The following articles include some that were originally published as a part of my continuing representation of the Portland Metropolitan Association of Realtors® over the last several years. The information is general in nature and not intended to be used or relied upon as legal or tax advice for your particular situation. Some articles may be more current than others, and in some instances the law may have changed or evolved following their initial publication. However, I continue to try to update them from time-to-time. They are provided here for informational purposes only. You are encouraged to secure advice and representation from your own attorney, CPA, or other professional familiar with the facts and current law on your particular matter. – PCQ
[Note – If you open an article and get a request from Adobe for “permission to run,” just right click on your mouse for “permission to run this plug-in.”]
April 2020 RMLS™ Portland-Metro Stats. At the end of April 2020, we completed one full month following the Governor’s March 23, 2020 stay-at-home order. At the time, there was serious concern over how this would affect local real estate. The numbers were fairly predictably discouraging, but interesting, home prices continued to increase. However, one month does not a selling season make. See, April stats, below:
Litigation vs. Alternative Dispute Resolution – Parts I & II. Under the OREF Residential Real Estate Sale Agreement, most, but not all, disputes between sellers and buyers, and their real estate brokers, are subject to a mandatory dispute resolution process. Like wills, insurance policies, and car warranties, the dispute resolution section of the Sale Agreement is frequently ignored until a problem arises. Parts I and II take a deep dive into the process, the terminology, the genesis of the provisions, and how everything works…plus a lot of tips and traps. To be forewarned is to be forearmed. Enjoy!
Buyer Beware: Limitations In Professional Home Inspection Reports. Home inspectors and home inspection reports are an essential part of the standard due diligence protocols of most homebuyers today. And while these reports are generally very good, they are not the equivalent of insurance. The concept behind insurance is that if a loss occurs, the insurer covers it. Not so with home inspection reports; the accuracy of the information is not guaranteed. Below is the rest of the story:
Procuring Cause: A Primer for Realtors. The “procuring cause” rule is simple in theory, but complicated in application. It is used to determine a buyer broker’s entitlement to the “offer of compensation” (i.e. a percentage share of the commission offered by the listing broker on the multiple listing service).
FIRPTA Affidavit (Sample) The only fail-safe protection is to have the seller sign a “FIRPTA Affidavit” – also known as “Affidavit of Non Foreign Status”. This simple form, containing a certification under oath that the seller is not a “foreign person”, discloses the transferor’s name, U.S. taxpayer identification number, and home address (or office address, in the case of an entity), will insulate him or her, so long as the signer does not have actual knowledge that it is untrue, i.e. that the seller is a “foreign person”.
Q-Law Summary of Real Estate Documents and Disputed Matters. The following list of documents and disputes span over four decades of real estate legal practice. The list was created in minutes – just off the top of my head. There are probably more lurking around. And the great thing about being a litigator and transactional attorney has been that it has been through the dispute resolution process that I learned better ways to improve upon others’ legal documents in order to avoid a similar disputes in the future. Take a look!
OREF Forms Changes for 2018, by Phil Querin. An in-depth summary of the changes, the reason for the changes, together with compliance tips and traps. Below is the rest of the story:
Portland’s New Renter Protection Ordinance (October 2015). Like other cities in Oregon and elsewhere, there is currently an acute shortage of rental housing in Portland. It will pass – there is more apartment construction in the pipeline – but that hasn’t prevented Portland’s City Council from declaring an emergency and hastily writing a new ordinance that comes suspicously close to violating ORS 91.225, which prohibits rent control. Here it is; you decide.
Claims Evaluation for Oregon Real Estate Brokerages (Part Two). OK, we’ve moved from single jeopardy to double jeopardy – where, as Alex Trebeck says, “the score can really change.” Part Two deals with the process after the unhappy client has rebuffed informal efforts to resolve the matter, and has notified the brokerage company that a legal claim will be filed. Below is the rest of the story:
Claims Evaluation for Oregon Real Estate Brokerages (Part One). Complaints against real estate brokers are part of the cost of doing business. This article addresses the first part of the process, i.e. dealing with the unhappy customer before the potential claim becomes an actual claim. Click below for full story:
Medical Marijuana Issues in Oregon Residential Real Estate (Part Two). This article is a continuation of Part One, below. It addresses many of the current, as yet unanswered, questions by real estate brokers, property managers, and landlords. Click below for a joint venture:
Medical Marijuana Issues in Oregon Residential Real Estate (Part One). When I was young – yo that many years ago – marijuana was the forbidden fruit. Illegal under state and federal law. Getting busted could mean a criminal charge. Slowly the landscape changed, first in the nature of the sanction, i.e. a ticket for small amounts, and eventually today, permissible as a recreational drug in some states, and with a “medical” marijuana card (wink, wink) in others. But even with society’s gradual acceptance, the weed is not without controversy and confusion. Part One of this article explains some of the issues, and Part Two (ab0ve) addresses some FAQs. Check out the link below and see why marijuana is the toke of the town:
Homebuyer Tips & Traps: Seller Representations & Warranties. When the seller makes certain “representations” in the sale documents, how enforceable are they if the seller is wrong? What if the seller makes a “warranty” instead? There is a big difference between the two. What do the Oregon statutes say? How about the Oregon appellate courts? For the answers, connect to this link:
Oregon Realtors®: Are Seller-Carried Transactions Safe? This question is not just rhetorical. As of January 10, 2014, a batch of new laws became effective across the country, including Oregon. Though the laws were intended to deal with Big Bank excesses – you remember, those morally vacuous zombie institutions that singularly brought this country’s credit and real estate markets to its knees and ushered in the Great Recession? Yeh, those guys; the ones whose execs never went to jail. Anyway, following Wall Street’s near death experience, circa 2008-2009, Chris Dodd and Barney Frank [Big Bank sycophants par excellence] immediately put their low-paid staffers, interns and toadies to work crafting a 900-page bill which has spawned 14,000+ pages in regulations. Like so many politicians before him, Barney Frank apparently didn’t read his namesake bill very close either. After creating a law that is more aptly named “FrankenDodd,” Mr. Frank, now retired from the House after 30+ pugnacious years berating anyone who disagreed with him, has recently admitted that the law has gone too far. ~PCQ
FAQs On ATR & QM For Small Entities – Part Three. These FAQs come directly from the most recent CFPB guidelines for January 2014. As I go through the rules I will supplement the FAQs. This information does not apply to the Big Banks, e.g. B of A, Morgan Stanley, JPMorgan, etc. Rather, it applies to “small creditors” such as community banks. Unfortunately, the regulators have sought to apply the ATR/QM rules even to Mom and Pop who may sell an occasional rental unit or two.
FAQs On ATR & QM For Small Entities – Part Two. These FAQs come directly from the most recent CFPB guidelines for January 2014. As I go through the rules I will supplement the FAQs. This information does not apply to the Big Banks, e.g. B of A, Morgan Stanley, JPMorgan, etc. Rather, it applies to “small creditors” such as community banks. Unfortunately, the regulators have sought to apply the ATR/QM rules even to Mom and Pop who may sell an occasional rental unit or two.
Querin Law: Real Estate Data Points For 2014. As 2013 recedes in the rear-view mirror of memory, I thought it high time to ask what were some of the significant developments of the year, and what do they bode for the real estate industry in 2014? I’ve identified the following five data points I believe are most worthy of discussion. They are arranged in no particular order of importance. ~PCQ
Oregon MLO Licensing Exemptions for Manufactured Structure Dealers. This handout reviews the current laws and administrative rules governing the sale of pre-owned manufactured homes by those holding either a dealer’s license or a limited dealer’s license. In furtherance of the bureaucrats’ need to regulate anything that moves regardless of culpability – as if these small business owners had single-handedly caused the housing and finance crises of 2008-2009 – the CFPB in Washington D.C. and the DFCS in Salem, have seen fit to overlay another level of costly regulations on the last vestige of affordable housing.
FAQs On ATR & QM For Small Entities – Part One. These FAQs come directly from the most recent CFPB guidelines for January 2014. As I go through the rules I will supplement the FAQs. This information does not apply to the Big Banks, e.g. B of A, Morgan Stanley, JPMorgan, etc. Rather, it applies to “small creditors” such as community banks. Unfortunately, the regulators have sought to apply the ATR/QM rules even to Mom and Pop who may sell an occasional rental unit or two.
Ocwen Loan Servicing & Short Sale Shakedowns. “Ocwen, Ocwen, Ocwen.” What a peculiar sounding name for a large company! Does it have some noble Greek meaning? Or perhaps a venerated Roman god high on the Pantheon of deities? Surely, a quick Google search will provide an etymology, and the mystery will be solved. Right? No, Nada, Nyet! There is nothing; just a name with no provenance. But wait! One genealogy site shows there to be a single birth record of someone with the name of “Ocwen.” However, that’s it. The trail abruptly ends. No other births, no family records, no divorces, no death notices. Just an odd name, a cipher, existing in a peculiar jumble of discordant letters. Hmmm. Sounds slightly demonic, like something from a Dracula script; the undead – existing to suck the life from its victims. Given the Ocwen we see today, perhaps that isn’t too far from the truth….
Tips for Reading Oregon’s Seller Property Disclosure Form
This insightful article warns buyers to “trust but verify”.” Homebuyer Protection Act: “This is a “must read” for all buyers of homes that have been newly constructed or recently undergone significant repairs.
Q-Law Short Sale FAQs (2013)
These FAQs were previously located on the FAQ Section on my homepage. They have been replaced by another set of frequently asked questions. However, since short sale have not completely disappeared, and aren’t likely to do so for at least another year, I decided to move the FAQs here, so folks still in the throws of having to make a distressed housing decision, would still have some resources.
Seller-Carried Trust Deeds & Land Sales Contracts: Which to Use and When?
Ever wondered what the differences are between trust deeds and land sale contracts? Which is best for your transaction? This article discusses the differences between these two forms of real estate security interests, and the advantages/disadvantages of each.
Federal and State Laws Affecting Oregon Residential Real Estate
Ever been overwhelmed at all the laws, rules, and regulations affecting what might otherwise be a simple residential real estate transaction? Ever wished there was a place you could go to find everything you needed in one place? Now you can! Enjoy!
Title Insurance 201 (Part Two)
OK, you’ve passed the introductory course. It’s time to discuss a few of the more esoteric aspects of title insurance. Part Two deals with the difference between different types of insurance policies, why they are different, and some of the additional services provided by title companies.
Seller Carry-Back Financing Transactions – What Realtors® Need to Know (Part One)
Beginning in early January, 2014, Realtors® should be aware that certain transactions in which sellers carry back some or all of the financing (e.g. using a note and trust deed, land sale contract, etc.) state and federal regulations will apply, limiting not only the frequency in which an owner can engage in such transaction, but also the terms and (gasp!) ability of the buyer to repay.
Title Insurance 101 (Part One)
Most everyone who has purchased a home in Oregon has obtained a title insurance policy. However, few have read them. And those that have, likely don’t understand what is and is not covered. Here is Part One of a primer on title insurance to help folks understand what it is and what it does.
Offers, Counteroffers & Their Revocation
Ever changed your mind? Gotten buyer’s remorse? Seller’s remorse? Well, join the club! It’s human nature to second-guess ourselves. Knowing that, perhaps you will want to read some do’s and don’ts in the process of negotiating a real estate transaction – especially when it comes to revoking an offer or counteroffer.
SB 558 – Oregon’s New Mandatory Resolution Conference Law Helping Homeowners Facing Foreclosure (2013)
An in depth discussion regarding Oregon’s new law requiring Big Banks to sit down with borrowers to try to reach a foreclosure-avoidance solution to their distressed housing issues.
Oregon Real Estate Laws, Customs, & Practices
An informational chart outlining Real Estate Laws, Customs, Practices, and corresponding helpful tips & traps.
Securitization Flow Chart (Redacted)
An informational flow chart outlining the mortgage securitization process in the private secondary market.
Realtors – Use Caution When Representing Buyers of Bank REOs
Oregon’s recent court cases have cast a shadow on the quality of title banks are getting back following non-judicial foreclosures. Realtors representing buyers of these REOs should be alert to the issue.
Frequently Asked Oregon Foreclosure Questions
What follows are a series of FAQs about the Oregon foreclosure process. These are some of the more frequent issues asked me by clients. Hopefully you will find them useful.
Why People Are So Angry At Lenders and Servicers (Part Two)
It has been four years that we’ve watched as the lending and servicing industries have tried to clean up the mess they made during the credit boom. Unfortunately, they haven’t done such a good job.
MARS Attacks! Oregon Realtors® Take Cover!
The Mortgage Assistance Relief Services Final Rule and the effect on real estate brokers in Oregon.
Is It Time To Clean Up Oregon’s Property Disclosure Law?
Taking a close look at Oregon’s Property disclosure law, first enacted in 1993. Phil identifies four elements within the law that can be improved: Inconsistent drafting, excess ‘legalese’, condominium ownership, and miscellaneous anomalies within the form.
Understanding Real Estate Contingencies
Offering an in-depth explanation of a real estate contingency while outlining the importance of clearing understanding all contingencies, including the financing, title, professional inspection, and well inspection contingency. Remember, when drafting your own contingency, avoid ambiguity!
FSBO Thoughts: Do-it-yourself Surgery
A Juvenalian satirical essay that takes a closer look at those who choose to list their own homes for sale. Irony and hyperbole effectively make note of the pitfalls of ‘FSBO’.
The Home Valuation Code of Conduct
The Home Valuation Code of Conduct, or HVCC, seeks to impose a ‘firewall’ between the lender/ mortgage broker and the appraiser.
Claims Evaluation- Part I
Claims are an inherent part of the industry, especially where fiduciary duties are involved. But good people skills, courtesy, & a willingness to listen will go a long way in keeping potential claims from becoming real claims.
Claims Evaluation- Part II
Dealing with claims when the gloves have to be taken off.
The OREF Statewide Sale Agreement Form- Tips and Traps
Specific things to look for in the OREF statewide sale agreement form: Does the buyer actually have the money? Examining promissory notes and checks as earnest money. When is the ‘real’ closing date? Multiple home inspections.
Short Sales- Part I
This comprehensive primer on short sales provides basic 101 level information for those unfamiliar with the process.
Short Sales- Part II
With an increasing number of homes selling for less than the cost of the seller’s total mortgage indebtedness, we must forge our way carefully with the understanding that we may frequently have to revisit & reevaluate some of our previously help assumptions on how short sales should be handled.
Gain Exclusion Basics for Sale of Principal Residence (IRS Section 121)
The basic requirements for claiming and exclusion of gain from the sale of a principal residence are relatively straightforward in most cases. This article shows the breakdown in seven easy-to-understand requirements.
In Real Estate Litigation is There Such Thing as a ‘Speedy Trial’?
A Thought-provoking view of Real Estate litigation that provides sound statistics & analytical data regarding the litigation process, as well as offering principles to remember when considering court litigation.
Observations on Distressed Transactions
A must-read for all parties involved in a distressed transaction, offering several general FAQs regarding a short sale.
Realtor ® Value in Today’s Changing Marketplace
In this time of uncertainty, more than ever, Knowledge is Power. And above all, to be successful today, each and every Realtor® must place supreme value on learning and knowledge, because the consumer will expect it and the industry’s long term success depends on it.
Providing a sound map for Realtors ® to navigate with concerning Megan’s Law.
Seller and Buyer Remedies Under OREF Statewide Sale Agreement
Sellers’ and Buyers’ remedies are substantially different. This article brings light to the unique circumstances facing both the buyer and seller in the event that either party fails to perform.
Unpermitted Remodeling- What Must Sellers Disclose?
Oregon’s Property Disclosure form asks 3 specific questions regarding a remodel. These 3 questions can be interpreted very differently, and thus not be reliable, even in good faith. This article aims to clear up the ambiguity regarding when a building permit is actually required.
Oregon’s Foreclosure Consultant Law
An in-depth analysis of HB 3630, which targets Foreclosure consulting and Equity purchases. This article helps to clearly establish the definition of ‘foreclosure consulting’.
Tips for Nonresident Sellers of Oregon Property
Selling property in Oregon can cause a surprise for out-of-state property owners. A must-read guide for all nonresident property owners.
Foreclosure Consultant Laws- Part I
This is the first of a two-part article on the foreclosure consultant law (HB 3630) and the debt management services law (HB 2191) and how they affect real estate licensees when dealing with and on behalf of owners of distressed housing.
Foreclosure Consultant Laws- Part II
Addresses the many issues as to what real estate licensees need to watch out for when using third party providers in short sales and other distressed sale situations.
The Oregon Homebuyer Protection Act
A brief review of the HPA