Chapter 696
ATTY. GEN. OPINIONS: Sales of
subdivision lots by mobile home salespeople, (1975) Vol
37, p 865; sales or offers of interests in limited partnerships to invest in
real estate, (1978) Vol 38, p 1971
696.010
NOTES OF DECISIONS
Where
plaintiff undertook to assist defendant in selling its sawmill business and
sale of business resulted in sale of real estate connected with business, this
was not sufficient to support finding that undertaking was “calculated to
result” in a sale of real estate, so plaintiff was not engaged in real estate
activity under this section. Moody v. Hurricane Creek Lumber Co., 290 Or 729,
625 P2d 1306 (1981)
ATTY. GEN. OPINIONS: Seller of own
business franchise not a “business chance broker,” (1972) Vol
36, p 100; Rental Housing Services as relating to the definition of “real
estate brokers,” (1973) Vol 36, p 413
696.020
NOTES OF DECISIONS
Realtor
purchasing property for himself was obligated to advise seller that realtor had
changed the terms of the option prepared by seller’s counsel by eliminating the
10-year provision for realtor to pay off the balance of the contract. Gergen v. Bartzat, 46 Or App 347,
611 P2d 352 (1980)
Where
contract for sale of house established that parties would share losses as well
as profits from venture, contract was not illegal broker’s contract. Gergen v. Bartzat, 46 Or App 347,
611 P2d 352 (1980)
Where
plaintiff assisted defendant in procuring a buyer for its sawmill business,
plaintiff was not required to be licensed under this section. Moody v.
Hurricane Creek Lumber Co., 290 Or 729, 625 P2d 1306 (1981)
Though
this section prohibits unlicensed person from receiving compensation for real
estate activity, it does not prevent person from testifying as expert if
properly qualified. State Dept. of Trans. v. Montgomery Ward Dev., 79 Or App
457, 719 P2d 507 (1986), Sup Ct review denied
Licensee
acting on behalf of entity in which licensee had partial ownership interest was
acting in “licensee’s own behalf.” Atwood v. Real Estate Commissioner, 97 Or
App 138, 775 P2d 880 (1989)
Licensee’s
sale of real estate on licensee’s own behalf includes performance of contract
by seller, not merely formation of contract. Atwood v. Real Estate
Commissioner, 97 Or App 138, 775 P2d 880 (1989)
ATTY. GEN. OPINIONS: Advertisements of
Rental Housing Services as “holding oneself out as engaging in the business of
a real estate broker,” (1973) Vol 36, p 413
696.022
NOTES OF DECISIONS
Under former similar statute (ORS
696.050)
The
terms “trustworthy” and “competent” are not unconstitutional for vagueness.
Klein v. Real Estate Commr. Holbrook, 19 Or App 646,
528 P2d 1355 (1974)
696.030
NOTES OF DECISIONS
“Regular
employe” means employe
whose services for his or her employer are of recurring nature for which employe is expected to perform from time to time pursuant
to his original engagement. Brown v. Haverfield, 276
Or 911, 557 P2d 233 (1976)
Action
to recover compensation for brokerage services was proper despite lack of
license where plaintiff was “regular employe” of
defendant within terms of this section which exempts certain persons from
licensing requirement of ORS 696.710. Brown v. Haverfield,
276 Or 911, 557 P2d 233 (1976)
696.050
NOTE:
Repealed as of July 1, 2002
See
annotations under ORS 696.022.
696.141
NOTE:
Repealed as of July 1, 2002
ATTY. GEN. OPINIONS: Constitutionality
of provision, (1976) Vol 38, p 140
696.200
ATTY. GEN. OPINIONS: Management of two
or more branch offices by associate broker, (1980) Vol
41, p 35
696.241
See
also annotations under ORS 696.240 in permanent edition.
NOTES OF DECISIONS
Since
purpose of this section is to prevent abuses arising from commingling of funds
entrusted to brokers with brokers’ other funds, “neutral escrow depository”
means an escrow depository other than a broker, but includes escrow
depositories owned or controlled by a broker. Banif
Corp. v. Black, 12 Or App 385, 507 P2d 49 (1973)
Broker
was not guilty of “conversion” of down payment where clear evidence showed
broker complied with statutory requirements by depositing down payment made by
purchaser in trust fund account. Huszar v. Certified
Realty Co., 278 Or 29, 562 P2d 1184 (1977)
696.290
NOTES OF DECISIONS
Washington
real estate broker who supervised execution of listing agreement by Oregon
sellers is deemed to have engaged in negotiations and cannot, therefore,
qualify as cooperating broker under this section. Fields v. Macnab,
70 Or App 154, 688 P2d 409 (1984)
696.300
See
annotations under ORS 696.301.
696.301
See
also annotations under ORS 696.300 in permanent edition.
NOTES OF DECISIONS
Under former similar statute (ORS
696.300)
Breach
of legally enforceable agreement by real estate broker is not requisite to
finding of “bad faith,” “untrustworthiness” and “improper dealing” which
include breach of moral obligation or duty owed to another. Blank v. Black, 14
Or App 470, 512 P2d 1016 (1973), Sup Ct review denied
Additional
violations similar to violation charged were admissible in administrative
hearing under this section to show that violation charged was deliberate. Flagg
v. Layman, 16 Or App 129, 517 P2d 329 (1973)
Conduct
demonstrating untrustworthiness is limited to acts by licensee in his capacity
as broker or salesman, excepting where licensee is acting for himself in
private capacity or he has been convicted of certain enumerated crimes. Klein
v. Real Estate Commr. Holbrook, 19 Or App 646, 528
P2d 1355 (1974)
Realtor
purchasing property for himself was obligated to advise seller that realtor had
changed the terms of the option prepared by seller’s counsel by eliminating
10-year provision for realtor to pay the balance of contract. Macdonald v. Dormaier, 272 Or 122, 535 P2d 527 (1975)
In general
“Guilty
knowledge” of a violation of this section on the part of the broker must be
proved to find a violation. Vincent v. Real Estate Div., 24 Or App 913, 548 P2d
180 (1976)
Prohibition
against conduct of same or different character that demonstrates “bad faith,
incompetency or untrustworthiness or dishonest, fraudulent or improper dealing”
is not unconstitutionally vague. Stanfill v. Real
Estate Division, 35 Or App 549, 581 P2d 980 (1978), Sup Ct review denied
Evidence
that real estate broker failed to disclose, and instructed another person not
to disclose, that repairs, on which consummation of sale was contingent, had
not been made, was sufficient to show bad faith and improper dealing in
violation of this section. Stanfill v. Real Estate
Division, 35 Or App 549, 581 P2d 980 (1978), Sup Ct review denied
Real
Estate Commissioner erred in concluding same conduct by real estate licensee
violated different subsections of this section. Pratt v. Real Estate Division,
76 Or App 483, 709 P2d 1134 (1985)
“Improper
dealings” is not limited to actions taken with culpable mental state. Garton v. Real Estate Commissioner, 127 Or App 340, 873 P2d
359 (1994), Sup Ct review denied
Authority
of Real Estate Commissioner to discipline licensee who “has done” any of listed
acts does not allow discipline based on potential future actions. Dearborn v.
Real Estate Agency, 334 Or 493, 53 P3d 436 (2002)
Act
or conduct of same or different character as listed actions must be
substantially related to trustworthiness, competence, honesty or good faith to
engage in real estate activity. Dearborn v. Real Estate Agency, 334 Or 493, 53
P3d 436 (2002)
Under
pre-2003 version of statute, Real Estate Commissioner may suspend, revoke or
deny license for act or conduct substantially related to fitness of licensee,
notwithstanding that act or conduct occurred before issuance of license. Kerley v. Real Estate Agency, 337 Or 309, 96 P3d 1211
(2004)
ATTY. GEN. OPINIONS
In general
Advertisement
by real estate salesperson as member of “Million Dollar Club,” (1979) Vol 39, p 511
696.385
ATTY. GEN. OPINIONS: Real Estate
Division authority to prohibit featuring name or picture of salesperson in real
estate advertisement, (1979) Vol 39, p 511
696.395
ATTY. GEN. OPINIONS: Appointing
authority of Director of Commerce, (1975) Vol 37, p
494
696.511
NOTES OF DECISIONS
Person
“acts in capacity of escrow agent” when, pursuant to written instructions from
principals and for money or other consideration, person: 1) receives matters of
value to which person has no right, title or interest; 2) holds matters
received as neutral third party until occurrence of event or condition
specified by principals; and 3) upon occurrence of event or condition, delivers
matters to other person having right, title or interest. Coast Security
Mortgage Corp. v. Real Estate Agency, 331 Or 348, 15 P3d 29 (2000)
696.520
NOTES OF DECISIONS
Although
attorney may act as escrow agent and close real estate transactions between
parties, he must take precautions to guard his professional responsibility by
making complete written disclosure fully stating his position with respect to
clients and other parties to the transaction. In re Bauer, 283 Or 55, 581 P2d
511 (1978)
696.525
NOTES OF DECISIONS
Neither
this section, nor Oregon Escrow Law as a whole, authorizes direct action by
injured party against surety. Gardner v. First Escrow Corp., 72 Or App 715, 696
P2d 1172 (1985), Sup Ct review denied
696.578
See
annotations under ORS 696.560 in permanent edition.
696.579
See
annotations under ORS 696.565 in permanent edition.
696.710
NOTES OF DECISIONS
The
action to recover compensation for brokerage services was proper despite the
lack of a license where the plaintiff was a “regular employe”
of the defendant within the terms of ORS 696.030 which exempts certain persons
from the licensing requirement of this section. Brown v. Haverfield,
276 Or 911, 557 P2d 233 (1976)
This
section imposes absolute bar to bringing and maintaining action for
compensation for real estate activities unless plaintiff is licensed real estate
agent in Oregon. Fields v. Macnab, 70 Or App 154, 688
P2d 409 (1984)
Expenditures
relating to opening of office for marketing of timeshares does not come within
definition of compensation for purposes of this section. Jim Jarvis-Jim Beamer,
Inc. v. Black Bear Resort, 85 Or App 51, 735 P2d 1240 (1987), Sup Ct review
denied
This
section does not bar action by licensed real estate salesperson brought
pursuant to valid assignment from licensed real estate broker. Scanlon v.
Jensen, 102 Or App 631, 796 P2d 371 (1990), Sup Ct review denied
ATTY. GEN. OPINIONS: Seller of own
business franchise not a “business chance broker,” (1972) Vol
36, p 100