2015 Wisconsin Act 258

452.19 (1) No licensed broker licensee 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.

258,154 Section 154 . 452.19 (1) of the statutes, as affected by 2015 Wisconsin Act .... (this act), is amended to read:

452.19 (1) No licensee 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.

258,155 Section 155. 452.19 (2) of the statutes is created to read:

452.19 (2) If a licensee is associated with a firm, all fees or commission and any part thereof for performing any act specified in this chapter and all compensation for a referral or as a finder's fee shall be paid to the firm.

258,156 Section 156. 452.20 of the statutes is amended to read:

452.20 Limitation on actions for commissions. No person engaged in the business or acting in the capacity of a broker, or 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, or salesperson or registered time-share salesperson at the time the alleged cause of action arose.

258,157 Section 157. 452.21 of the statutes is amended to read:

452.21 Compensation presumed. In any prosecution for violation of this chapter, proof that a person acted as a broker, agent, or salesperson or time-share salesperson is prima facie proof that compensation therefor was received or promised.

258,158 Section 158. 452.22 (2) of the statutes is amended to read:

452.22 (2) 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, or 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 licensee, 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.

258,159 Section 159. 452.23 (1) of the statutes is amended to read:

452.23 (1) A broker or salesperson No licensee 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, 3605, 3606, or 3617.

258,160 Section 160. 452.23 (2) (intro.) of the statutes is amended to read:

452.23 (2) (intro.) A broker or salesperson licensee is not required to disclose any of the following to any person in connection with the sale, exchange, purchase, or rental of real property:

258,161 Section 161. 452.23 (2) (b) of the statutes is amended to read:

452.23 (2) (b) 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 licensee 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.

258,162 Section 162. 452.23 (3) of the statutes is amended to read:

452.23 (3) A broker or salesperson licensee shall disclose to the parties to a real estate transaction any facts known by the broker or salesperson licensee that contradict any information included in a written report described under sub. (2) (b).

258,163 Section 163. 452.23 (4) of the statutes is amended to read:

452.23 (4) In performing an investigation or inspection and in making a disclosure in connection with a real estate transaction, a broker or salesperson licensee 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.

258,164 Section 164. 452.24 (2) of the statutes is amended to read:

452.24 (2) Notwithstanding sub. (1), the broker or salesperson licensee is immune from liability for any act or omission related to the disclosure of information under sub. (1) if the broker or salesperson licensee 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.

258,165 Section 165. 452.25 (1) (a) of the statutes is amended to read:

452.25 (1) (a) Notwithstanding ss. 111.321, 111.322, and 111.335, and except as provided in pars. (b) to (e), no applicant who is an individual may be issued a broker's or salesperson's license or a time-share salesperson's certificate of registration if the applicant has been convicted of a felony.

258,166 Section 166. 452.25 (1) (b) of the statutes is amended to read:

452.25 (1) (b) If an applicant has been convicted of a felony described under par. (a); the applicant has completed the confinement portion of his or her sentence, if the applicant is serving a bifurcated sentence, or has been released from prison to parole or released upon the completion of his or her sentence; and 3 years have elapsed since the date on which the confinement portion was completed or the applicant was released, the applicant may apply to the board for a determination as to whether the applicant is suitable to be granted a license or certificate.

258,167 Section 167. 452.25 (1) (c) 2. of the statutes is amended to read:

452.25 (1) (c) 2. Reviewing any supplemental information provided by the applicant bearing upon his or her suitability for licensure as a broker or salesperson or for registration as a time-share salesperson.

258,168 Section 168. 452.25 (1) (d) of the statutes is amended to read:

452.25 (1) (d) With respect to a determination under par. (c), the applicant bears the burden of demonstrating his or her suitability for licensure or registration.

258,169 Section 169. 452.25 (1) (e) of the statutes is amended to read:

452.25 (1) (e) If the board makes a determination under par. (c) to allow an applicant to be granted a broker's or salesperson's license or a time-share salesperson's certificate of registration, the applicant shall be granted the license or certificate if the applicant satisfies all other requirements for granting the license or certificate of registration.

258,170 Section 170. 452.25 (2) (b) of the statutes is amended to read:

452.25 (2) (b) No applicant may be issued an initial broker's or salesperson's license or time-share salesperson's certificate of registration, and no applicant may renew such a license or certificate, if the applicant has violated par. (a) and failed to pay any forfeiture assessed by the board under s. 452.14 (4r) for that violation.

258,171 Section 171. 452.30 of the statutes is created to read:

452.30 Association with firm; independent practice. (1) No licensee may provide brokerage services on behalf of a firm unless all of the following apply:

(a) The licensee is associated with the firm.

(b) The licensee has notified the department that the licensee is associated with the firm.

(2) A licensee may notify the department that the licensee is associated with a firm under sub (1) (b) by doing one of the following:

(a) Providing the notice at the time the licensee first applies for licensure as a broker or salesperson. No separate fee for notifying the department may be required for such a notification under this paragraph.

(b) Notifying the department through the use of a form prescribed by the department and paying the transfer fee specified in s. 440.05 (7).

(3) A licensee who is associated with a firm may notify the department that the licensee has become associated with another firm using the method specified in sub. (2) (b).

(4) (a) A licensee that ceases to be associated with a firm shall, through the use of a form prescribed by the department, send written notice to the department within 10 days after the date on which the licensee ceases to be associated with the firm.

(b) A firm that terminates a licensee from being associated with the firm shall, through the use of a form prescribed by the department, send written notice of that termination to the department within 10 days after the termination.

(6) (a) A broker who is associated with a firm may also engage in independent real estate practice in his or her own name or under the name of a licensed broker business entity, if the broker obtains written approval from and avoids conflicts of interest with each firm with which the broker is associated. The written approval shall specify all of the following:

1. Whether the broker engaging in independent practice may engage other licensees to work under the broker.

2. That the broker engaging in independent practice is responsible for the supervision of any licensees associated with the broker.

(b) Before engaging in independent practice as provided in par. (a), a broker shall notify the department of that fact and of the name under which the broker will engage in independent practice. The broker shall notify the department using any form or other method prescribed by the department for that purpose.

(c) A broker that is engaging in independent practice shall not be considered to be associated with a firm that approved the broker engaging in independent practice under par. (a) with respect to the broker's independent practice activities.

(7) (a) A salesperson may be associated with only one firm at a given time.

(b) A salesperson or time-share salesperson may not engage in independent real estate practice and may engage in real estate practice only when associated with a firm.

258,172 Section 172. 452.30 (7) (b) of the statutes, as created by 2015 Wisconsin Act .... (this act), is amended to read:

452.30 (7) (b) A salesperson or time-share salesperson may not engage in independent real estate practice and may engage in real estate practice only when associated with a firm.

258,173 Section 173. 452.34 of the statutes is created to read:

452.34 Unlicensed personal assistants. (1) In this subsection, "unlicensed personal assistant" means an individual, including an individual who is licensed under this chapter, who is employed only to provide services for which a license is not required under this chapter as provided in s. 452.03 (2).

(2) A licensee associated with a firm, prior to retaining an individual to serve as an unlicensed personal assistant, shall enter into a written agreement with the licensee's firm, setting forth the duties of the unlicensed personal assistant, the manner in which the unlicensed personal assistant will be compensated for his or her services, and the responsibilities of the licensee and the firm with respect to supervision of the unlicensed personal assistant's activities.

(3) (a) In this subsection, "open house" means a showing of real estate open to the public for viewing without an individual appointment.

(b) An unlicensed personal assistant may not assist a licensee at an open house for the sale of real estate or a business without the direct, on-premises supervision and presence of a licensee, and may not provide any services at an open house for which a license is required under this chapter.

258,174 Section 174. 452.38 of the statutes is created to read:

452.38 Independent contractor relationship. (1) Except as otherwise provided in s. 102.078, a licensee shall not, under ch. 102, 103, 104, or 109, under subch. X of ch. 71 or subch. II of ch. 111, under any other law or rule other than those specified under sub. (1m), or in any action or proceeding under the common law, be considered an employee of a firm if all of the following are satisfied:

(a) A written agreement has been entered into with the firm that provides that the licensee shall not be treated as an employee for federal and state tax purposes.

(b) Seventy-five percent or more of the compensation related to sales or other output, as measured on a calendar year basis, paid to the licensee pursuant to the written agreement referenced under par. (a) is directly related to the brokerage services performed by the licensee on behalf of the firm.

(1m) This section does not apply with respect to ch. 108 or any rules promulgated thereunder.

(2) (a) Subsection (1) applies notwithstanding the requirements and responsibilities of a firm under s. 452.132 and any rules promulgated by the board.

(b) Subsection (1) applies regardless of the licensee's status as a supervising broker under s. 452.132 and any actions taken by the licensee as a supervising broker under s. 452.132.

(3) In the case of an individual who is engaged as both an independent contractor and an employee for the same firm, sub. (1) applies only with respect to activities covered under the written agreement referenced under sub. (1) (a).

258,175 Section 175. 452.40 of the statutes is created to read:

452.40 Use of forms; provision of legal advice. (1) (a) In this subsection, "use a form" means to complete a form by filling in blanks or modifying printed provisions on the form at the instruction of one or more parties with whom a licensee is working or representing in a specific transaction.

(b) A firm and any licensee associated with the firm may use a form approved by the board under s. 452.05 (1) (b) in real estate practice.

(2) A licensee may not provide advice or opinions concerning the legal rights or obligations of parties to a transaction, the legal effect of a specific contract or conveyance, or the state of title to real estate. A licensee may provide a general explanation of the provisions in a form approved by the board under s. 452.05 (1) (b) to the parties to a transaction at the time of completing the form or when delivering an approved form for the seller's or buyer's acceptance. Reviews conducted by a supervising broker under s. 452.132 (4) shall not be considered to be the provision of legal advice or opinion.

258,176 Section 176. 452.42 of the statutes is created to read:

452.42 Records retention. (1) In this section, "electronic" has the meaning given in s. 137.11 (5).

(2) A licensee shall retain documents or records related to a transaction, as determined by the board, in accordance with any rules promulgated by the board. Records described in this section may be retained in an electronic file format.

258,177 Section 177. 707.55 (5) of the statutes is amended to read:

707.55 (5) Salespersons. Misrepresenting the identity, function, or authority of a salesperson , including a time-share salesperson, as defined in s. 452.01 (9), or team of salespersons.

258,178 Section 178. 707.55 (7) of the statutes is amended to read:

707.55 (7) Length of sales presentation. Misrepresenting the reasonably estimated length of any sales presentation by a salesperson, including a time-share salesperson, as defined in s. 452.01 (9), or team of salespersons.

258,179 Section 179. Nonstatutory provisions.

(1) Emergency rule authority. Using the procedure under section 227.24 of the statutes, the real estate examining board may promulgate rules under chapter 452 of the statutes that are necessary to implement the changes in this act for the period before the effective date of any corresponding permanent rules, but not to exceed the period authorized under section 227.24 (1) (c) of the statutes, subject to extension under section 227.24 (2) of the statutes. Notwithstanding section 227.24 (1) (a), (2) (b), and (3) of the statutes, the board is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection.

(2) Elimination of time-share salesperson registrations. Notwithstanding sections 440.08 and 452.025 (5) of the statutes, the department of safety and professional services and the real estate examining board shall not renew any time-share salesperson's certificate of registration issued under section 452.025 of the statutes. The department of safety and professional services shall, instead of giving a notice of renewal to each holder of a time-share salesperson's certificate of registration under section 440.08 (1) of the statutes, give notice of the elimination of such registration by this act.

258,180 Section 180 . Initial applicability.

(1) Actions against licensees. The treatment of section 452.142 of the statutes first applies to an action that accrues on the effective date of this subsection.

(1m) Employment exclusion; unemployment insurance. The treatment of section 108.02 (15) (k) 7. of the statutes first applies to services performed on the effective date of this subsection.

258,181 Section 181. Effective dates. This act takes effect on July 1, 2016, or on the day after publication, whichever is later, except as follows:

(1) Elimination of time-share salesperson registrations. The repeal of sections 440.03 (13) (b) 72., 440.08 (2) (a) 69., 452.01 (9), 452.025 (by Section 42), 452.137 (1) (d), and 452.17 (2) of the statutes and the amendment of sections 452.01 (4), 452.01 (5) (by Section 30), 452.01 (5p) (by Section 35 ), 452.01 (7) (by Section 38), 452.05 (1) (a) (by Section 50 ), 452.05 (1) (i) (intro.), 452.05 (1) (i) 1., 452.05 (1) (i) 3. b., 452.07 (2) (by Section 57 ), 452.11 (1), 452.132 (2) (c), 452.137 (3) (intro.), 452.137 (3) (c) (by Section 117), 452.14 (1), 452.14 (2), 452.14 (3) (intro.), 452.14 (3) (a), 452.14 (3) (i), 452.14 (3) (p), 452.14 (4m) (intro.), 452.14 (4m) (b), 452.15 (1) and (2), 452.17 (4) (a) 1. and 2. (by Section 151), 452.19 (1) (by Section 154), 452.20, 452.21, 452.22 (2), 452.25 (1) (a), 452.25 (1) (b), 452.25 (1) (c) 2., 452.25 (1) (d), 452.25 (1) (e), 452.25 (2) (b), 452.30 (7) (b), 707.55 (5), and 707.55 (7) of the statutes take effect on December 14, 2016.

(2) Actions against licensees. The treatment of section 452.142 of the statutes and Section 180 (1 ) of this act take effect on the day after publication.

(2m) Employment exclusion; unemployment insurance. The treatment of section 108.02 (15) (k) 7. of the statutes and Section 180 (1m) of this act take effect on October 1, 2016.