From: Jay Reifert [true-agents@true-agent.com] Sent: Sunday, February 24, 2002 12:36 PM To: Oppose the WRA--Defeat Designated Agency Subject: Proof of Deception--Wisconsin Realtors Association Secretly Fleeces Wisconsin Home Sellers and Buyers, Part II -------------------------------- As with the other messages, this one is going out to thousands of Wisconsin Realtors, almost 500 governmental officials--including all State Legislators and their respective staffs, the Governor of Wisconsin and most candidates for Governor of Wisconsin, the Attorney General of Wisconsin, over 425 Consumer Advocacy Groups and/or individual Consumer Advocates, over 285 Registered Wisconsin Lobbyists and over 190 Media Outlets. PLEASE forward this message to everyone you can and please also print it out--and distribute--to those who you know that don't have email capabilities.] ------------------------------------------------------------------ Proof of Deception--Wisconsin Realtors Association Secretly Fleeces Wisconsin Home Sellers and Buyers, Part II ------------------------------------------------------------------- Under the common law of agency, the agent/firm is to put the interests of the client ahead of all others, including their own. An intermediary, facilitator or transaction broker assists a party in the purchase or sale of real estate. Such a service provider cannot put the interests of either party ahead of the other. They must remain neutral. So, if it costs you the same amount of money for each type of service provider--and you could hold the common law agent responsible to a much higher standard than the faciltator...which would you rather have? Well, having a common law agent was your right, until the Agency "Reform" Act of '94. --------------------------- In 1994, the Wisconsin Realtors Association succeeded in drafting, submitting and passing legislation which turned every Wisconsin licensee into a de facto facilitator, quietly robbing every home buyer and seller in the State of Wisconsin of the legal right to receive true, agency-level services from a real estate licensee. Prior to this time the common law of agency was the default service for sellers and was just beginning to be offered to buyers. ----------------- Here, taken from the state-mandated Disclosure of Real Estate Agency and from Chapter 452 of the Wisconsin's Statutes, are many--but probably not all--of the changes which the Wisconsin Realtors Association secretively foisted upon the unsuspecting public. You can find these documents by visting: http://www.true-agent.com/wra_robs_wisconsin_buyers_and_sellers.pdf --------------------------------------- >From the State-Mandated Disclosure of Real Estate Agency, Page 2 Under Duties to All Parties: 55(a) Provide brokerage services to all parties to the transaction honestly, fairly and in good faith. Certainly, clients are owed this duty. To confer this duty, as it is written, on customers--people who have not contracted with an agent to represent their interests, but who have instead decided to work with a salesperson--would only be fair, with a slight modification. If it read, "Provide brokerage services to all parties to the transaction honestly, fairly and in good faith, subject to an agent's duty to a client under the common law," then it would not allow a customer's status to diminish the rights of a client under the common law. Otherwise, left as it is, this is an element of the services of a facilitator. Further, "fair treatment" as the Wisconsin Realtors Association uses it, is an excuse/opportunity for the licensee/firm to engage in dealmaking at the expense of the client, as who is the party that will determine what is "fair" if not the licensee? Certainly, it has robbed the client--s/he who is paying for agency-level services--of the previous standard of having his/her interests placed first in the transaction. ------------------------------------- 56(b) Diligently exercise reasonable skill and care in providing brokerage service to all parties. Providing such a service to a customer will not diminish any services provided to a client. As such, I see nothing objectionable in this duty, although this is also a service performed by a facilitator. -------------------------------------- 57(c) (No complaint about this requirement. Also a service performed by a facilitator.) -------------------------------------- 59(d) Keep confidential any information given to the broker in confidence, or any information obtained by the broker that he or she knows a reasonable party would want to be kept confidential... Clients are definitely owed this duty under the common law of agency. Giving this duty to customers, robs the client of information that clients were previously entitled to know, if discovered . Customers, as previously, should be given disclosures letting them know that they should not share secrets with agents of the opposing party. They should also be given disclosures, in advance of working with a licensee, about the fact that they have the right to retain an agent of their own. As it is written, this is also a service performed by a facilitator. 65(e) Provide accurate information about market conditions that affect a transaction, to any party who requests the information, within a reasonable time of the party's request, unless disclosure of the information is prohibited by law. Not only are clients entitled to this, but they are also entitled to interpretation and advice of the agent, with regards to the information provided. Customers who want such services, should hire their own agent. Causing an agent for another party to work against his/her client's interests is reprehensible. This is also a service performed by a facilitator. ------------------------------ 67(f) Account for all property coming into the possession of a broker that belongs to any party within a reasonable time of receiving the property. This has no impact on the interests of a client, and-as such--is not problematic. However, this too is a service of a facilitator. ------------------------------- 69(g) When negotiating on behalf of a party, present contract proposals in an objective and unbiased manner and disclose the advantages and disadvantages of the proposals. Utterly reprehensible. The client, who is paying to have his/her interests represented, is having his/her interests completely neutralized by putting the interests of the customer on par with his/her interests. If the customer party wishes to have representation, then s/he should retain an agent of his/her own. This change is the single most damaging aspect of the Wisconsin Realtors Association's duplicitous law, save for the clause put in the Wisconsin Statutes--by the WRA--that suspends the common law of agency to the degree that it conflicts with the WRA's statutory monstrosity. This is definitely a service offered by a facilitator. ------------------------------- Under Duties to a Client 74(a) Loyally represent the client's interests by placing the client's interests ahead of all others, UNLESS LOYALTY TO A CLIENT VIOLATES THE BROKER'S DUTIES UNDER LINES 52 TO 70... [emphasis added] Sigh. In other words, because of the facilitator imposed duties to customers under the WRA Agency "Reform" Act of '94, the duty of the agent to give the client undivided loyalty...possibly the greatest duty that the client was owed under the common law of agency...is essentially meaningless. Are you beginning to see the scam? Are you beginning to understand just how much has been taken from both the seller client and the buyer client in Wisconsin? -------------------------- 77(b) Disclose to the client all information known by broker that is material to the transaction and that is not known by the client or discoverable by the client through reasonably vigilant observation, EXCEPT FOR CONFIDENTIAL INFORMATION... Again, another agency-level service rendered meaningless. ---------------------------- 80(c) Fulfill any other obligation required by the agency agreement and any order of the client that is within the scope of the agency agreement, that are not inconsistent with another duty that the broker has under this chapter or any other law. Naturally, the last half of the sentence entirely negates the first, as there are severe modifications to what a client used to have the right to expect out of their agent by almost all of the duties owed to the other party! This scheme, dressed up to look like consumer protection, by abusing fuzzy concepts like "fairness" has made Wisconsin the most backward state in the nation when it comes to client's rights. ---------------------------- Next stop, Chapter 452 of the Wisconsin Statutes. Under 452.01 Definitions (5m)(a)-(d) the law defines "Negotiate". Again, the language is facilitator language and succeeds in robbing the client of that to which s/he was formerly entitled. (It's available at the previous link for your review.) and finally, 452.139 Changes in common law duties and liabilities of broker and parties. (1) FIDUCIARY DUTIES OF BROKER. The duties of a broker specified in this chapter or in rules promulgated under this chapter shall SUPERSEDE ANY FIDUCIARY DUTIES OF A BROKER TO A PARTY BASED ON THE COMMON LAW PRINCIPLES OF AGENCY TO THE EXTENT THAT THOSE COMMON LAW FIDUCIARY DUTIES ARE INCONSISTENT WITH THE DUTIES SPECIFIED IN THIS CHAPTER OR IN RULES PROMULGATED UNDER THIS CHAPTER. [emphasis added] The coup de gras. This is what essentially renders the common law meaningless as it pertains to the duties that agents in Wisconsin used to owe their clients, because of all the facilitator duties that are imposed by the Agency "Reform" Act of '94. Few, very few, understood that this is what the Wisconsin Realtors Association was doing. The benefit to their large brokerage constituencies under this law should be obvious, though. If all Wisconsin licensees are incapable by law of rising above the status of facilitator, then the in-house transaction is safe from assault by buyer agency and s/he who has the most money for advertising wins. Do you get what happened here? All of you licensees--which I believe is probably most of you--are violating the law when you put the interests of your clients above those of the other party in the transaction. All of you buyers and sellers who are paying for agency-level services are being left with licensees who--though they may be providing it in violation of the law, as I do and will continue to do--are entitled to hide behind the fairness provisions of the law, to decide what needs to be done to put the deal together. I am an agent...not a facilitator. The good old Wisconsin Realtors Association. Champions of consumer rights. And now, they want to layer the deceptive, anti-consumer practice of Designated Agency on top of it. Fellow Realtors, it is time to make the Wisconsin (Mega- Broker's) realtors Association the Wisconsin REALTORS Association. Otherwise, your reputation is going to be damaged by extension. It is time to make your voice be heard now! Call them. Call your legislators. Tell them that you are tired of being overlooked. Tell them that you favor a restoration of the common law of agency and that you oppose the concept of Designated Agency. Consumers...it also time to make your voices be heard! With very few exceptions, we need to press the legislature NOW to roll back the Agency "Reform" Act of '94, restoring the common sense, common law of agency to being the law of the land for those who would purport to represent the interests of others. You are paying for agency-level services and you should be getting them! One of the few Reforms that actually should be kept from this otherwise disgraceful Act, though, is the elimination of Respondeat Superior, the responsibility that the client and primary agent bore for the acts of subagents. This was a good and just change. One other side benefit of returning to the common law, is that we can greatly simplify our disclosure forms, to the point where it can be this simple: Listing Agents & their firms, and subagents from other firms owe their seller clients all of the fiduciary duties owed clients under the common law of agency. Agents for the seller have the duty to put the interests of the seller above all others, including their own. Buyer Agents & their firms owe their buyer clients all of the fiduciary duties owed clients under the common law of agency. Agents for the buyer have the duty to put the interests of the buyer above all others, including their own. Dual Agents owe their clients all of the fiduciary duties owed to a client under the common law, except that they may not put the interests of either client ahead of the other. Customers of any agent are entitled to receive brokerage services that are rendered fairly, honestly and in good faith...only limited by the agent's superior duty to a client. It can be THAT simple. Once we have restored the common law, then--to give licensees and consumers more choices--we can pursue a facilitator option in Wisconsin. If that's what the Wisconsin Realtors Association thinks was/is best for their large broker constituencies, let's give it to them! And once we have established the facilitator concept, legitimately, then we can abolish dual agency, which is actually--except in very rare circumstances--a legal fiction in its own right. Please...contact your legislators and the Wisconsin Realtors Association today! The WRA can be reached at (608)241-2047 and you can find your legislator's contact information by visiting: http://www.legis.state.wi.us/wamltest/ Thank you... -- Sincerely Yours, Jay Reifert, Broker/Owner*****************Excel-Exclusive Buyer Agency 100% Homebuyer Representation********5136 E. Hilltop Road 100% Of The Time**********************Madison, Wisconsin 53711 South Central Wisconsin's ONLY*********(800)928-9379, Toll Free Full-Time Exclusive Buyer Agency Firm.***(608)273-8841, Office Visit http://www.true-agent.com ***********(608)273-8388, Fax Machine or mailto:true-agents@true-agent.com Check out our NEW website, at: http://www.Buy-Madison-Real-Estate.com