Designated real estate agents.

WORKING DRAFT

ORIGINAL SENATE

FILE

NO.
0110

ENROLLED ACT NO. 12, SENATE

SIXTIETH LEGISLATURE OF THE STATE OF
WYOMING
2009 GENERAL SESSION

AN ACT relating to
real estate licensees;
clarifying roles and relationships in real estate transactions as specified; specifying duties and obligations of real estate licensees;
clarifying
and specifying
liabilities of parties and licensees in real estate transactions; limiting confidentiality of communications between customers and licensees as specified;

providing definitions;
and providing for an effective date.

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

Section 1.

W.S. 33
‑
28
‑
310 and
33
‑
28
‑
311 are created to read:

33
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28
‑
310.

Licensees working with buyers and sellers
as customers
; duties; exceptions
.

(a)

A licensee working with a buyer or seller
who is a customer
shall owe the following duties and obligations to the buyer or seller:

(i)

To exercise reasonable skill and care including:

(A)

Presenting all offers and counteroffers in a timely manner regardless of whether the property is subject to a contract for sale;

(B)

Advising the parties to obtain expert advice as to material matters about which the licensee knows but the specifics of which are beyond the expertise of the licensee;

(C)

Accounting in a timely manner for all money and
property
received by the licensee;

(D)

Keeping the parties full
y
info
r
med regarding the transaction;

(E)

Assisting
the parties in complying with the terms and conditions of any contract which may include closing the transaction;

(F)

Disclosing to all prospective buyers any adverse material facts actually known by the licensee, including but not limited to adverse material facts pertaining to the title, the physical condition of the property, any defects in the
property
and any environmental hazards affecting the property required by law to be disclosed;

(G)

Disclosing to any prospective seller all adverse material facts actually known by the licensee,
including
but not limited to adverse material facts pertaining to the buyer's financial ability to perform the terms of the transaction
.

(ii)

To comply with all requirements of this article;

(iii)

To comply with any applicable federal, state or local laws, rules, regulations or ordinances.

(b)

A licensee has no duty to conduct an
independent
inspection of the property for the benefit of the buyer and has no duty to independently verify the accuracy or completeness of statements made by the seller or independent inspectors.

(c)

A licensee has no duty to conduct an independent investigation of the buyer's financial condition or to verify the accuracy of completeness of any statement made by the buyer.

(d)

A
licensee
may do the following without breaching any obligation or responsibility:

(i)

Show alternative properties not owned by the seller to a prospective buyer;

(ii)

List competing properties for sale or lease;

(iii)

Show properties in which the buyer is interested to other prospective buyers; and

(iv)

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

33
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28
‑
311.

Licensees working with landlords and tenants.

(a)

For the purposes of this article, a licensee shall be deemed to be working with:

(i)

The landlord as an agent or intermediary pursuant to a written agreement; and

(ii)

The tenant
who is a
customer unless otherwise provided for in writing between the parties.

Section 2.

W.S. 33
‑
28
‑
301(a)
(iii),
(iv), (vii)
,
(viii)
and
by creating new paragraphs (ix) through (xiv), 33
‑
28
‑
302(a) through (c), (e) through (g)
and
by creating new subsections (h) through (q), 33
‑
28
‑
303(a)(intro), (iii)(A), (C), (D), (E), (G), (b)(intro)
and
(c), 33
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28
‑
304(a)(intro), (iii)(A), (C) through (E), (G), (b)(intro)
and
(c), 33
‑
28
‑
305(a)
and (b)(intro), 33
‑
28
‑
306(a)
(intro),
(i),
(iv)
,

by creating new paragraphs (vi) and (vii)
and
(b) through (d), 33
‑
28
‑
307
(a)(intro)

and
(ii)
and
33
‑
28
‑
308(c), (d) and (f) are amended to read:

33
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28
‑
301.

Definitions.

(a)

As used in this article:

(iii)

"Buyer's agent" means a
broker
licensee

who is authorized to represent and act for the buyer in a real estate transaction;

(iv)

"Intermediary" means a
broker

licensee
who assists one (1) or more parties throughout a contemplated real estate transaction with communication
,

and

contract terms, forms or
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

licensee
who is authorized to represent and act for the seller in a real estate transaction;

(viii)

"Subagent" means a
broker

licensee
authorized to represent and act for
another

a
broker in performing brokerage tasks for a principal. The subagent owes the same obligations and responsibilities to the principal as does the principal's broker
;
.

(ix)

"Customer" means a party to a real estate transaction who has estab
l
ished no intermediary or agency relati
o
nship with any licensee in that transaction;

(x)

"Designate
d agent" means a licensee who is
designated in writing by a responsible broker to serve as an agent or intermediary for a seller or buyer in a real estate transaction;

(xi)

"In-house real estate transaction"
means a real estate transaction wherein the buyer and seller are both represented
by,

or working with,
licensees w
orking in
the same real estate firm
;

(xii)

"Licensee" means an individual licensed pursuant to W.S
.
33
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28
‑
102(a
)
(ix);

(xiii)

"Responsible broker" means an individual who has a broker's license and who has been designated as the broker who is responsible for the supervision of the activities of licensees associated with

th
e
brokerage firm or a broker who operates a single license office;

(xiv)

"
Transaction
manager" means a
licensee
designated in writing by the
responsible
broker to supervise a transaction. The transaction manager shall not be an agent in the transaction and shall have the duties of an intermediary while supervising the transaction.

33
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28
‑
302.

Relationships between
licensees
and the public.

(a)

A broker shall not be required to offer or engage in
any

more than
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
or may work with the seller or
buyer
as a customer
.

The licensee's duties and obligations arising
from that relationship shall be disclosed to the seller or buyer 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
‑
28
‑
303 or 33
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28
‑
304.

(c)

When engaged in any of the activities enumerated in W.S. 33
‑
28
‑
102(a)(iii), a
broker

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

which written agreement discloses the duties and responsibilities set forth in W.S. 33
‑
28
‑
305
.

(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

a separate relationship

in writing

for each transaction.

(f)

A
broker, associate broker or salesman, licensed pursuant to article 1 of this chapter
,

licensee
may complete
standard

real estate
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
‑
28
‑
102(a)(iii) in the transaction in which the forms are to be used.

(g)

Every contract, duty or relationship within this article, including intermediary

or customer
relationships, imposes an obligation of good faith and fair dealing in its performance or enforcement.

(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 or the buyer 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 a broker
, and the broker
is not
:

(A)

A
party to the real estate transaction
;
or

(B)

A
transaction manager.

(j)

Licensees employed or engaged by the same responsible broker may be designated agents for different buyers or sellers in the same transaction. If the responsible broker is representing a buyer or a seller in an in-house transaction, the responsible broker shall immediately appoint a transaction manager.
The simultaneous designations
shall not constitute dual agency or require the responsible broker or licensee to act as an intermediary unless otherwise required by this
article
. A responsible broker or transaction manager shall have access to all necessary information but shall be prohibited from sharing any confidential information of any party to the transaction that
the broker or manager
may learn in the process of supervising the
licensees or the
transaction.

(k)

A licensee may work as an agent for the seller treating the buyer as a customer or as an agent for the buyer treating the seller as a customer but not as an agent for both the seller and the buyer. A licensee may be designated to work as an intermediary for both the seller and the buyer in the same transaction. The applicable designated relationship shall be disclosed in writing to the seller and buyer at the earliest reasonable opportunity. A designated agent is not precluded from working with a
buyer or
seller in a real estate transaction solely because the agent was precluded from representing that person in an earlier separate real estate transaction.

(m)

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

(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
or buyer
.

(p)

A customer relationship shall 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
.
When a buyer or seller is represented by another licensee, a licensee may work with the other buyer or seller as a customer, having no written agreement, agency or intermediary relationship with either party.
A licensee shall not owe any duty of confidentiality to a customer.

(q)

Proprietary ownership interest of listings shall be vested in the responsible broker
.

33
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28
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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

inform
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 or seller's subagent that are approved, directed 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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28
‑
304.

Agent 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

licensee
knows but the specifics of which are beyond the expertise of the
broker

licensee
;

(G)

To
disclose to

inform
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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28
‑
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:

33
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28
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306.

Relationship
disclosures.

(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

option
, 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, intermediary or customer
relationships which
must

shall
contain at a minimum the following:

(i)

A description of all the different
brokerage

agency, intermediary and customer
relationships allowed by this article and a statement that the commission for different relationships is negotiable;

(iv)

A statement that any established relationship cannot be modified without the written consent of the buyer or seller and that the buyer or seller may, but is not required to, negotiate different commission fees as a condition of consenting to a change in relationship;
and

(vi)

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

(vii)

A statement that a customer shall not be afforded any confidentiality in any communicat
io
n to or with the licensee.

(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, intermediary and customer
relationships to the parties to the transaction and to the public.

33
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28
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307.

Change from agent to intermediary.

(a)

A broker

For in-house transactions, a 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 only in instances

the parties
when:

(ii)

Both parties execute a written consent,
which contains

at the
earliest
reasonable opportunity after the events creating the potential conflict in agency relationships develops. The written consent shall contain
a conspicuous statement of the duties and obligations that would no longer be owed to the parties if the
broker

licensee
becomes an intermediary and not an agent.

33
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28
‑
308.

Compensation.

(c)

A seller may agree that an intermediary, buyer's agent
,

or
subagent

or a licensee working with a buyer as a customer
may share

in
the commission or other compensation paid by the seller
with another broker.

(d)

A buyer may agree that a seller's agent, intermediary
,

or
subagent

or a licensee working with a seller as a customer
may share

in
the commission or other compensation paid by the buyer
with another broker
.

(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
shall disclose in writing to the seller and buyer to the transaction, the
brokerage relationship

agency, intermediary or customer relationships
of all parties, persons and entities paying compensation or commissions to the
broker
.

Section 3.

W.S. 33
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28
‑
302(d) and 33
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28
‑
307(a)(i) are repealed.

Section
4
.

This act is effective July 1, 2009.

(END)

Speaker of the House

President of the Senate

Governor

TIME APPROVED: _________

DATE APPROVED: _________

I hereby certify that this act originated in the Senate.

Chief Clerk

1