Preview
FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 975 RECEIVED NYSCEF: 12/06/2021
HOULIHAN LAWRENCE
OPPOSITION TO MOTION TO CERTIFY
EXHIBIT 10
HL OPP. - EXHIBIT 10 - PAGE 1
FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PMINDEX NO. 60767/2018
NYSCEF DOC. NO. 975 RECEIVED NYSCEF: 12/06/2021
Unit 2 The Law of Agency 57
Megan's Law
New York courts have held that brokers have no obligation to search 1he stare records on
which convicted pedophiles must register their addresses. A buyer's broker should, however,
advise clients that the registry is available for public inspection .
To gain information about rhe possi bility char crimes have been committed on a property,
prospective purchasers may ubmit a written inquiry; and the sellers or the seller's agent may
choose whether or not to respond to the inquiry.
THE BROKER'S COMPENSATION
1l1e broker's compensation is specified in the listing agreement, management agreement,
or other contract with che principal and is subject to negotiation between che parries.
Compensation is usuaJly computed as a percentage of the coral amount of money involved,
bur it could be a flat fee or any other consideration.
Compensation usually is considered co be earned when ch e broker has accomplished the work
for which the broker was hired after a seller accepts an offer from a ready, wilUng, and able
buyer. A ready, willing, and able buyer is one who is prepared to buy on the seller's terms, is
financially capable, and is ready to take positive steps to complete the transaction.
M any listing agreements contain a preclusive agreement (an "as, if, a nd when" clause)
providing that the broker will not collect rhe commission unless and until the sale bas
actually closed. Brokers, however, are usually entitled to a commission if the rransacrion is no t
completed for any of the following reasons:
• The owners change their mind and refuse to sell (with no preclusive agreement as
previously mentioned) when a licensee presents a full-price offer with no conringencies.
• The owners commit fraud with respect to the transaction.
• The owners are unable ro deliver possession within a reasonable time.
• The owners insisr on terms not in the listing (for example, the right to rescricr the use of
the property). The owners and the buyers agree to cancel the transaction.
In other words, a broker generally is due a commission if a sale is not consummated because
of the seller's default. In rarer situations, the commission may still be due even when it is the
buyer who defaults.
Generally, three events encide brokers to compensation under the law:
• They must be the holder of a valid license at all times during the tra nsaction and
collection.
• They were either employed under a listing or other employment agreement or were
authorized to perform the services in question.
• They were the procuring cause.
Note: In every transaction, the first and second items listed go hand in hand.
In ocher words,
the one who is either authorized or employed always ends up being th e procuring cause.
Brokers are entitled ro a fee if they are the procuring cause of sale; produce a ready, willing.
and able buyer; or bring about a meeting of the minds. If several brokers disagree as to which
one brought about a sale, the one with the best claim to be the procuring c:rn
e is that broker
who brought the parties into agreement, as evidc:ncc:d by the sales contract. A meeting of the
HL OPP. - EXHIBIT 10 - PAGE 2
FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 INDEXPMNO. 60767/2018
NYSCEF DOC. NO. 975 RECEIVED NYSCEF: 12/06/2021
58 Unit 2 The Law of Agency
. . 'd k pl:ice when the p:irrie are in agreemenr on price, down paymen
nunds I a1 ro I1ave ra
en , 1,
financi ng merhod, ::t nd od1er essential rerms.
llie NY RPL makes it illegal for ::t broker co shar~ a commissi~n. with unli~e.nsed people. Thi.s
regularion forbids any form of gift or co~pensatton, sue~ as g1vmg a telev'.s1~n to a friend for
providing 3 valuable lead or paying finders fees and portions of the comm1ss1on.
Compensation by both parties is permissible if there is full knowledge and written consenr of
both parties(§ 175.7).
Salesperson's Compensation
A salesperson's compensation is set by agreement between the broker and the salesperson. A
broker may pay a salary to a salesperson or, more commonly, a share of the commissions from
transactions originated by the saJesperson (rhe commission split). The salesperson must never
accept compensation directly from any buyer or seller, and muse not accept compensation
from any broker, except the one broker with whom she is associated (RPL §§ 442 and 442-a).
A salesperson may, however, accept compensation from a former broker for fees earned while
associated with that broker.
TERMINATION OF AGENCY
An agency may be
Because the agency relationship involves so many responsibilities, it is important to know how
terminated by the agencies are created and how they are terminated. An agency relationship may be terminated
following: at any time (except when coupled with an interest) for any of the following reasons:
• Death or Incompe- • Death o~ incom?etence of either party (Although death will terminate agency, it does 1101
tence of either party
• Destruction or con- necessarily termmare a contract of sale or listing agreement that was entered into during
demnation of the life by the deceased party.)
property
• Expiration of the • Destruction or condemnation of the property
terms
• Mutual agreement
• Expiration of the terms of the agency
• Renunciation by • Murual agreement to terminate the agency
agent
• Revocation by • Re~un~iation by the agent or revocation by the principal (In New York, the principal
principal acnng 111 good faith always has the power to canceI a t·1st111g
· · · • al
• Bankruptcy at any nme. The pr111c1p
• Completion of the may,
b~ however,
I berequired to reimbu h
rse ce b roker f, . . .
or expenses 1f the princtpal cancels
purpose e odre. nbe adgef:~chy's) expiration. Damages could be awarded to the agent if the principal
acre 111 a a1t .
• Bankruptcy of either party
• Completion or fulfillment of the purpose f,or which
. the agency was created
The question of when an agency rel ati h.1 d5
agent John listed and Id M , ons P en can be important. For example, suppose
5o argaret s property Th k c. I . M h
up at one of John's open h I M · rec wee s arter c osmg, argaret s ows
clarify this with Marga ouses. s. .argaret still J0 h n's c1·1ent.) pro bably not, b ut Jo I,n must
rec. 8ecause •t ts often d.Iffi
I c
some firms will obtain a . d I cu t to treat a rormer client as a cusromcr,
wrmen ua agency c
into a buyer agency relatio h. .I h consent agreement rrom both parries or enter
ns e former client.
ip Wit 1 t
·n1e broker may not disclose to a new di . .
former clit'nt during the a I . enc any information obtained in confidencc from a
. gency re ac1onship
term1naced, the duty of co fid . . · Even tI1ougI1 t he agency relat1onsl111J
. .
may 1,ave
n enc1a 1icy has nor.
HL OPP. - EXHIBIT 10 - PAGE 3
FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018
-
NYSCEF DOC.
MODERN
NO. 975 RECEIVED NYSCEF: 12/06/2021
REAL ESTATE TH
PRACTICE IN NEW YORK EDITION
FOR SALESPERSONS
Dearberri
Real Estate Education
Sam lrlander
HL OPP. - EXHIBIT 10 - PAGE 4
FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 975 RECEIVED NYSCEF: 12/06/2021
odern Real Estate Practice in
ew York for Salespersons
irteenth Edition
am lrlander
Dearb
Real Estate Edu
· rri
ation
HL OPP. - EXHIBIT 10 - PAGE 5
FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 INDEX
PM NO. 60767/2018
NYSCEF DOC. NO. 975 RECEIVED NYSCEF: 12/06/2021
·nll.S pu bl 'IC:I llOll
. .
IS
desa'g,·ied ro provide •accurate
'
nnd aurhorirarive
'
information
•
in regard
• to t he s.
·ssoldwirh the undersrn
ndang rharthepublisher asnot engaged inrend . ubJeq
matter covere d . Ir l . . enn I
,
accounting, .
or o
rlier
· prorM iofl'tl advice. If legal advice or other expert assistance is rcciu·
,...., • • · are d
thg egal '
ervices of a co mpcrcnt profe sio nal should be sot1ghr. ' e
President: Dr. Andrew Temre
Executive Director, Real Esra re Educarion: Toby Schifsky
Development Editor: Jody Manderfeld
MODERN REAL ESTATE PRACTICE IN NEW YORK FOR SALESPERSONS
THIRTEENTH EDITION
©2019 Kaplan, Inc.
Published by OF lnsriture, Inc., d/b/a Dearborn Real Estate Education
332 Front St. S., Suite 50 I
La Crosse, WI 5460 I
All rights reserved. Th.e text of ~his public~ti~n, or any pare thereof, may not be reproduced in an
manner whatsoever without Written perm1ss1on from the publisher. · y
Printed in the United Stares of America
Firsr revision, March 2020
ISBN: 978-1-4754-8641-4
HL OPP. - EXHIBIT 10 - PAGE 6
Preview
FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 975 RECEIVED NYSCEF: 12/06/2021 HOULIHAN LAWRENCE OPPOSITION TO MOTION TO CERTIFY EXHIBIT 10 HL OPP. - EXHIBIT 10 - PAGE 1 FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PMINDEX NO. 60767/2018 NYSCEF DOC. NO. 975 RECEIVED NYSCEF: 12/06/2021 Unit 2 The Law of Agency 57 Megan's Law New York courts have held that brokers have no obligation to search 1he stare records on which convicted pedophiles must register their addresses. A buyer's broker should, however, advise clients that the registry is available for public inspection . To gain information about rhe possi bility char crimes have been committed on a property, prospective purchasers may ubmit a written inquiry; and the sellers or the seller's agent may choose whether or not to respond to the inquiry. THE BROKER'S COMPENSATION 1l1e broker's compensation is specified in the listing agreement, management agreement, or other contract with che principal and is subject to negotiation between che parries. Compensation is usuaJly computed as a percentage of the coral amount of money involved, bur it could be a flat fee or any other consideration. Compensation usually is considered co be earned when ch e broker has accomplished the work for which the broker was hired after a seller accepts an offer from a ready, wilUng, and able buyer. A ready, willing, and able buyer is one who is prepared to buy on the seller's terms, is financially capable, and is ready to take positive steps to complete the transaction. M any listing agreements contain a preclusive agreement (an "as, if, a nd when" clause) providing that the broker will not collect rhe commission unless and until the sale bas actually closed. Brokers, however, are usually entitled to a commission if the rransacrion is no t completed for any of the following reasons: • The owners change their mind and refuse to sell (with no preclusive agreement as previously mentioned) when a licensee presents a full-price offer with no conringencies. • The owners commit fraud with respect to the transaction. • The owners are unable ro deliver possession within a reasonable time. • The owners insisr on terms not in the listing (for example, the right to rescricr the use of the property). The owners and the buyers agree to cancel the transaction. In other words, a broker generally is due a commission if a sale is not consummated because of the seller's default. In rarer situations, the commission may still be due even when it is the buyer who defaults. Generally, three events encide brokers to compensation under the law: • They must be the holder of a valid license at all times during the tra nsaction and collection. • They were either employed under a listing or other employment agreement or were authorized to perform the services in question. • They were the procuring cause. Note: In every transaction, the first and second items listed go hand in hand. In ocher words, the one who is either authorized or employed always ends up being th e procuring cause. Brokers are entitled ro a fee if they are the procuring cause of sale; produce a ready, willing. and able buyer; or bring about a meeting of the minds. If several brokers disagree as to which one brought about a sale, the one with the best claim to be the procuring c:rn e is that broker who brought the parties into agreement, as evidc:ncc:d by the sales contract. A meeting of the HL OPP. - EXHIBIT 10 - PAGE 2 FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 INDEXPMNO. 60767/2018 NYSCEF DOC. NO. 975 RECEIVED NYSCEF: 12/06/2021 58 Unit 2 The Law of Agency . . 'd k pl:ice when the p:irrie are in agreemenr on price, down paymen nunds I a1 ro I1ave ra en , 1, financi ng merhod, ::t nd od1er essential rerms. llie NY RPL makes it illegal for ::t broker co shar~ a commissi~n. with unli~e.nsed people. Thi.s regularion forbids any form of gift or co~pensatton, sue~ as g1vmg a telev'.s1~n to a friend for providing 3 valuable lead or paying finders fees and portions of the comm1ss1on. Compensation by both parties is permissible if there is full knowledge and written consenr of both parties(§ 175.7). Salesperson's Compensation A salesperson's compensation is set by agreement between the broker and the salesperson. A broker may pay a salary to a salesperson or, more commonly, a share of the commissions from transactions originated by the saJesperson (rhe commission split). The salesperson must never accept compensation directly from any buyer or seller, and muse not accept compensation from any broker, except the one broker with whom she is associated (RPL §§ 442 and 442-a). A salesperson may, however, accept compensation from a former broker for fees earned while associated with that broker. TERMINATION OF AGENCY An agency may be Because the agency relationship involves so many responsibilities, it is important to know how terminated by the agencies are created and how they are terminated. An agency relationship may be terminated following: at any time (except when coupled with an interest) for any of the following reasons: • Death or Incompe- • Death o~ incom?etence of either party (Although death will terminate agency, it does 1101 tence of either party • Destruction or con- necessarily termmare a contract of sale or listing agreement that was entered into during demnation of the life by the deceased party.) property • Expiration of the • Destruction or condemnation of the property terms • Mutual agreement • Expiration of the terms of the agency • Renunciation by • Murual agreement to terminate the agency agent • Revocation by • Re~un~iation by the agent or revocation by the principal (In New York, the principal principal acnng 111 good faith always has the power to canceI a t·1st111g · · · • al • Bankruptcy at any nme. The pr111c1p • Completion of the may, b~ however, I berequired to reimbu h rse ce b roker f, . . . or expenses 1f the princtpal cancels purpose e odre. nbe adgef:~chy's) expiration. Damages could be awarded to the agent if the principal acre 111 a a1t . • Bankruptcy of either party • Completion or fulfillment of the purpose f,or which . the agency was created The question of when an agency rel ati h.1 d5 agent John listed and Id M , ons P en can be important. For example, suppose 5o argaret s property Th k c. I . M h up at one of John's open h I M · rec wee s arter c osmg, argaret s ows clarify this with Marga ouses. s. .argaret still J0 h n's c1·1ent.) pro bably not, b ut Jo I,n must rec. 8ecause •t ts often d.Iffi I c some firms will obtain a . d I cu t to treat a rormer client as a cusromcr, wrmen ua agency c into a buyer agency relatio h. .I h consent agreement rrom both parries or enter ns e former client. ip Wit 1 t ·n1e broker may not disclose to a new di . . former clit'nt during the a I . enc any information obtained in confidencc from a . gency re ac1onship term1naced, the duty of co fid . . · Even tI1ougI1 t he agency relat1onsl111J . . may 1,ave n enc1a 1icy has nor. HL OPP. - EXHIBIT 10 - PAGE 3 FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018 - NYSCEF DOC. MODERN NO. 975 RECEIVED NYSCEF: 12/06/2021 REAL ESTATE TH PRACTICE IN NEW YORK EDITION FOR SALESPERSONS Dearberri Real Estate Education Sam lrlander HL OPP. - EXHIBIT 10 - PAGE 4 FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 975 RECEIVED NYSCEF: 12/06/2021 odern Real Estate Practice in ew York for Salespersons irteenth Edition am lrlander Dearb Real Estate Edu · rri ation HL OPP. - EXHIBIT 10 - PAGE 5 FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 INDEX PM NO. 60767/2018 NYSCEF DOC. NO. 975 RECEIVED NYSCEF: 12/06/2021 ·nll.S pu bl 'IC:I llOll . . IS desa'g,·ied ro provide •accurate ' nnd aurhorirarive ' information • in regard • to t he s. ·ssoldwirh the undersrn ndang rharthepublisher asnot engaged inrend . ubJeq matter covere d . Ir l . . enn I , accounting, . or o rlier · prorM iofl'tl advice. If legal advice or other expert assistance is rcciu· ,...., • • · are d thg egal ' ervices of a co mpcrcnt profe sio nal should be sot1ghr. ' e President: Dr. Andrew Temre Executive Director, Real Esra re Educarion: Toby Schifsky Development Editor: Jody Manderfeld MODERN REAL ESTATE PRACTICE IN NEW YORK FOR SALESPERSONS THIRTEENTH EDITION ©2019 Kaplan, Inc. Published by OF lnsriture, Inc., d/b/a Dearborn Real Estate Education 332 Front St. S., Suite 50 I La Crosse, WI 5460 I All rights reserved. Th.e text of ~his public~ti~n, or any pare thereof, may not be reproduced in an manner whatsoever without Written perm1ss1on from the publisher. · y Printed in the United Stares of America Firsr revision, March 2020 ISBN: 978-1-4754-8641-4 HL OPP. - EXHIBIT 10 - PAGE 6