Wisconsin Legislature: Register534B

c. Any other negotiation with the seller or the listing broker.

SECTION 15. RL 24.12 is renumbered RL 24.12 (1) and amended to read:

RL 24.12 Confidentiality of offers. (1) A Except as provided in sub. (2), a licensee acting as a principal or an agent in a real estate or business opportunity transaction shall not disclose any of the terms of one prospective buyer's offer to purchase, exchange agreement or option contract proposal to any other prospective buyer or to any person with the intent that this information be disclosed to any other prospective buyer. Licensees shall encourage all prospective buyers to submit their best offers. A licensee may, but is not required to, disclose information known by the licensee regarding the existence of other offers on the property, the fact that a seller has accepted an offer, that the offer is subject to contingencies and that the offer is subject to a clause requiring removal of certain contingencies upon the occurrence of an event such as receipt, acceptance or conditional acceptance of another offer.

SECTION 16. RL 24.12 (2) is created to read:

RL 24.12 (2) As used in this subsection, “right of first refusal" means the right of a person to have the first opportunity to purchase or lease real property. “Right of first refusal" does not mean a so-called “bump clause" which is a contingency provision in a purchase agreement that requires the prospective buyer to remove certain contingencies in the buyer's purchase agreement or to relinquish the buyer's primary status to a secondary offer. If a licensee is providing brokerage services in a transaction and the licensee has knowledge that the property is subject to a right of first refusal, the licensee shall disclose the right of first refusal, in writing and in a timely manner, to all persons seeking to acquire an interest subject to the right of first refusal. After disclosure of the right of first refusal to a party seeking to acquire an interest in the property, the licensee may deliver a copy of that party's subsequent offer to purchase, exchange agreement, option contract or lease proposal to the party holding the right of first refusal.

SECTION 17. RL 24.13 (3) (b), (5) (title) and (5) are amended to read:

RL 24.13 (3) (b) A listing broker or the listing broker's employe may not submit his or her own offer to purchase a property which the broker has listed if the broker or broker's employe has knowledge of the terms of any pending offer, except that a broker may arrange for a guaranteed sale at the time of listing.

(5) NEGOTIATION THROUGH LISTING BROKER. Licensees shall may not negotiate a sale or lease of real estate directly with an owner a party if the licensee knows that such owner has an unexpired written contract in connection with such property which grants to another licensee an exclusive right to sell, lease or negotiate. All negotiations shall be conducted with the listing broker holding the exclusive right to sell, and not with the owner party, except with the consent of the listing broker or where the absence of the listing broker, or other similar circumstances, reasonably compels direct negotiation with the owner. A listing broker has no duty to investigate whether a buyer has granted a buyer's agent an exclusive right to negotiate.

Fiscal Estimate

1. The anticipated fiscal effect on the fiscal liability and revenues of any local unit of government of the proposed rule is: $0.00.

2. The projected anticipated state fiscal effect during the current biennium of the proposed rule is: $0.00.

3. The projected net annualized fiscal impact on state funds of the proposed rule is: $0.

Initial Regulatory Flexibility Analysis

These proposed rules will be reviewed by the Department through its Small Business Review Advisory Committee to determine whether there will be an economic impact on a substantial number of small businesses, as defined in s. 227.114 (1) (a), Stats.

Copies of Rule and Contact Information

Copies of this proposed rule are available without cost upon request to:

Pamela Haack

Dept. of Regulation and Licensing

Office of Administrative Rules

1400 East Washington Avenue, Room 171

P.O. Box 8935

Madison, WI 53708

Telephone: (608) 266-0495

Email: pamela.haack@drl.state.wi.us

Notice of Hearing

Regulation and Licensing

[CR 00-106]

Notice is hereby given that pursuant to authority vested in the Department of Regulation and Licensing in ss. 227.11 (2), 480.06 and 480.08 (7), Stats., and interpreting ss. 480.08 (7), 480.20 and 480.24, Stats., the Department of Regulation and Licensing will hold a public hearing at the time and place indicated below to consider an order to amend the Note following s. RL 125.03, and s. RL 126.02 (13); and to create ss. RL 121.025 and 126.03, relating to the regulation of auctioneers and auction companies.

Hearing Information

The hearing will be held as follows:

Date and Time Location

July 24, 2000 Room 180

Monday 1400 East Washington Ave.

9:15 a.m. MADISON, WI

Written Comments

Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to the Department of Regulation and Licensing, Office of Administrative Rules, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by Monday, August 7, 2000, to be included in the record of rule-making proceedings.

Analysis Prepared by the Dept. of Regulation and Licensing

Statutes authorizing promulgation: ss. 227.11 (2), 480.06 and 480.08 (7)

Statutes interpreted: ss. 480.08 (7), 480.20 and 480.24

This proposed rule-making order of the Department of Regulation and Licensing amends rules relating to the regulation of auctioneers and auction companies. A new rule section is created in ch. RL 126, to describe the effect of a suspension or revocation.

The Note following s. RL 125.03 is amended to correct a citation.

Section RL 126.02 (13) is amended to correct an error. The term “buyer's fee or surcharge" is substituted for “buyer's premium or surcharge." The term “buyer's fee or surcharge" is defined in s. RL 120.02 (4).

The Wisconsin Statutes require in s. 480.08 (7), Stats., that a temporary registration certificate shall be valid for a period designated by the Department, not to exceed one year. Section RL 121.025 is created to specify that a temporary registration certificate is valid for 60 days.

Section RL 126.03 is created to describe the auctioneer-related activities that may not be performed by a person whose registration as an auctioneer or auction company has been suspended or revoked. Under the rule, a suspended or revoked auctioneer or auction company must notify all persons with whom the auctioneer or auction company has a contract for auctioneer services of the suspension or revocation. The rule also describes specific activities that may not be performed by a suspended or revoked auctioneer or auction company.

Text of Rule

SECTION 1. RL 121.025 is created to read:

RL 121.025 Temporary registration. A temporary registration certificate issued under s. 480.08 (7), Stats., shall be valid for no more than 60 days after the date that the applicant has filed an application for registration as an auctioneer with the department.

SECTION 2. The Note following s. RL 125.03 is amended to read:

Note: This provision applies only to registrants not required to maintain a trust account. Registrants for whom a trust account is required must use the trust account bookkeeping system described in s. RL 125.11 125.12.

SECTION 3. RL 126.02 (13) is amended to read:

RL 126.02 (13) If a buyer's fee or surcharge is a condition of sale, failing to post written notice at the location where the auction is to be conducted, prior to the commencement of an auction, of the percentage or other amount of the buyer's premium fee or surcharge.

SECTION 4. RL 126.03 is created to read:

RL 126.03 Effect of suspension or revocation on registrant. (1) An auctioneer or auction company whose registration has been suspended or revoked shall notify all persons with whom the auctioneer or auction company has a contract for services to be performed during the period of suspension or following revocation. The notice shall be in writing, state that the registration of the auctioneer or auction company has been suspended or revoked, and describe the terms of the suspension or revocation.

(2) An auctioneer or auction company whose registration has been suspended or revoked by the board may not engage in the following activities during the term of the suspension or revocation:

(a) Call an auction by calling for, recognizing, or accepting offers for the purchase of goods or real estate at an auction.

(b) Advertise, represent or otherwise hold out as being available to call or manage an auction.

(c) Advertise, represent or otherwise hold out as being an auctioneer or auction company or use the title “auctioneer," “registered auctioneer," “certified auctioneer," “licensed auctioneer," “ auction company," auction sales staff," “auction team member" or any similar title.

(d) Solicit, negotiate or enter into any auction contract, auction listing, auction consignment, or related auction agreement, including assisting or aiding another registrant to perform auction-related duties.

(e) Perform, manage or supervise any of the following:

1. Call for bids at any type of auction, including auctions under s. 480.02 (2) (a) to (h), Stats.

2. Work as, or perform duties related to, an auction cashier, an auction clerk, or an auction ring person or grounds person, including bid-relaying or spotting, merchandise displaying, or assisting the auctioneer or auction staff before, during or after the conducting of an auction.

3. Oversee, in any manner, the conducting of any auction.

4. Accept any form of referral fee, finder's fee, commission, commission sharing or splitting, or related compensation from any auctioneer, auction company, or auctioneer-related professional.

5. Participate in any form of auctioneer-related bid-calling, bid calling contests or competitions, either as a contestant, judge, master of ceremonies or in any other capacity.

6. Suggest or imply to the public, privately or through advertising, that he or she is able to perform any of the activities in subds. 1. to 5.

(3) An auctioneer or auction company may not employ, retain or otherwise utilize an auctioneer or auction company whose registration has been suspended or revoked to perform any auction-related activity described in sub. (2). This section does not prohibit an auctioneer or auction company from contracting to perform services that an auctioneer or auction company is unable to perform because of a registration suspension or revocation and which the auctioneer or auction company contracted to perform prior to the license suspension or revocation.