Q-Law
Real Estate Articles
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 has changed or evolved following 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.
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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!
Med-Arb(Part I)FINAL
Med-Arb(Part II)FINAL
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:
Home.Inspector.Limitation.of Liability.State_.Chart_.LC-2018-145
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).
Procuring Cause Q-Law Article
Procuring Cause NAR Arb Assistance
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”.
FIRPTA_Affidavit
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:
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 Part Two (2015)
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:
Claims Evaluation Part One (2015)
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:
Seller-Carried Transactions?
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.
Oregon MLO Licensing Exemptions for Manufactured Structure Dealers
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….
Ocwen Loan Servicing & Short Sale Shakedowns
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.
Tips for Reading Oregon Seller Property Disclosure Form PDF
The Biggert-Waters Flood Insurance Reform Act of 2012 – A Sea Change
In July, 2012 the National Flood Insurance Program of 1968 was amended to very little fanfare. What most people did not fully understand at the time was that the new law would put an end to subsidized premiums for many homeowners with property located in flood plains. The result, predictably, is that new and existing insurance rates are skyrocketing, and in some cases, making the insurance unaffordable. Since all federally regulated lenders require flood insurance for such properties, the new law could have a devastating impact on the owners’ ability to find buyers capable of affording the higher rates.
Q-Law Short Sale FAQs
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.
Trust Deeds vs. Land Sale Contracts
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!
Federal and State Laws Affecting Residential Real Estate
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.
Title Insurance 201 (Part Two)
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.
Seller-Carried Financing(Part One)
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.
Title Insurance 101 (Part One)
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.
Offers, Counteroffers & Their Revocation
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.
Portland Tri-County 2013 Q2 Foreclosure Charts
Ten pages of graphics showing the numbers and detail of all foreclosures filed in Multnomah, Washington and Clackamas Counties for April through June, 2013; compiled from First American Title Company of Oregon’s Foreclosure Reports and converted into understandable charts.
Oregon Real Estate Laws, Customs, & Practices
An informational chart outlining Real Estate Laws, Customs, Practices, and corresponding helpful tips & traps.
Chart- Oregon Real Estate Laws, Customs, Practices
Securitization Flow Chart (Redacted)
An informational flow chart outlining the securitization process.
Securitization Flow Chart (Redacted)
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.
Representing Buyers of REOs in Oregon
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.
Why People Are So Angry At Lenders and Servicers (Part One)
It took years for the lending and servicing industries to clean up the mess they made during the credit boom.
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.
Oregon’s Seller Property Disclosure Law
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 tongue-in-cheek look at those who choose to list their own homes for sale.
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.
Home Valuation Code of Conduct
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.
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
An upper-division course on the short sale process.
Gain Exclusion Basics for Sale of Principal Residence (IRS Section 121)
The basic requirements for exclusion arising from the sale of a principal residence. This article breaks things down in seven easy-to-understand requirements.
In Real Estate Litigation is There Such Thing as a ‘Speedy Trial’?
A review of statistics and data regarding the litigation process.
Observations on Distressed Transactions
A must-read for all parties involved in a distressed transaction, including general FAQs on short sales.
Realtor ® Value in Today’s Changing Marketplace
In a 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 consumers expect it.
Megan’s Law
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 three specific questions regarding a remodel. They can be interpreted very differently, even when everyone is acting 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 clarify the definition of ‘foreclosure consulting’.
Oregon’s Foreclosure Consultant Law
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 nonresident owners of Oregon real property.
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 I
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.
Foreclosure Consultand Laws – Part II
The Oregon Homebuyer Protection Act
A brief review of the HPA
