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). All Realtors® must publish an “offer of compensation” in their listings, so that other members are informed, up-front, how much they will received, should they produce a ready, willing and able buyer, who closes the transaction. Continue reading “QUERIN LAW: Realtor Commission Disputes and Procuring Cause Issues”
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). All Realtors must publish an “offer of compensation” in their listings, so that other members are informed, up-front, how much they will received, should they produce a ready, willing and able buyer, who closed the transaction.
To be clear, listing brokers do not have to prove they were a procuring cause of the sale – they have the written listing contract that essentially guarantees them a commission, even if they do nothing more than take the listing and place it in the MLS.
However, the buyer’s broker, who in most cases does not have a written service agreement with their client, generally must “prove” that their activity resulted in the sale, should a dispute arise between two buyer brokers claiming the compensation offered in the MLS. If there is no dispute, the buyer’s broker simply informs escrow of the amount of commission they are entitled to, and – assuming there is no disagreement with the listing broker over the figures – waits for closing to collect their share of the commission. [MORE: Go to link here.]
Carbon Monoxide Alarms.
Residential Landlord-Tenant
- ORS 90.316 Carbon monoxide alarm defined;
- ORS 90.317 Repair or replacement of carbon monoxide alarms;
- ORS 90.320 Landlord’s habitability obligations include a functioning carbon monoxide alarm if the premises includes a carbon monoxide source;
- ORS 90.325 Requires tenant to replace batteries as need; prohibits tampering.
Residential Sales
- ORS 105.464 requires disclosure in the seller’s property disclosure statement whether there is a working carbon monoxide alarm in the home.
- ORS 105.836 defines “carbon monoxide alarm”; mandates functions; requires conformance to State Fire Marshall rules. (See, http://www.oregon.gov/OSP/SFM/Pages/index.aspx)
- ORS 105.838 provides that “A person may not convey fee title to a one and two family dwelling or multifamily housing that contains a carbon monoxide source, or transfer possession under a land sale contract of a one and two family dwelling or multifamily housing that contains a carbon monoxide source, unless one or more properly functioning carbon monoxide alarms are installed in the dwelling or housing at locations that provide carbon monoxide detection for all sleeping areas of the dwelling or housing.”
- ORS 105.840 provides that “(a) purchaser or transferee of a one and two family dwelling or multifamily housing who is aggrieved by a violation of ORS 105.838 or of a rule adopted under ORS 476.725 may bring an individual action in an appropriate court to recover the greater of actual damages or $250 per residential unit. In any action brought under this section, the court may award to a prevailing party, in addition to the relief provided in this section, reasonable attorney fees at trial and on appeal, and costs.” Actions brought under this section must be commenced within one year after the date of sale or transfer.
- ORS 105.842 Prohibits tampering with carbon monoxide alarm in one and two family dwellings and multifamily housing.
Practice Tip: Actual damages could be catastrophic. Entire families have died from carbon monoxide poisoning. Practitioners representing landlords – especially those that do not have professional third-party management – should emphasize the importance of having functioning carbon monoxide alarms in the premises at all times.
Smoke Detectors.
Residential Sales. – ORS 479.250 – 479.305 govern the installation, use, and anti-tampering laws for smoke detectors in residential housing.
Landlord-Tenant.
- ORS 479.255 Requires a smoke alarm or smoke detector in every dwelling unit covered by the Oregon Residential Landlord Tenant Law, ORS Chapter 90.
- ORS 90.320 Landlord’s habitability obligations include a functioning smoke alarm or smoke detector
- ORS 90.325 Requires tenant to replace batteries as needed; prohibits tampering
- ORS 90.740 Requires landlord to install working smoke alarm
- ORS 90.680 (manufactured home and floating home facilities) Requires that if a space or slip tenant is selling their home, that they give notice to any lienholder, prospective purchaser or person licensed to sell dwellings or homes, and the location of all properly functioning smoke alarms
Fireplace Inserts. ORS 468A.460 – 468A.515 requires all sellers of “residential structures” to remove and destroy uncertified woodstoves or fireplace inserts prior to closing of the sale. A “residential structure” includes: (1) any structure that contains one or more dwelling units and is four stories or less above grade; (2) a condominium, rental residential unit or other residential dwelling unit that is part of a larger structure, if the property interest in the unit is separate from the property interest in the larger structure; (3) a modular home constructed off-site; (4) a manufactured dwelling; or (5) a floating home.
- Exclusions. The primary exclusions are pellet stoves, central wood fired furnaces, antique stoves, masonry fireplaces and masonry heaters.
- Removal and Destruction. This entails removal of the insert from the Property and destroying it. Woodstove retailers, chimney sweeps, or others may perform this task. Sellers removing an insert may take it directly to a metal scrap recycler or DEQ-approved landfill. Seller must obtain a receipt from the contractor or business certifying that the insert has been destroyed. DEQ has a disclosure form posted on its website that may be used to notify DEQ of the destruction of the insert. [See link here.]
- Failure to remove or destroy the insert does not invalidate the sale. However, it may constitute a Class A misdemeanor and/or result in a civil fine. [See, ORS 468A.990.]
- Certification Label. A certified woodstove or fireplace insert is one that bears a certification label located on the back and issued by the Oregon DEQ or U.S. Environmental Protection Agency (“EPA”) which means that it has met certain particulate emission standards. If the insert does not bear such a label, it is “uncertified,” and must be removed and destroyed. Sellers who cannot access the back of their insert may look up the model number on the EPA’s certified woodstove list or call the manufacturer of the insert.
- Responsibility. The seller is responsible for removal and destruction an uncertified insert located on the property. If the buyer accepts written responsibility for removal and destruction, the insert must be removed and destroyed by buyer within 30 days following the closing date of the sale.
- Additional Regulations. Sellers of residential structures located in some rural counties and cities may have regulations that require homeowners to remove non-certified solid fuel heating devices when a home is sold. Sellers and buyers in these areas should check with their local agency to determine if any other requirements might apply.
- More Information: See: DEQ Woodstove FAQs link here; or Contact: DEQ – Heat Smart Program, 811 SW Sixth Ave., Portland, OR 97204; See ORS 468A.
In part two of a three-part series, glean talking points about your experience in the field, which will come in handy if clients object to the amount they’re paying you.
JUNE 2018 | BY TONYA EBERHART AND MICHAEL CARR
Even if you’re armed with vast amounts of knowledge of the industry, it isn’t very valuable without experience. To use a sports analogy, imagine that Michael Jordan had all the skills necessary to be a basketball phenomenon in his early teens but never put them to use. Would he be the hoops superstar he is today? Without the experience of playing the game, the short answer is no.
You are no different. Without experience dealing with the ups and downs of the real estate market, you wouldn’t have the answers to the critical questions your clients seek. Is a certain obstacle to the transaction really a deal breaker? Why are certain homes selling faster than others in a particular area? Which marketing tools have been proven to work best to attract a specific customer? Which negotiating tactics are likely to move things to the closing table faster? In the second part of a three-part series, let’s look at how your experience supports your commission with tips drawn from our book, 31 Reasons Your Real Estate Agent Is Worth Their Commission. [MORE: Go to link here.]
In part one of a three-part series, learn how to explain to prospects and clients that your specific real estate knowledge is worth the money they’ll pay for your services.
MAY 2018 | BY TONYA EBERHART AND MICHAEL CARR
Everyone wants to feel appreciated, and you’re no different. You want your clients to see the value you bring to the transaction, but many real estate professionals are timid about tooting their horn to prospects and clients. You don’t want to come off as self-important, but you do want to educate customers about what you do—and most importantly, why you’re worth a commission check. Particularly in this digital age, where face-to-face communication is becoming scarcer, you might hear some of these aggravating comments: [MORE: Go to link here.]
When I first began practicing law – yes, in the Dark Ages – interest rates for a 30-year mortgage were 7.44%. By January 1980, they had climbed to 12.88%. Two years later, in 1982, they reached 17.48%. Despite some outliers, for the next four years, rates slowly declined to 10% range, and finally, in October, 1986, they fell below 10.00% for a few months, only to finish the decade alternating between 9% and 11%. During the decade of the ‘90s rates bounced between 7% and 8%, with brief flirtations in the 6% range.[1]
The Licensed Professional Inspections portion of Section 10 of the 2018 OREF Statewide Residential Sale Agreement form, contains the following provision:
Buyer shall not provide all or any portion of the inspection reports to Seller unless requested by Seller or Seller’s Agent. However, at any time during this transaction, or promptly following termination, upon request by Seller or Seller’s Agent, Buyer shall promptly provide a copy of such reports or portions of reports, as requested. (Emphasis in original text.) Continue reading “The Professional Inspection Report Conundrum”
Generally. An easement, in its most common and basic sense, is a right of use, e.g. to cross another’s land, to lay utility and sewer lines, to provide or share use for ingress and egress to one or more properties, etc.
Most easements are “appurtenant”, that is, the landowner with the right of use, and the owner of the land over which it runs, are contiguous. The land benefited by the easement is technically referred to as the “dominant” estate” and the land burdened by the easement is the “servient” estate. Continue reading “Easement Essentials For Oregon Homeowners”
Remember, “exceptions” noted in a preliminary title report (“PTR”)[1] or title policy, are the title insurance company’s exclusions from coverage. This means, for example, that if a homeowner suffered a loss arising from an easement shown as an exception on the policy, the title company is not on the hook, since that easement was listed as an “exception” to coverage under the policy. Continue reading “What An Owner’s Policy Of Title Insurance Doesn’t Cover”
“The way for a person to develop a style is (a) to know exactly what he wants to say, and (b) to be sure he is saying exactly that. The reader, we must remember, does not start by knowing what we mean. If our words are ambiguous, our meaning will escape him. I sometimes think that writing is like driving sheep down a road. If there is any gate open to the left or the right the reader will most certainly go into it.” C.S Lewis, on writing. 1963
Although this question does not come up a lot, I do see it from time to time: Do those purchasing residential property in Oregon have a 5-business day right of revocation when the seller falls into an exemption (e.g. new construction, court appointed receivers, REO banks, etc.)? Continue reading “Oregon Seller’s Property Disclosure Conundrum”
