There are a small handful of forms that will almost always be the same. These forms are created by law or created by rule, and the form library providers are essentially bound to produce the forms in the pre-written format without deviation. These prescribed forms are also the forms that will likely not undergo significant changes or updates, regardless of user interest in having them changed. For example, at Oregon REALTORS® we hear about things that would improve the Seller Property Disclosure Statement. Requests about modifying the format to put blank lines after each question to make the statements of explanation more clear; requests about adding other systems to the “Dwelling Systems and Fixtures” questions, since inbuilt microwaves are more commonplace; requests to make the SPDS less terrible to fill out or to make the SPDS ask clearer questions. We hear you. Truly we do. The problem is that the SPDS is created by law in ORS 105.464. The law literally begins with “A seller’s property disclosure statement must be in substantially the following form” and then the SPDS you know and love is written out below. It’s baked into the statute in the current state. If the legislature wanted to change it, then we would have a new and improved SPDS, but other issues tend to be more pressing, what with groundwater running out, the housing crisis, wildfires, taxes, and all the other things that government must handle. Updating a disclosure document that’s mostly working as intended is generally a pretty low priority on the legislative agenda. Hence, for those documents that are pre-drafted and given to us, we are stuck with the documents we have. We aren’t permitted to deviate far from the language without risking noncompliance with the “substantially in the following form” style language.
Other documents/portions of documents that are created by law or rule:
Seller Property Disclosure Statement – Form 3.1 in the Oregon REALTORS® Form library. Created by law in ORS 105.464.
Final Agency Acknowledgement – Form 9.1 in the Oregon REALTORS® Form library. OAR 863-015-0200(12)(a) requires us to adhere to a pre-written structure and set of questions “in substantially the following form.” This is why the form has the awkward “Buyer exclusively, Seller exclusively, Both Buyer and Seller” language; it’s mandated in rule.
Disclosed Limited Agency Agreement – Form 9.2 in the Oregon REALTORS® Form library. OAR 863-015-0210 lays out a version of the disclosed limited agency agreement for the Seller and a version of the disclosed limited agency agreement for the Buyer. As the Buyer and Seller variants overlapped in significant portions of the form, Oregon REALTORS® begged permission from OREA to mix the two forms together into one omnibus Disclosed Limited Agency Agreement, and with OREA’s permission were confident that our Form 9.2 was substantially the same form as required by rule, as we largely just modified the formatting, but not the words. The language of the disclosed limited agency agreement is entirely granted by rule, and while we understand that it is unclear how a supervising principal broker is to be disclosed on the form, it’s the language we were given. We can educate on how to use the agreement, but we are unable to deviate from the terms without risking being out of compliance with the requirements of rule.
Notice of Real Estate Compensation – Form 9.8 in the Oregon REALTORS® Form library. ORS 696.582(2) creates the language for the notice that will trigger escrow to hold compensation. The notice can’t be incorporated into any document with the principals [has to be standalone] and must be substantially in the form that is provided in law.
FHA & VA Amendatory Clause – Form 2.19 in the Oregon REALTORS® Form library. The FHA financing clause is drawn verbatim from HUD 4155.2, 6.A.5.e., the Lender’s Guide to Single Family Mortgage Insurance Process, and the VA clause is drawn verbatim from 38 C.F.R. 36.4303(k)(4).
Lead-Based Hazard Addendum – Form 2.6 in the Oregon REALTORS® Form library. The “Lead Warning Statement” is required language established by rule in 40 C.F.R. 745.113(a)(1). The statement cannot deviate from the language given by rule without falling out of compliance with the Residential Lead-Based Paint Hazard Reduction Act of 1992.
Purchase and Sale Agreement (mandatory statement regarding fire protection district and approved uses) – Form 1.1-1.5 in the Oregon REALTORS® Form library. ORS 93.040(2) requires that the mandatory statement be present in all owner’s sale agreements, somewhere within the body of the instrument. It’s a flat requirement of Oregon law, though under ORS 93.040(5), no action can be maintained against someone for failure to include the statement in the sale agreement unless the person acquiring or agreeing to acquire fee title to the real property would not have executed or accepted the instrument but for the absence in the instrument of the statement. Woe betide the lawyer that tries to enforce that provision by arguing that their client would not have purchased the property but-for the paragraph of all-caps fine print. Nonetheless, don’t take ORS 93.040(5) as a tacit permission to leave the mandatory statement out of your agreements. It’s never good risk management to ignore clear legal requirements just to prove a point or to save a quarter page of printing.