Common law duties of broker.
The duties of a broker specified in this chapter or in rules promulgated under this chapter shall supersede duties or obligations under common law to the extent that those common law duties or obligations are inconsistent with the duties specified in this chapter or in rules promulgated under this chapter.
A client is not liable for a misrepresentation made by a broker in connection with the broker providing brokerage services, unless the client knows or should have known of the misrepresentation or the broker is repeating a misrepresentation made to him or her by the client.
A broker who is providing brokerage services to a client and who retains another broker to provide brokerage services to that client is not liable for a misrepresentation made by the other broker, unless the broker knew or should have known of the other broker's misrepresentation or the other broker is repeating a misrepresentation made to him or her by the broker.
Nothing in this subsection limits the liability of a broker under s. 452.12 (3)
for misrepresentations made by an employee who is a broker. Nothing in this subsection limits the liability of a client for a misrepresentation that the client makes in connection with brokerage services.
See also ch. REEB 24
, Wis. adm. code.
Investigation and discipline of licensees. 452.14(1)(1)
The board shall, upon motion of the secretary or his or her designee or upon its own determination, conduct investigations and, as appropriate, may hold hearings and make findings, if the board or the department receives credible information that a broker, salesperson, or time-share salesperson has violated this chapter or any rule promulgated under this chapter.
The board may commence disciplinary proceedings on any matter under investigation concerning a licensee or registrant.
Disciplinary proceedings shall be conducted by the board according to rules adopted under s. 440.03 (1)
. The board may revoke, suspend or limit any broker's, salesperson's or time-share salesperson's license or registration, or reprimand the holder of the license or registration, if it finds that the holder of the license or registration has:
Made a material misstatement in the application for a license or registration, or in any information furnished to the board or department;
Made any substantial misrepresentation with reference to a transaction injurious to a seller or purchaser in which the broker, salesperson or time-share salesperson acts as agent;
Made any false promises of a character such as to influence, persuade or induce the seller or purchaser to his or her injury or damage;
Pursued a continued and flagrant course of misrepresentation or made false promises through agents or salespersons or advertising;
Accepted from any person except the broker's, salesperson's, or time-share salesperson's employer, if the broker, salesperson, or time-share salesperson is employed as a salesperson or time-share salesperson by a broker, a commission or valuable consideration as a salesperson or time-share salesperson for the performance of any act specified in this chapter or as compensation for referring a person to another broker, salesperson, or time-share salesperson or to any other person in connection with a transaction;
Represented or attempted to represent a broker other than the employer, without the express knowledge and consent of the employer;
Failed, within a reasonable time, to account for or remit any moneys coming into the broker's, salesperson's or time-share salesperson's possession which belong to another person;
Demonstrated incompetency to act as a broker, salesperson or time-share salesperson in a manner which safeguards the interests of the public;
Paid or offered to pay a commission or valuable consideration to any person for acts or services in violation of this chapter;
Intentionally encouraged or discouraged any person from purchasing or renting real estate in a particular area on the basis of race. If the board finds that any broker, salesperson or time-share salesperson has violated this paragraph, the board shall, in addition to any temporary penalty imposed under this subsection, apply the penalty provided in s. 452.17 (4)
Been guilty of any other conduct, whether of the same or a different character from that specified herein, which constitutes improper, fraudulent or dishonest dealing;
Violated any provision of this chapter or any rule promulgated under this chapter;
Treated any person unequally solely because of sex, race, color, handicap, national origin, ancestry, marital status, lawful source of income, or status as a victim of domestic abuse, sexual assault, or stalking, as defined in s. 106.50 (1m) (u)
If a broker is a business entity it shall be sufficient cause for reprimand or for the limitation, suspension or revocation of a broker's license that any business representative of the business entity, or anyone who has a financial interest in or is in any way connected with the operation of a brokerage business, has been guilty of any act or omission which would be cause for refusing a broker's license to such person as an individual.
In addition to or in lieu of a reprimand, the issuance of a private letter of warning or a revocation, limitation or suspension of a license or certificate of registration under sub. (3)
, the board may do any of the following:
Assess against a person who is licensed or registered under this chapter a forfeiture of not more than $1,000 for each violation enumerated under sub. (3)
Require a licensee to successfully complete education or training, in addition to any education or training required for licensure or registration or for renewal of a license or certificate under this chapter, as a condition of continued licensure or registration or reinstatement of a license or certificate.
The department may seek judicial review under ch. 227
of any final decision of the board. The department shall be represented in such review proceedings by an attorney within the department. Upon request of the board, the attorney general may represent the board. If the attorney general does not represent the board, the board may retain special counsel which shall be paid for out of the appropriation under s. 20.165 (1) (g)
See also chs. REEB 15
, and 24
, Wis. adm. code.
Real estate brokers may engage in guaranteed sales plans if there is full disclosure and the broker does not engage in fraud, misrepresentation, or improper dealing. 61 Atty. Gen. 3.
Provisions in Executive Order 67 (1973), with respect to duty of real estate brokers to advise prospective purchasers of floodplain zoning status of property, do not constitute a new standard but suggest a course of action that the real estate examining board might take. The action to be taken would depend on the facts in each case. 63 Atty. Gen. 236.
Neither s. 440.20, 452.10 (2), 1977 stats., nor the rules of the department of regulation and licensing require the board to hold a hearing when a citizen files a verified complaint with the board requesting institution of disciplinary proceedings against a licensee. 68 Atty. Gen. 30.
No license or certificate of registration may be issued under this chapter to any person whose license or certificate under this chapter has been revoked until the expiration of a period determined in each case by the board or, in the case of revocation under s. 452.17 (4) (a) 2.
, a period determined in each case by the board of not less than 5 years from the date the revocation became finally effective.
Any person who engages in or follows the business or occupation of, or advertises or holds himself or herself out as or acts temporarily or otherwise as a broker or salesperson in this state without a license under this chapter shall be prosecuted by the district attorney in the county where the violation occurs or by the attorney general and may be fined not more than $1,000 or imprisoned not more than 6 months or both.
Any person who engages in or follows the business or occupation of, or advertises or holds himself or herself out as or acts temporarily or otherwise as, a time-share salesperson in this state without being registered with the board shall be prosecuted by the district attorney in the county where the violation occurs and may be fined not less than $25 nor more than $200 or imprisoned not less than 10 days nor more than 6 months or both.
Any person who otherwise violates any provision of this chapter may be fined not more than $1,000 or imprisoned for not more than 6 months or both.
Shall, for the first offense, suspend the license or registration of the broker, salesperson or time-share salesperson for not less than 90 days.
Shall, for the 2nd offense, revoke the license or registration of the broker, salesperson or time-share salesperson.
No licensed broker may pay a fee or a commission or any part thereof for performing any act specified in this chapter or as compensation for a referral or as a finder's fee to any person who is not licensed or registered under this chapter or who is not regularly and lawfully engaged in the real estate brokerage business in another state, a territory or possession of the United States or a foreign country.
Under s. 452.03 an agreement to pay a real estate brokerage commission to a person not licensed as a broker is void at its inception. Using a licensed broker who provides no actual services as a conduit for a fee to an unlicensed person does not create a co-brokerage arrangement authorized by s. 452.19. Badger III Ltd. v. Howard, Needles, Tammen & Bergendoff, 196 Wis. 2d 891
, 539 N.W.2d 904
(Ct. App. 1995), 94-2531
Limitation on actions for commissions.
No person engaged in the business or acting in the capacity of a broker, salesperson or time-share salesperson within this state may bring or maintain an action in the courts of this state for the collection of a commission or compensation for the performance of any act mentioned in this chapter without alleging and proving that he or she was a duly licensed broker, salesperson or registered time-share salesperson at the time the alleged cause of action arose.
A foreign corporation that contracts to sell a radio station without being licensed in this state cannot sue for its commission. The licensing requirement is not an unlawful burden on interstate commerce. Chapman Co. v. Service Broadcasting Corp. 52 Wis. 2d 32
, 187 N.W.2d 794
The prohibition against paying a commission to an unlicensed person acting as a broker is absolute and not conditioned on the innocence or lack of sophistication of the other contracting parties. Because a contract for a commission with a person not licensed as a broker is void from its inception, estoppel is not available to avoid the effect of the statute. Greenlee v. Rainbow Auction/Realty Co. 202 Wis. 2d 653
, 553 N.W.2d 257
(Ct. App. 1996), 95-1463
This section not applicable since broker as owners' agent was not attempting to negotiate the lease when conferring with his alleged principal in Wisconsin and therefore was not acting in the capacity of a broker in Wisconsin. Negotiation of lease occurred when broker met and conferred with prospective lessee either in Illinois or Tennessee. Paulson v. Shapiro, 490 F.2d 1
In any prosecution for violation of this chapter, proof that a person acted as a broker, agent, salesperson or time-share salesperson is prima facie proof that compensation therefor was received or promised.
History: 1981 c. 94
; 1987 a. 399
Certifications as evidence. 452.22(1)
Copies of all documents, orders, resolutions and certificates made, executed or granted by the department or board, and of all papers filed with the department when certified by the secretary or his or her designee, under the official seal, shall be received in evidence in all cases the same as the originals.
The certificate of the chairperson of the board or his or her designee to the effect that a specified individual or business entity is not or was not on a specified date the holder of a broker's, salesperson's, or time-share salesperson's license or registration, or that a specified license or registration was not in effect on a date specified, or as to the issuance, limitation, suspension, or revocation of any license or registration or the reprimand of any license or registration holder, the filing or withdrawal of any application or its existence or nonexistence, is prima facie evidence of the facts stated in the certificate for all purposes in any action or proceedings.
Disclosures, investigations and inspections by brokers and salespersons. 452.23(1)
A broker or salesperson may not disclose to any person in connection with the sale, exchange, purchase or rental of real property information, the disclosure of which constitutes unlawful discrimination in housing under s. 106.50
or unlawful discrimination based on handicap under 42 USC 3604
A broker or salesperson is not required to disclose any of the following to any person in connection with the sale, exchange, purchase or rental of real property:
That the property was the site of a specific act or occurrence, if the act or occurrence had no effect on the physical condition of the property or any structures located on the property.
Except as provided in sub. (3)
, information relating to the physical condition of the property or any other information relating to the real estate transaction, if a written report that discloses the information has been prepared by a qualified 3rd party and provided to the person. In this paragraph, "qualified 3rd party" means a federal, state or local governmental agency, or any person whom the broker, salesperson or a party to the real estate transaction reasonably believes has the expertise necessary to meet the industry standards of practice for the type of inspection or investigation that has been conducted by the 3rd party in order to prepare the written report.
The location of any adult family home, as defined in s. 50.01 (1)
, community-based residential facility, as defined in s. 50.01 (1g)
, or nursing home, as defined in s. 50.01 (3)
, in relation to the location of the property.
Except as provided in s. 452.24
, any information related to the fact that a particular person is required to register as a sex offender under s. 301.45
or any information about the sex offender registry under s. 301.45
A broker or salesperson shall disclose to the parties to a real estate transaction any facts known by the broker or salesperson that contradict any information included in a written report described under sub. (2) (b)
In performing an investigation or inspection and in making a disclosure in connection with a real estate transaction, a broker or salesperson shall exercise the degree of care expected to be exercised by a reasonably prudent person who has the knowledge, skills and training required for licensure as a broker or salesperson under this chapter.
An independent inspection by a qualified third party operates to relieve a broker from liability for disclosures related to the physical condition of the property. Conell v. Coldwell Banker, 181 Wis. 2d 894
, 512 N.W.2d 239
(Ct. App. 1994).
Sub. (2) (b) relieves a broker from the obligation to disclose information disclosed in a 3rd party report. Sub. (2) (b) does not apply to a separate affirmative act of negligence and does not preclude a broker's liability for a breach of other duties. Johnson v. Neuville, 226 Wis. 2d 365
, 595 N.W.2d 100
(Ct. App. 1999), 98-1680
Disclosure duty; immunity for providing notice about the sex offender registry. 452.24(1)
If, in connection with the sale, exchange, purchase or rental of real property, a licensee receives a request from a person to whom the licensee is providing brokerage services in connection with the sale, exchange, purchase or rental for information related to whether a particular person is required to register as a sex offender under s. 301.45
or any other information about the sex offender registry under s. 301.45
, the licensee has a duty to disclose such information, if the licensee has actual knowledge of the information.
Notwithstanding sub. (1)
, the broker or salesperson is immune from liability for any act or omission related to the disclosure of information under sub. (1)
if the broker or salesperson in a timely manner provides to the person requesting the information written notice that the person may obtain information about the sex offender registry and persons registered with the registry by contacting the department of corrections. The notice shall include the appropriate telephone number and Internet site of the department of corrections.
History: 1999 a. 89