The Buyer Agency Agreement Is Shrinking!

Tenant representation provisions moved to a new form

 Debbi Conrad, WRA Senior Attorney and Director of Legal Affairs  |    June 01, 2023

The 2017 version of the buyer agency agreement offered versatility and flexibility in that it could readily be used for buyer agency or tenant representation or both. However, many Wisconsin REALTORS® found they did not often take advantage of the tenant representation provisions, and those provisions confused clients who were only interested in using the agency agreement for buyer agency. 

WB-36 transformation 

As a result, the 2017 version of the WB-36 Buyer Agency/Tenant Representation Agreement has been revised and is becoming a new, shorter WB-36 Buyer Agency Agreement. This evolution occurs this summer: the new edition of the WB-36 Buyer Agency Agreement has an optional use date of July 1, 2023, and a mandatory use date of September 1, 2023. 

What is changing in the WB-36?

The content of the 2023 WB-36 Buyer Agency Agreement is largely the same as the content of its predecessor other than the fact that all references and provisions for tenant representation have been removed. Consequently, the new WB-36 is shorter: only six pages instead of seven. It is no longer necessary to strike “Buyer’s Agent” or “Tenant’s Representative” on the first line of the form. It is all about buyer agency.

The only new material comes near the end of the WB-36, where a new Wire Fraud Warning is placed just before the buyers’ signatures. The rest of the provisions are the same as before and should be familiar to those who have worked with the buyer agency agreement in the past. In other words, the new version is streamlined and simplified and should be easy to use for both licensees and buyers.

  • Terminology simplification: Whereas the 2017 version of the WB-36 at times referred to “Client” when it was possible the party being referenced might be either a buyer or a tenant, that term has been removed from the definitions section of the new WB-36 and no longer appears other than in the mandatory language of the Disclosure to Clients section. Other places where the 2017 version speaks of a client now just say “buyer.” For example, the authorization to act as the buyer’s agent at the beginning of the form, and the boxed caution about the need to still pay the buyer’s firm even if the buyer works directly with others, just refer to the buyer — not a “Client” in sight.
  • Fewer definitions: Because the references to tenants have been removed from the new WB-36, the section of definitions in the new WB-36 is shorter. Gone are the definitions of client, person acting on behalf of tenant, rental agreement and tenant. Simpler, cleaner and shorter!

Introducing the new WB-39 Tenant Representation Agreement 

And what happened to the tenant provisions that were removed from the 2017 version of the WB-36 Buyer Agency/Tenant Representation Agreement? They have a new home in the new WB-39 Tenant Representation Agreement. The new WB-39 Tenant Representation Agreement has an optional use date of July 1, 2023, and a mandatory use date of September 1, 2023.

Think of the new tenant representation agreement as the counterpart to the new WB-36. If you start with the 2017 version of the WB-36, remove all of the provisions and references to buyer agency, move the tenant representation provisions that had been on page 6 of the 2017 agreement and put them on the first page where the buyer agency provisions had been, what you have is the new tenant representation agreement. 

The balance of the content of the new WB-39 is largely the same as the content of the 2017 version of the WB-36 except that the buyer agency provisions are gone. As a result, the new WB-39 is shorter: only six pages instead of seven. The WB-39 is all about assisting a client looking for a rental property. 

There are changes in terminology and fewer definitions. The only new material comes near the end of the WB-39 with a new Wire Fraud Warning placed just before the tenants’ signatures. In other words, the new version is streamlined and simplified for the ease of use of both licensees and tenants. The rest of the provisions are the same as before and should be familiar to those who have worked with the agreement for tenant representation situations in the past. 

Watch for future news announcing when the WB-36 and WB-39 become available in Transactions (zipForm Edition) as well as in the WRA’s subscription-based PDF forms library at

For those who need a nuts-and-bolts refresher as to the workings of the buyer agency agreement and how the tenant representation provisions work, see the June 2017 Legal Update, “Revised WB-36 Buyer Agency/Tenant Representation Agreement,” at

Not to fear, the WB-38 Commercial Buyer Agency/Tenant Representation Agreement remains available and is ideal for the client who focuses on the type and function of the property and is open to either a purchase or a lease. The WB-38 is discussed in the July 2017 Legal Update, “WB-38 Commercial Buyer Agency/Tenant Representation Agreement,” at  

Red flag reminder: the new wire fraud warning

In both the revised WB-36 Buyer Agency Agreement and the new WB-39 Tenant Representation Agreement, there is a new provision. The new Wire Fraud Warning tries to speak to the parties in terms they will understand and convince them to not wire funds for their transaction without personally obtaining independent verification from a trustworthy source that the wire instructions they are about to use are indeed correct. This warning, indented and boxed in for emphasis, and placed right above the signature lines where it will get more attention, is believed to be a more effective way of imparting this message.

The following appears in both the revised WB-36 and the new WB-39 just above the signature lines:

WIRE FRAUD WARNING! Wire Fraud is a real and serious risk. Never trust wiring instructions sent via email. Funds wired to a fraudulent account are often impossible to recover.

Criminals are hacking emails and sending fake wiring instructions by impersonating a real estate agent, Firm, lender, title company, attorney or other source connected to your transaction. These communications are convincing and professional in appearance but are created to steal your money. The fake wiring instructions may even be mistakenly forwarded to you by a legitimate source.

DO NOT initiate ANY wire transfer until you confirm wiring instructions IN PERSON or by YOU calling a verified number of the entity involved in the transfer of funds. Never use contact information provided by any suspicious communication.

Real estate agents and Firms ARE NOT responsible for the transmission, forwarding, or verification of any wiring or money transfer instructions.

Wire fraud robbery

Both the Real Estate Contractual Forms Advisory Committee as well as the Real Estate Examining Board (REEB) at the Department of Safety and Professional Services (DSPS) are very concerned with the continued prevalence of transactions where a buyer’s earnest money or purchase funds are stolen in the blink of an eye; online fraudsters infiltrate transaction emails, provide false wire transfer instructions, steal the money when it is wired to a crooks’ bogus account, and swiftly channel the money overseas or to parts unknown.

The ever-present danger of wire transfer fraud and other cybercrimes aiming to steal private identification information, personal identities and money led to the inclusion of a wire fraud warning in the 2020-21 WB offers to purchase, appearing at the end of the Closing section. The caution tells parties who receive wire transfer instructions to personally contact the title company or other party hosting the closing to confirm the details of any wire transfer. This contact should be by telephone or in person, is the responsibility of the parties and does not involve licensees.

But the REEB and the DSPS no longer believe that is enough. Real estate professionals have been warned of the dangers lurking when email is used to transmit sensitive information, including wire transfer instructions. But sometimes it seems like some licensees just tune it out. Maybe they think this is just something that happens to others but not to them, and they believe they are bulletproof. Unfortunately, wire fraud continues to plague the real estate industry and devastate potential homeowners who see earnest money, down payments and, in the worst case, the entire purchase price stolen by criminals who disguise fraudulent wiring instructions in emails that look legitimate.

FBI reports increased fraudster sophistication

According to the Federal Bureau of Investigation (FBI) Internet Crime Report for 2022, the number of real estate-related fraud complaints reported to the FBI grew to 11,727 in 2022 from 11,578 in 2021. Despite a significant decrease in the number of transactions during the year-over-year periods, there was a slight growth in the number of FBI-reported fraud complaints, meaning the rate of fraud complaints per transaction increased significantly. In addition, the amount lost by real estate victims climbed from $350,328,166 in 2021 to $396,932,821 in 2022. Clearly the problem is not going away and is getting worse each year. According to the FBI, “cyber risk is business risk” and “cyber security is national security.”

In 2022, the FBI received 21,832 business email compromise (BEC) complaints with adjusted losses over $2.7 billion. The FBI has seen cyberthreats emanate from around the world and witnessed the scope and sophistication of these scams and attacks deepen. As fraudsters have become more sophisticated and preventative measures have been put in place, the BEC scheme has evolved from simple hacking or spoofing of business and personal email accounts and a request to send wire payments to fraudulent bank accounts. Reports reveal an increasingly prevalent tactic where BEC bad actors spoof the phone numbers victims use to confirm fraudulent banking details. For example, victims report they have called a title company or real estate agent and later discover the phone number was spoofed. Thus, procedures should be put in place to verify payment instructions and purchase requests outside of email communications. According to the FBI, this can include direct phone calls but only to known verified numbers, not relying on information or phone numbers included in email communications. Other best practices include carefully examining the email address, URL and spelling used in any correspondence and not clicking on anything in an unsolicited email or text message asking for an update or verification of account information.

Therefore, parties should be urged to contact the title company or other closing provider using contact information from an independent source and to not rely on contact information that appears in an email from a party providing wire transfer instructions. If that email is from a scammer, the crook has likely made a tiny change to the email address, phone numbers or other contact information such that reliance on those contacts may lead back to the crook and not to the title company. The parties should not use the agents in the transactions as conduits for wire transfer information because this only increases the possibility of a hack and a crook being set up to steal the parties’ money.

Wire fraud warning in more WB forms

The DSPS and the REEB consider this new Wire Fraud Warning to be so important that the REEB plans to add the warning to most WB forms including the offers and listing contracts. The DSPS and REEB believe it would be well worth it if this warning, indented and boxed for emphasis, and placed right above the signature lines where it will get more attention, will save a few or just one buyer from losing their money because they participated in a real estate transaction. These changes will likely occur near the end of the year or the beginning of next year.

Stay tuned for news about the addition of the new Wire Fraud Warning to the WB forms!

Wire fraud resources 

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