WFG Wiki - User contributions [en]

WFG Wiki:About

2016-08-15T22:02:08Z

Roberthorvat: Created page with "Search/Exam • There is no marketable record title act in Oregon, no minimum required period of time for a title search, and no other applicable title examination standards...."

Search/Exam
• There is no marketable record title act in Oregon, no minimum required period of time for a title search, and no other applicable title examination standards.

• The only requirements are that, before a title insurer or its agent can insure a transaction, it must operate a title plant in the county where the real property is located or purchase title insurance from a company that does, ORS 731.438(1), and such title plant must cover a period of at least the immediately-preceding 50 years, except for the years before 1960. ORS 731.438(1).

• The Oregon Rating Manual (“Rating Manual”), published by the Oregon Title Insurance Rating Organization (“OTIRO”), provides in Section 2.003 that an additional chain charge of $100 must be added to the applicable insurance rate when the examination of title covers two different series of successive transfers (chains) of the parcels comprising the subject property. When the examination covers more than two different chains, a charge of $50.00 must be added for each additional chain exceeding the two chains, up to a maximum of $500.00 for all additional chains.

Cancellation Charge
• The Rating Manual, in Section 2.009, requires that a reasonable charge of not less than $200 be imposed for the cancellation of an order for 1-4 family residential title insurance, unless the charge may be waived under one of the circumstances outlined in that section.

Unauthorized Practice of Law
• ORS 9.160 provides that, except as provided in the statute, a person may not practice law or represent that the person is qualified to practice law in Oregon, unless the person is an active member of the Oregon State Bar.

• Subsection (4) of that statute contains the following carve out to the general prohibition:
“(4) A title insurer authorized to do business in this state, a title insurance agent licensed under the laws of this state or an escrow agent licensed under the laws of this state is not engaged in the practice of law in this state in violation of … this section if, for the purposes of a transaction in which the insurer or agent provides title insurance or escrow services, the insurer or agent:
(a) Prepares any satisfaction, reconveyance, release, discharge, termination or cancellation of a lien, encumbrance or obligation;
(b) Acts pursuant to the instructions of the principals to the transaction as scrivener to fill in blanks in any document selected by the principals;
(c) Presents to the principals to the transaction for their selection any blank form prescribed by statute, rule, ordinance or other law; or
(d) Presents to the principals to the transaction for their selection a blank form prepared or approved by a lawyer licensed to practice law in this state for one or more of the following:
(A) A mortgage.
(B) A trust deed.
(C) A promissory note.
(D) An assignment of a mortgagees interest under a mortgage.
(E) An assignment of a beneficial interest under a trust deed.
(F) An assignment of a sellers or buyers interest under a land sale contract.
(G) A power of attorney.
(H) A subordination agreement.
(I) A memorandum of an instrument that is to be recorded in place of the instrument that is the subject of the memorandum.
(5) In performing the services permitted in subsection (4) of this section, a title insurer, a title insurance agent or an escrow agent may not draft, select or give advice regarding any real estate document if those activities require the exercise of informed or trained discretion.”

• The remaining pertinent subsections of the statute set forth that:
(i) In performing the permitted services, a title insurer, a title insurance agent or an escrow agent may not draft, select or give advice regarding any real estate document if those activities require the exercise of informed or trained discretion.

(ii) The exemption does not apply to any acts relating to a document or form that are performed by an escrow agent under subsections (4)(b), (c) or (d) unless the escrow agent provides to the principals to the transaction a notice in at least 12-point type in the form set forth in subsection (6) of the statute.

(iii) The exemption does not apply to any acts relating to a document or form that are performed by an escrow agent under subsection (4)(b), (c) or (d) of this section for a real estate sale and purchase transaction in which all or part of the purchase price consists of deferred payments by the buyer to the seller unless the escrow agent provides certain items specified in subsection (7) to the principals to the transaction.

Vesting
• In Oregon, title may be held by:

An Individual - An individual may hold title in his or her name only, regardless of whether or not he/she is married – e.g. “Jane Smith, an individual”.

Tenants by the Entirety - A conveyance to a husband and wife creates a tenancy by the entirety, unless the conveyance expressly declares otherwise – e.g. “John Smith and Jane Smith, husband and wife, as tenants by the entirety”. A husband and wife may also take title as tenants in common (discussed below).

Tenants in Common - A conveyance to two or more persons who are not married creates a tenancy in common in which each has (unless otherwise stated) an equal undivided interest in the property, unless the conveyance expressly declares that the parties intend to create a survivorship estate (discussed below) – e.g. “John Smith and Robert Jones, as tenants in common, each as to an undivided 50% interest”.

A Survivorship Estate - It is possible for two or more persons who are not married to hold title as tenants in common with a right of survivorship, as long as the survivorship declaration is expressly contained in the deed – e.g. “John Smith and Robert Jones, as tenants in common with right of survivorship”.
A Life Estate – A life estate is typically created to protect a person’s right to live on property during that person’s lifetime and, on that person’s death, to have the property pass to another – e.g. “Jane Smith, for the term of Jane Smith’s life, then to Stephanie Smith”.

Registered Domestic Partners - Registered domestic partners may take title as (i) tenants in common– e.g. “Jane Smith and Mary Jones, registered domestic partners, as tenants in common, each as to an undivided 50% interest”, or (ii) in a survivorship estate similar to that of a tenancy by the entirety – e.g. “Jane Smith and Mary Jones, as registered domestic partners with right of survivorship”.

A Same Sex Married Couple - Same sex married couples may take title as (i) tenants in common – e.g. “John Smith and Robert Smith, a married couple [or “husband and husband” or “wife and wife” if females], as tenants in common, each as to an undivided 50% interest”, or (ii) in a survivorship estate similar to that of a tenancy by the entirety – e.g. John Smith and Robert Smith, a married couple [or “husband and husband” or “wife and wife” if females] with right of survivorship, or (iii) as tenants by the entirety – e.g. “John Smith and Robert Smith, a married couple [or “husband and husband” or “wife and wife” if females], as tenants by the entirety”.

An Entity - A registered entity, such as a corporation, limited liability company or partnership, may hold title. Title should be held exactly as the name is registered with the Oregon Secretary of State – e.g. “Smith & Jones, LLC, an Oregon limited liability company”.

In a Representative Capacity - Title may sometimes be held by an individual or an entity in his/her or its representative capacity, such as the trustee of a trust – e.g. “John Smith, Trustee of the Mary Jones Trust”. However, personal representatives of decedents do not hold title, which remains in the decedent’s estate, even though the personal representative is typically shown as the grantor of the estate’s deed by common practice in Oregon. Likewise, guardians and conservators do not hold legal title, which remains in the incapacitated person.

Standard Exceptions
• Oregon utilizes the following standard exceptions (see Section 1.002 of the Rating Manual):

1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records; proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records.

2. Facts, rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection of the land or by making inquiry of persons in possession thereof.

3. Easements, or claims of easement, not shown by the public records; reservations or exceptions in patents or in Acts authorizing the issuance thereof; water rights, claims or title to water.

4. Any encroachment (of existing improvements located on the subject land onto adjoining land or of existing improvements located on adjoining land onto the subject land), encumbrance, violation, variation, or adverse circumstance affecting the title that would be disclosed by an accurate and complete land survey of the subject land.

5. Any lien, or right to a lien, for services, labor, material, equipment, rental or workers compensation heretofore or hereafter furnished, imposed by law and not shown by the public records.

• Section 5.001 of the Rating Manual addresses the additional charges that must be made for an owner’s policy with one or more of the standard exceptions eliminated or modified.

Spousal Joinder Requirement
• Execution of a deed or security instrument by a non-title holding spouse is not required in Oregon.

Permissible Deed of Trust Trustees
• Only the following parties are eligible to act as a trustee under a trust deed encumbering Oregon real property (ORS 86.713(1)(b)):

(A) An attorney who is an active member of the Oregon State Bar or a law practice that includes an attorney who is an active member of the Oregon State Bar;

(B) A financial institution or trust company, as defined in ORS 706.008, that is authorized to do business under the laws of Oregon or the United States;

(C) A title insurance company or a subsidiary, affiliate, insurance producer or branch of the title insurance company that is authorized to insure title to real property in Oregon;

(D) The United States or any agency of the United States; or

(E) An escrow agent that is licensed under ORS 696.505 to 696.590.

• If the trustee is an entity described in (B) or (C) above, the entity must either (1) be registered with or obtain a certificate of authority to transact business from the Oregon Department of Consumer and Business Affairs, or (2) obtain a certificate of authority to transact business as a foreign business entity from the Oregon Secretary of State. ORS 86.713(1)(c).

• It is customary for the title insurer to be named as the trustee on Oregon deeds of trust.

Powers of Attorney
• The Oregon statutes dealing with powers of attorney (“POAs”) are set forth in ORS 127.002-127.045 and ORS 93.670.

• Oregon recognizes both general and special powers of attorney. A power of attorney gives one person the right to act in the place of another for all purposes (general) or for specified purposes (special). However, unless otherwise provided in the power-of-attorney document, an attorney-in-fact or an agent “must use the property of the principal for the benefit of the principal.” ORS 127.045.

• A POA becomes effective when it is executed (unless a “springing” POA is intended), and the powers of the attorney-in-fact are not affected by the passage of time. ORS 127.005.

• The power of attorney is revoked when the death of the principal is known to the person acting on it, when a revocation of the power of attorney is filed in the office where it was originally recorded, or when the power of attorney specifies it is to be revoked. ORS 127.015(1)–(2), ORS 93.670(2).

• A power of attorney is durable; that is, it survives the incompetency of the principal unless the writing contains words stating otherwise. ORS 127.005(1).

• When a POA is used to transfer interests in Oregon real property, it is customary to record the original or a certified copy of the POA in the real property records of the county in which the real property is located. Having the POA recorded reduces the risk that the POA has been revoked by a physical act and that the attorney-in-fact has no continuing power to act. This is because, by statute in Oregon, once recorded, a POA cannot be revoked unless an instrument containing such revocation is also recorded in the same office. ORS 93.670.

Construction Liens

• Oregon is a direct lien state. This means that claimants who comply with the necessary notice and filing provisions have the direct right to file a lien claim even if the person with whom they have a contract (such as the general contractor or higher-tier subcontractor) has been paid.

• The individuals and entities for whom construction lien claims are created are set forth in ORS 87.010. If a lien is created for a person who is not enumerated in ORS 87.010, that lien cannot be subsequently perfected and foreclosed. See ORS 87.035(1), 87.060.

• Oregon construction lien law requires a variety of notices. A potential lien claimant must provide some notices before recording a construction lien claim; other notices must be provided after recording a lien claim. See ORS 87.001 to 87.060 and 87.075 to 87.093.

• A person claiming a construction lien for providing labor, renting equipment, or furnishing materials must file a claim of lien within 75 days after ceasing to provide labor, equipment, or materials or 75 days after construction is completed, whichever is earlier. ORS 87.035(1). Persons claiming liens pursuant to ORS 87.010(4)–(6) must file their claims not later than 75 days after the construction is completed. ORS 87.035(1).

• A suit to foreclose a claim of lien must be commenced while the lien binds the property. A claim of lien binds property for only 120 days after its filing or for 120 days after the expiration of an extended payment agreement set forth in the claim of lien. However, no claim of lien can bind property for more than two years after the lien has been filed. ORS 87.055.

• A perfected construction lien may be removed from the land or an improvement by the owner’s or other interested person’s posting a valid bond or cash deposit at any time after the claim of lien is filed. ORS 87.076(1), (3). The bond must be filed with the recorder of the county where the claim of lien is filed and must be executed by a corporation authorized to issue surety bonds in the State of Oregon to the effect that the principal or principals on the bond shall pay the amount of the claim and all costs and attorney fees that are awarded against the improvement or land on account of the lien. ORS 87.076 (1).

• In lieu of the bond, the owner of the improvement or property or other interested party may make a cash deposit with the treasurer of the county where the claim of lien is filed. ORS 87.076(2)(a). The bond or cash deposit must be 150% of the amount of the lien claimed, or $1,000, whichever is greater. ORS 87.076(1), (2)(a).

• Priorities: A construction lien claim under ORS 87.010(1), (4), or (5) has priority over all prior liens, mortgages, or encumbrances on the land on which the improvement was constructed. ORS 87.025(2). The priority of these construction claims, however, is limited to priority as against the improvement, not the land on which it is situated.

Furthermore, under the general principle of first-in-time, first-in-right, construction lien claims under ORS 87.010(1), (4), and (5) have priority over subsequently recorded liens, encumbrances, or mortgages.

The general rule of ORS 87.025(2) is subject, however, to the exceptions of ORS 87.025(3) and (6). Under ORS 87.025(3), a construction lien claimed for materials will not have priority as to the amount of materials claimed unless the lien claimant has provided a notice substantially similar to the Notice of Right to a Lien to the mortgagee over which priority is claimed. The notice must be given not later than eight (8) days, not including Saturdays, Sundays, and other holidays as defined in ORS 187.010, after the date of delivery of materials for which a lien may be claimed. ORS 87.025(3).

A construction lien under ORS 87.010(1), (4), or (5) has priority over prior liens, mortgages, and encumbrances only when the claimant has participated in the original construction of an improvement. ORS 87.025(6).

• Section 5.002 of the Rating Manual, among other things, deals with the additional charge to be imposed (commonly referred to as an “early issue” charge) when an owner’s or loan policy is issued after completion of construction but prior to expiration of the 75-day period for the filing of construction liens.

Instrument Requirements
• Witnesses are not required on either deeds or security instruments.

• County recording officers can refuse to record a document if it is not legible, ORS 205.130(2), and proper notarial acknowledgments are required for recorded documents. ORS 205.130(2)(a). If the notary block complies with Oregon law or the law of the state in which the notary is taken, it will be sufficient for recording in Oregon. Oregon acknowledgment forms are set forth in ORS 194.285.

• All instruments must be typed, written, or printed in 8-point type or larger on paper that is not larger than 14 inches long and 8-1/2 inches wide and which paper is of sufficient quality for recording photographically.

• There must be enough space for the recording sticker (4" x 2") to be placed in the upper right corner on the first page of the document.

• The first page of the instrument must contain at least (i) the name of the transaction (ORS 205.236), (ii) the names of the persons described in ORS 205.160, (iii) the person to whom and the address to which the recorded instrument should be delivered (ORS 205.180), (iv) the true and actual consideration paid for the transfer (ORS 93.030), (v) the person to whom and the address to which all tax statements should be sent (ORS 93.260), (vi) for County Clerk Lien Records, the information described in ORS 205.125 (1)(c) and (e), and (vii) for instruments that assign a mortgage or trust deed, the name and address of the assignee.

• As noted above, for instruments conveying or contracting to convey fee title to any real estate and all memoranda of such instruments, the true and actual consideration paid for such transfer must be stated, unless the actual consideration consists of or includes other property or other value given or promised, in which event it must only be noted on the face of the instrument that other property or value was either part or the whole consideration.

OR Operations Summary

2016-08-11T17:03:48Z

Roberthorvat:

WFG Entity Licensed in Oregon: WFG National Title Insurance Company

Title Insurance in Oregon Generally:

- Regulation: Title insurers and their agents are regulated by the Oregon Insurance Commissioner under the provisions of the Oregon Insurance Code (ORS chapters 731–750).

- OTIRO: The policy and endorsement forms used and the rates charged for title insurance are reviewed and proposed first by the Oregon Title Insurance Rating Organization (“OTIRO”) and must be approved by the Oregon Insurance Commissioner. See ORS 742.003, ORS 737.205–737.560.

- Forms and Rates: Oregon is a filing state, which means that all policy, endorsement, and guarantee forms must be approved by the Insurance Commissioner before issuance. ORS 732.825, ORS 742.003. Proposed rates are tested under ORS 737.310 and the practice of paying rebates, discounts, or commissions is prohibited. ORS 746.055.

As a result of these stringent regulations, Oregon insurers offer fewer endorsements and have less flexibility than states in which company policy determines permitted coverage and the regulatory agency need only be notified.

In addition, since all of the title companies doing business in Oregon are members of OTIRO, the policy and endorsement forms used and the rates charged are the same. There is no difference in coverage and fees among Oregon title insurers.

A comprehensive and current listing of policies, endorsements, and other products available in Oregon can be found in the Oregon Rating Manual, published by OTIRO and located at http://oregonlandtitle.com/files/otiroratemanual.pdf.

- Preliminary Title Reports and Title Commitments: In response to a request for a title policy, Oregon title insurers can issue either a preliminary title report (“PTR”) or a title commitment. In the vast majority of cases a PTR is requested and issued.

Escrow Issues:

- Who May Act as Escrow Agent: Oregon law prohibits persons not licensed as escrow agents from carrying on escrow business or acting in the capacity of an escrow agent. ORS 696.511(1). In addition to the statutory scheme, the Oregon Real Estate Agency adopts rules and regulations governing escrows and escrow agents, which are set forth in OAR 863-050-0000 to 863-050-0150.

- Acceptance and Disbursal of Funds: 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, written agreement between the principals. ORS 696.581(1).

An escrow agent may not close an escrow or disburse funds without separate written instructions from the principals adequate to administer and close the transaction or disburse funds. ORS 696.581(3). However, an escrow agent may accept client funds that are in excess of earnest money required in the transaction, as individual funds of the principal who paid them. Those funds may be disbursed with only the separate written instructions of the principal who deposited the funds. Similarly, an escrow agent may open a one-sided escrow and disburse those funds with only the separate written instruc¬tions of the principal who deposited the funds. ORS 696.581(6)–(7).

- Typical Cost Allocation: The seller is generally responsible for the cost of the owner’s or purchaser’s policy of title insurance, one-half of the escrow fee, the cost of clearing encumbrances against title (including recording the releases or satisfactions of liens), and the commission for the sale of the property. The seller is generally responsible for taxes and utilities to the closing date (utilities are frequently handled outside of escrow). The buyer is generally responsible for one-half of the escrow fee, the cost of recording the mortgage or deed of trust on the property, any fees in connection with the loan, the cost of the lender’s policy of title insurance, and taxes and utilities after the closing date. The buyer is responsible for insurance from the closing date, which is usually handled by obtaining an insurance binder. Of course, the parties are free to agree to other allocations.

- Oregon Tax Reporting: An escrow agent must withhold and remit tax to the Oregon Department of Revenue (“ODR”) in connection with gains on sales of property by certain nonresidents, and forward the Form WC (Written Affirmation for Withholding on an Oregon Real Property Con¬veyance) to the ODR.

- Accounting Practices: An escrow agent may not draw, execute, or date a check before the account has sufficient monies to pay the check. An escrow agent may not withdraw or transfer money from any individual escrow account or escrow trust unless such account has sufficient monies for such payment or transfer.

An escrow agent may not withdraw escrow fees from a closing escrow account until (a) the escrow is cancelled; or (b) the escrow is closed with the exception of customary post-closing procedures as contained in the escrow instructions of the principals to the escrow transaction.

An escrow agent may deposit only the funds received as part of an escrow transaction or as trustee of a trust deed in an account established under ORS 696.578.

All funds deposited in an escrow trust account established under ORS 696.578 may be withdrawn, paid out, or transferred to other accounts only as specified in the written escrow instructions of the principals to the escrow transaction directed to the escrow agent or pursuant to order of a court of competent jurisdiction.

An escrow agent must deposit all checks or cash received in escrow into the agent’s escrow trust account established under ORS 696.578 no later than the close of business of the banking day the day after the agent receives the checks or cash. This requirement does not apply to checks received from a lender who requires that the checks not be deposited until an escrow is ready to close.

Recording/Document Requirements and Process:

- Recording Statute: Oregon’s recording law is a race-notice law, is set forth in ORS 93.640, and protects (i) a subsequent purchaser, (ii) in good faith, (iii) for valuable consideration, (iv) who records first.

- Recording Duties: Under ORS chapter 205, the county clerk has the recording duties associated with documents affecting title to real property situated in that county. In performing these duties, the county clerk bears the non¬-statutory but commonly used designation of county recorder.

- Recording Requirements: County recording officers can refuse to record a document if it is not legible, ORS 205.130(2), and proper notarial acknowledgments are required for recorded documents. ORS 205.130(2)(a). If the notary block complies with Oregon law or the law of the state in which the notary is taken, it will be sufficient for recording in Oregon. Oregon acknowledgment forms are set forth in ORS 194.285.

All instruments must be typed, written, or printed in 8-point type or larger on paper that is not larger than 14 inches long and 8-1/2 inches wide and which paper is of sufficient quality for recording photographically.

The first page of each instrument must contain a description of the transaction to be recorded; the names and addresses of the grantor and grantee; and the name of the person and address to whom the instrument will be delivered after recording.

For instruments conveying or contracting to convey fee title to any real estate and all memoranda of such instruments, the true and actual consideration paid for such transfer must be stated, unless the actual consideration consists of or includes other property or other value given or promised, in which event it must only be noted on the face of the instrument that other property or value was either part or the whole consideration.

For instruments conveying or contracting to convey fee title to real estate, a statement must be included that “until a change is requested, all tax statements shall be sent to the following address:” and then listing the address.

- Recording Fees, Registration, Filing Fees, Recording Taxes: Oregon does not require a mortgage registration or filing tax or fee for filing of a mortgage or deed of trust, aside from the standard county recording fee (which varies for each county) to record documents.

However, Washington County imposes a transfer tax on each transfer of real property (e.g. conveyance of the property) located within Washington County, unless an exemption applies; no other county in Oregon imposes such tax. This tax is not applicable to recording mortgages, trust deeds, or other security interests. After Washington County adopted the transfer tax, the Oregon legislature adopted ORS 306.815, which now prohibits any other counties from taking the same action.

- Recording Process: Documents may be recorded with the county recorder’s office in person, via mail, or electronically using a recording service such as simplefile. Documents are typically recorded prior to disbursement of transaction funds.

- Land Use Disclaimer: Except for owner’s sale agreements or earnest money receipts, the following warning must appear in the body of any instrument “trans¬ferring or contracting to transfer fee title to real property.” ORS 93.040.

BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON’S RIGHTS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010. THIS INSTRUMENT DOES NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.010 OR 215.010, TO VERIFY THE APPROVED USES OF THE LOT OR PARCEL, TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS 30.930, AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010.
ORS 93.040(1).

A similar warning must appear in owner’s sale agreements or earnest-money receipts:

THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS THAT, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND THAT LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS 30.930, IN ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON’S RIGHTS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.010 OR 215.010, TO VERIFY THE APPROVED USES OF THE LOT OR PARCEL, TO VERIFY THE EXISTENCE OF FIRE PROTECTION FOR STRUCTURES AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010.
ORS 93.040(2).

A second warning is required for an owner’s sale agreement or earnest-money receipt that covers property specially assessed as historic property: “THE PROPERTY DESCRIBED IN THIS INSTRUMENT IS SUBJECT TO SPECIAL ASSESSMENT UNDER ORS 358.505.” ORS 93.040(3). This warning may be included in the body of the sale agreement or by addendum.

Conveyancing Documents, Security Instruments, and Reconveyances:

- Conveyances: ORS 93.850 to 93.870 provide statutory deed forms with legislatively-defined terms, effects, and covenants. These statutes establish statutory forms for warranty deeds, special warranty deeds, bargain-and-sale deeds, and quit¬claim deeds. Furthermore, each statutory deed form sets forth the legal effects of the statutory language. ORS 93.870 and ORS 93.975 make clear that the use of the statu¬tory deed forms is permissive and not mandatory, but if another form is used, the parties may not be able to rely on the statute.

In 2012 Oregon adopted the Uniform Real Property Transfer on Death Act (“URPTDA”) ORS 93.948–93.979. The URPTDA provides a will substitute and a means for probate avoidance with respect to real property. Under the URPTDA, an individual may, by recording a transfer-on-death deed, designate a beneficiary or beneficiaries who will acquire title to specified real property on the individual’s death. ORS 93.949(6), ORS 93.953. The transfer-on-death deed has no effect on title to real property during the lifetime of the transferor, and does not create an interest in the designated beneficiary during the lifetime of the transferor. ORS 93.967.

- Security Instruments: The security instrument of choice in Oregon is the Deed of Trust, although Mortgages are available but rarely used. In addition, there is a third form of security instrument in real property that can be used to secure the unpaid portion of the purchase price of real property - the land sale contract.

- Reconveyances: Within 30 days after performance of the obligation that is secured by the trust deed, the beneficiary must deliver a written request to the trustee to reconvey the real property described in the trust deed to the grantor. ORS 86.720(1). Within 30 days after the beneficiary delivers the request to reconvey to the trustee, the trustee must reconvey the real property to the grantor. ORS 86.720(1). The deed of reconveyance is recorded in mortgage records. ORS 86.720(5). The trustee may assess a reasonable charge for executing this instrument. ORS 86.720(1).

If a full reconveyance of a trust deed is not executed and recorded within 60 calendar days after satisfaction of the obligation secured by the trust deed, the grantor may request that the title insurance company or insurance producer prepare and record a release of trust deed. ORS 86.720(2), (5). Before issuing and recording a release, the title insurance company or insurance producer must “give notice of the intention to record a release of trust deed to the beneficiary of record and, if different, the party to whom the full satisfaction payment was made.” ORS 86.720(3). A properly executed and recorded release of trust deed “shall be deemed to be the equivalent of a reconveyance of a trust deed.” ORS 86.720(5). The trustee, title insurance company, or insurance producer may charge a reasonable fee for preparing, executing, and recording the release of trust deed. ORS 86.720(7).

Estates in Real Property:

- Every conveyance or devise of real property to two or more persons in Oregon creates a tenancy in common unless (i) a clear intention to take with the right of survivorship is expressed in the conveyance or devise, (ii) the grantees are spouses, or (iii) the grantees are identified as trustees or personal representatives. See ORS 93.180.

- If the conveyance or devise to two or more individuals includes a declaration of a right of survivorship, the resulting interests are a “tenancy in common in the life estate with cross-contingent remainders in the fee simple.” ORS 93.180(2).

- When the grantees are identified as trustees or personal representatives, the law presumes a joint tenancy unless expressly declared otherwise. ORS 93.180(1)(c). Joint-tenancy in Oregon is reserved only for trustees, personal representatives, and executors. ORS 93.190.

- The law presumes a tenancy in common, despite use of words such as joint tenants, joint tenancy, or similar language, if the conveyance or devise does not contain any other expression or indication of intent to create a right of survivorship. ORS 93.180(3).

- If grantees or devisees are spouses, the law presumes a tenancy by the entirety unless the conveyance or devise “clearly and expressly declares otherwise.” ORS 93.180(1)(b). The statutory language presumes a tenancy by the entirety if the conveyance or devise is to spouses married to each other. ORS 93.180(1)(b). This presumption applies to all spouses, whether “husband and wife” or persons of the same sex who are married to each other.

- Oregon is not a community property state.

- Oregon recognizes life estates. A life estate is alienable; however, the grantee receives only the grantor’s life estate. ORS 93.150. When the measuring life ends, the grantee’s interest in the property ends. The same cotenant rules that apply to fee-simple cotenants apply when the life estate is held by two or more persons.

- With respect to homesteads, ORS 18.395 provides that “a homestead shall be exempt from sale on execution, from the lien of every judgment and from liability in any form for the debts of the owner to the amount in value of $40,000, except as otherwise provided by law. The exemption shall be effective without the necessity of a claim thereof by the judgment debtor. When two or more members of a household are debtors whose interests in the homestead are subject to sale on execution, the lien of a judgment or liability in any form, their combined exemptions . . . shall not exceed $50,000 …”.

A court may decline to allow all or part of a claimed homestead exemption if the proceeding is based on a judgment for child support. ORS 18.398(2). In addition, the homestead exemption does not apply “to construction liens for work, labor or material done or furnished exclusively for the improvement of the homestead property, to purchase money liens, to mortgages lawfully executed, or to the enforcement of a seller’s rights under a land sale contract…”. ORS 18.406.

Oregon Real Estate Taxes:

- Under Oregon law, real estate taxes become delinquent if not paid in full by May 15 of the tax year. The tax year is July 1 through June 30. Taxes can be paid with a discount on November 15.

- Otherwise, taxes are paid in three equal installments - on November 15, February 15, and May 15.

- If taxes become delinquent, they are subject to foreclosure by the county tax collector on the third (3rd) anniversary of such delinquency.

Foreclosure in Oregon:

- Non-judicial Foreclosure: Non-judicial foreclosure (foreclosure by publication and sale) is available in Oregon and may be completed, absent complications, in as few as 120 days, although 180 days is a more typical time frame. If contested, a non-judicial foreclosure can take over one year. There is no redemption period following a non-judicial foreclosure, but the borrower has until five (5) days prior to the foreclosure sale to reinstate the loan.

The timeline is generally as follows for deeds of trust: First, a notice of default must be recorded in the county where the property is located and the borrower and/or occupant of the property must be served with a copy of the notice at least 120 days before the scheduled foreclosure sale date. Second, a copy of the notice must be published once a week for four (4) successive weeks, with the last notice being published at least twenty (20) days prior to the foreclosure sale. The borrower may cure the default at any time prior to five (5) days before the sale by paying all past due amounts, plus costs. The sale must be at auction to the highest bidder for cash. Any person, except the trustee, may bid at the sale, which must take place between 9:00 am and 4:00 pm at the location stated in the notice of record. The sale may be postponed for up to 180 days from the original sale date by the trustee or the trustee’s attorney or agent.

- Judicial Foreclosure: Judicial foreclosure is available in Oregon and can take as little as 90 days (if uncontested and a default judgment is obtained) to more than eighteen (18) months to complete. Deficiency judgments are available as part of a judicial foreclosure. For the mortgagor, there is a 180-day redemption period following judicial sale and this redemption period may not be waived. For junior lienors, there is a 60-day redemption period following judicial sale. Unlike non-judicial foreclosure, there is no right to reinstate the loan once the judicial foreclosure has been filed.