1 | 1 | | LRB-2234/1 |
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2 | 2 | | MED&KRP:klm&emw |
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3 | 3 | | 2023 - 2024 LEGISLATURE |
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4 | 4 | | 2023 SENATE BILL 870 |
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5 | 5 | | January 5, 2024 - Introduced by Senators JAGLER, AGARD and FEYEN, cosponsored |
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6 | 6 | | by Representatives KRUG, ALLEN, BROOKS, DALLMAN, MURPHY, O'CONNOR and |
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7 | 7 | | ORTIZ-VELEZ. Referred to Committee on Housing, Rural Issues and Forestry. |
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8 | 8 | | ***AUTHORS SUBJECT TO CHANGE*** |
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9 | 9 | | AN ACT to renumber 452.14 (2); to renumber and amend 452.14 (4m) (a); to |
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10 | 10 | | amend 452.01 (5g), 452.14 (4r), 452.17 (1), 452.17 (3), 452.19 (1), 452.23 (title) |
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11 | 11 | | and 452.23 (4); to repeal and recreate 452.23 (3); and to create 452.07 (4), |
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12 | 12 | | 452.12 (5) (e), 452.14 (2) (b), 452.14 (2) (c), 452.14 (3) (im), 452.14 (4m) (a) 1., |
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13 | 13 | | 452.23 (5) and 710.13 of the statutes; relating to: various changes regarding |
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14 | 14 | | the laws governing real estate practice, disclosures regarding real property |
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15 | 15 | | wholesalers, and providing a penalty. |
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16 | 16 | | Analysis by the Legislative Reference Bureau |
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17 | 17 | | This bill 1) revises the law governing the practice of real estate by real estate |
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18 | 18 | | brokers and salespersons (real estate practice law) and 2) requires real property |
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19 | 19 | | wholesalers to provide certain disclosures to other parties involved in residential |
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20 | 20 | | real property transactions. |
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21 | 21 | | CHANGES REGARDING REAL ESTATE PRACTICE LAW |
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22 | 22 | | Current law regulates the practice of real estate, which can only be practiced |
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23 | 23 | | by real estate brokers and real estate salespersons. Real estate brokers and |
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24 | 24 | | salespersons (licensees) are licensed by the Real Estate Examining Board, which is |
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25 | 25 | | attached to the Department of Safety and Professional Services. A real estate |
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26 | 26 | | broker's license may be issued to either an individual or a business entity. The bill |
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27 | 27 | | makes various changes to real estate practice law, described in further detail as |
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28 | 28 | | follows: |
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35 | 35 | | 7 - 2 -2023 - 2024 Legislature LRB-2234/1 |
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36 | 36 | | MED&KRP:klm&emw |
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37 | 37 | | SENATE BILL 870 |
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38 | 38 | | Disclosures |
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39 | 39 | | Current law imposes on a real estate firm providing brokerage services to a |
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40 | 40 | | party to a transaction the duty to timely disclose in writing all material adverse facts |
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41 | 41 | | that the firm knows and that the party does not know or cannot discover through |
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42 | 42 | | reasonably vigilant observation, unless the disclosure of a material adverse fact is |
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43 | 43 | | prohibited by law. The law defines both “adverse fact” and “material adverse fact.” |
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44 | 44 | | Furthermore, each licensee associated with a firm owes the same duties to a party |
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45 | 45 | | that the firm owes to that party. Separately, current law contains a requirement that |
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46 | 46 | | a licensee disclose to the parties to a real estate transaction any facts known by the |
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47 | 47 | | licensee that contradict any information included in a written real estate condition |
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48 | 48 | | report. Current law further contains a list of specific types of information that a |
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49 | 49 | | licensee is not required to disclose. |
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50 | 50 | | The bill 1) harmonizes the disclosure requirement and the duty described |
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51 | 51 | | above; 2) clarifies that the “material adverse facts” that licensees have the duty to |
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52 | 52 | | disclose do not include anything on the list of specified types of information that |
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53 | 53 | | current law provides are exempt from needing to be disclosed; 3) prohibits the board |
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54 | 54 | | from promulgating rules that conflict with these provisions or that mandate |
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55 | 55 | | additional disclosures; and 4) provides that a licensee that in good faith provides |
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56 | 56 | | information attributable to a state or local governmental or quasi-governmental |
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57 | 57 | | entity may not be held civilly liable if that information is subsequently determined |
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58 | 58 | | to be inaccurate. |
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59 | 59 | | Discipline and licenses |
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60 | 60 | | The bill makes various changes pertaining to the discipline of licensees, |
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61 | 61 | | including the following: |
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62 | 62 | | 1. The bill requires the board to notify a real estate brokerage firm in writing |
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63 | 63 | | as to all investigations and disciplinary proceedings and actions that are related to |
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64 | 64 | | a licensee associated with that firm, including the contents of any administrative |
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65 | 65 | | warning issued by the board. The bill also provides that if an application for renewal |
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66 | 66 | | of a license issued to a licensee who is associated with a firm is not filed with the board |
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67 | 67 | | on or before the renewal date or if the renewal is not granted, DSPS must notify the |
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68 | 68 | | firm. |
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69 | 69 | | 2. The bill expressly provides that a real estate brokerage firm is not |
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70 | 70 | | responsible for ensuring compliance with, or for the monitoring of, any license |
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71 | 71 | | limitations set forth by the board of a broker or salesperson associated with that firm. |
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72 | 72 | | 3. Current law contains a list of prohibitions, violations of which subject a |
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73 | 73 | | licensee to professional discipline. Current law further allows the board to assess a |
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74 | 74 | | forfeiture of not more than $1,000 for such violations. The bill raises the maximum |
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75 | 75 | | forfeiture that the board may assess for a number of these violations to $5,000. |
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76 | 76 | | Criminal penalties |
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77 | 77 | | Under current law, any person who engages in or follows the business or |
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78 | 78 | | occupation of, or advertises or holds himself or herself out as or acts temporarily or |
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79 | 79 | | otherwise as, a broker or salesperson in this state without a license or who otherwise |
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80 | 80 | | violates the real estate practice law may be fined not more than $1,000 or imprisoned |
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81 | 81 | | for not more than six months or both. The bill raises the maximum criminal fine for |
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82 | 82 | | violations to $5,000. The bill does not affect the maximum term of imprisonment. - 3 -2023 - 2024 Legislature |
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83 | 83 | | LRB-2234/1 |
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84 | 84 | | MED&KRP:klm&emw |
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85 | 85 | | SENATE BILL 870 |
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86 | 86 | | DISCLOSURES REGARDING REAL PROPERTY WHOLESALERS |
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87 | 87 | | The bill requires a real property wholesaler to provide certain disclosures to |
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88 | 88 | | other parties involved in a real property transaction. Under the bill, “real property |
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89 | 89 | | wholesaler" is defined as a person that enters into a purchase agreement as a buyer |
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90 | 90 | | and intends to sell the person's rights as buyer to a third party, and “purchase |
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91 | 91 | | agreement” is defined as a contract for the sale, exchange, option, rental, or purchase |
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92 | 92 | | of residential real property that includes one to four dwelling units. |
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93 | 93 | | The bill requires a real property wholesaler, no later than entering into a |
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94 | 94 | | purchase agreement as a buyer, to provide written notice to the seller that the buyer |
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95 | 95 | | is a real property wholesaler. Under the bill, if the real property wholesaler fails to |
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96 | 96 | | provide the notice, the seller may rescind the purchase agreement at any time before |
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97 | 97 | | the closing and retain any deposits or option fees paid by the real property |
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98 | 98 | | wholesaler. |
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99 | 99 | | In addition, if the real property wholesaler contracts to sell its interest in the |
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100 | 100 | | purchase agreement to a third party, the bill requires the real property wholesaler, |
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101 | 101 | | no later than entering into the contract, to provide written notice to the third party |
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102 | 102 | | that the real property wholesaler is a real property wholesaler that holds an |
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103 | 103 | | equitable interest in the property as a buyer under the purchase agreement and that |
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104 | 104 | | the real property wholesaler is conveying its interest in the purchase agreement, not |
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105 | 105 | | title to the property. Under the bill, if the real property wholesaler fails to provide |
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106 | 106 | | the notice, the third party may rescind the contract at any time before the closing and |
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107 | 107 | | is entitled to the return of any deposits or option fees paid by the third party. |
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108 | 108 | | Because this bill creates a new crime or revises a penalty for an existing crime, |
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109 | 109 | | the Joint Review Committee on Criminal Penalties may be requested to prepare a |
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110 | 110 | | report. |
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111 | 111 | | Because this bill may increase or decrease, directly or indirectly, the cost of the |
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112 | 112 | | development, construction, financing, purchasing, sale, ownership, or availability of |
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113 | 113 | | housing in this state, the Department of Administration, as required by law, will |
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114 | 114 | | prepare a report to be printed as an appendix to this bill. |
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115 | 115 | | The people of the state of Wisconsin, represented in senate and assembly, do |
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116 | 116 | | enact as follows: |
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117 | 117 | | SECTION 1. 452.01 (5g) of the statutes is amended to read: |
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118 | 118 | | 452.01 (5g) “Material adverse fact" means an adverse fact that a party |
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119 | 119 | | indicates is of such significance, or that is generally recognized by a competent |
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120 | 120 | | licensee as being of such significance to a reasonable party, that it affects or would |
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121 | 121 | | affect the party's decision to enter into a contract or agreement concerning a |
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122 | 122 | | transaction or affects or would affect the party's decision about the terms of such a |
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128 | 128 | | 6 - 4 -2023 - 2024 Legislature LRB-2234/1 |
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129 | 129 | | MED&KRP:klm&emw |
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130 | 130 | | SECTION 1 SENATE BILL 870 |
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131 | 131 | | contract or agreement. “Material adverse fact” does not include anything specified |
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132 | 132 | | in s. 452.23 (2) (a), (c), or (d). |
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133 | 133 | | SECTION 2. 452.07 (4) of the statutes is created to read: |
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134 | 134 | | 452.07 (4) The board may not promulgate rules regarding disclosures by |
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135 | 135 | | brokers or salespersons that conflict with s. 452.23 or that require disclosures beyond |
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136 | 136 | | what is required under s. 452.23. |
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137 | 137 | | SECTION 3. 452.12 (5) (e) of the statutes is created to read: |
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138 | 138 | | 452.12 (5) (e) If an application for renewal of a license issued to a licensee who |
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139 | 139 | | is associated with a firm is not filed with the board on or before the renewal date or |
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140 | 140 | | if the renewal is not granted, the department shall notify the firm with which the |
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141 | 141 | | licensee is associated. |
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142 | 142 | | SECTION 4. 452.14 (2) of the statutes is renumbered 452.14 (2) (a). |
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143 | 143 | | SECTION 5. 452.14 (2) (b) of the statutes is created to read: |
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144 | 144 | | 452.14 (2) (b) The board shall notify a firm in writing as to all investigations |
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145 | 145 | | and disciplinary proceedings and actions that are related to a licensee associated |
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146 | 146 | | with the firm. Notwithstanding s. 440.205, a notice shall include the contents of any |
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147 | 147 | | administrative warning issued under s. 440.205. A notice shall be made to the |
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148 | 148 | | mailing address of the firm and to the email address of the individual broker acting |
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149 | 149 | | as a sole proprietor or the email address for the licensed business entity. |
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150 | 150 | | SECTION 6. 452.14 (2) (c) of the statutes is created to read: |
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151 | 151 | | 452.14 (2) (c) A firm is not responsible for ensuring compliance with, or for the |
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152 | 152 | | monitoring of, any license limitations set forth by the board of a licensee associated |
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153 | 153 | | with the firm. |
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154 | 154 | | SECTION 7. 452.14 (3) (im) of the statutes is created to read: |
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155 | 155 | | 452.14 (3) (im) Violated s. 710.13 (2). |
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180 | 180 | | 25 - 5 -2023 - 2024 Legislature |
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181 | 181 | | LRB-2234/1 |
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182 | 182 | | MED&KRP:klm&emw |
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183 | 183 | | SECTION 8 |
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184 | 184 | | SENATE BILL 870 |
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185 | 185 | | SECTION 8. 452.14 (4m) (a) of the statutes is renumbered 452.14 (4m) (a) (intro.) |
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186 | 186 | | and amended to read: |
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187 | 187 | | 452.14 (4m) (a) (intro.) Assess a forfeiture against a licensee a as follows: |
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188 | 188 | | 2. A forfeiture of not more than $1,000 for each violation enumerated under |
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189 | 189 | | sub. (3) that is not enumerated under subd. 1. |
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190 | 190 | | SECTION 9. 452.14 (4m) (a) 1. of the statutes is created to read: |
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191 | 191 | | 452.14 (4m) (a) 1. A forfeiture of not more than $5,000 for each violation |
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192 | 192 | | enumerated under sub. (3) (a), (b), (c), (d), (f), (h), (i), (im), (j), (jm), (k), or (n). |
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193 | 193 | | SECTION 10. 452.14 (4r) of the statutes is amended to read: |
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194 | 194 | | 452.14 (4r) The board may assess against a licensee who is an individual a |
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195 | 195 | | forfeiture of $1,000 $5,000 for a violation under s. 452.25 (2) (a). |
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196 | 196 | | SECTION 11. 452.17 (1) of the statutes is amended to read: |
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197 | 197 | | 452.17 (1) Any person who engages in or follows the business or occupation of, |
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198 | 198 | | or advertises or holds himself or herself out as or acts temporarily or otherwise as, |
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199 | 199 | | a broker or salesperson in this state without a license under this chapter shall be |
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200 | 200 | | prosecuted by the district attorney in the county where the violation occurs or by the |
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201 | 201 | | attorney general and may be fined not more than $1,000 $5,000 or imprisoned not |
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202 | 202 | | more than 6 months or both. |
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203 | 203 | | SECTION 12. 452.17 (3) of the statutes is amended to read: |
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204 | 204 | | 452.17 (3) Any person who otherwise violates any provision of this chapter may |
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205 | 205 | | be fined not more than $1,000 $5,000 or imprisoned for not more than 6 months or |
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206 | 206 | | both. |
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207 | 207 | | SECTION 13. 452.19 (1) of the statutes is amended to read: |
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208 | 208 | | 452.19 (1) No licensee may pay a fee or a commission or any part thereof for |
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209 | 209 | | performing any act specified in this chapter or as compensation for a referral or as |
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234 | 234 | | 25 - 6 -2023 - 2024 Legislature LRB-2234/1 |
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235 | 235 | | MED&KRP:klm&emw |
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236 | 236 | | SECTION 13 SENATE BILL 870 |
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237 | 237 | | a finder's fee to any person who is not licensed under this chapter or who is not |
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238 | 238 | | regularly and lawfully engaged in the real estate brokerage business in another |
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239 | 239 | | state, a territory or possession of the United States, or a foreign country, unless the |
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240 | 240 | | person was licensed under this chapter when the commission was earned or when |
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241 | 241 | | the referral fee arrangement was made. |
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242 | 242 | | SECTION 14. 452.23 (title) of the statutes is amended to read: |
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243 | 243 | | 452.23 (title) Disclosures, investigations and inspections by brokers |
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244 | 244 | | and salespersons. |
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245 | 245 | | SECTION 15. 452.23 (3) of the statutes is repealed and recreated to read: |
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246 | 246 | | 452.23 (3) (a) A licensee shall, except as provided in par. (b), disclose in writing |
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247 | 247 | | to a party to a real estate transaction all material adverse facts known by the licensee |
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248 | 248 | | that the party does not know or cannot discover through reasonably vigilant |
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249 | 249 | | observation. |
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250 | 250 | | (b) Paragraph (a) does not require the disclosure of a material adverse fact to |
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251 | 251 | | a party if any of the following applies: |
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252 | 252 | | 1. The material adverse fact is addressed in a written report described under |
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253 | 253 | | sub. (2) (b). |
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254 | 254 | | 2. The material adverse fact has otherwise been disclosed to the party in |
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255 | 255 | | writing. |
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256 | 256 | | 3. Disclosure of the material adverse fact is prohibited by law. |
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257 | 257 | | SECTION 16. 452.23 (4) of the statutes is amended to read: |
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258 | 258 | | 452.23 (4) In performing an investigation or inspection and in making a |
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259 | 259 | | disclosure in connection with a real estate transaction, a licensee shall exercise the |
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260 | 260 | | degree of care expected to be exercised by a reasonably prudent person who has the |
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261 | 261 | | knowledge, skills, and training required for licensure under this chapter. |
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286 | 286 | | 25 - 7 -2023 - 2024 Legislature |
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287 | 287 | | LRB-2234/1 |
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288 | 288 | | MED&KRP:klm&emw |
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289 | 289 | | SECTION 17 |
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290 | 290 | | SENATE BILL 870 |
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291 | 291 | | SECTION 17. 452.23 (5) of the statutes is created to read: |
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292 | 292 | | 452.23 (5) A licensee that in good faith provides information attributable to a |
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293 | 293 | | state or local governmental or quasi-governmental entity, including an agency, |
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294 | 294 | | department, board, commission, bureau, or division, or a military or public safety |
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295 | 295 | | organization, may not be held civilly liable if that information is subsequently |
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296 | 296 | | determined to be inaccurate. For the purpose of any proceeding, the good faith shall |
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297 | 297 | | be presumed. |
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298 | 298 | | SECTION 18. 710.13 of the statutes is created to read: |
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299 | 299 | | 710.13 Disclosures regarding real property wholesalers. (1) |
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300 | 300 | | DEFINITIONS. (a) “Purchase agreement” means a contract for the sale, exchange, |
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301 | 301 | | option, rental, or purchase of residential real property. |
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302 | 302 | | (b) “Real property wholesaler” means a person that enters into a purchase |
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303 | 303 | | agreement as a buyer and intends to assign the person's rights as buyer under the |
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304 | 304 | | purchase agreement to a 3rd party for consideration. |
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305 | 305 | | (c) “Residential real property" means real property in this state that includes |
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306 | 306 | | one to 4 dwelling units, as defined in s. 101.61 (1). |
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307 | 307 | | (2) REQUIRED DISCLOSURES. A real property wholesaler shall provide all of the |
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308 | 308 | | following disclosures: |
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309 | 309 | | (a) No later than entering into a purchase agreement as a buyer, written notice |
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310 | 310 | | to the seller of the residential real property that the buyer is a real property |
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311 | 311 | | wholesaler. |
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312 | 312 | | (b) No later than entering into a contract with a 3rd party to assign the real |
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313 | 313 | | property wholesaler's rights as buyer under a purchase agreement to the 3rd party, |
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314 | 314 | | written notice to the 3rd party that the assignor is a real property wholesaler that |
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315 | 315 | | holds an equitable interest in the residential real property as a buyer under the |
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340 | 340 | | 25 - 8 -2023 - 2024 Legislature LRB-2234/1 |
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341 | 341 | | MED&KRP:klm&emw |
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342 | 342 | | SECTION 18 SENATE BILL 870 |
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343 | 343 | | purchase agreement and that the assignor is conveying the assignor's interest in the |
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344 | 344 | | purchase agreement, not title to the residential real property. |
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345 | 345 | | (3) RIGHTS TO RESCIND. (a) If a real property wholesaler fails to timely provide |
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346 | 346 | | the disclosure to a seller as required under sub. (2) (a), the seller may rescind the |
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347 | 347 | | purchase agreement at any time before the closing, without any liability on the |
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348 | 348 | | seller's part, by providing written notice of rescission to the real property wholesaler, |
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349 | 349 | | and the seller is entitled to retain any deposits or option fees paid by the real property |
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350 | 350 | | wholesaler in connection with the transaction. |
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351 | 351 | | (b) If a real property wholesaler fails to timely provide the disclosure to a 3rd |
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352 | 352 | | party assignee as required under sub. (2) (b), the assignee may rescind the |
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353 | 353 | | assignment of the purchase agreement at any time before the closing, without any |
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354 | 354 | | liability on the assignee's part, by providing written notice of rescission to the real |
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355 | 355 | | property wholesaler, and the assignee is entitled to the return of any deposits or |
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356 | 356 | | option fees paid by the assignee in connection with the transaction. |
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357 | 357 | | (4) WAIVER PROHIBITED. A person may not waive the person's rights under this |
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358 | 358 | | section. If the person proceeds to closing, the person's right to rescind under sub. (3) |
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359 | 359 | | is terminated. |
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360 | 360 | | SECTION 19.0Initial applicability. |
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361 | 361 | | (1) DISCLOSURES REGARDING REAL PROPERTY WHOLESALERS. The treatment of s. |
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362 | 362 | | 710.13 first applies to a purchase agreement or an assignment of a purchase |
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363 | 363 | | agreement entered into on the effective date of this subsection. |
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364 | 364 | | (END) |
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384 | 384 | | 20 |
---|
385 | 385 | | 21 |
---|
386 | 386 | | 22 |
---|