452.139
452.139
Changes in common law duties and liabilities of brokers and parties. 452.139(1)
(1)
Fiduciary duties of broker. The duties of a broker specified in this chapter or in rules promulgated under this chapter shall supersede any fiduciary duties of a broker to a party based on common law principles of agency to the extent that those common law fiduciary duties are inconsistent with the duties specified in this chapter or in rules promulgated under this chapter.
452.139(2)(a)(a) 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.
452.139(2)(b)
(b) 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.
452.139(2)(c)
(c) Nothing in this subsection limits the liability of a broker under
s. 452.12 (3) (a) for misrepresentations made by an employe 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.
452.139 History
History: 1993 a. 127.
452.14
452.14
Investigation and discipline of licensees. 452.14(1)(1) The department shall, upon motion of the board or upon its own determination, conduct investigations and, as appropriate, may hold hearings and make findings, if the department receives credible information that a broker, salesperson or time-share salesperson has violated this chapter or any rule promulgated under this chapter.
452.14(2)
(2) The department shall present the findings of any investigation of a licensee or registrant to the board for its consideration. The department shall upon motion of the board, and may, upon its own determination, commence disciplinary proceedings on any matter under investigation concerning a licensee or registrant. No investigation of a licensee or registrant may be closed without motion of the board.
452.14(3)
(3) 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:
452.14(3)(a)
(a) Made a material misstatement in the application for a license or registration, or in any information furnished to the board or department;
452.14(3)(b)
(b) 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;
452.14(3)(c)
(c) 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;
452.14(3)(d)
(d) Pursued a continued and flagrant course of misrepresentation or made false promises through agents or salespersons or advertising;
452.14(3)(f)
(f) 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 real estate transaction;
452.14(3)(g)
(g) Represented or attempted to represent a broker other than the employer, without the express knowledge and consent of the employer;
452.14(3)(h)
(h) 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;
452.14(3)(i)
(i) Demonstrated incompetency to act as a broker, salesperson or time-share salesperson in a manner which safeguards the interests of the public;
452.14(3)(j)
(j) Paid or offered to pay a commission or valuable consideration to any person for acts or services in violation of this chapter;
452.14(3)(jm)
(jm) 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);
452.14(3)(k)
(k) 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;
452.14(3)(n)
(n) Treated any person unequally solely because of sex, race, color, handicap, national origin, ancestry, marital status or lawful source of income.
452.14(4)
(4) 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.
452.14(4m)
(4m) 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:
452.14(4m)(a)
(a) 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).
452.14(4m)(b)
(b) 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.
452.14(5)
(5) 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).
452.14 Annotation
Real estate brokers may engage in guaranteed sales plans if there is full disclosure and broker does not engage in fraud, misrepresentation or improper dealing. 61 Atty. Gen. 3.
452.14 Annotation
Provisions in Executive Order 67 (1973), with respect to duty of real estate broker to advise prospective purchasers of floodplain zoning status of property, do not constitute new standard but suggest course of action real estate examining board might take. Action to be taken would depend on facts in each case. 63 Atty. Gen. 236.
452.14 Annotation
Neither s. 440.20, 452.10 (2), 1977 stats., nor rules of department of regulation and licensing require board to hold hearing where citizen files verified complaint with board requesting institution of disciplinary proceedings against a licensee. 68 Atty. Gen. 30.
452.15
452.15
Ineligibility. 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.
452.17(1)(1) 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.
452.17(2)
(2) 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 department 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.
452.17(3)
(3) 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.
452.17(4)(a)1.
1. Shall, for the first offense, suspend the license or registration of the broker, salesperson or time-share salesperson for not less than 90 days.
452.17(4)(a)2.
2. Shall, for the 2nd offense, revoke the license or registration of the broker, salesperson or time-share salesperson.
452.17(4)(b)
(b) This penalty may be imposed in addition to any penalty imposed under this chapter or
s. 66.432 or
106.04.
452.18
452.18
Court review. Except as provided in
s. 73.0301 (2) (b) 1. a. and
2., orders of the board and department shall be subject to review as provided in
ch. 227.
452.18 History
History: 1981 c. 94;
1997 a. 237.
452.19
452.19
Fee-splitting. 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.
452.19 Annotation
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 W (2d) 891, 539 NW (2d) 904 (Ct. App. 1995).
452.20
452.20
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.
452.20 Annotation
A foreign corporation which 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 W (2d) 32, 187 NW (2d) 794.
452.20 Annotation
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 W (2d) 654, 553 NW (2d) 257 (Ct. App. 1996).
452.20 Annotation
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.
452.21
452.21
Compensation presumed. 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.
452.21 History
History: 1981 c. 94;
1987 a. 399.
452.22
452.22
Certifications as evidence. 452.22(1)
(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.
452.22(2)
(2) The certificate of the secretary 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 holder thereof, the filing or withdrawal of any application or its existence or nonexistence, is prima facie evidence of the facts therein stated for all purposes in any action or proceedings.
452.23
452.23
Disclosures, investigations and inspections by brokers and salespersons. 452.23(1)
(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. 106.04 or unlawful discrimination based on handicap under
42 USC 3604,
3605,
3606 or
3617.
452.23(2)
(2) 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:
452.23(2)(a)
(a) 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.
452.23(2)(b)
(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 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.
452.23(2)(c)
(c) 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.
452.23(3)
(3) 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).
452.23(4)
(4) 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.
452.23 History
History: 1989 a. 341;
1995 a. 27.
452.23 Annotation
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 W (2d) 894, 512 NW (2d) 239 (Ct. App. 1994).
