The following questions were asked of the WRA Legal Hotline.
Videotaping
Is there a statute or rule against licensees videotaping the interior of a home?
No, this is really an issue that should be resolved between the listing broker and the seller in the listing contract. Lines 114-117 of the WB-1 listing contract state: “Seller acknowledges that individual showings may be conducted by licensees other than Broker, that appraisers and inspectors may conduct appraisals and inspections without being accompanied by Broker or other licensees and that buyers may photograph or videotape Property unless otherwise provided for … ” In this day and age of virtual tours and advanced technology, it would not seem unreasonable for a licensee to want to videotape a home for sale.
Wis. Stat. § 895.50 does state a right of privacy, but it does not appear to apply in this situation: “(1) The right of privacy is recognized in this state. One whose privacy is unreasonably invaded is entitled to the following relief …
(2) In this section “invasion of privacy” means any of the following:
(a) Intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner that is actionable for trespass.
(b) The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.”
Electronic records
Does the company have to keep hard copies of offers, or can they be kept electronically? How long must they be kept?
Wis. Admin. Code § RL 15.04 regulates record retention and does not prohibit electronic record retention. The company may wish to work with technology specialists to assure that the electronic copies are true and exact copies and will be sufficiently safeguarded. The broker must retain copies of documents and correspondence related to transactions and trust account records for three years. The three years runs from the date of the closing or the date of listing or buyer agency agreement, if there was no closed transaction. For tax audit and possible litigation purposes, a longer holding period of at least six years is advisable.
Branch office supervision
A licensee can now operate a branch office without the on-site presence of a broker but still under the broker’s supervision. What is the procedure to do this?
Brokers are no longer required to have a full-time broker/manager at each branch office. However, all REALTORS® must remember that, “each broker shall supervise and is responsible for the acts of any broker, salesperson or time-share salesperson employed by the broker.”
The July 1, 2005 revisions to the broker supervision rules in Chapter RL 17, in fact, have eliminated all references to branch offices. The revisions address the timely and reasonable review of documents, assisting agents with practice questions, and the delegation of supervision duties. The new rules recognize a broker’s ability to use technology to centralize some supervision duties and the ability to delegate some elements of supervision to non-licensees, for example, to delegate contract supervision to an attorney or trust account supervision to an accountant.
With modern communication technology such as cell phones, email capabilities with PDFs, facsimile and webcasts, brokers should be able to be immediately accessible for their agents who have questions as well as have mechanisms for convenient document review. Brokers should confer with their attorneys and implement procedures to ensure sufficient supervision, guidance and communication. The new broker supervision rules may be found at www.legis.state.wi.us/rsb/code/rl/rl017.pdf, and are discussed in the June 2005 Broker Supervision Newsletter at
www.wra.org/pdf/online_publications/Broker_Supervision/BSN062005.pdf.
Photograph copyright
A REALTOR® took the photos for her listing and put them on the MLS, in print advertising and on their personal website. This listing expired and the property was subsequently listed with another agent in the office. The current listing agent is using the REALTOR®’s photos on the MLS without her permission. Is this copyright infringement? Is there anything the REALTOR® can do to get her photos off of the other agent’s MLS listing?
The use of the REALTOR®’s photographs in the other agent’s MLS listing may be regulated by office policy. It may be prudent for the office broker to institute such a policy for the resolution of future intra-office disputes.
Generally, photographs may be copyrighted. See the article from the June 2004 edition of REALTOR® Magazine at
www.realtor.org/rmomag.NSF/pages/lawjune04. Also visit www.copyright.gov for information from the United States Copyright Office. A party may seek to protect his or her copyrighted photographs and other material against unauthorized use by filing a civil lawsuit in federal district court. If the REALTOR® believes that she has copyright rights that have been infringed, she may consult an attorney.
Domain name selection
For some time now, a broker has had a website and an email address that includes the term “REALTOR”. The broker is a member of the “XYZ Team.” In all of their advertising literature, business cards and mailings they have referred to themselves as the XYZ Team, but that domain name was not available so they bought the domain name “xyzrealtors.com” to use for their website. They have referenced “xyzrealtors” in all of their marketing materials and published ads, including their email addresses, i.e. patty@xyzrealtors.com, and in all correspondence. Recently it was brought to the broker’s attention that they may not be authorized to use the term “REALTOR” with the website or email. If that’s the case, they will need to change all of their materials, apply for a new domain name for the website, redesign marketing pieces used and create a new website. Is this correct?
- The term REALTOR®, whether used as part of a domain name or in some other fashion must refer to a member or a member’s firm.
- The term REALTOR® may not be used with descriptive words or phrases. For example, Number1realtor.com, numberone-realtor.com, chicagorealtors.org and realtorproperties.com are all incorrect.
- For use as a domain name or email address on the Internet the term REALTOR® does not need to be separated from the member’s name or firm name with punctuation. For example, both johndoe-realtor.com and johndoerealtor.com are correct uses of the term as a part of domain names and jdoe*realtors@webnetservices.com and jdoerealtors@webnetservices.com are both correct uses of the term as part of an email address.
- The public has adopted the use of all lower case letters when writing domain names, even those containing trademarks. Therefore, for purposes of domain names and Internet addresses only, there is an exception to the rule on capitalization of the term REALTOR® and it may appear in lower case letters.
For further discussion of these issues, the Membership Marks Manual may be found online at:
www.realtor.org/letterlw.nsf/pages/trademarkmanual.
Audiotaping
A seller has been taping voices at showings with no notice to the brokers. Is this permissible?
Although there are rules that must be followed if the taped conversations are to be used as evidence in court, the use of recording devices is not per se illegal. The listing broker may wish to give cooperating brokers notice of the seller’s taping activity.