the light of the circumstances under which it is made, not
misleading;
(3) Engage in any act, practice or course of business which
operates or would operate as a fraud or deception upon any
person;
(4) Issue, circulate or publish any prospectus, circular,
advertisement, printed matter, document, pamphlet, leaflet or
other literature, including a public report issued pursuant to
ORS 100.700, which contains an untrue statement of a material
fact or fails to state a material fact necessary in order to make
the statements therein made, in the light of the circumstances
under which they are made, not misleading;
(5) Issue, circulate or publish any advertising matter or make
any written representation, including a public report issued
pursuant to ORS 100.700, unless the name of the person issuing,
circulating or publishing the matter or making the representation
is clearly indicated; or
(6) Make any statement or representation, or issue, circulate
or publish any advertising matter containing any statement to the
effect that the condominium has been in any way approved or
{ - indorsed - } { + endorsed + } by the Real Estate
{ - Commissioner - } { + Agency + }.
SECTION 143. ORS 100.785 is amended to read:
100.785. (1) Subject to the provisions of ORS 100.720, a
condominium unit may not be conveyed by a developer subject to a
blanket encumbrance.
(2) Notwithstanding subsection (1) of this section, the
developer shall conform to an alternative requirement or method
{ - which - } { + that the Director of + } the Real Estate
{ - Commissioner may deem - } { + Agency deems + } acceptable
to afford a purchaser the protection provided by the prohibition
in subsection (1) of this section.
SECTION 144. ORS 100.900 is amended to read:
100.900. (1) In addition to any other penalties provided by
law, the Real Estate { - Commissioner - } { + Agency + } may
impose a civil penalty for violation of the provisions of ORS
100.015, 100.635 to 100.730 and 100.740 to 100.780 or any of the
rules adopted thereunder. { - No - } { + A + } civil penalty
{ - shall - } { + may not + } exceed $1,000 per violation.
(2) Civil penalties under this section shall be imposed as
provided in ORS 183.745.
(3) All penalties recovered shall be paid into the State
Treasury and credited to the General Fund.
SECTION 145. ORS 100.905 is amended to read:
100.905. (1) { - Whenever - } { + If the Director of + }
the Real Estate
{ - Commissioner - } { + Agency + } finds that any developer
or other person is violating any of the provisions of ORS
100.015, 100.635 to 100.730 and 100.740 to 100.780 or the rules
adopted thereunder or of the alternative requirements of the
{ - commissioner - } { + director + } prescribed pursuant to
ORS 100.720 (3), the { - commissioner - } { + director + }
may order the persons to desist and refrain from violating
{ - such - } { + the + } provisions or requirements, or from
the further sale of condominium units.
(2) { - Whenever the commissioner - } { + If the
director + } finds that any developer or other person is
violating, or has violated or is about to violate, any of the
provisions of ORS 100.015, 100.635 to 100.730 and 100.740 to
100.780 or the rules adopted thereunder or the alternative
requirements of the { - commissioner - } { + director + }
prescribed pursuant to ORS 100.720 (3), the
{ - commissioner - } { + director + } may bring proceedings in
the circuit court within the county in which the violation or
threatened violation has occurred or is about to occur, or in the
county where such person, firm or corporation resides or carries
on business, in the name of and on behalf of the people of the
State of Oregon against such person, firm or corporation, and any
other person or persons concerned in or in any way participating
or about to participate in such violation, to enjoin such person,
firm or corporation or any other person from continuing such
violation or engaging therein or doing any act or acts in
furtherance thereof, and to apply for the appointment of a
receiver or conservator of the assets of the defendant where such
appointment is appropriate.
SECTION 146. ORS 100.990 is amended to read:
100.990. Subject to ORS 153.022, any person who violates any of
the provisions of ORS 100.015, 100.635 to 100.730 and 100.740 to
100.780 or any rules adopted thereunder or { - any - }
alternative requirements of the { + Director of the + } Real
Estate { - Commissioner - } { + Agency + } prescribed pursuant
to ORS 100.720 (3), shall be punished by a fine not exceeding
$10,000, or by imprisonment in the custody of the Department of
Corrections for a period not exceeding three years, or in the
county jail not exceeding one year, or by both
{ - such - } fine and imprisonment.
SECTION 147. { + ORS 696.385 is repealed. + }
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