The Best of the Legal Hotline: Spring Cleanup


 Tracy Rucka  |    June 08, 2016
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The questions and answers this month are designed to help clean up the misuse of ‚ÄúREALTOR¬ģ‚ÄĚ in URLs and email addresses, clean up misconceptions about real estate and landlord practice issues, and a reminder to clean out old forms and how to handle scenarios if old forms are used.

Member marks in email and URLs

A broker is thinking about developing a new website and a new email address. Can the term ‚ÄúREALTOR¬ģ‚ÄĚ be used in the URL or email address, for example, fantasticrealtor.com or teamhelpyourealtor.com?

Members are licensed by the National Association of REALTORS¬ģ (NAR) to use, with limitations, the member marks such as the term ‚ÄúREALTOR¬ģ.‚ÄĚ According to NAR‚Äôs Membership Marks Manual (MMM), the mark may be used with a broker‚Äôs name but not with teams or descriptive words. The MMM provides, ‚ÄúThe term REALTOR¬ģ may not be used with descriptive words or phrases. For example, Number1realtor.com, numberone-realtor.com, chicagorealtors.org or realtorproperties.com are all incorrect.‚ÄĚ

The MMM also gives examples of the appropriate and authorized use of REALTOR¬ģ in combination with an individual member‚Äôs name in URLs and in email addresses. The mark may not be used in conjunction with a team within a real estate company. The MMM states, ‚Äúfor use as a domain name or email address on the Internet, the term REALTOR¬ģ does not need to be separated from the member‚Äôs name or firm name with punctuation. For example, both johndoe-realtor.com and johndoerealtor.com would be 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.‚ÄĚ

Each of the URLs suggested in the question would represent misuses of REALTOR¬ģ marks as described in the MMM. The complete manual with additional examples is available at www.realtor.org/letterlw.nsf/pages/trademarkmanual.¬†

Current form cleanout

A broker received an amendment from a cooperating agent on an outdated form. Should the listing broker present the outdated amendment form to the seller?

As the real estate industry continues to evolve, so do forms. January 1, 2016, brought with it a new WB-40 Amendment to Offer to Purchase, WB-41 Notice Relating to Offer to Purchase, WB-44 Counter Offer and WB-45 Cancellation Agreement and Mutual Release. To avoid grabbing an outdated WB form or prior versions of the RECR, VLDR or addenda, be sure to replace old paper documents with current forms. If licensees fail to clean out form files, an old form may inadvertently be used by a licensee. Notwithstanding form misuse by the licensee, which could result in discipline by the REEB, the proposal should be presented.

Unless contrary to the party’s instructions, every written proposal needs to be presented to the party, even if outdated and/or poorly drafted, regardless of terms or conditions. 

An old amendment may be used between the parties to amend the offer; if an old or nonapproved offer is used, it could create a binding contract between the parties. The licensee presenting the proposal would notify the party of the outdated proposal; changes from the current law or form; and ask if the party wants to accept, counter or reject the proposal.

Changes to forms on July 1 ‚Äā

July 1, 2016, will trigger the use of the new WB-1 Listing Contract and WB-42 Amendment to Listing Contract as well as new customer and client disclosure forms. For complete details about these July 1 changes, see ‚ÄúThe Top 10 Things You Should Know About the WB-1,‚ÄĚ on page 8.

In addition, any Broker Disclosure to Customers and Broker Disclosure to Clients forms will be outdated and should be disposed of after July 1. For zipForm users, the old forms will be removed and new forms available for use. For those who use paper forms, it will be critical to clean out any unused and outdated hard-copy versions of these forms from your offices, home office, briefcase or vehicle.

zipForm

An agent opened a new transaction in zipForm and found the TRID Addendum is not attached to the WB-11. Is the TRID addendum no longer available? Is it required for use? 

In October 2015, the WRA created the following forms: (1) Information for Consumers about Transaction Timing and Closings, and (2) Addendum TRID to the Offer. These forms were designed to help facilitate transactions under the Consumer Financial Protection Bureau lending TRID rules, which went into effect in October 2015. To enable better communication between parties and the lender, the WRA paired the information sheet with many offers as the TRID changes affected most transactions with residential properties. The forms were not required for use but were available to address potential issues when writing offers or to include closing date extension language to protect the buyer if the lender’s compliance with TRID caused closing delays. The WRA Information for Consumers and the Addendum TR are still available in zipForm as free-standing documents. 

Seller cleanup for showings

A broker viewed a property in anticipation of taking a listing. The seller is a hoarder, and the property is unsanitary with evidence of vermin. Due to the hoarding, the broker had trouble physically moving around the property. What information should be provided for potential showings? 

The conversation begins with the seller as the standard WB listing contracts provide the seller is responsible for preparing the property for an individual showing or open house in order to minimize the likelihood of personal injury, property damage or theft. The listing contract further contains a hold harmless provision whereby the seller agrees to hold the broker harmless for any losses or liability resulting from personal injury, property damage or theft occurring during showings or open houses. 

While these contractual provisions do provide a certain level of protection, listing brokers as well as subagents are not without risk. The listing contract provides that brokers are liable for their own acts of negligence or intentional wrongdoing. This liability risk can take several different forms. The most obvious are acts of active negligence; in other words, the broker does an affirmative act that causes injury. Depending on what steps the seller takes prior to showings, the broker at a minimum should notify cooperating agents about the condition of the property. The broker may consider having legal counsel draft a warning notice to provide buyers and cooperating brokers in advance of showings. 

Carpet cleaning revisited

A tenant moved out but did not have the carpets cleaned per the terms of the lease. Can the landlord withhold the carpet cleaning fee from the security deposit?

Wis. Admin. Code ¬ß ATCP 134.06 and Wis. Stat. ¬ß 704.28 regulate the return of security deposits. Wis. Stat. ¬ß 704.28(3) states: ‚ÄúNORMAL WEAR AND TEAR. This section does not authorize a landlord to withhold any amount from a security deposit for normal wear and tear, or for other damages or losses for which the tenant cannot reasonably be held responsible under applicable law.‚ÄĚ A detailed statement of claims must be given with a return of any security deposit balance owed within 21 days after the tenant vacates the premises as defined in ¬ß 704.28(4).¬†

Wisconsin Attorney General J.B. Van Hollen issued a formal opinion indicating that residential rental agreements can require tenants to have the carpets professionally cleaned at the end of the lease. The attorney general‚Äôs opinion says that routine carpet cleaning does not fall into the landlord‚Äôs duty to keep the premises ‚Äúin a reasonable state of repair,‚ÄĚ and including the requirement in a lease or rental agreement does not make the contract void.¬†

However, carpet cleaning charges for routine carpet cleaning at the end of the tenancy cannot be deducted from the security deposit. Wis. Admin. Code ¬ß ATCP 134.06(3)(c) prohibits withholding from security deposits ‚Äúfor normal wear and tear, or for other damages or losses for which the tenant cannot reasonably be held responsible under applicable law.‚ÄĚ The note to that provision specifically mentions routine carpet cleaning when there has been no tenant abuse as an example of a charge that cannot be deducted. There would need to be tenant damage, waste or neglect to justify withholding for carpet cleaning charges. Thus, the rental agreement can require the carpet cleaning, but if it is not done and the landlord wants to recoup the carpet cleaning fees, the landlord may need to file a small claims court action or find a means other than security deposit withholding to collect that money. See J.B. Van Hollen‚Äôs opinion at www.doj.state.wi.us/sites/default/files/2013-news/oag-04-13.pdf.

Tracy Rucka is Director of Professional Standards and Practices for the WRA.

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