452.13(2)(b)3.
3. Furnish the department of regulation and licensing with a letter authorizing the department of regulation and licensing and the department of administration to examine and audit the interest-bearing common trust account whenever the department of regulation and licensing or the department of administration considers it necessary.
452.13(2)(bm)
(bm) The department of regulation and licensing shall forward to the department of administration the information and documents furnished under
par. (b).
452.13(2)(c)
(c) A broker shall deposit all client funds in the interest-bearing common trust account.
452.13(2)(d)
(d) The department of administration is the beneficial owner of the interest accruing to the interest-bearing common trust account, minus any service charges or fees.
452.13(2)(e)
(e) For each interest-bearing common trust account, the broker shall direct the depository institution to do all of the following:
452.13(2)(e)1.
1. Annually, before February 1, remit to the department of administration the total interest or dividends, minus service charges or fees, earned on the average daily balance in the interest-bearing common trust account during the 12 months ending on the previous December 31. A depository institution is not required to remit any amount if the total interest or dividends for that period is less than $10 before any deduction for service charges or fees.
452.13(2)(e)2.
2. When the interest remittance is sent, furnish to the department of administration and to the broker maintaining the interest-bearing common trust account a statement that includes the name of the broker for whose account the remittance is made, the rate of interest applied, the amount of service charges or fees deducted, if any, and the account balance for the period that the statement covers.
452.13(2)(f)1.
1. May not assess a service charge or fee that is due on an interest-bearing common trust account against any broker or, except as provided in
subd. 3., against any other account, regardless of whether the same broker maintains the other account.
452.13(2)(f)2.
2. May not assess a service charge or fee for an interest-bearing common trust account against the department of administration.
452.13(2)(f)3.
3. May deduct a service charge or fee from the interest earned by an interest-bearing common trust account, and if a balance remains, may deduct the remaining charge or fee from the interest earned on any other interest-bearing common trust account maintained in that depository institution, before remitting interest to the department of administration.
452.13(2)(f)4.
4. May not deduct a service charge or fee from the principal of an interest-bearing common trust account.
452.13(3)
(3) Deposit provisions. A broker who deposits client funds in an interest-bearing common trust account in compliance with this section may not be held liable to the owner or beneficial owner of the client funds for damages due to compliance with this section. A broker, salesperson or time-share salesperson who deposits client funds in an interest-bearing common trust account in compliance with this section is not required to disclose alternative depository arrangements that could be made by the parties or to disclose that a deposit will be made under this section.
452.13(4)
(4) Trust account optional. This section does not require a broker to hold client funds or require a person to transfer client funds to a broker.
452.13(5)
(5) Rules. In consultation with the department of regulation and licensing, the department of administration shall promulgate rules necessary to administer this section.
452.13 Cross-reference
Cross Reference: See also chs.
Adm 14 and
RL 18, Wis. adm. code.
452.13 Annotation
Security deposits by a tenant usually create a debtor-creditor relationship. A broker retaining a deposit should deposit it in his or her trust account. 60 Atty. Gen. 1.
452.13 Annotation
The Federal National Mortgage Association is exempt from the requirements of this section, but private mortgage bankers or mortgage brokers licensed as real estate brokers under ch. 452, and servicing mortgages for FNMA must deposit loan, insurance and tax escrow moneys in authorized trust account in a bank located in Wisconsin, subject to audit by the board. 60 Atty. Gen. 514.
452.133(1)(1)
Duties to all parties to a transaction. In providing brokerage services to a party to a transaction, a broker shall do all of the following:
452.133(1)(a)
(a) Provide brokerage services to all parties to the transaction honestly, fairly and in good faith.
452.133(1)(b)
(b) Diligently exercise reasonable skill and care in providing brokerage services to all parties.
452.133(1)(c)
(c) Disclose to each party all material adverse facts that the broker knows and that the party does not know or cannot discover through reasonably vigilant observation, unless the disclosure of a material adverse fact is prohibited by law.
452.133(1)(d)
(d) Keep confidential any information given to the broker in confidence, or any information obtained by the broker that he or she knows a reasonable party would want to be kept confidential, unless the information must be disclosed under
par. (c) or
s. 452.23 or is otherwise required by law to be disclosed or the party whose interests may be adversely affected by the disclosure specifically authorizes the disclosure of particular confidential information. A broker shall continue to keep the information confidential after the transaction is complete and after the broker is no longer providing brokerage services to the party.
452.133(1)(e)
(e) Provide accurate information about market conditions that affect a transaction, to any party who requests the information, within a reasonable time of the party's request, unless disclosure of the information is prohibited by law.
452.133(1)(f)
(f) Account for all property coming into the possession of a broker that belongs to any party within a reasonable time of receiving the property.
452.133(1)(g)
(g) When negotiating on behalf of a party, present contract proposals in an objective and unbiased manner and disclose the advantages and disadvantages of the proposals.
452.133(2)
(2) Duties to a client. In addition to his or her duties under
sub. (1), a broker providing brokerage services to his or her client shall do all of the following:
452.133(2)(a)
(a) Loyally represent the client's interests by placing the client's interests ahead of the interests of any other party, unless loyalty to a client violates the broker's duties under
sub. (1) or
s. 452.137 (2).
452.133(2)(b)
(b) Disclose to the client all information known by the broker that is material to the transaction and that is not known by the client or discoverable by the client through reasonably vigilant observation, except for confidential information under
sub. (1) (d) and other information the disclosure of which is prohibited by law.
452.133(2)(c)
(c) Fulfill any obligation required by the agency agreement, and any order of the client that is within the scope of the agency agreement, that are not inconsistent with another duty that the broker has under this chapter or any other law.
452.133(3)
(3) Prohibited conduct. In providing brokerage services, a broker may not do any of the following:
452.133(3)(a)
(a) Accept any fee or compensation related to the transaction from any person other than the broker's client, unless the broker has the written consent of all parties to the transaction.
452.133(3)(b)
(b) Act in a transaction on the broker's own behalf, on behalf of the broker's immediate family, or on behalf of any organization or business entity in which the broker has an interest, unless the broker has the written consent of all parties to the transaction.
452.133(3)(c)
(c) Except as provided in
s. 452.19, refer, recommend or suggest to a party to the transaction the services of an individual or entity from which the broker may receive compensation for a referral or in which the broker has an interest, unless the broker has disclosed the fact that he or she may receive compensation or has disclosed his or her interest in the individual or entity providing the services.
452.133 History
History: 1993 a. 127;
1995 a. 400.
452.133 Cross-reference
Cross Reference: See also ch.
RL 24, Wis. adm. code.
452.133 Annotation
The New Real Estate Agency Law: Redefining the Role of Real Estate Brokers. Smith and Staff. Wis. Law. Oct. 1994.
452.135
452.135
Confirmation and disclosure of relationship. 452.135(1)(1) No broker may provide brokerage services without an agency agreement that authorizes the broker to provide those brokerage services. The agency agreement shall contain a statement of the terms and conditions of the brokerage services that the broker will provide, including a statement required under
s. 452.138, if applicable.
452.135(2)
(2) No broker may provide brokerage services to a party to a transaction unless the broker has provided to the party a written agency disclosure form containing all of the following:
452.135(2)(a)
(a) A statement of which party is the broker's client or, if the broker is providing brokerage services to more than one client under
s. 452.137, a statement of which parties are the broker's clients.
452.135(2)(d)
(d) A statement regarding confidentiality that shall be in the following form:
NOTICE TO CLIENTS AND CUSTOMERS
A BROKER IS REQUIRED TO MAINTAIN THE CONFIDENTIALITY OF ALL INFORMATION GIVEN TO THE BROKER IN CONFIDENCE AND OF ALL INFORMATION OBTAINED BY THE BROKER THAT HE OR SHE KNOWS A REASONABLE PARTY WOULD WANT TO BE KEPT CONFIDENTIAL, UNLESS THE INFORMATION IS REQUIRED TO BE DISCLOSED BY LAW. THE FOLLOWING INFORMATION IS REQUIRED TO BE DISCLOSED BY LAW:
1. MATERIAL ADVERSE FACTS, AS DEFINED IN SECTION 452.01 (5g) OF THE WISCONSIN STATUTES.
2. ANY FACTS KNOWN BY THE BROKER THAT CONTRADICT ANY INFORMATION INCLUDED IN A WRITTEN INSPECTION REPORT ON THE PROPERTY OR REAL ESTATE THAT IS THE SUBJECT OF THE TRANSACTION.
TO ENSURE THAT THE BROKER IS AWARE OF WHAT SPECIFIC INFORMATION YOU CONSIDER CONFIDENTIAL, YOU MAY LIST THAT INFORMATION IN THE SPACE BELOW THAT IS MARKED "CONFIDENTIAL INFORMATION". AT A LATER TIME, YOU MAY ALSO PROVIDE THE BROKER WITH OTHER WRITTEN NOTIFICATION OF WHAT INFORMATION YOU CONSIDER TO BE CONFIDENTIAL.
CONFIDENTIAL INFORMATION:
452.135(2)(e)
(e) Any additional information that the broker determines is necessary to clarify the broker's relationship to his or her client or customer.
452.135 History
History: 1993 a. 127.
452.137
452.137
Brokers providing services to more than one client in a transaction. 452.137(1)
(1) No broker may provide brokerage services to more than one client in a transaction without an agency agreement under
s. 452.135 (1) with each client and a written consent to multiple representation. The consent to multiple representation shall contain a statement of the broker's duties under
s. 452.133 (1) to a party to the transaction who is not a client, a statement of the broker's duties to the client under
s. 452.133 (2), and a statement that the clients understand the broker's duties and consent to the broker providing brokerage services to more than one client. The consent to multiple representation may contain additional disclosures by the broker or additional agreements between the broker and the clients that do not violate any duty of a broker under this chapter.
452.137(2)
(2) A broker who represents more than one client in a transaction owes the duties specified in
s. 452.133 (2) to each client but may not place the interests of any client ahead of the interests of another client in the transaction.
452.137(3)
(3) If a broker is providing brokerage services to more than one client in a transaction, no client may be considered to know any information that the broker knows unless the broker informs the client of that information or the client has other actual knowledge of that information.
452.137 History
History: 1993 a. 127;
1997 a. 263.
452.138
452.138
Brokers providing services in more than one transaction. A broker may provide brokerage services simultaneously to more than one party in different transactions unless the broker agrees with a client that the broker is to provide brokerage services only to that client. If the broker and a client agree that the broker is to provide brokerage services only to that client, the agency agreement under
s. 452.135 (1) shall contain a statement of that agreement.
452.138 History
History: 1993 a. 127.
452.138 Cross-reference
Cross Reference: See also ch.
RL 24, Wis. adm. code.
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) 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.
452.139 History
History: 1993 a. 127;
2001 a. 16.
452.139 Cross-reference
Cross Reference: See also ch.
RL 24, Wis. adm. code.
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;
