New Department of Regulation and Licensing Forms 

Optional-Use Date: November 1, 2009; Mandatory-Use Date: March 1, 2010
WB-11 Residential Offer to Purchase
WB-40 Amendment to Offer to Purchase
WB-41 Notice Relating to Offer to Purchase
WB-42 Amendment to Listing Contract
WB-44 Counter-Offer
WB-46 Multiple Counter-Proposal
WB-47 Amendment to Buyer Agency Contract

Your source for new forms information is the WRA Forms Update page at www.wra.org/formsupdate. Order new forms at www.wra.org/forms.

WB-11 Residential Offer to Purchase

The new WB-11 Residential Offer to Purchase is reviewed in the November 2009 Legal Update, “WB-11 Residential Offer to Purchase — 2010 Edition,” online at www.wra.org/LU0911. A video with a line-by-line review of the 2010 Offer is available at www.wra.org/formsupdate.

WB-40 Amendment to Offer to Purchase

A buyer had his home inspection and delivered an amendment to the seller. The listing broker states the seller has rejected the amendment but there is no written evidence of rejection for the buyer. How to proceed? 

The new WB-40 Amendment to Offer to Purchase includes a new line for the parties to use when rejecting an offered amendment. An amendment is used when the parties want to modify the terms of an accepted offer. The requested change has no effect on the offer unless all parties agree; the amendment must be signed and delivered back to the originating party within the time allowed. If the party receiving the amendment declines to sign, this has no affect on the accepted offer and the offered amendment will expire by the passage of time. All that has happened in this case is that a change was proposed, but without mutual agreement the offer remains as it was before. Now with the updated WB-40, if a party rejects the offered amendment, that party may document the rejection at line 42, and the parties no longer have to wait for the amendment to expire.

WB-41 Notice Relating to Offer to Purchase

An offer was accepted on the 2010 WB-11. The offer included a seller right to cure in the inspection contingency. The buyer delivered a notice of defects to the seller and the listing broker based on the home inspection report, but now has changed his mind and wants to continue with the transaction. The buyer is asking if he can withdraw the notice because the 2010 offer no longer contains the statement, “Once received, a notice cannot be withdrawn by the Party delivering the notice without the consent of the Party receiving the notice.” Can the buyer withdraw the notice? 

The WB-41 Notice is used when one party gives a notice that does not require the other party’s agreement. A notice can be used, for instance, to give a Notice of Defects, a seller’s notice that he or she has elected to cure the items stated in the buyer’s Notice of Defects or a seller’s notice to the buyer that the seller will not cure.

The 2010 WB-41 Notice Relating to Offer to Purchase now includes the following language relating to the withdrawal of a notice:

Withdrawal Warning: Once delivered, a Notice cannot be withdrawn by the Party delivering the Notice without the consent of the Party receiving the Notice.

Just like before, to have the Notice of Defects withdrawn, the buyer will need to obtain the seller’s consent. A WB-40 Amendment to Offer to Purchase may be used to document the parties’ agreement to the withdrawal of the Notice of Defects.

WB-42 Amendment to Listing Contract

When making a price change on a listing contract where both listing broker and seller agree to lower the list price, is it necessary to use an amendment or draft a new contract? Or can the list price just be changed? 

Both license law and the Code of Ethics require REALTORS^® to have their agreements and amendments in writing. To amend a current listing contract, the appropriate form is the WB-42 Amendment to the Listing Contract. Line 5 of the WB-42 is designed for making list price changes.

A seller has requested an early termination of the listing contract because the listing agent is moving to a different firm. Can the agent use the WB-42 Amendment to Listing Contract to amend the term of the listing? 

No. Lines 66-73 of the WB-1 Residential Listing Contract state that the broker (firm) is the only one with the authority to enter into a mutual agreement to terminate the listing, amend the commission amount or shorten the term of the listing. Standard of Practice 16-20 of the REALTOR^® Code of Ethics also prohibits agents from inducing clients of their current firm to cancel exclusive listing contracts between the clients and the firm. To educate the consumer and remind the agents of the terms of the WB listings, the 2010 WB-42 Amendment to Listing includes the following reminder:

CAUTION: Agents (salespersons) for Broker (firm) do not have the authority to enter into a mutual agreement to terminate a listing contract, amend the commission amount or shorten the term of a listing contract, without the written consent of the Agent(s)’ supervising broker.

WB-47 Amendment to Buyer Agency/Tenant Representation Agreement

An agent with a buyer agency agreement wrote an offer to purchase for the buyer/client on a For Sale by Owner property. The buyer asked the seller to pay the buyer’s agent fee in the offer but the seller countered to remove that provision. Can the agent waive or reduce the buyer’s broker’s fee? If she does, can she terminate the buyer agency contract? 

If the buyer is unable to secure a fee from the seller, then the buyer would be obligated to pay the fee per the WB-36 Buyer Agency/Tenant Representation Agreement. The agent, with the consent of the broker, may voluntarily agree not to pursue the buyer-client for the fee called for in the WB-36 agreement. However, simply agreeing to waive the buyer-client’s duty to pay a fee does not give the agent the right to unilaterally cancel the buyer agency contract. Such cancellation would require the written consent of the broker. The updated WB-47 Amendment to Buyer Agency/Tenant Representation Agreement reminds the parties and the licensees that:

CAUTION: Agents (salespersons) for a broker (firm) do not have the authority to enter into a mutual agreement to terminate a Buyer Agency/Tenant Representation Agreement, amend the compensation terms or shorten the term of an Agreement without the written consent of the agent(s)’ supervising broker.

Use of outdated forms

What happens if a listing broker receives an offer to purchase on an out-of-date form? 

Wisconsin real estate licensees are required to use current Department of Regulation and Licensing forms. From now until March 1, 2010, real estate licensees may use either the 1999 or 2010 version of the WB-11 Residential Offer to Purchase. Licensees drafting offers on or after March 1, 2010, must use the new offer to comply with license law.

A listing broker is not violating the law by presenting an out-of-date form to a seller. The offer can still create an enforceable contract between the buyer and the seller if the terms and conditions are acceptable to the parties. The listing broker may identify the form as outdated, but may not demand that the buyer resubmit an offer on a current form.

Tracy Rucka is a Staff Attorney for the WRA.

Editor's note: The DRL became the DSPS in 2011. Information above may not be current.