452.13(1)(a)
(a) “Client funds" means all downpayments, earnest money deposits, or other money related to a conveyance of real estate that is received by a licensee on behalf of a firm or any other person. “Client funds" does not include promissory notes.
452.13(1)(b)
(b) “Depository institution" means a bank, savings bank, savings and loan association or credit union that is authorized by federal or state law to do business in this state and that is insured by the federal deposit insurance corporation or by the national credit union share insurance fund.
452.13(2)
(2)
Interest-bearing common trust account. 452.13(2)(a)
(a) A firm that holds client funds shall establish an interest-bearing common trust account in a depository institution. The interest-bearing common trust account shall earn interest at a rate not less than that applicable to individual accounts of the same type, size, and duration and for which withdrawals or transfers can be made without delay, subject to any notice period that the depository institution is required to observe by law or regulation.
452.13(2)(b)
(b) Any firm that maintains an interest-bearing common trust account shall do all of the following:
452.13(2)(b)1.
1. Register with the department the name and address of the depository institution and the number of the interest-bearing common trust account.
452.13(2)(b)2.
2. Notify the department when any of the information required under subd.
1. is changed.
452.13(2)(b)3.
3. Furnish the department with a letter authorizing the department and the department of administration to examine and audit the interest-bearing common trust account whenever either department considers it necessary.
452.13(2)(bm)
(bm) The department shall forward to the department of administration the information and documents furnished under par.
(b).
452.13(2)(c)
(c) A firm 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 firm 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 firm maintaining the interest-bearing common trust account a statement that includes the name of the firm 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 firm or, except as provided in subd.
3., against any other account, regardless of whether the same firm 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 firm that 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 licensee that deposits client funds in an interest-bearing common trust account in compliance with this section on behalf of a firm 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 firm to hold client funds or require a person to transfer client funds to a firm.
452.13(5)
(5)
Rules. In consultation with the department, the department of administration shall promulgate rules necessary to administer this section.
452.13 Cross-reference
Cross-reference: See also chs.
Adm 91 and
REEB 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.
452.132
452.132
Responsibilities of firms and licensees. 452.132(1)(1)
A firm shall supervise the brokerage service activities of each licensee associated with the firm, including by doing all of the following:
452.132(1)(a)
(a) Ensuring that a supervising broker for the firm complies with sub.
(4).
452.132(1)(b)
(b) Providing a licensee with reasonable access to a supervising broker for the purpose of consultation regarding real estate practice issues.
452.132(2)
(2) A firm shall do all of the following:
452.132(2)(a)
(a) Provide each licensee associated with the firm with a written statement of the procedures under which the firm and licensees associated with the firm must operate with respect to handling leases, agency agreements, offers to purchase, and other documents and records relating to transactions.
452.132(2)(b)
(b) Notify each licensee associated with the firm where a copy of the rules promulgated by the board related to the conduct, ethical practices, and responsibilities of licensees may be obtained.
452.132(2)(c)
(c) Before a licensee becomes associated with the firm and at the beginning of each biennial licensure period, ensure that the licensee holds a valid license.
452.132(3)
(3) A firm shall be responsible for the custody and safety of all documents and records relating to transactions submitted to the firm as required under sub.
(6) (b).
452.132(4)(a)(a) A supervising broker for a firm, as determined under sub.
(5), shall review all of the following prior to the closing of a transaction in accordance with par.
(b):
452.132(4)(a)1.
1. All agency agreements, offers to purchase, leases, and other documents that are executed by the parties and records relating to the transaction that are used by a licensee associated with the firm and submitted to the firm as required under sub.
(6) (b).
452.132(4)(b)
(b) The review under par.
(a) shall be limited to confirming that a written disclosure statement to a customer or client has been provided by a licensee associated with the firm in accordance with s.
452.135, confirming that any applicable form approved by the board has been used and the forms have been completed by filling in the blanks in a manner consistent with the structure of the form, and communicating to the licensee any errors in how the forms were completed that are apparent on the face of the document and known to the person reviewing the document.
452.132(5)(a)(a) A firm that is a licensed broker business entity shall delegate the performance of the duty to supervise licensees associated with the firm to a supervising broker who is a licensed individual broker.
452.132(5)(b)
(b) A firm that is not a licensed broker business entity may delegate the duty to supervise licensees associated with the firm to a supervising broker who is a licensed individual broker, but in the absence of a specific supervising broker delegation, the firm itself is deemed to be the supervising broker for that firm.
452.132(5)(c)
(c) A delegation under par.
(a) or
(b) shall be written and signed by or on behalf of the delegating firm, identify the duty delegated, and be signed by the broker to whom the delegation is made.
452.132(5)(d)
(d) A firm may delegate the duty to supervise licensees to more than one supervising broker.
452.132(6)(a)(a) A licensee associated with a firm shall be responsible for discussing with the party with whom the licensee is working with or representing any error communicated to the licensee as provided in sub.
(4) (b), and the party shall determine whether to request any changes to address the error.
452.132(6)(b)
(b) A licensee associated with a firm shall submit to the firm in a timely manner all agency agreements, offers to purchase, leases, and other documents that are executed by the parties and records related to the brokerage services provided on behalf of the firm and transactions that are used or received by the licensee.
452.132 History
History: 2015 a. 258.
452.133
452.133
Duties of licensees; prohibitions. 452.133(1)(1)
Duties to all parties to a transaction. A firm providing brokerage services to a party to a transaction owes all of the following duties to the party:
452.133(1)(a)
(a) The duty to provide brokerage services honestly and fairly.
452.133(1)(b)
(b) The duty to provide brokerage services with reasonable skill and care.
452.133(1)(c)
(c) The duty to timely disclose in writing all material adverse facts that the firm 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) The duty to keep confidential any information given to the firm in confidence, or any information obtained by the firm that the firm knows a reasonable person would want to be kept confidential, unless the information must be disclosed by law or the person whose interests may be adversely affected by the disclosure specifically authorizes the disclosure of particular information. The firm shall continue to keep the information confidential after the transaction is complete and after the firm is no longer providing brokerage services to the party.
452.133(1)(e)
(e) The duty to provide accurate information about market conditions that affect the transaction, within a reasonable time after a request for such information by the party, unless disclosure of the information is prohibited by law.
452.133(1)(f)
(f) The duty to safeguard trust funds and other property held as required by rules promulgated under s.
452.13 (5).
452.133(1)(g)
(g) When the firm is negotiating on behalf of a party, the duty to present contract proposals in an objective and unbiased manner and disclose the advantages and disadvantages of the proposals.
452.133(2)
(2)
Duties to clients. A firm providing brokerage services to a client owes the client the duties that the firm owes to a party under sub.
(1) and all of the following additional duties:
452.133(2)(a)
(a) The duty to loyally represent the client's interests by doing all of the following:
452.133(2)(a)1.
1. Placing the client's interests ahead of the interests of the firm.
452.133(2)(a)2.
2. Placing the client's interests ahead of the interests of persons in the transaction who are not the firm's clients by not disclosing to persons in the transaction other than the firm's clients information or advice the disclosure of which is contrary to the interests of a client of the firm, unless the disclosure is required by law.
452.133(2)(am)
(am) The duty to provide, when requested by the client, information and advice to the client on matters that are material to the client's transaction and that are within the scope of the knowledge, skills, and training required under this chapter.
452.133(2)(b)
(b) The duty to disclose to the client all information known by the firm 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) The duty to fulfill any obligation required by the agency agreement, and any order of the client that is within the scope of the agency agreement, that is not inconsistent with another duty that the firm has under this chapter or any other law.
452.133(3)
(3)
Prohibited conduct. In providing brokerage services, a licensee 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 licensee's client, principal firm, or firm, without the prior written consent of all parties to the transaction.
452.133(3)(b)
(b) Act in a transaction on the licensee's own behalf, on behalf of the licensee's immediate family if the firm is an individual, on behalf of the licensee's firm, or on behalf of any organization or business entity in which the licensee has an interest, without the prior written consent of all parties to the transaction. For the purpose of complying with this paragraph, a licensee shall obtain the written consent in the offer to purchase, option, lease, or other transaction contract.
452.133(3)(c)
(c) Except as provided in s.
452.19 (1), refer, recommend, or suggest to a party to the transaction the services of an individual or entity from which the licensee may receive compensation for a referral or in which the licensee has an interest, unless the licensee has disclosed in writing the fact that the licensee may receive compensation or has disclosed in writing an interest in the individual or entity providing the services.
452.133(3)(d)
(d) Negotiate the sale, exchange, purchase, or rental of personal property unless related to the transaction. The licensee may use a form approved by the board under s.
452.05 (1) (b) for the conveyance of the seller's interest in the personal property. In this paragraph, “use a form” has the meaning given in s.
452.40 (1) (a).
452.133(4)(a)(a) A subagent owes all parties to whom the subagent is providing brokerage services in a transaction the duties specified in sub.
(1) but does not owe the clients of the principal firm the duties under sub.
(2).
452.133(4)(b)1.
1. Place the subagent's interests ahead of the interests of the clients of the principal firm in the transaction in which the subagent has been engaged by the principal firm.
452.133(4)(b)2.
2. Provide advice or opinions to parties in the transaction if providing the advice or opinions is contrary to the interests of the clients of the principal firm in the transaction in which the subagent has been engaged by the principal firm, unless required by law.
452.133(4m)
(4m)
Duties and prohibitions; application to licensees. 452.133(4m)(a)(a) Subject to par.
(d), a firm's duties under sub.
(1) extend to each licensee associated with that firm, and each licensee associated with a firm owes the same duties to a party that the firm owes to that party under sub.
(1).
452.133(4m)(b)
(b) Except as provided in s.
452.134 (3) (b) and subject to par.
(d), a firm's duties under sub.
(2) extend to each licensee associated with that firm, and each licensee associated with a firm owes the same duties to a client of the firm that the firm owes to that client under sub.
(2).
452.133(4m)(c)1.1. Subject to par.
(d), a subagent's duties under sub.
(4) (a) extend to each licensee associated with that subagent, and each licensee associated with a subagent owes the same duties to a party that the subagent owes to that party under sub.
(4) (a).
452.133(4m)(c)2.
2. Subject to par.
(d), the prohibitions that apply to a subagent under sub.
(4) (b) extend to each licensee associated with that subagent, and no licensee associated with a subagent may take any action that the subagent is prohibited from taking under sub.
(4) (b).
452.133(4m)(d)
(d) The duties and prohibitions under pars.
(a) to
(c) extend only to a licensee providing brokerage services to a party to the transaction.
452.133(5)
(5)
Duties without agency or subagency relationship. If a firm is providing brokerage services to a person who is a party or a prospective party to a current or prospective transaction, and the firm does not have an agency agreement with the person and is not a subagent of another firm in the transaction, then the firm and any licensees associated with the firm owe the person the duties under sub.
(1) and may not, unless required by law, provide advice or opinions relating to the transaction in which the person is receiving brokerage services if providing the advice or opinions is contrary to the interests of a party to a current or prospective transaction with the person receiving the brokerage services.
452.133(6)
(6)
Waiver of duties. The duties imposed by subs.
(1),
(2) (a),
(am),
(b), and
(c),
(4), and
(5) may not be waived. A client may waive, in part or in full, the duty under sub.
(2) (d), except that a waiver under this subsection is not effective unless the firm or a licensee associated with the firm provides to the client a written disclosure containing all of the following:
452.133(6)(a)
(a) A copy of the text of sub.
(2) (d) and s.
452.01 (5m), and a statement that, as a consequence of the client's waiver, the firm and any licensees associated with the firm will have no legal duty to perform the duty imposed by sub.
(2) (d).
452.133(6)(b)
(b) A statement that as a consequence of the client's waiver, the client may require the assistance of an attorney or another service provider to fulfill the client's goals and contractual duties in the transaction.
