Statutory authority: 15.08(5) (b), Stats.
Explanation of agency authority:
Each examining board shall promulgate rules for its own guidance and for the guidance of the profession to which it pertains, and define and enforce professional conduct and unethical practices not inconsistent with the law relating to the particular trade or profession. [s. 15.08 (5) (b), Stats.]
Related statute or rule: N/A
Plain language analysis:
This rule updates the real estate code chapters to reflect current real estate practice as provided in 2015 Act 258 including: terminology, provisions relating to independent contractor relationship, duties of licensees, supervision of licensees, use of unlicensed personal assistants, business representations, inactive license references, fees for predeterminations on criminal records, electronic records retention, use of forms and elimination of timeshare credential references.
Sections 1 and 2 create definitions for three new terms defined in statute: “associated with a firm”, “associated with a subagent” and firm” by referring to the same definition as the statute. These sections also create a definition for “agency agreement” referring to the statutory definition. Lastly, the sections create a definition for “member of the licensee’s immediate family” which clarifies a previous definition for “immediate family”.
Sections 3 and 4 removes the reference to timeshare salespersons due to Act 258 removing the requirement for credentialing of timeshare salespersons. These sections also create a $68.00 fee for the binding determination as to whether the individual’s criminal record would disqualify the individual from obtaining a license prior to the individual submitting an application for the license. This provision allows an applicant who receives a favorable determination to credit the amount toward their application fee if the person applies within 1 year of the determination. Act 258 permits the Board to charge a fee for the cost of making this determination.
Sections 5, 13, 15, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 36, 38, 39, 41, and 42 update terminology.
Section 6 clarifies documents prepared or received by the licensee in addition to utilized shall be promptly provided. The section also includes rental agreements and clarifies the lease or rental agreement shall be provided upon execution of the lease or rental agreement.
Sections 7 clarifies a broker or salesperson shall promptly distribute a copy of an agency agreement that has been accepted and signed by all parties to the client when the client signs an agency agreement.
Section 8 repeals the obsolete provision relating to closing statements.
Section 9 updates terminology and clarifies the record retention period in transactions without a date of closing or consummation begins from the date the listing contract or agency agreement is terminated. In addition, this section clarifies electronic or digital record retention may be utilized.
Section 10 creates a provision requiring brokers and salespersons to submit documents to the firm in a timely manner so that the firm can be in compliance with the record retention requirements.
Sections 11 and 14 updates terminology and reflects forms are filled out based upon instruction and not intent of the party.
Section 12 updates terminology and adds quasi-governmental and tribal agencies to the form exception in order to provide clarification to the profession.
Sections 17, 18, 19, 20, and 21update terminology in provisions for persons associated with a firm and changes the references from code references to statutory references.
Section 23 repeals the obsolete definition of “cooperating broker”.
Section 34 repeals the “agency agreement” definition.
Section 37 updates terminology and clarifies family member language in order to be clear the code means a member of the family and not family as a unit.
Section 40 updates terminology and clarifies a pending written proposal or offer is one being negotiated.
Summary of, and comparison with, existing or proposed federal regulation: None
Comparison with rules in adjacent states:
Illinois: Illinois does not have a predetermination process regarding criminal convictions. Illinois also does not use terminology relating to firm.
Iowa: Iowa does not have a predetermination process regarding criminal convictions. Iowa also does not use terminology relating to firm.
Michigan: Michigan does not have a predetermination process regarding criminal convictions. Michigan also does not use terminology relating to firm.
Minnesota: Minnesota does not have a predetermination process regarding criminal convictions. Minnesota also does not use terminology relating to firm.
Summary of factual data and analytical methodologies:
The Board reviewed all of the REEB chapters to implement the 2015 Act 258 changes.
Fiscal Estimate: This rule will not have a fiscal impact.
Effect on small business:
These proposed rules do not have an economic impact on small businesses, as defined in s. 227.114 (1), Stats. The Department’s Regulatory Review Coordinator may be contacted by email at Jeffrey.Weigand@wisconsin.gov, or by calling (608) 267-2435
Agency contact person:
Sharon Henes, Administrative Rules Coordinator, Department of Safety and Professional Services, Division of Policy Development, 1400 East Washington Avenue, Room 151, P.O. Box 8366, Madison, Wisconsin 53708; telephone 608-261-2377; email at Sharon.Henes@wisconsin.gov.
Place where comments are to be submitted and deadline for submission:
Comments may be submitted to Sharon Henes, Administrative Rules Coordinator, Department of Safety and Professional Services, Division of Policy Development, 1400 East Washington Avenue, Room 151, P.O. Box 8366, Madison, WI 53708-8366, or by email to Sharon.Henes@wisconsin.gov. Comments must be received on or before August 18, 2016 to be included in the record of rule-making proceedings.
TEXT OF RULE
Section 1. REEB 11.02 (1) is renumbered to 11.02 (1t)
Section 2. REEB 11.02 (1d), (1h), (1p), (5g) and (6m) are created to read:
REEB 11.02 (1d) “Agency agreement” has the meaning under s. 452.01 (1m), Stats. (1h) “Associated with a firm” has the meaning under s. 452.01 (1o), Stats. (1p) “Associated with a subagent” has the meaning under s. 452.01 (1p), Stats. (5g) “Firm” has the meaning under s. 452.01 (4w), Stats.
(6m) “Member of the licensee’s immediate family” means any of the following:
(a) A parent, stepparent, grandparent, foster parent, child, stepchild, grandchild, foster child, brother, sister, aunt, uncle of the licensee.
(b) The spouse or domestic partner of the licensee or any person listed in par. (a).
Section 3. REEB 12.011 (1) is amended to read: