The Homebuyer Protection Act protects residential property buyers against construction liens
By Jeff Sorg, OnlineEd Blog
(October 29, 2015) – Oregon’s Homebuyer Protection Act, or HPA, applies to a new single family residence or a single family residence where the sales price is $50,000 or more for original construction or the contract price is $50,000 or more for improvements to the residence completed within three months before the date the property is sold; a new condominium unit or a condominium unit where the sales price is $50,000 or more for original construction or the contract price is $50,000 or more for improvements to the condominium unit completed within three months before the date the property is sold; and a new residential building or a residential building where the sales price is $50,000 or more for original construction or the contract price is $50,000 or more for improvements to the residential building completed within three months before the date the property is sold.
The purpose of the HPA is to protect buyers of these types of properties from from liens recorded after a sale closes. In order to protect buyers, the seller of these types of properties must deliver to the buyer a from that specifies the types of protection available to the seller to offer the buyer, along with which of these types of protection the seller is offering to the buyer. These types of protection a seller may offer to a buyer are the following:
- Purchase owner’s extended coverage title insurance for the buyer that does NOT except filed or unfiled claims of lien. A standard title insurance or lender’s title insurance policy may not be sufficient. This policy is to protect the buyer against recorded and unrecorded construction liens existing as of the date of closing;
- Retain 25% of the home’s sale price in escrow, along with written instructions signed by the seller and buyer instructing escrow to pay any claims of lien not paid by the seller filed after the date of sale;
- Issue a bond or letter of credit equal to at least 25% of the home’s sale price. A Construction Contractors Board bond that is required to license the contractor is not sufficient;
- Obtain written lien waivers from every lien claimant who claims liens of $5,000 or more and provide copies of these waivers to the buyer. The Oregon CCB recommends consulting with your lawyer to find out if the waivers presented are in their proper form to offer protection;
- Wait to close the sale until at least 75 days after all construction is completed; or
- Get the buyer to sign a waiver of right to protection under the HPA.
Noncompliance with the HPA is a Class A Violation. An Oregon licensed contractor who fails to comply the the Act could be subject to suspension or revocation of license, civil penalties, or a combination of both.
The Homebuyer Protection Act is codified in ORS 87.007. Compliance with the HPA is the sole responsibility of the seller and real estate licensees are not liable for failure of a seller to comply with the act, while acting in their professional capacity as an agent for a buyer or seller. Real estate licensees should not engage in the practice of law by offering advice as to which option of protection is best for the seller to provide or buyer to receive.
Disclaimer: This posting is for informational purposes only and is not intended as or does not constitute legal advice. You should not act upon any information contained in this posting without consulting an attorney for advice regarding your particular situation.
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