Section 452.133. Duties of licensees.

 

(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:

(a) The duty to provide brokerage services honestly and fairly.

(b) The duty to provide brokerage services with reasonable skill and care.

(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.

(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.

(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.

(f) The duty to safeguard trust funds and other property held as required by rules promulgated under s. 452.13 (5) .

(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.

(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:

(a) The duty to loyally represent the client's interests by doing all of the following:

1. Placing the client's interests ahead of the interests of the firm.

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.

(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.

(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.

(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.

(d) The duty to negotiate on behalf of the client.

(3)   Prohibited conduct. In providing brokerage services, a licensee may not do any of the following:

(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.

(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.

(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.

(4)   Subagent's duties.

(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) .

(b) A subagent may not do any of the following:

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.

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.

(4m)   Duties and prohibitions; application to licensees.

(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) .

(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) .

(c)

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) .

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) .

(d) The duties and prohibitions under pars. (a) to (c) extend only to a licensee providing brokerage services to a party to the transaction.

(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.

(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:

(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) .

(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.

1993 a. 127 ; 1995 a. 400 ; 2005 a. 87 ; 2015 a. 258 . Cross-reference: See also ch. REEB 24 , Wis. adm. code. The New Real Estate Agency Law: Redefining the Role of Real Estate Brokers. Smith and Staff. Wis. Law. Oct. 1994. The `New' Chapter 452: Defining Real Estate Broker Practice. Leibsle. Wis. Law. June 2006.