As the end of each biennium approaches, more licensees are in the classroom — virtually or in person — taking CE. The CE season brings about an increase in WRA Legal Hotline questions. The running joke in the office is we know when it is CE season because calls come into the hotline starting with, “I was just in CE and the instructor said … is that right?” This month, we will touch base on some of these recent inquiries.
Are listing agents allowed to attend a buyer’s home inspection? A broker thought a CE class mentioned that only the buyer and the buyer’s agent were to be in attendance, even limiting whether the extended family could be present. The seller and listing agent will get a copy of the report. Why do they need to be present?
There have been several articles regarding the home inspection contingency, home inspections, home inspectors and liability issues. Included are discussion points on the advantages and disadvantages of brokers and/or agents attending home inspections. There is no one right or wrong analysis on this issue because there are pros and cons to justify attending or not attending the inspection. The Department of Safety and Professional Services (DSPS) has not taken a position on the issue, other than that the Administrative Code rules do require
real estate licensees to make a reasonable inspection of the property during the course of a transaction. See Wis. Admin. Code § REEB 24.07(1).
The offer to purchase states, “Buyer or licensees or both may be present at all inspections and testing.” Unless modified, the offer does not allow the buyer to have additional people, or an entourage, accompany the buyer to the inspection. The seller may choose to attend or have a licensee attend the inspection or testing as well. The seller and listing agent may agree, as a condition of the listing, that the listing agent will attend inspections, testings or showings. The seller and listing broker may take into consideration company policies concerning whether home inspectors and other professionals on site should or should not be accompanied by the listing agent.
For further discussion, see the following Legal Updates:
Reviewing the CE this biennium, there is an agency representation situation that raises questions about more than one agent from a firm. One agent is the buyer’s agent; one agent is the listing agent. Both clients agree to multiple representation with designated agency. How does the buyer’s agent fill out lines 1-2 of the offer?
This is a classic multiple representation with designated agency situation. The agent who is drafting is drafting as a “buyer’s agent” because the buyer is receiving client-level services just as the seller is receiving client-level services from the listing agent.
On the other hand, if the parties did not agree to designated agency, then multiple representation without designated agency would be the “neutral” way that the agent(s) involved would have to provide services. Each agent would ensure that they do not favor one side over the other. The agent drafting an offer and acting under multiple representation without designated agency completes lines 1-2 of the offer as “agent of seller and buyer” since the firm represents both buyers and sellers as clients but is not to show loyalty toward one side over the other.
How long are agents supposed to keep CE certificates of completion?
License law does not specifically state any requirement for the retention of education completion documents by the individual who took the course. However, the law does require the school issuing the certificate to retain it for five years. Therefore, if a student needed a copy, the school will be required and would be able to produce a copy for any student who took a course within the last five years. The relevant administrative code is below.
Wis. Admin. Code § REEB 25.055(4)(C) states, “A school or organization shall maintain attendance and completion records for at least 5 years after a program or course has been conducted.”
To view CE certificates for WRA courses, CE students may log in to www.wra.org/EducationHistory. Brokers may use www.wra.org/myCompany to view the WRA education history of licensees associated with the firm.
A broker has a sales agent who is thinking about retiring. Can the broker pay referrals if the agent is with a firm? Does the agent have to take CE?
An individual with a salesperson license cannot engage in real estate practice without being associated with a firm. A salesperson with a valid license may, however, negotiate and receive referral fees without being associated with a firm. Per DSPS policy, if the referral will be paid after the December 14 renewal date, the licensee will need to complete CE and renew the license to be paid the referral fee. It is prudent to document referral agreements in writing. See the WRA referral agreement in zipForm.
A salesperson is considering getting a broker’s license. Would the broker pre-license course satisfy the CE requirements for renewing a license for this biennium?
No. Although this once was the case, the broker pre-license education does not satisfy the CE requirements for the biennial real estate license renewal. The Real Estate Examining Board (REEB) determines the required CE requirements for renewal for the biennium. To renew a real estate license, the licensee must complete the CE courses specified by the REEB for that biennium.
The completion of CE Course 2 with the WRA led to a discussion about the multiple counter-proposal. Does confirmation by seller, if the buyer accepts, make this an accepted offer? Or does a buyer have to issue a counter-offer to continue negotiations with the seller?
In some ways, it is easiest to think of the WB-46 Multiple Counter-Proposal in three parts:
- The seller’s proposal
- The buyer’s offer
- The seller’s acceptance
When a seller receives more than one offer from different buyers and the seller wants to negotiate with at least two of those buyers, then the WB-46 Multiple Counter-Proposal is a wonderful tool. The seller drafts a WB-46 for two or more of the potential buyers; this will serve as the seller’s proposal. Each buyer in receipt of the WB-46 then has three choices:
- Accept and return the WB-46. This will serve as the buyer’s offer.
- Do nothing, thereby rejecting the seller’s proposal.
- Counter the seller’s proposal by using a WB-44 Counter-Offer.
Responding to the discussion now is when the buyers have choices to agree to the seller’s offered terms or use the WB-44 Counter-Offer with terms acceptable to the buyer. Depending on how the buyers respond to the seller’s WB-46 counter-proposals, the ball is back in the seller’s court. The seller has the choice to accept one of the returned WB-46 documents, which is the seller’s acceptance, accept an offered WB-44, or accept any other offer from other buyer(s).
Tracy Rucka is Director of Professional Standards and Practices for the WRA.