Monday, February 15, 2016

Update On The Chapter 452 Modernization Act

Last week, I wrote about the Chapter 452 Modernization Act in general and proposed Wis. Stat. s. 452.142 in particular.  I was pleased to learn about Amendment 5 to Assembly Bill 456, which would have changed the language of Wis. Stat. s. 452.142 to the following:

452.142 Actions concerning licensees. (1) Notwithstanding s. 100.18 (11)(b) 3., 893.43, 893.52, or 893.57, an action concerning any act or omission of a licensee relating to the provision of brokerage services by the licensee shall be commenced within 3 years after the cause of action acrrues or be barred.

The new limitations period for actions against real estate agents would have expanded from 2 years to 3 years.  Also, the new limitations period would have been subject to the "discovery rule," helping buyers and sellers who do not discover that they have a potential claim against their real estate agent within that limitations period.  

Amendment 5 was not perfect.  While it would have protected some victims of dishonest real estate agents, it would not have protected victims of sloppy real estate agents.  As I've discussed previously, breach of contract actions accrue at the time of breach and the "discovery rule" does not apply.  Real estate agents breach their contracts when they do not ensure that their buyers have received a completed Real Estate Condition Report signed by all owners of the property before making an offer, when they do not advise buyers to hire their own inspectors, when they do not promptly deliver written notice that their buyers cannot obtain financing, or when they fail to deliver written notice of the defects identified in the buyers' inspection reports.  When other service providers screw up, consumers have 6 years to commence a breach of contract action against them pursuant to Wis. Stat. s. 893.43.  When a real estate agent screws up, consumers would have only 3 years to commence a breach of contract action against them.

Despite the continued special interest protectionism, I would have still been satisfied with Wis. Stat. s. 452.142 as affected  by Amendment 5.  I thought that this amendment had passed, as I saw "63 Ayes and 35 Noes," so I confirmed my understanding with the office of the amendment's sponsor - Representative Dana Wachs.  I received the unfortunate news that this vote was actually to "table" (i.e., "kill") Amendment 5.  I also learned that the Chapter 452 Modernization Act passed the Assembly.  It will be considered by the Senate before it reaches the desk of Wisconsin's most famous client of real estate services.