Designated real estate agents.

WORKING DRAFT
2007
STATE OF
WYOMING
07LSO-0545

HOUSE BILL
NO.
HB0259

Designated real estate agents.

Sponsored by:
Representative(s) Gingery and Senator(s) Larson and Perkins

A BILL

for

AN ACT relating to real estate brokers and salesmen; providing definitions; providing consumers with the ability to engage real estate brokers on specified terms; providing disclosure requirements relating to the general duties, obligations and responsibilities of the real estate broker engaged by the public; partially eliminating vicarious liability; abolishing dual agents; specifying requirements for real estate licensees; and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1
.

W.S. 33
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28
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301(a)(iv), (vii) and by creating new paragraphs (ix) through (xii), 33
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28
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302(a) through (f) and by creating new subsections (h) through (o), 33
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28
‑
303(a)(intro), (iii)(A), (C) through (E), (G), (b)(intro) and (c), 33
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28
‑
304(a)
(intro),
(iii)(A)
, (C)
through (E), (G), (b)
and
(c), 33
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28
‑
305(a), (b)(intro), (f)(iv) and (g), 33
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28
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306(a)(intro), (i), by creating a new paragraph (vi) and (b) through (d), 33
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28
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307(a)(intro) and 33
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308(a) through (d) and (f) through (h) are amended to read:

33
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28
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301.

Definitions.

(a)

As used in this article:

(iv)

"Intermediary" means a
broker
licensee
who assists one (1) or more parties throughout a contemplated real estate transaction with communication
, contract terms, forms
and the closing of the real estate transaction without being an agent or advocate for any party to the transaction;

(vii)

"Seller's agent" means
a broker
an agent
who is authorized to represent and act for the seller in a real estate transaction;

(ix)

"Customer" means a party to a real estate transaction with whom the licensee has no agency relationship;

(x)

"Designated agent" means a licensee who is designated in writing by a broker to serve as an agent or intermediary for a seller, landlord, buyer or tenant in a real estate transaction. The designated agent shall be:

(A)

A broker;

(B)

An associate broker; or

(C)

A salesman under the direct supervision of the broker or an associate broker, neither of which is an agent in the real estate transaction.

(xi)

"In-house real estate transaction" means a real estate transaction wherein the buyer and the seller or the landlord and the tenant are both represented by agents within the same real estate firm;

(xii)

"Licensee" means an individual licensed under W.S. 33
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28
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102(a)(ix).

33
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28
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302.

Relationships between licensees and the public.

(a)

A broker shall not be required to offer or engage in any one (1) or in all of the brokerage relationships
When engaged in any of the activities
enumerated in
this article
W.S. 33
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28
‑
102(a)(iii) a licensee may act in any real estate transaction as an agent or intermediary. The licensee's general duties and obligations arising from that relationship shall be disclosed to the seller and the buyer or to the landlord and the tenant pursuant to this article
.

(b)

When engaged in any of the activities enumerated in W.S. 33
‑
28
‑
102(a)(iii), a
broker
licensee
may act as an agent only pursuant to a written agreement with the seller or buyer which discloses the duties and responsibilities set forth in W.S. 33
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28
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303 or 33
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304.

(c)

When engaged in any of the activities enumerated in W.S. 33
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28
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102(a)(iii), a
broker
licensee
may act as
a subagent with the duties and responsibilities set forth in W.S. 33
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28
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303(g),
an intermediary
only pursuant to a written agreement
between the seller and the seller's agent authorizing an offer of subagency to other brokers
with the seller or buyer which discloses the duties and responsibilities set forth in W.S. 33
‑
28
‑
305
.

(d)

When engaged in any of the activities enumerated in W.S. 33
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28
‑
102(a)(iii), a broker may act as an intermediary only pursuant to a written agreement with the seller or buyer which discloses the duties and responsibilities set forth in W.S. 33
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28
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305
A customer relationship shall be deemed to exist between a licensee and any party to a real estate transaction unless a single agency or intermediary relationship is established through a written agreement between the licensee and the party or parties. A licensee owes no fiduciary duties to a customer in a customer relationship
.

(e)

A
broker
licensee
may work with a single party in separate transactions pursuant to different relationships, including selling one (1) property as a seller's agent and working with that seller in buying another property as an intermediary
,

or
buyer's agent
or subagent,
if the
broker
licensee
complies with this article in establishing
the relationships
in writing a separate relationship
for each transaction.

(f)

A
broker, associate broker or salesman
licensee
, licensed pursuant to article 1 of this chapter, may complete standard forms and shall explain to the parties the effects thereof, if the
broker, associate broker or salesman
licensee
is performing the activities enumerated or referred to in W.S. 33
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28
‑
102(a)(iii) in the transaction in which the forms are to be used.

(h)

If a real estate brokerage firm has more than one (1) licensee, the responsible broker and any licensee associated with or engaged by that responsible broker may be designated to work with the seller, landlord, buyer or tenant as a designated agent. For an in-house real estate transaction, the designated agent shall be:

(i)

A broker;

(ii)

An associate broker; or

(iii)

A salesman under the direct supervision of the broker or an associate broker, neither of which is an agent in the real estate transaction.

(j)

The agency relationship established between the seller, landlord, buyer or tenant and a designated agent, including the duties, obligation and responsibilities of that relationship shall not extend to the responsible broker nor to any other licensee employed or engaged by that responsible broker who has not been so designated and shall not extend to the firm, partnership, limited liability company, association, corporation or other entity that employs such licensee.

(k)

A licensee may work as an agent for the seller or a landlord treating the buyer or tenant as a customer or as an agent for the buyer or tenant treating the seller or landlord as a customer but not as an agent for both the seller and the buyer or both the landlord and the tenant. A licensee may be designated to work for both the seller and the buyer or both the landlord and the tenant in the same transaction as an intermediary for both. The applicable designated relationship shall be disclosed in writing to the seller or landlord and buyer or tenant at the earliest reasonable opportunity. A designated agent may work with a seller or landlord in one (1) real estate transaction and work with a buyer or tenant in a separate real estate transaction.

(m)

No seller, buyer, landlord or tenant shall be vicariously liable for an agent's acts or omissions that have not been approved, directed or ratified by seller, buyer, landlord or tenant.

(n)

Nothing in this section shall be construed to limit the responsible broker's responsibility to supervise licensees associated with the broker or firm or to shield the broker from vicarious liability.

(o)

A licensee shall not establish dual agency with any seller, landlord, buyer or tenant.

33
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303.

Seller's agent engaged by seller.

(a)

A
broker
licensee
engaged by a seller to act as a seller's agent has the following duties and obligations:

(iii)

To promote the interests of the seller with the utmost good faith, loyalty and fidelity, including:

(A)

To seek a price and terms which are acceptable to the seller, except that the
broker
licensee
shall not be obligated to seek additional offers to purchase the property while the property is subject to a contract for sale;

(C)

To disclose to the seller adverse material facts actually known by the
broker
licensee
;

(D)

To counsel the seller as to any material benefits or risks of a transaction which are actually known by the
broker
licensee
;

(E)

To advise the seller to obtain expert advice as to material matters about which the
broker
licensee
knows but the specifics of which are beyond the expertise of the
broker
licensee
;

(G)

To disclose to
Informing
the seller that
because the broker or authorized subagent is acting as an agent for the seller,
the seller may be
vicariously
liable for the acts of the
broker and authorized subagent while acting within the scope of the agency relationship
seller's agent that are approved or ratified by the seller
.

(b)

The following information shall not be disclosed by a
broker
licensee
acting as a seller's agent without the informed consent of the seller:

(c)

A
broker
licensee
acting as a seller's agent owes no duty or obligation to the buyer, except that a
broker
licensee
shall disclose to any prospective buyer all adverse material facts actually known by the
broker

licensee
.

The adverse material facts may include adverse material facts pertaining to the title and the physical condition of the property, any material defects in the property and any environmental hazards affecting the property which are required by law to be disclosed. The
broker
licensee
acting as a seller's agent shall not perpetuate a material misrepresentation of the seller which the
broker
licensee
knows or should know is false.

33
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304.

Buyer's a
gent engaged by buyer.

(a)

A
broker
licensee
engaged by a buyer to act as a buyer's agent shall have the following duties and obligations:

(iii)

To promote the interests of the buyer with the utmost good faith, loyalty and fidelity, including:

(A)

To seek a price and terms which are acceptable to the buyer, except that the
broker
licensee
shall not be obligated to seek other properties while the buyer is a party to a contract to purchase property;

(C)

To disclose to the buyer adverse material facts actually known by the
broker
licensee
;

(D)

To counsel the buyer as to any material benefits or risks of a transaction which are actually known by the
broker
licensee
;

(E)

To advise the buyer to obtain expert advice as to material matters about which the broker knows but the specifics of which are beyond the expertise of the
broker
licensee
;

(G)

To disclose to
Informing
the buyer that
because the broker is acting as the agent for the buyer,
the buyer may be
vicariously
liable for the acts of the
broker while he is acting within the scope of the agency relationship
buyer's agent that are approved, directed or ratified by the buyer
.

(b)

The following information shall not be disclosed by a
broker
licensee
acting as a buyer's agent without the informed consent of the buyer:

(c)

A
broker
licensee
acting as a buyer's agent owes no duty or obligation to the seller, except that a
broker
licensee
acting as a buyer's agent shall not make any material misrepresentation or fraudulent misrepresentation regarding an adverse material fact actually known by the
broker
licensee
.

33
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305.

Intermediary.

(a)

A
broker
licensee
engaged as an intermediary shall not act as an advocate or agent for either party and shall be limited to providing those services described in subsection (b)(ii) of this section.

(b)

A
broker
licensee
engaged as an intermediary shall owe to each party with whom the intermediary has contracted the following duties and obligations:

(f)

An intermediary may do the following without breaching any obligation or responsibility:

(iv)

Serve as an agent
, subagent
or intermediary for the same or for different parties in other real estate transactions.

(g)

An intermediary may cooperate with other brokers
.
but shall not engage any subagents.

33
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306.

Agency relationships.

(a)

For purposes of this section, open house showings, preliminary conversations and requests for factual information do not constitute discussions or arrangements incidental to a sale, purchase, exchange or lease.

Prior to engaging in any discussion or arrangement incidental to a sale, purchase, exchange or lease, and prior to entering into any written agreement, with a buyer or seller, a
broker
licensee
shall make a written disclosure of applicable
brokerage
agency
relationships which must contain at a minimum the following:

(i)

A description of all the different
brokerage
agency
relationships allowed by this article and a statement that the commission for different relationships is negotiable;

(vi)

A statement that the seller or buyer may be vicariously liable for acts of the agent if the seller or buyer approves, directs or ratifies the acts.

(b)

The written disclosure shall contain a signature line for the buyer or seller to acknowledge receipt of the disclosure. The disclosure and acknowledgment, by itself, shall not constitute a contract or agreement with the
broker
licensee
. Until the buyer or seller executes such acknowledgment, no representation agreement shall be executed or valid.

(c)

A
broker
licensee
who has established an agency relationship
, a subagency relationship
or an intermediary relationship with a seller or buyer shall provide notice of that relationship to any other party to the transaction at the earliest reasonable opportunity.

(d)

Disclosures made in accordance with this article shall be sufficient to disclose
brokerage
agency
relationships to the parties to the transaction and to the public.

33
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307.

Change from agent to intermediary.

(a)

A
broker
licensee
acting as an agent to a buyer or seller with respect to a particular real estate transaction may instead act as an intermediary to
that party
the parties
only in instances when
:

both parties execute a written consent, at the earliest reasonable opportunity after the events creating the potential transaction develop, which contains a conspicuous statement of the duties and obligations that would no longer be owed to the parties if the licensee becomes an intermediary and not an agent.

33
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308.

Compensation.

(a)

In any real estate transaction, the
broker's
licensee's
compensation may be paid by the seller, the buyer, a third party, or by the sharing or splitting of a commission or compensation between
brokers
licensees
.

(b)

Payment of compensation shall not be construed to establish an agency relationship or intermediary relationship between the
broker
licensee
and the party who paid the compensation.

(c)

A seller may agree that an intermediary
,

or
buyer's agent
or subagent
may share the commission or other compensation paid by the seller with another
broker
licensee
.

(d)

A buyer may agree that a seller's agent
,

or
intermediary
or subagent
may share the commission or other compensation paid by the buyer with another
broker
licensee
.

(f)

Prior to entering into a written agreement with the seller and buyer, or prior to entering into a contract to buy or sell, the
broker
licensee
shall disclose in writing to the seller and buyer to the transaction, the
brokerage
agency
relationship of all parties, persons and entities paying compensation or commissions to the
broker
licensee
.

(g)

A
broker
licensee
may be compensated by more than one (1) party for services in a transaction, if those parties have consented in writing to the shared payment prior to seller and buyer entering into a contract to buy or sell.

(h)

An agreement authorizing a
broker
licensee
who originally agreed in writing to act as an agent to a buyer or seller with respect to a particular real estate transaction to act instead as an intermediary to that party, shall provide that the party agreeing to the new relationship shall not be liable for any commission greater than the commission the party would have been liable to pay under the initial agreement. Any contract provision in violation of this subsection is void and unenforceable.

Section 2.

W.S. 33
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301(a)(viii), 33
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28
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303(f) and (g) and 33
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307(a)(i)and (ii) are repealed.

Section 3.

This act is effective July 1, 2007.

(END)

1
HB0259