5)_OREF-Forms-Internet.docx

ATTACHMENT #5

OREGON REAL ESTATE AGENCY DISCLOSURE PAMPHLET

OAR 863-015-215 (4)

This pamphlet describes the legal obligations of real estate licensees in Oregon. Real estate brokers and principal real estate brokers are required to provide this information to you when they first meet you.

This pamphlet is informational only. Neither the pamphlet nor its delivery to you may be interpreted as evidence of intent to create an agency relationship between you and a broker or a principal broker.

Real Estate Agency Relationships

An "agency" relationship is a voluntary legal relationship in which a licensed real estate broker or principal broker (the "agent"), agrees to act on behalf of a buyer or a seller (the "client") in a real estate transaction.

Oregon law provides for three types of agency relationships between real estate agents and their clients:

Seller's Agent - Represents the seller only;

Buyer's Agent - Represents the buyer only;

Disclosed Limited Agent - Represents both the buyer and seller, or multiple buyers who want to purchase the same property. This can be done only with the written permission of both clients.

The actual agency relationships between the seller, buyer and their agents in a real estate transaction must be acknowledged at the time an offer to purchase is made. Please read this pamphlet carefully before entering into an agency relationship with a real estate agent.

Definition of “Confidential Information”

Generally, licensees must maintain confidential information about their clients. “Confidential information” is information communicated to a real estate licensee or the licensee’s agent by the buyer or seller of one to four residential units regarding the real property transaction, including but not limited to price, terms, financial qualifications or motivation to buy or sell. “Confidential information” does not mean information that:

a. The buyer instructs the licensee or the licensee’s agent to disclose about the buyer to the seller, or the seller instructs the licensee or the licensee’s agent to disclose about the seller to the buyer; and

b. The licensee or the licensee’s agent knows or should know failure to disclose would constitute fraudulent representation.

Duties and Responsibilities of Seller’s Agent

Under a written listing agreement to sell property, an agent represents only the seller unless the seller agrees in writing to allow the agent to also represent the buyer. An agent who represents only the seller owes the following affirmative duties to the seller, the other parties and the other parties’ agents involved in a real estate transaction:

1. To deal honestly and in good faith;

2. To present all written offers, notices and other communications to and from the parties in a timely manner without regard to whether the property is subject to a contract for sale or the buyer is already a party to a contract to purchase; and

3. To disclose material facts known by the agent and not apparent or readily ascertainable to a party;

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A seller’s agent owes the seller the following affirmative duties;

1. To exercise reasonable care and diligence;

2. To account in a timely manner for money and property received from or on behalf of the seller;

3. To be loyal to the seller by not taking action that is adverse or detrimental to the seller’s interest in a transaction;

4. To disclose in a timely manner to the seller any conflict of interest, existing or contemplated;

5. To advise the seller to seek expert advice on matters related to the transactions that are beyond the agent's expertise;

6. To maintain confidential information from or about the seller except under subpoena or court order, even after termination of the agency relationship; and

7. Unless agreed otherwise in writing, to make a continuous, good faith effort to find a buyer for the property, except that a seller's agent is not required to seek additional offers to purchase the property while the property is subject to a contract for sale.

None of the above affirmative duties of an agent may be waived, except #7. The affirmative duty listed in #7 can only be waived by written agreement between seller and agent.

Under Oregon law, a seller's agent may show properties owned by another seller to a prospective buyer and may list competing properties for sale without breaching any affirmative duty to the seller.

Unless agreed to in writing, an agent has no duty to investigate matters that are outside the scope of the agent's expertise, including but not limited to investigation of the condition of property, the legal status of the title or the seller’s past conformance with law.

Duties and Responsibilities of Buyer’s Agent

An agent, other than the seller’s agent, may agree to act as the buyer’s agent only. The buyer’s agent is not representing the seller, even if the buyer’s agent is receiving compensation for services rendered, either in full or in part, from the seller or through the seller’s agent.

An agent who represents only the buyer owes the following affirmative duties to the buyer, the other parties and the other parties’ agents involved in a real estate transaction:

1. To deal honestly and in good faith;

2. To present all written offers, notices and other communications to and from the parties in a timely manner without regard to whether the property is subject to a contract for sale or the buyer is already a party to a contract to purchase; and

3. To disclose material facts known by the agent and not apparent or readily ascertainable to a party. A buyer’s agent owes the buyer the following affirmative duties:

1. To exercise reasonable care and diligence;

2. To account in a timely manner for money and property received from or on behalf of the buyer;

3. To be loyal to the buyer by not taking action that is adverse or detrimental to the buyer’s interest in a transaction;

4. To disclose in a timely manner to the buyer any conflict of interest, existing or contemplated;

5. To advise the buyer to seek expert advice on matters related to the transaction that are beyond the agent’s expertise;

6. To maintain confidential information from or about the buyer except under subpoena or court order, even after termination of the agency relationship; and

7. Unless agreed otherwise in writing, to make a continuous, good faith effort to find property for the buyer, except that a buyer’s agent is not required to seek additional properties for the buyer while the buyer is subject to a contract for purchase.

None of these affirmative duties of an agent may be waived, except #7. The affirmative duty listed in #7 can only be waived by written agreement between buyer and agent.

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Under Oregon law, a buyer’s agent may show properties in which the buyer is interested to other prospective buyers without breaching an affirmative duty to the buyer.

Unless agreed to in writing, an agent has no duty to investigate matters that are outside the scope of the agent’s expertise, including but not limited to investigation of the condition of property, the legal status of the title or the seller’s past conformance with law.

Duties and Responsibilities of an Agent Who Represents More than One Client in a Transaction

One agent may represent both the seller and the buyer in the same transaction, or multiple buyers who want to purchase the same property, only under a written "Disclosed Limited Agency Agreement” signed by the seller and buyer(s).

Disclosed Limited Agents have the following duties to their clients:

1. To the seller, the duties listed above for a seller’s agent; and

2. To the buyer, the duties listed above for a buyer’s agent;

3. To both buyer and seller, except with express written permission of the respective person, the duty not to disclose to the other person:

a. That the seller will accept a price lower or terms less favorable than the listing price or terms;

b. That the buyer will pay a price greater or terms more favorable than the offering price or terms; or

c. Confidential information as defined above.

Unless agreed to in writing, an agent has no duty to investigate matters that are outside the scope of the agent’s expertise.

When different agents associated with the same principal broker (a real estate licensee who supervises other agents) establish agency relationships with different parties to the same transaction, only the principal broker will act as a Disclosed Limited Agent for both buyer and seller. The other agents continue to represent only the party with whom the agents have already established an agency relationship unless all parties agree otherwise in writing. The principal real estate broker and the real estate licensees representing either seller or buyer shall owe the following duties to the seller and buyer:

1. To disclose a conflict of interest in writing to all parties;

2. To take no action that is adverse or detrimental to either party's interest in the transaction; and

3. To obey the lawful instruction of both parties.

No matter whom they represent, an agent must disclose information the agent knows or should know that failure to disclose would constitute fraudulent misrepresentation.

You are encouraged to discuss the above information with the licensee delivering this pamphlet to you. If you intend for that licensee, or any other Oregon real estate licensee, to represent you as a Seller's Agent, Buyer's Agent, or Disclosed Limited Agent, you should have a specific discussion with the agent about the nature and scope of the agency relationship. Whether you are a buyer or seller, you cannot make a licensee your agent without the licensee’s knowledge and consent, and an agent cannot make you their client without your knowledge and consent.

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1 MLSCO LISTING CONTRACT

3 Seller Name(s):

4 Listing Firm:

5 Listing Licensee:

10 exclusive right to offer for sale the Property, more particularly described on the attached MLSCO Property Features 11 Form. Seller represents that there are no listing contracts or pending sales on this Property. The terms "sale" or "sell" 12 shall include, but not be limited to, any direct or indirect exchange, trade, conveyance, option, lease with the option to 13 purchase, or transfer of the Property to which Seller consents.

17 3. RIGHT TO COMPENSATION: Seller shall pay Broker the Brokerage Fee pursuant to the terms set forth in Section 15, 18 Brokerage Fee, below if:

19 a) A sale is completed during the term of this Contract or any extension or renewal.

20 b) Seller sells or agrees to sell the Property during the term of this Contract or any extension or renewal.

21 c) Broker or a cooperating broker produces a buyer ready, willing and able to purchase the Property on the terms described 22 in the attached MLSCO Property Features Form or other such price and terms as Seller may accept.

23 d) Seller enters into a contract to sell the Property and that transaction fails to close due to Seller's failure or refusal to close.

24 e) A sale is made within days after the expiration or termination of this Contract to any person to whom the Property 25 was shown by Broker, cooperating Broker, Seller or any other person during the term of this Contract.* 26 f) Broker or any cooperating Broker is the procuring cause of an agreement to sell the Property. * 27 *Items (e) and (f) above shall not apply if, after termination or expiration of this Contract, Seller lists the Property with a 28 subsequent Broker.

29 3.1 If Seller enters into a contract to sell the property prior to the expiration or termination of this Contract, or any extension 30 or renewal, Seller shall be obligated to pay Broker the full Brokerage Fee pursuant to Section 15, Brokerage Fee, below, 31 at close of escrow, even if close of escrow occurs after the expiration or termination of this Contract.

32 4. AUTHORITY: During the term of this Contract, Seller authorizes Broker to:

33 a) advertise the Property for sale 34 b) access the Property and allow cooperating Brokers to access the Property for purposes of showing it to prospective 35 buyers during reasonable hours 36 c) allow access to the Property by appraisers for the purpose of an appraisal of the Property in the event of an accepted offer 37 d) place information regarding this listing and the Property in the Multiple Listing Service of Central Oregon (MLSCO) and 38 abide by all its rules and regulations 39 e) cooperate with other Brokers and to share with such other Brokers any Brokerage Fee or compensation payable under 40 this Contract 41 f) accept earnest money deposits on Seller's behalf 42 g) take any other ordinary, necessary or reasonable action to bring about a sale 43 h) after closing of any sale of the Property disclose to MLSCO, Managing Principal Broker and to licensed/certified 44 appraisers any buyers closing costs paid by the Seller or any other Seller concessions.

45 5. SELLER'S REPRESENTATIONS AND WARRANTIES: Seller represents and warrants to Broker that they have full 46 authority to enter into this Contract and to convey the Property to a buyer. Seller agrees to cooperate with Broker in their 47 efforts to procure a buyer for the Property and to close a sale. Seller shall provide any information and documentation 48 requested by Broker.

49 6. DISCLOSURE STATEMENT: Seller has supplied Broker with all information relevant to the condition, value and sale of 50 the Property. Unless exempt, Seller has completed a Seller's Property Disclosure Statement regarding the Property as 51 provided by Oregon law. Seller shall immediately notify Broker if Seller becomes aware of any conditions that affect the 52 Property, its value, or any defects in the condition of the Property or the falsity of any facts provided to Broker. Seller 53 authorizes Broker to deliver a copy of such Disclosure Statement to any prospective buyer, and to rely solely upon 54 Seller's representations set forth in this Contract and in the Disclosure Statement without further inquiry or diligence by 55 Broker. Seller warrants that the information on the attached MLSCO Property Features Form is correct and complete.

56 7. AGENCY: Seller has received and read a copy of the Oregon Real Estate Agency Disclosure Pamphlet.

57 8. CLOSING: Seller agrees that any sale of the Property shall be closed in escrow with a licensed escrow agent. Unless 58 specifically modified by a Sale Agreement, Seller, at Seller's expense, shall furnish to the buyer of the Property at closing 59 a good and sufficient conveyance and standard owner's title insurance policy in the amount of the sales price. Seller 60 shall also pay one-half of the escrow costs at closing unless otherwise agreed in writing between Seller and the buyer of 61 the Property.

Seller Initials Seller Initials Date

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62 9. INDEMNITY: Seller shall defend, indemnify and hold harmless Broker, its licensees and employees, any cooperating 63 Broker and its licensees and employees from any liability, claims costs, damages or attorney's fees, causes of action or 64 suits arising out of, or relating to any breach of the Representations and Warranties set forth in this contract for sale of 65 the Property, and from the failure to disclose all defects of the Property or by providing inaccurate, incomplete or false 66 information to Broker.

67 10. ATTORNEY'S FEES: In the event any mediation, arbitration or litigation, suit or action ("Dispute") is commenced under 68 this Contract or relating to the Property, the prevailing party shall be entitled to their reasonable attorney's fees and 69 costs in connection with such Dispute and in any appeal and enforcement.

70 11. EQUAL HOUSING OPPORTUNITY: Seller shall comply with the obligation to offer the Property for sale to any 71 prospective buyer without regard to race, color, religion, sex, handicap, familial status or national origin and all classes 72 protected by the laws of the United States, State of Oregon and local jurisdictions.

73 12. MODIFICATION: This Contract may be modified only in writing signed by Seller and Broker.

74 13. TERMINATION: If Seller terminates this Contract prior to the expiration date in Section 2, Term, above, or any extension 75 or renewal, Seller agrees to reimburse Broker for all receipted-for marketing expenses Broker has incurred for the 76 marketing of Seller's Property as of the date of termination. Such payment shall not relieve Seller from the obligation to 77 pay the balance of the Brokerage Fee set forth in Section 15, Brokerage Fee, and provided for in Section 3, Right to 78 Compensation, (a) through (f) above should any event described in such subsections occur.

79 14. DISPUTE RESOLUTION: Seller and Broker mutually agree that all claims within the jurisdiction of Small Claims Court 80 shall be brought and decided there, in lieu of mediation, arbitration or litigation in any other court of law. All other disputes 81 or claims shall be submitted to mediation in accordance with the procedures of the Home Seller/Home Buyer Dispute 82 Resolution System of the National Association of Realtors® or other organization-adopted mediation program 83 (collectively the "System"). Provided, however, if the System is not available through the Broker's Association of 84 Realtors® then Seller and Broker shall not be required to engage in mediation. All claims that have not been resolved by 85 mediation shall be submitted to final and binding private arbitration in accordance with Oregon laws. Filing for arbitration 86 shall be treated the same as filing in court for purposes of meeting any applicable statutes of limitation or for purposes of 87 filing a lis pendens. Seller and Broker may use any professional arbitration company which provides such service to the 88 county where the Property is located, as selected by the party first filing for arbitration.

89 BY CONSENTING TO THIS PROVISION YOU ARE AGREEING THAT DISPUTES ARISING UNDER THIS 90 AGREEMENT SHALL BE HEARD BY ONE OR MORE NEUTRAL ARBITRATORS AND YOU ARE GIVING UP THE 91 RIGHT TO HAVE THE MATTER TRIED BY A JUDGE OR JURY. THE RIGHT TO APPEAL AN ARBITRATION

92 DECISION IS LIMITED UNDER OREGON LAW.

93 15. BROKERAGE FEE: Seller shall pay to Broker a Brokerage Fee in an amount equal to % of the selling 94 price, or total option price, an option exercise price of the Property if an option, or the listing price if an exchange, 95 conveyance, or other transfer occurs, or a flat fee of $ . In the event Seller is required to pay 96 Broker a Brokerage Fee pursuant to Section 3, Right To Compensation, Seller assigns to Broker the proceeds of any sale 97 of the Property to which Seller would otherwise be entitled to the extent of Broker's Brokerage Fee and instructs escrow to 98 pay said Brokerage Fee to Broker at closing of the sale out of such proceeds. In the event of forfeiture of earnest money 99 for any sale relating to this Contract, the earnest money shall be paid as follows after the deduction of any title insurance, escrow cancellation fees, and other charges paid on Seller's behalf:

% to Seller and % to Broker, to the extent of the Brokerage Fee, with balance to Seller. (Seller Initial)

16. ADDITIONAL PROVISIONS #9 The Indemnity clause goes against the Anti-Deficiency Act 31 U.S.C. § 1341 that prohibits open-ended indemnification clauses. #14 Dispute Resolution would be subject to the Contract Disputes Act, 41

104 U.S.C § 601-13. 105

THIS IS A LEGALLY BINDING CONTRACT. SELLER IS ADVISED TO SEEK LEGAL ADVICE BEFORE SIGNING.

Seller Printed Name(s)

Seller Signature Date:

Listing Licensee Signature Date:

Managing Principal Broker Signature Date:

Seller Initials Seller Initials Date

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