Fees and commissions. 452.19(1)(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.
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)(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)(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.
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.
Except as provided in s. 452.24
, any information related to the fact that a particular person is required to register as a sex offender under s. 301.45
or any information about the sex offender registry under s. 301.45
A licensee shall disclose to the parties to a real estate transaction any facts known by the licensee that contradict any information included in a written report described under sub. (2) (b)
In performing an investigation or inspection and in making a disclosure in connection with a real estate transaction, a licensee 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 under this chapter.
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 Wis. 2d 894
, 512 N.W.2d 239
(Ct. App. 1994).
Sub. (2) (b) relieves a broker from the obligation to disclose information disclosed in a 3rd party report. Sub. (2) (b) does not apply to a separate affirmative act of negligence and does not preclude a broker's liability for a breach of other duties. Johnson v. Neuville, 226 Wis. 2d 365
, 595 N.W.2d 100
(Ct. App. 1999), 98-1680
Disclosure duty; immunity for providing notice about the sex offender registry. 452.24(1)(1)
If, in connection with the sale, exchange, purchase or rental of real property, a licensee receives a request from a person to whom the licensee is providing brokerage services in connection with the sale, exchange, purchase or rental for information related to whether a particular person is required to register as a sex offender under s. 301.45
or any other information about the sex offender registry under s. 301.45
, the licensee has a duty to disclose such information, if the licensee has actual knowledge of the information.
Notwithstanding sub. (1)
, the licensee is immune from liability for any act or omission related to the disclosure of information under sub. (1)
if the licensee in a timely manner provides to the person requesting the information written notice that the person may obtain information about the sex offender registry and persons registered with the registry by contacting the department of corrections. The notice shall include the appropriate telephone number and Internet site of the department of corrections.
History: 1999 a. 89
; 2015 a. 258
Criminal convictions and disclosures. 452.25(1)(a)(a)
Notwithstanding ss. 111.321
, and 111.335
, and except as provided in pars. (b)
, no applicant who is an individual may be issued an initial broker's or salesperson's license if the applicant has been convicted of a felony.
If an applicant has been convicted of a felony described under par. (a)
; the applicant has completed the confinement portion of his or her sentence, if the applicant is serving a bifurcated sentence, or has been released from prison to parole or released upon the completion of his or her sentence; and 3 years have elapsed since the date on which the confinement portion was completed or the applicant was released, the applicant may apply to the board for a determination as to whether the applicant is suitable to be granted a license.
If an applicant applies for a determination under par. (b)
, the board may require the applicant to provide any information that is necessary for the investigation and shall make a determination by doing all of the following:
Reviewing any supplemental information provided by the applicant bearing upon his or her suitability for licensure as a broker or salesperson.
The number or pattern of felonies or other similar incidents that gave rise to the felony conviction.
The circumstances surrounding the felony that may have a bearing on whether the applicant might repeat the behavior that was the subject of the felony.
The applicant's activities since the felony, including employment, education, participation in treatment, payment of restitution, and any other factor that may be evidence of rehabilitation.
With respect to a determination under par. (c)
, the applicant bears the burden of demonstrating his or her suitability for licensure.
If the board makes a determination under par. (c)
to allow an applicant to be granted a broker's or salesperson's license, the applicant shall be granted the license if the applicant satisfies all other requirements for granting the license.
This subsection does not apply to the renewal of a license.
No applicant may be issued an initial broker's or salesperson's license, and no applicant may renew such a license, if the applicant has violated par. (a)
and failed to pay any forfeiture assessed by the board under s. 452.14 (4r)
for that violation.
Association with firm; independent practice. 452.30(1)(1)
No licensee may provide brokerage services on behalf of a firm unless all of the following apply:
The licensee has notified the department that the licensee is associated with the firm.
A licensee may notify the department that the licensee is associated with a firm under sub. (1) (b)
by doing one of the following:
Providing the notice at the time the licensee first applies for licensure as a broker or salesperson. No separate fee for notifying the department may be required for such a notification under this paragraph.
Notifying the department through the use of a form prescribed by the department and paying the transfer fee specified in s. 440.05 (7)
A licensee who is associated with a firm may notify the department that the licensee has become associated with another firm using the method specified in sub. (2) (b)
A licensee that ceases to be associated with a firm shall, through the use of a form prescribed by the department, send written notice to the department within 10 days after the date on which the licensee ceases to be associated with the firm.
A firm that terminates a licensee from being associated with the firm shall, through the use of a form prescribed by the department, send written notice of that termination to the department within 10 days after the termination.
No licensee may be associated with a firm if the firm's license has been suspended or revoked during the period of suspension or revocation. The licensee may become associated with another firm, provided the licensee is not a party to the activities causing the suspension or revocation of the firm's license. If the licensee becomes associated with another firm, the licensee may not provide brokerage services on behalf of that firm until sub. (1) (b)
has been satisfied.
A broker who is associated with a firm may also engage in independent real estate practice in his or her own name or under the name of a licensed broker business entity, if the broker obtains written approval from and avoids conflicts of interest with each firm with which the broker is associated. The written approval shall specify all of the following:
Whether the broker engaging in independent practice may engage other licensees to work under the broker.
That the broker engaging in independent practice is responsible for the supervision of any licensees associated with the broker.
Before engaging in independent practice as provided in par. (a)
, a broker shall notify the department of that fact and of the name under which the broker will engage in independent practice. The broker shall notify the department using any form or other method prescribed by the department for that purpose.
A broker that is engaging in independent practice shall not be considered to be associated with a firm that approved the broker engaging in independent practice under par. (a)
with respect to the broker's independent practice activities.
A salesperson may be associated with only one firm at a given time.
A salesperson may not engage in independent real estate practice and may engage in real estate practice only when associated with a firm.
History: 2015 a. 258
Unlicensed personal assistants. 452.34(1)(1)
In this subsection, “unlicensed personal assistant" means an individual, including an individual who is licensed under this chapter, who is employed only to provide services for which a license is not required under this chapter as provided in s. 452.03 (2)
A licensee associated with a firm, prior to retaining an individual to serve as an unlicensed personal assistant, shall enter into a written agreement with the licensee's firm, setting forth the duties of the unlicensed personal assistant, the manner in which the unlicensed personal assistant will be compensated for his or her services, and the responsibilities of the licensee and the firm with respect to supervision of the unlicensed personal assistant's activities.
In this subsection, “open house" means a showing of real estate open to the public for viewing without an individual appointment.
An unlicensed personal assistant may not assist a licensee at an open house for the sale of real estate or a business without the direct, on-premises supervision and presence of a licensee, and may not provide any services at an open house for which a license is required under this chapter.
History: 2015 a. 258
Independent contractor relationship. 452.38(1)(1)
Except as otherwise provided in s. 102.078
, a licensee shall not, under ch. 102
, or 109
, under subch. X of ch. 71
or subch. II of ch. 111
, under any other law or rule other than those specified under sub. (1m)
, or in any action or proceeding under the common law, be considered an employee of a firm if all of the following are satisfied:
A written agreement has been entered into with the firm that provides that the licensee shall not be treated as an employee for federal and state tax purposes.
Seventy-five percent or more of the compensation related to sales or other output, as measured on a calendar year basis, paid to the licensee pursuant to the written agreement referenced under par. (a)
is directly related to the brokerage services performed by the licensee on behalf of the firm.
This section does not apply with respect to ch. 108
or any rules promulgated thereunder.
applies notwithstanding the requirements and responsibilities of a firm under s. 452.132
and any rules promulgated by the board.