Unlicensed personal assistants.
Independent contractor relationship.
Use of forms; provision of legal advice.
Ch. 452 Cross-reference
See definitions in s. 440.01
Ch. 452 Cross-reference
See also chs. REEB 11
, and 25
, Wis. adm. code.
In this chapter:
“Adverse fact" means any of the following:
A condition or occurrence that is generally recognized by a competent licensee as doing any of the following:
Significantly and adversely affecting the value of the property.
Significantly reducing the structural integrity of improvements to real estate.
Presenting a significant health risk to occupants of the property.
Information that indicates that a party to a transaction is not able to or does not intend to meet his or her obligations under a contract or agreement made concerning the transaction.
“Agency agreement" means a written agreement between a firm and a client in which the client authorizes the firm to provide brokerage services to the client.
“Associated with a firm" means to have been engaged by a firm to provide brokerage services to the firm's clients and customers on behalf of the firm and under the firm's supervision, including as an employee of the firm or as an independent contractor, or both.
“Associated with a subagent" means to be associated with a firm that is engaged as a subagent.
“Board" means real estate examining board.
“Broker" means any person not excluded by sub. (3)
, who does any of the following:
For another person, and for commission, money, or other thing of value, negotiates or offers or attempts to negotiate, whether directly or indirectly, a sale, exchange, purchase, or rental of, or the granting or acceptance of an option to sell, exchange, purchase, or rent, an interest or estate in real estate, a time share, or a business or its goodwill, inventory, or fixtures, whether or not the business includes real property.
Is engaged wholly or in part in the business of selling or exchanging interests or estates in real estate or businesses, including businesses' goodwill, inventory, or fixtures, whether or not the business includes real property, to the extent that a pattern of sales or exchanges is established, whether or not the person owns the real estate or businesses. Five sales or exchanges in one year or 10 sales or exchanges in 5 years is presumptive evidence of a pattern of sales or exchanges.
For another person, and for commission, money, or other thing of value shows real estate or a business or its inventory or fixtures, whether or not the business includes real property, except that this paragraph does not include showing a property that is offered exclusively for rent.
For another person, and for commission, money, or other thing of value, promotes the sale, exchange, purchase, option, rental, or leasing of real estate, a time share, or a business or its goodwill, inventory, or fixtures, whether or not the business includes real property. This paragraph does not apply to a person who only publishes or disseminates verbatim information provided by another person.
Issues a written report of property value that is prepared for another person and that is not an appraisal, as defined in s. 458.01 (1)
“Broker" does not include any of the following:
Receivers, trustees, personal representatives, guardians, or other persons appointed by or acting under the judgment or order of any court.
Public officers while performing their official duties.
Any bank, trust company, savings bank, savings and loan association, insurance company, or any land mortgage or farm loan association organized under the laws of this state or of the United States, when engaged in the transaction of business within the scope of its corporate powers as provided by law.
Employees of persons enumerated in pars. (a)
, and (i)
when engaged in the specific performance of their duties as such employees.
Any employee of an attorney under par. (h)
if all of the following are true:
The employee's activities are directly supportive of the attorney's provision of legal services to the attorney's client.
The employee's activities are activities that the attorney may perform under par. (h)
The employee is under the direction and supervision of the attorney.
Any custodian, janitor, employee or agent of the owner or manager of a residential building who exhibits a residential unit therein to prospective tenants, accepts applications for leases and furnishes such prospective tenants with information relative to the rental of such unit, terms and conditions of leases required by the owner or manager, and similar information.
Any credit union which negotiates loans secured by real estate mortgages or any licensee under ch. 138
which negotiates loans secured by real estate mortgages or any licensed attorney who, incidental to the general practice of law, negotiates or offers or attempts to negotiate a loan, secured or to be secured by mortgage or other transfer of or encumbrance on real estate.
A person licensed as a mortgage banker under s. 224.72
who does not engage in activities described under sub. (2)
Attorneys licensed to practice in this state while acting within the scope of their attorney's license.
“Brokerage service" means any service described under sub. (2)
provided to a person by a firm and any licensees associated with the firm.
“Business entity" means any organization or enterprise, other than a sole proprietorship, which is operated for profit or that is nonprofit and nongovernmental, including an association, business trust, corporation, joint venture, limited liability company, limited liability partnership, partnership or syndicate.
“Business representative" means a director, manager, member, officer, owner or partner of a business entity.
“Client" means a party to a transaction who has an agency agreement with a firm for brokerage services.
“Crime" does not include a crime for which the individual has been pardoned; a crime for which the conviction has been reversed, set aside, or vacated; or a crime for which the conviction has been expunged under s. 973.015
“Customer" means a party to a transaction who is provided brokerage services by a firm and any licensees associated with the firm but who is not a client.
“Designated agency" means a multiple representation relationship in which each client of the firm in the multiple representation relationship receives negotiation services from the firm only from licensees associated with the firm who are not providing negotiation services to any other client of the firm in the transaction.
“Disciplinary proceeding" means a proceeding against one or more licensees in which the board may revoke, suspend, or limit a license, reprimand a licensee, or assess a forfeiture or require education or training under s. 452.14 (4m)
“Felony" means a felony under the laws of this state or a crime committed elsewhere that would be a felony if committed in this state. “Felony" does not include a felony for which the applicant has been pardoned; a felony for which the conviction has been reversed, set aside, or vacated; or a felony for which the conviction has been expunged under s. 973.015
“Firm" means a licensed individual broker acting as a sole proprietorship or a licensed broker business entity.
“Licensed broker business entity" means a broker licensed under s. 452.12
that is a business entity.
“Licensed individual broker" means a broker licensed under s. 452.12
who is an individual.
“Licensee" means any person licensed under this chapter.
“Listing firm” means a firm that has entered into an agency agreement with a seller or landlord pursuant to which the firm lists property for sale or lease.
“Material adverse fact" means an adverse fact that a party indicates is of such significance, or that is generally recognized by a competent licensee as being of such significance to a reasonable party, that it affects or would affect the party's decision to enter into a contract or agreement concerning a transaction or affects or would affect the party's decision about the terms of such a contract or agreement.
“Multiple representation relationship" means a relationship between a firm and 2 or more of the firm's clients in which the clients are parties in the same transaction.
“Negotiate" means to provide to a party assistance within the scope of the knowledge, skills, and training required under this chapter in developing a proposal or agreement relating to a transaction, including doing any of the following:
Acting, whether directly or indirectly, as an intermediary by facilitating or participating in communications between parties related to the parties' interests in a transaction. In this paragraph, providing advice or opinions on matters that are material to a transaction in which a person is engaged or intends to engage or showing a party real estate does not, in and of itself, constitute acting as an intermediary by facilitating or participating in communications between parties.
Completing, when requested by a party, appropriate board-approved forms or other writings to document the party's proposal consistent with the party's instruction.
Presenting to a party the proposals of other parties to the transaction and giving the party a general explanation of the provisions of the proposal.
“Out-of-state broker" means a person who is not licensed under this chapter and who is 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.
“Out-of-state salesperson" means a person who is not licensed under this chapter and who is employed or engaged as an independent contractor by an out-of-state broker.
“Party" means a person seeking to engage in a transaction.
“Principal firm" means a firm that engages a subagent to provide brokerage services in a transaction.
“Real estate practice" means engaging in conduct which requires a license under this chapter.
“Salesperson" means any individual who is associated with a firm, other than a broker or an individual who is not required to hold a license under this chapter as provided under s. 452.03 (2)
“Subagent" means a firm that is engaged by a principal firm to provide brokerage services in a transaction, but that is not associated with the principal firm.
“Transaction" means the sale, exchange, purchase or rental of, or the granting or acceptance of an option to sell, exchange, purchase or rent, an interest in real estate, a business or a business opportunity.
A foreign corporation that entered into a brokerage contract to sell a radio station without being licensed in this state could not sue for its commission. The licensing requirement is not an unlawful burden on interstate commerce. Chapman Company, Inc. v. Service Broadcasting Corporation, 52 Wis. 2d 32
, 187 N.W.2d 794
Units of interest in a limited partnership are personalty and not real estate, and no real estate broker's license is required for their sale. 60 Atty. Gen. 254.
That one who owns stock in a corporation owns “an interest" in a business under sub. (2) (a) and that therefore anyone who negotiates a sale of stock requires a license under this section cannot be right. That would require every securities broker in Wisconsin to have a real estate broker's license as well as a securities license. Schlueter v. Latek, 683 F.3d 350
The `New' Chapter 452: Defining Real Estate Broker Practice. Leibsle. Wis. Law. June 2006.
Brokers and salespersons licensed. 452.03(1)(1)
Except as provided in s. 452.137
, no person may engage in or follow the business or occupation of, or advertise or hold himself or herself out as, or act temporarily or otherwise as a broker or salesperson without a license issued under this chapter. The board may grant a license only to a person who is competent to transact that business or occupation in a manner that safeguards the interests of the public, and only after satisfactory proof of the person's competence has been presented to the board.
No license under this chapter is required for an individual who, on behalf of and under the direction of a firm or one or more licensees associated with a firm, provides the firm or licensee with services that are limited to those that are purely administrative, clerical, or personal in nature.
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 Wis. 2d 891
, 539 N.W.2d 904
(Ct. App. 1995), 94-2531
Officers of a corporation or partners of a partnership can act for the corporation or partnership in the rental of real estate owned by the entity without being licensed as real estate brokers. 60 Atty. Gen. 1 (1971).
Actions of a tenants union on behalf of its members may require a real estate broker's license. 60 Atty. Gen. 118 (1971).
The permitted limits of nonlicensed independent contractor agents are discussed. 70 Atty. Gen. 23.
Duties and powers of board. 452.05(1)(1)
In addition to the other duties and responsibilities of the board under this chapter, the board shall advise the secretary on matters relating to real estate practice and shall:
Grant and issue licenses to individuals and business entities to act as brokers and to individuals to act as salespersons.
Approve forms for use in real estate practice. The board may conduct public hearings on matters relating to the approval of forms used in real estate practice. The board may also solicit comments relating to forms used in real estate practice from the council on forms created under s. 452.06 (1) (a)
or from a professional trade association whose members consist primarily of licensees actively engaged in real estate practice.
After consultation with the council on real estate curriculum and examinations, promulgate rules establishing criteria for the approval of educational programs and training sessions under s. 452.09 (2)
and approve such programs and sessions in accordance with the established criteria.
After consultation with the council on real estate curriculum and examinations, brokers and salespersons licensed under this chapter, and interested members of the public, establish criteria for the approval of continuing educational programs and courses in real estate related subjects required for renewal under s. 452.12 (5) (c)
Approve continuing educational programs and courses in accordance with the criteria established under par. (d)
. In order to be approved, a continuing educational program or course must require brokers and salespersons to pass an examination on the information presented at the program or course in order to successfully complete and receive continuing education credit for the program or course under s. 452.12 (5) (c)
Create a form on which an individual applying to renew a broker's or salesperson's license may do all of the following: