Timeline For Breaking REA Listing Contract?
Hi, someone called me about a house thru an ad on friday, I went today to look at it today, (when they told me to come) and they had it listed thru a REA on sunday morning. It is now tuesday. Does the 3 day rule of being able to break a contract in florida apply to rea listing agreements? If not, can they just send them a notice and tell them they decided to sell without the help of an agent? if I buy this can the agency go after the owners in any way? Please let me know asap. tommorow is the deadline and the owner is calling me in the morning.
thanks very much !!
G
Ok, I did not find an answer to this particular question, but I did find these court decisions on when and how you can break out of a REA listing contract.
presently moves for summary judgment, having submitted in support thereof an affidavit and a memorandum of law. Plaintiff has objected to the motion and has also submitted a counter-affidavit and memorandum of law.
Note Cases for Broker Listing Agreements
i. Two brokers; two buyers
HUNT v. JUDD
225 Ill. App. 395 (1922)
"Where the open listing is used, the broker is employed to bring about whatever transaction his principal has contemplated, but there is nothing in the agency relationship which precludes the principal from bringing about the same transaction himself or from hiring other brokers to do so. In Hunt v. Judd the defendant had hired the plaintiff to find a buyer for a farm. A short time later, the plaintiff presented a prospect ready, able & willing to purchase on the defendant's terms. However, the defendant refused to go through with the sale because he had already agreed to sell to a party procured by another broker. The plaintiff brought an action, claiming that he was entitled to his commission for having fulfilled his contract of employment. The court, holding for the defendant, stated 'A contract of employment does not give the broker an exclusive agency or the exclusive right to negotiate a sale unless it is so specified in the contract of employment . . .' Here the contract of employment lacked any reference to an exclusive agency or an exclusive right to sell. Therefore, the defendant was entitled to hire as many brokers as he wished and was liable for a commission only to the first broker who procured a buyer. The plaintiff's agency was terminated at the time the buyer was presented by another broker, because such agencies automatically come to an end when the purpose for which they are created is accomplished."
41 Chicago-Kent Law Review 51, 55 (Spring 1964).
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ii. In an open listing, broker must produce buyer on the exact terms of the seller in order to claim a commission under an open listing agreement.
BISHOP v. A. W. NORELL
88 Ariz. 148, 353 P.2d 1022 (1960)
JOHNSON, Justice.
Appeal by defendant-seller from a summary judgment entered in plaintiff's action to recover a brokerage commission allegedly earned by virtue of an open listing agreement between plaintiff and defendant.
The undisputed facts appear to be these: plaintiff, a licensed real estate broker, on January 16, 1956, received from defendant an open listing, in the form of mimeographed or lithographed sheets, to sell real property owned by the defendant and located in Maricopa County. With respect to the material terms of sale, the listing provided for a purchase price of $50,000 to be paid in three installments in the proportion of $14,500 payable not later than the close of escrow, $17,750 to be paid on August 1, 1956 and a like amount due August 1, 1957. An interest rate of 4 1/2 per cent per annum was specified for deferred payments from the date of escrow instructions. The listing stipulated that a sale of the realty should be handled through escrow in the Phoenix Title & Trust Company according to the customary escrow instructions used by said firm; furthermore, plaintiff as broker was authorized to accept from any purchaser the sum of $1,000 as earnest money, which sum together with the balance making up the required payment of $14,500 was to be deposited with the aforementioned title company in escrow. The listing provided for a five per cent brokerage commission on the sale price. At the conclusion of the listing appeared the following information in mechanical print:
'W. W. Bishop Owner
382 North Second Avenue
Phoenix, Arizona'
It is to be noted that the listing contained a description of the land to be sold.
Plaintiff thereafter located a syndicate of buyers, who appeared as plaintiffs in the companion case, No. 6602, and we next find that the escrow agreement of January 16, 1956, referred to in the companion case, was executed between the parties. The escrow agreement, which was signed by defendant and plaintiff herein, particularized the method and terms of payment of plaintiff's five per cent commission and in addition spelled out the terms of an alleged contract of sale between the buying syndicate and defendant. In material part, the escrow agreement acknowledged the sale price of $50,000 and detailed the terms of payment as follows: a deposit of $1,000 as earnest money in escrow to be followed by another deposit of $7,750 upon seller's compliance with escrow; thereafter three installments of $13,750 at an annual interest rate of 4 1/2 per cent, payments to begin one year after the close of escrow. By the express terms of the initial escrow agreement completion of the escrow was predicated and conditioned upon the formulation of certain supplemental trust escrow instructions, the nature of which is not material to the disposition of this appeal. Suffice it to say, these supplemental instructions were not fully consummated and the deal fell through, as a result of which the specific performance action and this action were instituted.
In essence, plaintiff, in support of the judgment, contends that when a broker produces a purchaser ready, willing and able to purchase according to the terms of a listing agreement given to the broker by the seller, he had earned his commission even though a final consummated sale might fail because of the fault of the seller. As proof of the assertion that he provided a ready, willing and able buyer upon the terms of the listing, plaintiff points to the terms of sale contained in the signed escrow agreement as being sufficiently identical to those set forth in the original open listing. Defendant, on the other hand, contends that the open listing was not 'signed' by him as required by the statutes and that, therefore, the statute of frauds bars consideration of the open listing agreement in action by the plaintiff to recover a brokerage commission. Therefore, this argument continues, there is left in evidence only one writing signed by him, to wit, the escrow agreement; and while this agreement provides for a commission in favor of plaintiff, it also contemplates the execution of certain supplemental escrow instructions which have never been executed, nor has defendant been in default thereunder, nor has an agreement of sale ever been executed, and that being so, defendant concludes, plaintiff has failed to establish his right to the commission in a manner satisfactory to the affirmance of the summary judgment granted in his favor.
At the outset, we note that it is the law in this jurisdiction that no action shall be brought in any court upon an agreement authorizing or employing an agent or broker to sell real property for compensation or a commission unless the promise or agreement upon which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged, or by some person by him thereunto lawfully authorized. A.R.S. S 44-101, subparagraph 7; Mallamo v. Hartman, 70 Ariz. 294, 219 P.2d 1039. The issue is raised at bar whether the attachment to paper of the seller's signature by means of mimeograph 414, 171 A.L.R. 326; Potter v. Ritchardson, signing by the party to be charged to satisfy the statute of frauds alluded to above, or whether the statute must strictly be construed to require the signature to be in the seller's own handwriting.
(Discussion of Statute of Frauds and the adequacy of the writing here is omitted)
A material deviation from the terms specified in the listing agreement, however, will destroy the broker's right to compensation. Buckner v. Tweed, 81 App.D.C. 256, 157 F.2d 211; Olson v. Penkert, 252 Minn. 334, 90 N.W.2d 193. The necessity of strict performance by the broker within the scope of authority conferred by the listing agreement, has been ably stated in Heurich v. Sullivan, 52 App.D.C. 95, 281 F. 599, 601:
"We think the deviation from the authority granted is fatal to plaintiff's right to recover . . ."
. . . .
"It is settled law that a broker, before he is entitled to his commission, must not only find a purchaser able, ready, and willing to buy, but upon the identical terms authorized by his principal. It is a rule of agency which admits of no exception, and courts do not hesitate to strictly enforce it. Any other course would open the door to fraud, and place the principal at the mercy of his agent."
Thus, where the parties agree upon the total sales price but differ on terms of payment, the broker is not entitled to a commission. Holloway v. McArthur, 224 Ark. 461, 274 S.W.2d 474; See, Annotation, 18 A.L.R.2d 376.
In the case at bar, defendant's open listing required basically a total sales price of $50,000 to be discharged by these terms: a $1,000 earnest money deposit plus a sufficient balance to comprise a total $14,500 payable into escrow, to be followed be two annual installments of $17,750. The escrow agreement, which plaintiff contends evidences his clients' agreement to defendant's terms, contemplates the same sales price of $50,000, but provides for these terms: a $1,000 initial deposit into escrow followed by a payment of $7,750 upon seller's compliance with the escrow, to be followed by three annual installments of $13,750. Thus we see that not only has the deposit in escrow been decreased and the term of installment payment increased, but the larger portion of the payment into escrow has been expressly conditioned upon the seller's compliance, a condition not to be found in the listing agreement. We therefore hold that the foregoing clearly constitutes a material deviation from the specifications of defendant's listing. It may well be that the buyers in this case fully agreed to all the terms included in the listing and that thereafter the parties merely agreed upon a different course of action; if so, plaintiff's right to a commission is assured.
Because the escrow agreement reflects a material disparity between the terms of sale set forth therein and those stipulated by defendant in his open listing, and in view of the total lack of evidence in the record bearing on this disparity, we are compelled to hold that a very material question of fact remains to be settled. That being so, the summary judgment cannot stand.
Judgment reversed.
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iii. Two brokers, one buyer
STAUBUS v. REID
652 S.W.2d 293 (1983)
TITUS, Judge.
Plaintiff, the previous owner of a Barry County farm which she sold to the Browns, filed an interpleader action (Rule 52.07, V.A.M.R.) against defendants Reid and Justus to determine which of the defendants was entitled to the $20,000 real estate sales commission for the sale of the farm. The trial court adjudged that defendant Reid was entitled to the commission less $250 attorneys fees to plaintiff's lawyer for bringing the interpleader action. Defendants Justus appealed.
The farm was placed with both set of defendants as brokers under an open listing agreement, an arrangement which awards the sole commission to the first broker to produce a ready, willing and able buyer, and who first notifies the seller that he has such a buyer. The arrangement is aptly referred to as the "race of the contract."
In June 1981 the Browns came to Barry County from Nebraska hopefully looking for land to be used in their occupation of raising horses. The Browns had no prior contacts with defendants and denied having seen the advertisements of defendants anent the farm. Upon their arrival in Barry County, the Browns espied one of Reid's real estate signs and noted his address and telephone number. However, their arrival was early morning and they found few real estate offices open save that of defendants Justus. Mr. Justus supplied the Browns with various advertising flyers, one of which described plaintiff's farm, and drove the Browns to that location. As it was then raining, the trio stayed mostly in the automobile as they spent some 45 minutes inspecting the farm except for the interior of the farmhouse for which Justus then had no key. Albeit Justus offered to obtain a key, the Browns said they did not particularly care to see the inside because, as the Browns testified at trial, their initial reaction to the farm was negative as the exterior of the house was not to their liking and the asking price was more than they wanted to spend. Justus then proceeded to take the Browns to inspect other farms before returning to his office. In due time plaintiff was notified by Justus that he had shown her farm to the Browns.
The same day the Browns had been with Justus, they contacted Reid, looked at property and found none satisfactory to them. Nevertheless, the Browns arranged with Reid to see another farm the following day. The farm they saw on the morrow was plaintiff's farm which they had viewed a day earlier, although they did not tell Reid they had already seen the property until their second tour had been completed. During the tour conducted by Reid, the Browns were able to inspect more of the property than done under Justus' showing, and, in addition, were able to see inside the house twice which they recounted was "one of the big drawing points" in their decision to buy. The Browns also testified that Reid was more knowledgeable concerning the farm and how it could be adapted to raising horses. In all, the Browns and Reid spent three or four hours inspecting the farm and the structures thereon.
After viewing the farm a second time, the Browns told Reid that they had previously seen the farm, though they had signed no contract, and that they were now interested in buying the farm. Since the price was more than they had wanted to spend, Reid began to help them with the financing. Reid's work included acting as intermediary between the Browns and plaintiff and negotiating an arrangement whereby plaintiff would personally finance the sale. He spent a substantial amount of time and money in getting the entire arrangement organized. Justus, on the other hand, called plaintiff during this time and informed her of the situation, along with his opinion that if the sale went through she may have to pay two commissions. He also called the Browns three times and told them that if he was not paid the sale might end up in litigation. Once plaintiff had tendered the $20,000 commission into the registry of the lower court, that court found that Justus had not found a ready, willing, and able buyer, but had, actually, attempted to prevent the sale from going through after Reid had consummated the deal. The entire commission was awarded to Reid, and this appeal followed.
Justus asserts that the lower court erred in its award of the commission to Reid in that under applicable case law it was he who set in motion a series of events that resulted in the sale of the plaintiff's farm, and thus it is he who must be awarded the entire commission.
The law in this area is that although it is material and important to determine who first found or discovered the prospective purchasers, such a determination is not conclusive. It is entirely proper for the owners of real estate to place it in the hands of more than one broker for sale; and where this is done and a sale is made, the commission will, in the absence of a distinct contract to the contrary, belong to the agent whose efforts are the procuring cause of the sale, regardless of which one closes it. Holman v. Fincher, 403 S.W.2d 245, 249[1, 2] (Mo.App.1966). For a real estate broker's services to constitute the "procuring cause" of a sale, the broker's initial efforts in calling the prospective purchaser's attention to the property must have set in motion a series of events which, without break in continuity, and without interruption in negotiations, eventually culminates in the sale. E.A. Strout Realty Agency, Inc. v. McKelvy, 424 S.W.2d 98, 102 (Mo.App.1968). And in reviewing the lower court's ruling we are bound by a standard of review requiring that the judgment be affirmed unless there is a firm belief that it is wrong. Mix v. Broyles, 567 S.W.2d 696, 698 (Mo.App.1978).
The evidence shows, and the lower court found, that although Justus had made the initial contact with the Browns, he was not able to turn the situation into a sale. In fact, the Browns said that they were definitely not interested in the property after Justus had shown it to them, a conclusion which is supported by the fact that they did not even desire to see the inside of the house.
Reid, on the other hand, seemed to have the greater knowledge of the farm and therefore the greater ability to persuade the prospective purchasers. His detailed knowledge of the farm's history and possible uses apparently impressed and persuaded the Browns to spend more than they had initially desired. And once the decision to buy was made, Reid worked to arrange a suitable financing arrangement for all parties, while Justus was attempting, through his telephone calls, to prevent the sale from going through. The court said in Holman, supra, 403 S.W.2d at 250, that a broker "is not entitled to commissions upon a transaction negotiated through the efforts of another broker without his aid or following his own unsuccessful efforts, even though he had found or first contacted the ultimate contracting party, showed him the property involved, or interested him in it, or had provided the principal with such party's name."
We cannot say with a firm belief that in light of all the evidence the lower court's judgment was wrong in awarding the broker's commission to Reid; therefore, the judgment must be affirmed.
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ii. FOLTZ v. BEGNOCHE
222 Kan. 383, 565 P.2d 592 (1977)
Syllabus by the Court
1. An "exclusive agency" agreement listing real property for sale does not permit an owner to list his property with other brokers during the contractual term, but this does not prevent the owner from selling to a buyer procured on his own.
2. An "exclusive right to sell" agreement listing real property for sale forbids the owner from selling his property either by himself, or through another broker, without liability while the property is listed with the original broker.
3. Where one gives a real estate broker authority to sell his property upon terms stated but not expressly agreeing that such real estate agent shall have the exclusive right to sell, he retains the right to effect a sale personally or through another agent.
4. Doubtful and uncertain language in a written contract is construed against the party preparing the contract, for he has created the troublesome ambiguity.
5. A real estate broker seeking to create an "exclusive right to sell" in which the owner may not sell his property without paying the broker a commission, whether or not the broker procured the buyer, must do so in clear and unambiguous language within the four corners of the written brokerage contract.
6. In an appeal from the trial court's judgment that a real estate agency's "Exclusive Listing Agreement" did not give the realtors a right to a commission, when the property owner sold the property himself, the record is examined and it is held : The "Exclusive Listing Agreement" did not clearly and unambiguously waive the owner's right to sell his own property.
Charles S. Arthur, III, Arthur, Green, Arthur & Conderman, Manhattan, argued the cause, and was on the brief for appellant.
Grace A. Schroer, Manhattan, argued the cause, and was on the brief for appellee.
SCHROEDER, Justice:
This is an appeal from an order of the trial court holding that an "Exclusive Listing Agreement" prepared by a real estate agency did not give the realtors a right to a commission when the property listed was sold by the owner himself.
The only question presented on appeal is whether the "Exclusive Listing Agreement" entitled the realtors, as a matter of law, to a commission when the subject real property was sold during the listing period by the owner himself.
Pat Begnoche (defendant-appellee) owned a liquor store at 1100 Laramie, Manhattan, Kansas, which he wanted to sell. On January 16, 1975, Mr. Begnoche and Paul E. Foltz and William R. Just, d/b/a Town and Country Real Estate (plaintiffs-appellants), entered into a one-month "Exclusive Listing Agreement" drafted by Town and Country Real Estate or its agents. The agreement dated January 16, 1975, insofar as is material herein provides:
"EXCLUSIVE LISTING AGREEMENT
In consideration of your agreement to list the following property, and to use your efforts in finding a purchaser, the undersigned owner hereby gives your agency the exclusive right until Feb 16, 1975 from date hereof, to sell BEGNOCHE LIQUOR STORE 1100 LARAMIE MANHATTAN, KS for the sum of $32,000 and upon the following terms: CASH TO SELLER If a sale or exchange is made by you during the term of this exclusive agreement at the price and upon the terms specified herein, or at any other price and terms acceptable by me, or if you produce a purchaser ready, able and willing to purchase the property, or if sold or exchanged six months after the termination hereof to anyone with whom you have negotiated concerning the property and where I have known of such negotiations or been informed of them in writing, I agree to pay you a 6% commission on the gross sale price. In the event of an exchange, which within the meaning of this contract shall be deemed a sale, you are permitted to represent and receive a 6% commission from each party."
Town and Country Real Estate produced two prospects who were unable to purchase the liquor store at the agreed cash price of $32,000. One prospect bid $30,000 which was not acceptable to Mr. Begnoche and the other had not lived in Riley County long enough to pass the requirements for an ABC liquor license.
On January 31, 1975, Mr. Begnoche contracted to sell the liquor store for $31,000 to Robert Webster, a prospect found by Mr. Begnoche. Nothing indicates Town and Country Real Estate had ever seen or talked to Mr. Webster concerning the purchase of the liquor store. The sale was closed on March 3, 1975, and Mr. Begnoche refused to pay any commission to Town and Country Real Estate or any of its agents.
The pleadings and pretrial presented but one issue to the trial court the interpretation to be given the written "Exclusive Listing Agreement." Mr. Begnoche contended the "Exclusive Listing *385 Agreement" meant he would list the property with no other realtor, but that the agreement did not prevent him, as the owner, from selling the property without paying a commission. John Ball, Director of the Kansas Real Estate Commission, read the "Exclusive Listing Agreement." He submitted an affidavit stating the agreement's terms would permit the owner to sell his property without an obligation to pay the broker a commission.
Town and Country Real Estate contended under the "Exclusive Listing Agreement" if the liquor store was sold by anyone, including the owner, Pat Begnoche, Town and Country Real Estate was to receive a commission. Dean Toothaker, President of the Manhattan Board of Realtors and a licensed real estate broker, also read the "Exclusive Listing Agreement." He submitted an affidavit stating that he considered the terms of the agreement to give the real estate agency the exclusive right to sell the property prior to the expiration date, and did not allow anyone else, including the owner, to sell the property without paying a commission to the real estate agency.
The trial court held the contract was a listing agreement only, and it did not give the realtors an exclusive right to a commission if they were not instrumental in finding the purchaser. Appeal has been duly perfected.
The parties disagree completely as to the interpretation to be given to the "Exclusive Listing Agreement" which governs their rights and obligations. The appellants urge that the contractual language be construed to create an "exclusive right to sell," which entitles the broker to a commission even though the owner sells the property himself. The appellants argue such a construction is necessary so the real estate agent can spend the time and money necessary to sell the property without fear that it will be sold out from under him.
The appellee views the contractual language as giving rise to an "exclusive agency," which permits the owner to sell his own property if he himself procures a buyer, without liability for the broker's commission.
A distinction is frequently made between an "exclusive agency" and an "exclusive right to sell." (12 Am.Jur.2d, Brokers, Sec. 226, p. 968; and Note, Real Estate Brokers Contracts in South Carolina, 18 S.C.L.Rev. 819, 832 (1966).) An "exclusive agency" agreement listing real property for sale does not permit an owner to list his property with other brokers during the contractual term, but this does not prevent the owner from selling to a buyer procured on his own, unless the broker has procured a purchaser able and willing to buy prior to such time. The only effect of such a contract is to prevent the owner from placing the property in the hands of another agent. An "exclusive right to sell" agreement listing real property for sale forbids the owner from selling his property either by himself, or through another broker, without liability while the property is listed with the original broker (citations omitted).
In Bourgoin v. Fortier, supra, an agreement entitled "Exclusive Listing Authorization" which gave the broker the "exclusive right of sale or exchange" was held ambiguous and not an exclusive right to sell agreement. The reverse situation was presented in Carlsen v. Zane, supra, relied upon by the appellants. There the contractual agreement gave the brokers an "exclusive and irrevocable right to sell" land but specifically provided that "owner agrees to pay . . . brokers ten per cent of the selling price in the event that during the period of the agreement . . . said property is sold or exchanged by (brokers) or any other person including owner." This was held to be an "exclusive right to sell" because it expressly forbade sale by the owner without liability. (See also, Rankin v. Miller, 179 Cal.App.2d 133, 3 http://www.Cal.Rptr. 496 (1960).) Similarly Holmes v. Holik, 238 S.W.2d 260 (Tex.Civ.App.1951) and Bagley v. Butler, 59 Misc.2d 1029, 301 N.Y.S.2d 148 (1969), clearly and unambiguously forbid sale by the owner without liability.
Kansas cases have long recognized, at least by implication, the distinction between an "exclusive agency" and an "exclusive right to sell." In Helling v. Darby, 71 Kan. 107, 79 P. 1073, and Haggart v. King, 107 Kan. 75, 190 P. 763, the real estate brokers did not have an "exclusive right to sell" the land and could not recover commissions when the land was sold by the owner. (citations omitted)
In Krehbiel v. Milford, 171 Kan. 302, 232 P.2d 229, the court sustained the following instruction as proper and correctly stating the law of the state:
"One giving a real estate broker authority to sell his property upon terms stated, but not expressly agreeing that such real estate agent shall have the exclusive right to sell, retains the right to effect a sale personally or through another agent, and the owner may enter into an agreement to sell which will be effectual at any time before he has actual notice that a purchaser has been procured by the agent who is ready, able and willing to purchase under the terms of the listing . . ." (p. 305, 232 P.2d p. 232.)
A similar instruction was approved in Winkelman v. Allen, 214 Kan. 22, 29, 519 P.2d 1377.
Similarly in Hiniger v. Judy, 194 Kan. 155, 398 P.2d 305, this court stated:
"Where one gives a real estate broker authority to sell his property upon terms stated but not expressly agreeing that such real estate agent shall have the exclusive right to sell, he retains the right to effect a sale personally or through another agent. . . ." (p. 167, 398 P.2d p. 315.)
However, this court has never expressly examined a contract similar to the one now before us and determined whether the contract established "exclusive agency" or an "exclusive right to sell."
In examining the contractual agreement before the court, it must first be recognized the agreement is entitled "Exclusive Listing Agreement." The title "Exclusive Listing Agreement" does not import that there is granted to the broker the exclusive right to sell. (Neece v. AAA Realty Co., 156 Tex. 614, 616, 299 S.W.2d 270 (1957).) Other cases have noted the title of the agreement is important, but not controlling. (Bourgoin v. Fortier, supra; Nicholas v. Bursley, 119 So.2d 722, 88 A.L.R.2d 929 (Fla.Dist.Ct.App.1960); Suddereth v. Putty, 446 S.W.2d 929 (Tex.Civ.App.1969), and Insurance & Realty, Inc. v. Harmon, supra.)
It must be conceded the contractual agreement before the court granted the broker the "exclusive right" until February 16, 1975, to sell the Begnoche liquor store. However, use of the phrase "exclusive right," standing alone, should not be determinative in creating an "exclusive right to sell." (Insurance & Realty, Inc. v. Harmon, supra;Cowal v. Hopkins, 229 A.2d 452 (D.C. Ct.App. 1967); Stromberg v. Crowl, 257 Iowa 348, 132 N.W.2d 462 (1965), and Bourgoin v. Fortier, supra.)
Further examination of the contractual agreement discloses the provision:
"If a sale or exchange is made by you during the term of this exclusive agreement . . . I agree to pay you a 6% commission . . ."
That the phrase "by you" was inserted in the contract indicates the payment of commission is contingent upon the sale being made by the broker. By implication the agreement contemplated a sale or exchange **597 by the owner, as no other realtor could make the sale without liability during the contractual period. (See, Moreno v. May Supply Company, supra, and Stromberg v. Crowl, supra.)
A term in the agreement which cannot be ignored is:
"In consideration of your agreement to list the following property, and to use your efforts in finding a purchaser, the undersigned owner hereby gives your agency the exclusive right . . ." (Emphasis added.)
By reason of the foregoing the disputed contractual agreement must be declared ambiguous. In Kansas it is well established that doubtful and uncertain language in a contract is construed against the party preparing the contract, for he has created the troublesome ambiguity. (State v. Downey, 198 Kan. 564, 569, 426 P.2d 55; Hamann v. Crouch, 211 Kan. 852, 856, 508 P.2d 968, and Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 363, 552 P.2d 917.) Analogous cases from other jurisdictions have consistently construed the ambiguity in brokers' contractual agreements against the party drawing the contract. (Nicholas v. Bursley, supra; Stomberg v. Crowl, supra, and Bourgoin v. Fortier, supra.) It is obvious from an examination of the contractual agreement in question that it was prepared by the realtors, and the trial court so found. As such we construe the "Exclusive Listing Agreement" herein to create only an "exclusive agency."
Additionally, we are persuaded that an "exclusive right to sell," by its very nature, should be created only by clear and unambiguous language. The owner of property, frequently unfamiliar with the terminology of brokerage transactions, should not be held to give up his right to sell his own property, unless the broker's contract in some way or other imposes liability upon the owner for payment of a commission in the event of a sale by the owner, either expressly or by the grant to the broker of such exclusive right as the court may deem necessarily implies such liability. (See, Moreno v. May Supply Company, supra; Bourgoin v. Fortier, supra, and Nicholas v. Bursley, supra.) Therefore, a real estate broker seeking to create an "exclusive right to sell" in which the owner may not sell his property without paying the broker a commission, whether or not the broker procured the buyer, must do so in clear and unambiguous language within the four corners of the written brokerage contract. For a comprehensive review of authorities on this subject, See Annot., 88 A.L.R.2d 936 (1963); Note, Real Estate Brokers' Commissions in Ohio, 38 U.Cin.L.Rev. 115 (1969); Recent Developments, 42 http://www.Tenn.L.Rev. 405 (1975); and Note, Real Estate Brokers Contracts in South Carolina, 18 S.C.L.Rev. 819 (1966).
Here the "Exclusive Listing Agreement" did not clearly and unambiguously waive the owner's right to sell his own property.
The judgment of the lower court is affirmed.
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iii. NICHOLAS v. BURSLEY
119 So.2d 722, 88 ALR2d 929 (1960)
ALLEN, Chief Judge.
This is an appeal from a final order dismissing the appellant-plaintiff's complaint for damages for an alleged breach by appellee-defendants of an exclusive brokerage contract.
In the first part of December, 1958, the defendant, Arthur J. Bursley, wrote to the plaintiff, Nicholas, requesting that plaintiff have one of her representatives contact him in reference to placing his trailer park on the market. On December 6, 1958, the plaintiff answered the defendant's letter stating that they would contact him on December 14th or 15th to discuss further the details of selling his trailer park for him. On December 18, 1959, the plaintiff again wrote the defendants thanking them for the listing and enclosing a contract entitled 'Exclusive Sales Agency.' On January 10, 1959, this contract was signed by the defendants and returned to the plaintiff.
The plaintiff is a real estate broker licensed by the State and specializes in the sale of trailer parks. After the contract was signed the plaintiff tried to sell the defendant's trailer park through personal contacts and advertising. On February 24, 1959, the plaintiff visited the trailer park and discovered that it had been sold by defendants to Mr. and Mrs. B. J. Sharp who had lived in the trailer park for some time. On February 27, 1959, the plaintiff received a letter from defendant, Arthur James Bursley, advising her that they had found a purchaser and thanking the plaintiff for her efforts. The deed of sale to the Sharps from the defendants was dated March 2, 1959, and recorded March 13, 1959. The plaintiff had never seen or talked to the Sharps in regard to purchasing the defendant's trailer park.
On March 27, 1959, the plaintiff filed a complaint which was amended on July 6, 1959, which alleged the above facts and incorporated a copy of the contract therein seeking a broker's commission for the sale of the trailer park. This contract, which was drafter by the broker, provided that the plaintiff was to have 'for a period of 6 months from this date the exclusive right and authority to sell the property at the price and terms acceptable to me. $97, 000.00. Cash down payment $35,000.00' The contract further provided:
"2. For finding a purchaser for the above property, we agree to pay a commission of 10 per cent of the first $50,000.00 and 5% on balance.
3. The commissions are to be paid whether the purchaser be secured by you or any other broker at the price and terms mentioned, or at any other price and terms acceptable to me; or the property is afterwards sold within three (3) months from the termination of this agency to a purchaser to whom it was submitted by you or a co-operating broker, during the continuance of this agency, and whose name has been disclosed to me." (Emphasis added.)
On July 31, 1959, the lower court granted defendants' motion to dismiss and entered a final order holding that the contract and complaint failed to show an exclusive right and authority to sell sufficient to preclude the owner from selling the property without obligation to the plaintiff.
Much confusion has arisen in the field of real estate brokerage commission cases in the various jurisdictions. We are not concerned with nor will we now attempt to reconcile these divergent holdings of other jurisdictions. But, on the contrary, we believe that the holdings of the courts of Florida have established certain basic principles to be applied in distinguishing between an exclusive agency or listing contract, and an exclusive right and power of sale contract as illustrated by the specific factual situations which gave rise to each of the cases.
The contract in Wiggins v. Wilson, 55 Fla. 346, 45 So. 1011, 1012, was composed of a series of letters which were written by a duly authorized spokesman of the seller to the real estate agent who ultimately found a buyer ready, willing and able to buy the subject property. The first of these letters provided that the owner 'will sell property at one dollar per acre and pay com. at ten per cent. If you can make sale at these figures you are authorized to close, or we should be pleased to consider a counter proposition. The property is now ready to be sold.' A subsequent letter also written by the seller's spokesman stated that if the brokers can close a deal or sale of the 21,000 acres of land at 80 cents per acre, 1/3 cash, 1/3 in November, and 1/3 in 12 months from date of sale, deferred payments to bear interest at 8 per cent from date of sale, and the purchaser in addition to pay taxes then due upon the property, then the seller would pay 5 per cent commission.
The Court stated, in holding that the above described transaction was a conditional contract, that there are distinct differences between brokerage contracts. The Court stated:
"A broker employed to sell, as distinguished from a broker employed to find a purchaser, is not entitled to compensation until he effects a sale or procures from his customer a binding contract of purchase. Ormsby v. Graham, 123 Iowa 202, 98 N.W. 724. On the other hand, a broker employed to find a purchaser must either produce to the owner a customer who is able, ready, and willing to buy on the terms prescribed by the owner, or else take from the customer a binding contract of purchase. 19 Cyc. p. 255, and cases cited. 'Generally if a broker has brought the parties together, and as a result they conclude a contract, he is not deprived of his right to a commission by the fact that the contract so concluded differs in terms from the one which he was authorized to negotiate. Where, for example, the principal consummates a sale to a purchaser found by the broker, he is liable for the commission, although the sale is made at a smaller price than that originally proposed by him to the broker, unless the right to a commission is made conditional upon a sale at the price mentioned in the broker's authorization.' 19 Cyc. p. 249 et seq., and citations. An agent or broker to whom is given the exclusive right to sell a tract of land belonging to another cannot recover his commissions when the owner sells the land, unless he has produced a purchaser ready and willing to buy on the terms specified in his contract of employment . . ." (Emphasis added.)
In South Florida Farms Co. v. Stevenson, 84 Fla. 235, 93 So. 247, 248, the plaintiff broker had obtained a verdict and judgment for a broker's commission based on two letters between the parties. The corporate owner wrote a letter to the plaintiff offering to employ him as manager of the owner's business for which plaintiff was to receive $250 per month. In addition to the salary, the plaintiff was to try and sell certain land owned by the corporation. This portion of the letter stated:
"That the moving consideration for this arrangement is not only the management of the company routine business, but also the disposal of all the company holdings outside of the town of Moore Haven, which consists of about 52,000 acres of land in Lee county and about 30,000 unsold acres in De Soto county. It is agreed to by us that we will accept an average price of $12 net per acre for the Lee county land, and $21 net for the De Soto county land, no deduction or commissions off to any one but yourself. That if within two years from August 1, 1919, this entire unsold acreage is sold to net the above figures to this company, and on terms acceptable to us, you are to receive from us a commission of 5 per cent. If all the land in either, but not both, counties is sold, your commission shall be 2 1/2 per cent. This arrangement to hold good on any excess price which may be obtained, the prices mentioned herein being the absolute minimum."
The plaintiff subsequently accepted the employment and took over the management of defendant company in July of August. In the following December, plaintiff was dismissed from his employment and later filed this suit to recover commission on certain lands which plaintiff sold while employer by defendant. It appears that during the same time the defendant sold part of the land itself. The plaintiff in its declaration claimed an exclusive contract for the sale of defendant's lands and therefore claimed a commission on the land sold by the defendant owner during the life of the contract.
The court held that the alleged exclusive right of the plaintiff to sell did not deprive the defendant of its inherent right to sell its own land (citing Wiggins v. Wilson), and therefore plaintiff is only entitled to a commission on the land that it actually sold but was not entitled to a commission on the land sold by the defendant owner.
In a concurring opinion the following quote from 4 R.C.L. 259 was cited with approval:
"In accordance with the weight of reason and authority, it is generally held that a broker has neither an exclusive right, nor an exclusive agency, to sell, even though he is employed for a definite period of time, unless he is granted either one or the other in unequivocal terms to that effect; and in the absence of such an express grant the employer may sell independently, either through his own efforts or those of another."
The case of Flynn v. McGinty, Fla.1952, 61 So.2d 318, presents a clearer set of facts to illustrate an exclusive right and power of sale as distinguished from an exclusive agency. The defendant-owner went to plaintiff- broker's office and offered a listing with the broker. While the owner waited, the broker dictated the following agreement which was subsequently duly witnessed and signed by the owner:
"To Jim McGinty, Broker:
'In consideration of your endeavor to procure a purchaser for the property described herein, which is made a part of this contract, the undersigned grants you the exclusive right for a period of 90 days to sell said property at the price and upon the terms stated hereon or at any other price and terms to which I may consent, and in the event of sale of said property by myself or through your instrumentality or any other person during the term of this contract, I agree to furnish an abstract of title showing good and merchantable title in me and to execute deed conveying title or contracts in accordance with said terms and to pay you a coommission (sic) of 7 1/2 per cent of the selling price, and I further agree to assist and cooperate in such sale. The exclusive privilege is granted to place your sign on this property and to remove all other signs thereon. The price of this property can not be raised by the owner nor the terms made more severe without first giving you 30 days written notice." (Emphasis added.)
The above agreement was executed on a Thursday and on Sunday the broker advertised the property. On Monday the owner sold the property to one who had not seen the ad nor had the broker approached the buyer. The lower court found for the broker and the owner appealed. The Supreme Court commented on the South Florida Farms Co. v. Stevenson case, supra, and noted that in that case:
"[T]he majority failed to find in the contract any provision giving to the agent the 'exclusive right to sell' the property involved; and indeed one will look in vain for any unequivocal provision of that nature in the contract . . ."
In the instant case there can be no doubt as to what the parties meant by their agreement. It is plainly and
unequivocally stated that commission will be earned whether the property was sold 'by myself, or through your
instrumentality or any other person'. These words leave no room for construction or interpretation.
The salient portion of the brokerage contract in Alex D. Smith Real Estate, Inc. v. Gables Venetian Waterways, Inc., Fla.App.1957, 98 So.2d 372, 373, provided that:
'The Owner agrees to pay the Broker upon consummation of any sales the sum of 10% of the selling price of each transaction up to Five Thousand and no/100 ($5,000.00) Dollars, and 5% of all sums in each transaction over the first $5,000.00 . . ."
In the event the Owner wishes to terminate this contract at any time it may do so upon payment to the Broker of the
sum of Forty-five Dollars and 40/100 ($45.40) for each acre remaining unsold in the property above described and
upon payment thereof this agreement shall be terminated and all parties released herefrom.
In regard to whether the broker had a right to a commission on 263 acres which the owner had contracted to sell three days prior to terminating the brokerage contract, the Court stated:
"Under the exclusive right to sell contract, the broker was entitled to a commission on the sale of the 263 acres (payable upon consummation) even though the sale was arranged by the owner and not through the broker's efforts. Flynn v. McGinty, Fla.1952, 61 So.2d 318."
The Court goes on to cite the following language from Dobbs v. Conyers, 36 Ga.App. 511, 137 S.E. 298:
Where such contract of exclusive listing provides that the owner agrees to pay to the real estate agent the 'regular
real estate commission if sold by [the agent] or any one else during that time,' the word 'sold' has reference not only
to an executed sale by the owner whereby a bond for title or a deed of conveyance is executed and delivered by the
owner, but also to an executory contract of sale of the property, made and entered into by the owner.
The above quote indicates that in the Dobbs case the brokerage contract may have been similar to the contract in the instant case. Upon reading the syllabus opinion in the Dobbs case, however, the terms of the contract are not given nor is the nature of the contract set forth in the opinion, thus it is of little assistance in the determination of the instant case. It is to be noted, however, from the foregoing decisions, that the owner has been held liable only where either the contract unequivocably relinquishes to the broker the owner's right to sell or the broker has actually produced a purchaser ready, willing and able to buy the property.
While a literal definition of the term 'exclusive' would perhaps simplify the issue, it cannot be justifiably done when, as in the instant case, the term 'exclusive' must be considered along with all other words in the instrument in an attempt to determine the intent of the parties. The use of the words 'exclusive agency' or 'exclusive sale' is not conclusive but, as in other cases involving judicial interpretation, all the circumstances must be considered. Harcourt v. Stockton Food Products, 1952, 113 Cal.App.2d 901, 249 P.2d 30. It has been held that under a contract whereby a broker was employed as the 'sole and exclusive agent' of the owner to sell property that the owner may make a sale himself, without the broker's aid, and, if the sale is made in good faith to a purchaser not procured by the broker, the owner does not become liable for commissions to the broker. Levy v. Isaacs, 285 App.Div. 1170, 140 N.Y.S.2d 519. It is also noted that in Louis Schlesinger Co. v. Rice, 4 N.J. 169, 72 A.2d 197, 201, the court held that an 'exclusive agency' granted to a real estate broker precludes the owner from selling property through another broker, but unlike an 'exclusive right to sell' does not preclude the owner from selling to a purchaser procured by the owner. After discussing the various types of brokerage contracts in Sunnyside Land & Investment Co. v. Bernier, 1922, 119 Wash. 386, 205 P. 1041, 20 A.L.R. 1261, the court held that where a broker's contract provided that the broker will endeavor to sell the premises, and that the owner agrees to and with him that he will, in case of sale, or if the broker is instrumental in finding a purchaser, pay a commission, such sale means a sale to a customer procured by the broker, and is without reference to a sale with which the broker has nothing to do.
The cases seem to agree that when an 'exclusive agency to sell' real estate for a stated commission is given, the exclusive right to sell not being clearly given, the owner himself has still the right to make a sale independent of the agent, and in such case will not be liable to the agent for commissions unless he sells to a purchaser procured by the agent. This reserved right on the part of the owner is an implied condition of the agency, subject to which the agent accepts it, and, as his commission is payable only in case of his success in finding a purchaser, the agent takes his chances of the owner himself making a sale. Thus, an 'exclusive agency to sell' merely prohibits the placing of the property for sale in the hands of any other agent, but does not prohibit the sale of the property by the owner himself.
In view of the above incidents attendant to 'an exclusive agency to sell,' it would seem that under the foregoing decisions of this State, an 'exclusive right to sell' would have to be clearly set forth in unequivocal language within the four corners of the contract in order to divest the owner of his inherent right to dispose of his own property. As long as any ambiguity exists, the courts appear to favor an interpretation that will protect the owner. In most situations and, as was true in the instant case, the broker is the drafter of the contract. Consequently, it is a general rule that a contract will be construed against the party who drew it or chose the language and any ambiguity will be construed strongly against the party making use of such language. 7 Fla.Jur.Contracts, sec. 87.
In resolving the ambiguities in the instant contract, we note that under
paragraph 1 the contract states:
"[W]e hereby give you for a period of 6 months from this date the exclusive right and authority to sell the property at the price and terms acceptable to me. $97,000.00. Cash down payment $35,000.00.' but in paragraph 2, supra, the agreement to pay a commission is contingent upon the broker finding a purchaser. We note in paragraph 3, supra, that a further explanation of when and under what contingency the commission is to be paid is set forth. More specifically paragraph 3 provides that the commission will be paid if a purchaser is found by the plaintiff broker or any other broker during the period covered by the contract, or if the property is sold within three months from the termination of the contract to a purchaser to whom it was submitted by the plaintiff broker or a co-operating broker, during the continuance of the agency and whose name had been disclosed to the owner. The clear intendment of paragraphs 2 and 3 would appear to be that the finding of a purchaser was a condition precedent to any liability on the part of the owner to pay the commission notwithstanding the language found in paragraph 1."
The plaintiff broker did not present any prospective purchaser to the owner nor is there any allegation made in the pleadings that the broker had located a prospective purchaser. The purchasers to whom the owner sold the property were residents of the trailer park and had never heard of or been contacted by the plaintiff-broker or any of plaintiff's agents. It is, therefore, manifest that plaintiff has not shown that she has complied with the condition precedent in any manner whatsoever. This fact, plus the absence of an unequivocal provision in the contract that the owner has given up his inherent right to sell his property, considered in light of the language of the cases cited herein, leads us to the conclusion that the lower court must be affirmed in holding that the amended complaint failed to show an exclusive right and authority to sell sufficient to preclude the owner from selling the property without obligation to the plaintiff.
Affirmed.
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iv. ALEX D. SMITH REAL ESTATE v.
GABLES VENETIAN WATERWAYS
98 So.2d 372 (1957)
CARROLL, CHAS., Chief Judge.
The appellant, as plaintiff, filed its complaint in the Dade County Circuit Court, for declaratory decree to determine and establish its rights under a real estate brokerage contract.
Plaintiff, a real estate broker, held an exclusive right to sell contract relating to certain acreage of defendant. The contract (par. 4) provided for payment of commission on all consummated sales, [FN1] and (par. 5) provided that any time the owner wished to end the agreement he could do so, in which event the broker would be entitled to receive $45.40 for each acre remaining unsold. [FN2]
FN1. 'The Owner agrees to pay the Broker upon consummation of any sales the sum of 10% of the selling price of each transaction up to Five Thousand and no/100 ($5.000.00) Dollars, and 5% of all sums in each transaction over the first $5,000.00.'
FN2. 'In the event the Owner wishes to terminate this contract at any time it may do so upon payment to the Broker of the sum of Forty-five Dollars and 40/100 ($45.40) for each acre remaining unsold in the property above described and upon payment thereof this agreement shall be terminated and all parties released herefrom.'
The owner cancelled the contract, offering to pay $45.40 per acre on the total 375 acres. The termination was effected by a letter dated April 2, 1956, which gave as a reason the fact that a sale of 263 of the 375 acres was contemplated. [FN3]
FN3. 'In accordance with the agreement of September 26, 1954 between Gables Venetian Waterways, Inc., and Alex D. Smith, under Section 5 thereof, we are enclosing a check drawn by D. B. Caudle in your favor to terminate said agreement.
"The payment amounts to $17,025.00, being based on 375 acres $45.40 per acre. The acreage is in accordance with the Maurice H. Connell Associates Engineering report."
"It is necessary to terminate your contract because we contemplate sale of some 263 acres in the southern portion of section 'B' to another developer who will handle his sales in his own way."
Three days earlier, on March 30, 1956, the owner had entered into a contract to sell the 263 acres at $2,000 an acre, under which the owner had received a $10,000 down payment. $40,000 more was to be placed in escrow on April 6, 1956, and closing was set for 30 days after delivery of abstract.
Under the exclusive right to sell contract, the broker was entitled to a commission on the sale of the 263 acres (payable upon consummation) even though the sale was arranged by the owner and not through the broker's efforts. (citation omitted)
Following trial, the decree was entered on June 4, 1956, providing that plaintiff should receive only the offered $45.40 per acre, and that the 263 acres which were under contract for sale should be considered as 'unsold' because such sale had not been consummated prior to the date of termination of the contract and, therefore, that the plaintiff was not entitled to a commission on the 263 acres which the defendant owner had contracted to sell before notice of termination of the contract was given.
On the date the decree was filed, plaintiff moved for, but was denied, permission to show that the sale, in fact, had been consummated.
It is our opinion that the trial court erred in failing to declare and decree, as contended for by plaintiff, that it was entitled, on termination of the contract, to its commission on the 263 acres contracted to be sold, if and when the sale thereof was completed.
The owner could terminate the contract with the broker at any time upon paying the broker $45.40 "for each acre remaining unsold." The provision of the contract relating to commissions, making them payable "upon consummation of any sales" does not force the construction that property which has been contracted to be sold will be considered 'unsold' in the event of termination unless the sale thereof as contracted for has actually been closed and consummated prior to termination. (citations omitted) In Dobbs v. Conyers, supra, the Georgia Court said:
"Where such contract of exclusive listing provides that the owner agrees to pay to the real estate agent the "regular real estate commission if sold by [the agent] or any one else during that time," the word "sold" has reference not only to an executed sale by the owner whereby a bond for title or a deed of conveyance is executed and delivered by the owner, but also to an executory contract of sale of the property, made and entered into by the owner."
Surely, if the sale of the 263 acres had been negotiated by the broker, and the contract of March 30 had been made as the result of the efforts of the broker, the owner could not then have terminated the broker's exclusive right to sell contract and claimed that the 263 acres were 'unsold' so as to deprive the broker of the commission payable (upon consummation) under the exclusive right to sell contract. A contrary rule would reward bad faith on the part of the owner. The law protects a broker against cancellation of his contract which represents a bad faith effort to defeat a commission earned or accrued. (citations omitted) And yet the broker here was as much entitled to a commission where the owner made a secret contract to sell the 263 acres, as if such sale had resulted from the broker's own efforts. (citation omitted)
The plaintiff should receive $45.40 per acre for the remaining acreage, other than the 263 acres involved in the March 30 sale, as to which plaintiff should have a commission if the sale thereof is consummated. Evidence offered respecting consummation of the sale having been rejected by the court, additional evidence on that feature would be appropriate, in order to determine the amount which should be received by the plaintiff as a result of the termination of the contract.
The decree is reversed and remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
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i. BECKER v. BADASH
1987 WL 108958 (1987)
LEWIS, Judge.
Plaintiff, Anne D. Becker, d/b/a Anne D. Becker Real Estate, instituted this action against the defendants, Sanford and Ana Maria Badash, seeking to recover a real estate broker's commission in connection with the sale of the Badashs' home at 74 Greenfield Road in Stamford.
Plaintiff alleges that she is a licensed real estate broker and a member of the Stamford Multiple Listing Service. She further alleges that the defendants executed a listing agreement with Seymour Lapin Realtors, wherein they agreed to pay a commission to the listing broker and to any member of the Stamford Multiple Listing Service who produced a buyer for the premises. The plaintiff claims that she produced R.W. and Alice Turcotte as purchasers, who executed a contract of sale with defendant Sanford Badash for $95,000, and that she has not been paid her commission.
The listing agreement is on a form distributed by and captioned "Stamford Multiple Listing Service, Inc.," and the sellers specifically agreed that the listing broker will "circulate the listing through the Stamford Listing Service, Inc." Also, the contract of sale recognizes not only Seymour Lapin Realtors, but also "Anne Becker Real Estate" as the agents who consummated the sale.
Defendant Ana Maria Badash (hereinafter "defendant"
Defendant contends that she is entitled to summary judgment because there exists "no written agreement" signed by both her and the plaintiff and that as a result the plaintiff is precluded from bringing suit by reason of General Statutes S 20-325a(b). The statute provides that no action by a real estate broker for a commission may be maintained unless a written contract or authorization from the owner has been obtained, and that such a contact must contain certain specifics.
Mrs. Badash says she signed a multiple listing agreement only with Seymour Lapin Realtors, and not with the plaintiff.
(discussion of statutory inadequacy of defendant's plea omitted)
Even if the statute had been properly pled, this defendant's motion for summary judgment would be denied on the merits, because I believe that a member of a multiple listing service, who receives a listing from the listing broker, is entitled to a commission under the strictures of S 20-325a.
The listing agreement itself provides that the owners authorize Seymour Lapin Realtors to distribute the listing through the Stamford Multiple Listing Service, Inc. It would be illogical to deny a commission to the plaintiff solely on this ground when the defendants explicitly authorized Lapin to list the premises with others. See, Murphy v. Chadsey, 7 http://www.Conn.Law Trib. No. 26, June 29, 1981, p. 10. Also, S 20-325a does not require that the party seeking a brokerage commission must also be an actual party or signatory to the listing authorization. See Preferred Properties, Inc. v. Rich, 7 http://www.Conn.Law Trib. No. 20, May 13, 1981, p. 15.
The defendant in support of her motion for summary judgment cites Dow and Condon, Inc. v. Anderson, 203 Conn. 475, 480, 525 A.2d 935 (1987), as authority that the plaintiff in this case is not entitled to a commission.
However, I believe that reliance on Dow and Condon is misplaced. In that case the Supreme Court agreed with the action of the trial court in dissolving an ex parte prejudgment remedy attaching an owner's prop
Sorry...I didn't read all of that. But in my neck of the woods, the "agency" status determines the realtor's rights. If it is an "exclusive agency" listing, then the realtor is entitled to the commission no matter who brings the buyer. And often, it is stipulated that should a buyer that the realtor introduced to the property attempt to buy said property "x" number of days after expiration, the said realtor is still entitled. Me, personally...I tell all my clients that they can cancel the contract at any time. I just rather not be bothered with someone who does not want me for a realtor. However, I will go after my commission if they attempt to do business with someone I introduced to the property.
Right, if the realtor is the procurring cause of the transaction, they are entitled to a commission. Example: You see a sign in someones yard, you call, you end up telling the seller that you'll buy after expiration for x amount. Technically the agent is still entitled to a commission since he/she was the procurring cause, you would not have known the property was for sale if it weren't for the sign. Therefore, in some agency agreements, the poster of this thread could get away with not paying commission since the seller called him, no participation of the realtor.
Wow! GW gave you a full fledged appellate brief on FL law...now watch for his bill
Seriously GW, nice job briefing this issue and any serious FL REI would do well to print and preserve this for future reference.
I was thinking of reposting this as an article instead, since, no doubt this comes up ALL the time.
Just not sure how.
I appreciate the recognition of effort there Mr. Merchant.
GWmson
I'm not familiar with real estate brokerage practices in FL--these matters vary from state to state. Here's what my gut says.
The bottom line depends on provisions of the listing contract (and FL laws, customs & practices). However, I think
that if you went through the property while it was listed with a broker,
the seller is going to be on the hook for commission. Regardless of the fact that you and the seller may have communicated with each other before the seller listed the property with the agent.