Firms providing services in more than one transaction.
A firm may provide brokerage services simultaneously to more than one party in different transactions, unless the firm agrees with a client that the firm is to provide brokerage services only to that client. If the firm and a client agree that the firm is to provide brokerage services only to that client, the agency agreement shall contain a statement of that agreement.
See also ch. REEB 24
, Wis. adm. code.
Changes in common law duties and liabilities of brokers and parties. 452.139(1)
Common law duties of firms.
The duties of a firm specified in this chapter or in rules promulgated under this chapter shall supersede duties or obligations under common law to the extent that those common law duties or obligations are inconsistent with the duties specified in this chapter or in rules promulgated under this chapter.
A client is not liable for a misrepresentation made in connection with the provision of brokerage services by a firm or any licensee associated with the firm, unless the client knows or should have known of the misrepresentation or the firm or licensee is repeating a misrepresentation made by the client.
A firm that is providing brokerage services to a client and that retains another firm to provide brokerage services as a subagent is not liable for a misrepresentation made by the subagent or any licensee associated with the subagent, unless the firm knew or should have known of the misrepresentation or the subagent or licensee is repeating a misrepresentation made to by the firm or any licensee associated with the firm.
Nothing in this subsection limits the responsibility of a firm under s. 452.12 (3)
for misrepresentations made by a licensee associated with the firm. Nothing in this subsection limits the liability of a client for a misrepresentation that the client makes in connection with brokerage services.
(3) Liability for negligent hiring.
If a licensee associated with a firm commits a crime under the laws of this state or another wrongful act, the firm may not be held civilly liable for hiring that licensee in a claim brought for negligent hiring if, regardless of whether the firm conducted its own investigation, the firm relied on the investigations conducted by the department under s. 440.03 (13)
or on any determination made by the board, including a determination under s. 452.07 (2)
See also ch. REEB 24
, Wis. adm. code.
Investigation and discipline of licensees. 452.14(1)(1)
The board shall, upon motion of the secretary or his or her designee or upon its own determination, conduct investigations and, as appropriate, may hold hearings and make findings, if the board or the department receives credible information that a broker or salesperson has violated this chapter or any rule promulgated under this chapter.
The board may commence disciplinary proceedings on any matter under investigation concerning a licensee.
The board shall conduct disciplinary proceedings in accordance with the rules adopted under s. 440.03 (1)
The board may revoke, suspend, or limit the license of any licensee, or reprimand the licensee, if it finds that the licensee has done any of the following:
Made a material misstatement in the application for a license, or in any information furnished to the board or department.
Made any substantial misrepresentation with reference to a transaction injurious to a party in which the licensee acts as agent.
Made any false promises of a character such as to influence, persuade, or induce a party to his or her injury or damage.
Pursued a continued and flagrant course of misrepresentation or made false promises through other licensees or through advertising.
Accepted from any person except the firm with which the licensee is associated, if the licensee is associated with a firm, a commission or valuable consideration for the performance of any act specified in this chapter or as compensation for referring a person to another licensee or to any other person in connection with a transaction.
Represented or attempted to represent a firm without the express knowledge and consent of the firm.
Failed, within a reasonable time, to account for or remit any moneys coming into the licensee's possession which belong to another person.
Demonstrated incompetency to act as a broker or salesperson, whichever is applicable, in a manner which safeguards the interests of the public.
Paid or offered to pay a commission or valuable consideration to any person for acts or services in violation of this chapter.
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 licensee 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)
Been guilty of any other conduct, whether of the same or a different character from that specified herein, that constitutes improper, fraudulent, or dishonest dealing.
Violated any provision of this chapter or any rule promulgated under this chapter.
Treated any person unequally solely because of sex, race, color, handicap, national origin, ancestry, marital status, lawful source of income, or status as a victim of domestic abuse, sexual assault, or stalking, as defined in s. 106.50 (1m) (u)
If a firm is a business entity it shall be sufficient cause for reprimand or for the limitation, suspension, or revocation of the firm's license that any business representative of the firm, or anyone who has a financial interest in or is in any way connected with the operation of the firm's brokerage business, has been guilty of any act or omission that would be cause for refusing a broker's license to such person as an individual.
In addition to or in lieu of a reprimand or a revocation, limitation, or suspension of a license under sub. (3)
, the board may do any of the following:
Assess against a licensee a forfeiture of not more than $1,000 for each violation enumerated under sub. (3)
Require a licensee to successfully complete education or training, in addition to any education or training required for licensure or for renewal of a license under this chapter, as a condition of continued licensure or reinstatement of a license.
The board may assess against a licensee who is an individual a forfeiture of $1,000 for a violation under s. 452.25 (2) (a)
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)
See also chs. REEB 15
, and 24
, Wis. adm. code.
Real estate brokers may engage in guaranteed sales plans if there is full disclosure and the broker does not engage in fraud, misrepresentation, or improper dealing. 61 Atty. Gen. 3.
Provisions in Executive Order 67 (1973), with respect to duty of real estate brokers to advise prospective purchasers of floodplain zoning status of property, do not constitute a new standard but suggest a course of action that the real estate examining board might take. The action to be taken would depend on the facts in each case. 63 Atty. Gen. 236.
Neither s. 440.20, 452.10 (2), 1977 stats., nor the rules of the department of regulation and licensing require the board to hold a hearing when a citizen files a verified complaint with the board requesting institution of disciplinary proceedings against a licensee. 68 Atty. Gen. 30.
Actions concerning licensees. 452.142(1)
Notwithstanding s. 100.18 (11) (b) 3.
, or 893.57
, an action concerning any act or omission of a firm or any licensee associated with the firm relating to brokerage services shall be commenced within 2 years after whichever of the following that applies occurs first:
An unconsummated transaction is terminated or expires.
The period of limitation under this section may not be reduced by agreement.
The period of limitation under this section does not apply to disciplinary actions initiated by the board.
History: 2015 a. 258
Except as otherwise provided in sub. (2)
, no license may be issued under this chapter to any person whose license 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.
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.
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.
Shall, for the first offense, suspend the license of the licensee for not less than 90 days.
Shall, for the 2nd offense, revoke the license of the licensee.
Fees and commissions. 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 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.
If a licensee is associated with a firm, all fees or commissions 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.
History: 1981 c. 94
; 1983 a. 464
; 1985 a. 128
; 1989 a. 307
; 2015 a. 258
; s. 35.17 correction in (2).
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
Limitation on actions for commissions.
No person engaged in the business or acting in the capacity of a broker or 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 at the time the alleged cause of action arose.
A foreign corporation that 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 Wis. 2d 32
, 187 N.W.2d 794
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 Wis. 2d 653
, 553 N.W.2d 257
(Ct. App. 1996), 95-1463
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
In any prosecution for violation of this chapter, proof that a person acted as a broker or salesperson is prima facie proof that compensation therefor was received or promised.
Certifications as evidence. 452.22(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.
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 license, or that a specified license was not in effect on a date specified, or as to the issuance, limitation, suspension, or revocation of any license or the reprimand of any 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.
Disclosures, investigations and inspections by brokers and salespersons. 452.23(1)
No licensee may 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
, or 3617
A 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:
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.
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 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.