Preview
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1093 RECEIVED NYSCEF: 03/22/2022
HOULIHAN LAWRENCE
OPPOSITION TO MOTION TO CERTIFY
EXHIBIT 10
HL OPP. - EXHIBIT 10 - PAGE 1
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PMINDEX NO. 60767/2018
NYSCEF DOC. NO. 1093 RECEIVED NYSCEF: 03/22/2022
57
Urnt 2 The Law of Agency
Megan's Law
search the staterecords on
New York courts have held that brokers have no obligation to
buyer's broker should, however,
which convicted pedophiles must registertheiraddresses. A
advise clientsthat the for
is available public inspection.
registry
have been committed on a property,
To gain information about the that crimes
possibility
sellersor the agem
seller's may
Prospective purchasers submit a written incjuiry;and the
may
choose whether or not to respond tothe inquiry.
THE BROKER'S COMPENSATION
agreement, management agreement,
We broker'scompensation is specifiedin thelisting
negotiation between the parties.
or other contract with the principal and is subjectto
of the totalamount of money involved,
Compensation is usuallycomputed as a percemage
but itcould be a flatfee or other consideration.
any
broker has accomplished thework .
Compensation is consideredto be earned when the
usually
offerfrom a ready, willing, and able
for which the broker was hired aftera selleracceptsan
isprepared to on the seller's
rerms, is
buyer. A ready,willing,and able buyer isone who buy
positive stepsto complete the transaction.
financiallycapable, and is readyto take
when"
agreements contain a preclusiveagreement (an "as,if,and clause)
Many listing
not collectthe commission unlessand untilthe sale has
providing that the broker will
are entitledto a commission if thetransaction is not
actuallyclosed. Brokers,however, usually
completed for any ofthe following reasons:
a We owners change theirmind and refuseto sell(with no preclusive agreement as
when a licenseepresentsa full-priceofferwith no contingencies.
previously mentioned)
z We owners commit fraud with respectto thetransaction.
a We owners are unable todeliverpossession within a reasonable rime.
m We owners insiston terms not in the (forexample, the rightto restrict
the use of
listing
the property).he owners and the buyers agree tocancel the transaction.
In otherwords, a broker is duea commission ifa saleis norconsummated because
generally
of the default.
seller's In rarersituations,thecommission may be
still due even when itis the
buyer who defaults.
Generally,three eventsencide brokers to compensation under the law:
m musr be the holderof a validlicenseat alltimes during the transaction and
Wey
collection.
a were eitheremployed under a listingorother employment agreement or were
Ley
authorized to perform the servicesinquestion.
a were the procuring cause.
hey
Note: In transaction,the first
and second items listed
go hand in hand. Inother words,
every
the one who iseitherauthorized or employed ahvays ends up being the cause.
procuring
Brokers are entided toa fee iftheyare the procuring cause of produce
sale; a ready,willing,
and able buyer; orbring about a meeting ofthe minds. Ifseveralbmkers disagree as towhich
one brought about a sale,
the one with the best claim tobe the procuring cause is thatbroker
who brought the partiesinto agreement,as evidenced by the sales contract.A meeting of the
HL OPP. - EXHIBIT 10 - PAGE 2
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 INDEXPMNO. 60767/2018
NYSCEF DOC. NO. 1093 RECEIVED NYSCEF: 03/22/2022
The ta«ofAgen y
58 unt 2
partiesare inagreement on price,down
place when the Paymem
to have taken
minds is said
essentialterms.
method and other
financing
to share a commission with unlicensed people
makes itillegalfora broker
The NY RPL television a friend
compensation, such as giving a to for
forbids form ofgiftor
regulation any the commission.
fmder's feesand portions of
a valuablelead or paying
providing
there isfullknowledge and written consent of
Compensation both parties is permissibleif
by
both parties(§ 175.7).
Salesperson's Compensation
agreement between the broker and the salesperson.A
A compensation
salesperson's is setby
salesperson more commonly, a share of the commissions from
broker a salarytoa or,
may pay
salesperson(the commission split).The salesperson must never
transactionsoriginated by the
from buyer or and
seller, must not accept compensation
accept compensation directly any
one broker with whom she is associated (RPL §§ 442 and 442-a).
from broker,except the
any
salesperson however, accept compensation from a former broker for feesearned while
A may,
associatedwith thatbroker.
TERMINATION OF AGENCY
Because the involves so many it
responsibilities, isimportant to know how
An agency may be agency relationship
agencies are created
and how are terminated. An agency relationship may be rerminated
terminatedby the they
fottowing: at anytime (exceptwhen coupled with an interest)forany of the following reasons:
a Death or Incompe- m Death or incompetence of either (Although death willterminate agency, itdoes not
party
necessarilyterminate a contractofsale or listingagreement that was entered intoduring
tenceuu n or n
demnation of the lifeby thedeceased party.)
n of the m Destruction or condemnation of the
m p a property
terms a Expiration of theterms of the agency
Mutual agreement
n Renunciation
by m Mutual agreement to rerminate the agency
e cation by m Renunciation by the agent orrevocation theprincipal (In New principal
by York, the
principal ingood faith has
acting always thepower to cancel a listingat time. The principal
sankruptcy any
may, however, be required to reimburse the broker forexpenses principal cancels
u Completionof the ifthe
purpose before theagency's expiration.Damages could be awarded tothe agent if the princip
acted inbad fair.h.)
a Bankruptcy of eitherparty
u Completion or fulfdlment of the purpose forwhich the was created
agency
The question ofwhen an agency relationshipends can be important. For example, suppose
agent John listedand sold Margaret's property. Three weeks afterclosing, Margaret showS
up at one of]ohn's open houses, is Margaret stillfohn's but john must
client? Probably nor,
clarifythiswith Margaret. Because is
it often dillicultto as a customer
treat a former client
some firmswill obtain a writtendual consent both partlesor enter
agency agreement from
into a buyer
agency relationshipwith the former client.
The broker may not disclose
to a new client from a
any information obtained in confidence
former client the
during agency relationship.Even though the agency relationship may
terminated, the duty of
confidentialityhasnot,
HL OPP. - EXHIBIT 10 - PAGE 3
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1093 RECEIVED NYSCEF: 03/22/2022
MODERN
REAL ESTATE
PRACTICE IN NEW YORK
FOR SALESPERSONS
Dearberr
Sam Irlander Real EstateEducation
HL OPP. - EXHIBIT 10 - PAGE 4
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1093 RECEIVED NYSCEF: 03/22/2022
odern Real Estate Practice in
Jew York for Salespersons
irteenth Edition
am Irlander
Dearborn
Real Estate Education
HL OPP. - EXHIBIT 10 - PAGE 5
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 INDEX
PM NO. 60767/2018
NYSCEF DOC. NO. 1093 RECEIVED NYSCEF: 03/22/2022
and authoritativeinformation in regardto
provideaccurate
designed
is to publisher is notengaged in Ct
This publication that the rend
with theunderstanding
matter covered.Itis sold adviceor otherexpert assistance
is required
advice.Iflegal , the
otherprofessional
accounting,or should be sought.
professional
a competent
services of
Dr.Andrew Temte
President:
EstateEducation: Toby Schifsky
Executive Real
Director,
Manderfeld
Development Editor:fody
IN NEW YORK FOR SALESPERSONS
ESTATE PRACTICE
MODERN REAL
THIRTEENTH EDITION
©2019 Kaplan, Inc.
Dearborn Real EstateEducation
Inc.,
lastitute, d/b/a
Published by DF
Front 501
St. S., Suite
332
La Crosse,WI 54601
publication,or partthereof,may not be reproduced in any
reserved.
rights The textof this any
All
writtenpermission from thepublisher.
manner whatsoever without
in theUnited StatesofAmerica
Printed
Firstrevision,March 2020
ISBN: 978-1-4754-8641-4
HL OPP.-EXHIBIT 10-PAGE 6
Preview
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1093 RECEIVED NYSCEF: 03/22/2022 HOULIHAN LAWRENCE OPPOSITION TO MOTION TO CERTIFY EXHIBIT 10 HL OPP. - EXHIBIT 10 - PAGE 1 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PMINDEX NO. 60767/2018 NYSCEF DOC. NO. 1093 RECEIVED NYSCEF: 03/22/2022 57 Urnt 2 The Law of Agency Megan's Law search the staterecords on New York courts have held that brokers have no obligation to buyer's broker should, however, which convicted pedophiles must registertheiraddresses. A advise clientsthat the for is available public inspection. registry have been committed on a property, To gain information about the that crimes possibility sellersor the agem seller's may Prospective purchasers submit a written incjuiry;and the may choose whether or not to respond tothe inquiry. THE BROKER'S COMPENSATION agreement, management agreement, We broker'scompensation is specifiedin thelisting negotiation between the parties. or other contract with the principal and is subjectto of the totalamount of money involved, Compensation is usuallycomputed as a percemage but itcould be a flatfee or other consideration. any broker has accomplished thework . Compensation is consideredto be earned when the usually offerfrom a ready, willing, and able for which the broker was hired aftera selleracceptsan isprepared to on the seller's rerms, is buyer. A ready,willing,and able buyer isone who buy positive stepsto complete the transaction. financiallycapable, and is readyto take when" agreements contain a preclusiveagreement (an "as,if,and clause) Many listing not collectthe commission unlessand untilthe sale has providing that the broker will are entitledto a commission if thetransaction is not actuallyclosed. Brokers,however, usually completed for any ofthe following reasons: a We owners change theirmind and refuseto sell(with no preclusive agreement as when a licenseepresentsa full-priceofferwith no contingencies. previously mentioned) z We owners commit fraud with respectto thetransaction. a We owners are unable todeliverpossession within a reasonable rime. m We owners insiston terms not in the (forexample, the rightto restrict the use of listing the property).he owners and the buyers agree tocancel the transaction. In otherwords, a broker is duea commission ifa saleis norconsummated because generally of the default. seller's In rarersituations,thecommission may be still due even when itis the buyer who defaults. Generally,three eventsencide brokers to compensation under the law: m musr be the holderof a validlicenseat alltimes during the transaction and Wey collection. a were eitheremployed under a listingorother employment agreement or were Ley authorized to perform the servicesinquestion. a were the procuring cause. hey Note: In transaction,the first and second items listed go hand in hand. Inother words, every the one who iseitherauthorized or employed ahvays ends up being the cause. procuring Brokers are entided toa fee iftheyare the procuring cause of produce sale; a ready,willing, and able buyer; orbring about a meeting ofthe minds. Ifseveralbmkers disagree as towhich one brought about a sale, the one with the best claim tobe the procuring cause is thatbroker who brought the partiesinto agreement,as evidenced by the sales contract.A meeting of the HL OPP. - EXHIBIT 10 - PAGE 2 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 INDEXPMNO. 60767/2018 NYSCEF DOC. NO. 1093 RECEIVED NYSCEF: 03/22/2022 The ta«ofAgen y 58 unt 2 partiesare inagreement on price,down place when the Paymem to have taken minds is said essentialterms. method and other financing to share a commission with unlicensed people makes itillegalfora broker The NY RPL television a friend compensation, such as giving a to for forbids form ofgiftor regulation any the commission. fmder's feesand portions of a valuablelead or paying providing there isfullknowledge and written consent of Compensation both parties is permissibleif by both parties(§ 175.7). Salesperson's Compensation agreement between the broker and the salesperson.A A compensation salesperson's is setby salesperson more commonly, a share of the commissions from broker a salarytoa or, may pay salesperson(the commission split).The salesperson must never transactionsoriginated by the from buyer or and seller, must not accept compensation accept compensation directly any one broker with whom she is associated (RPL §§ 442 and 442-a). from broker,except the any salesperson however, accept compensation from a former broker for feesearned while A may, associatedwith thatbroker. TERMINATION OF AGENCY Because the involves so many it responsibilities, isimportant to know how An agency may be agency relationship agencies are created and how are terminated. An agency relationship may be rerminated terminatedby the they fottowing: at anytime (exceptwhen coupled with an interest)forany of the following reasons: a Death or Incompe- m Death or incompetence of either (Although death willterminate agency, itdoes not party necessarilyterminate a contractofsale or listingagreement that was entered intoduring tenceuu n or n demnation of the lifeby thedeceased party.) n of the m Destruction or condemnation of the m p a property terms a Expiration of theterms of the agency Mutual agreement n Renunciation by m Mutual agreement to rerminate the agency e cation by m Renunciation by the agent orrevocation theprincipal (In New principal by York, the principal ingood faith has acting always thepower to cancel a listingat time. The principal sankruptcy any may, however, be required to reimburse the broker forexpenses principal cancels u Completionof the ifthe purpose before theagency's expiration.Damages could be awarded tothe agent if the princip acted inbad fair.h.) a Bankruptcy of eitherparty u Completion or fulfdlment of the purpose forwhich the was created agency The question ofwhen an agency relationshipends can be important. For example, suppose agent John listedand sold Margaret's property. Three weeks afterclosing, Margaret showS up at one of]ohn's open houses, is Margaret stillfohn's but john must client? Probably nor, clarifythiswith Margaret. Because is it often dillicultto as a customer treat a former client some firmswill obtain a writtendual consent both partlesor enter agency agreement from into a buyer agency relationshipwith the former client. The broker may not disclose to a new client from a any information obtained in confidence former client the during agency relationship.Even though the agency relationship may terminated, the duty of confidentialityhasnot, HL OPP. - EXHIBIT 10 - PAGE 3 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1093 RECEIVED NYSCEF: 03/22/2022 MODERN REAL ESTATE PRACTICE IN NEW YORK FOR SALESPERSONS Dearberr Sam Irlander Real EstateEducation HL OPP. - EXHIBIT 10 - PAGE 4 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1093 RECEIVED NYSCEF: 03/22/2022 odern Real Estate Practice in Jew York for Salespersons irteenth Edition am Irlander Dearborn Real Estate Education HL OPP. - EXHIBIT 10 - PAGE 5 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 INDEX PM NO. 60767/2018 NYSCEF DOC. NO. 1093 RECEIVED NYSCEF: 03/22/2022 and authoritativeinformation in regardto provideaccurate designed is to publisher is notengaged in Ct This publication that the rend with theunderstanding matter covered.Itis sold adviceor otherexpert assistance is required advice.Iflegal , the otherprofessional accounting,or should be sought. professional a competent services of Dr.Andrew Temte President: EstateEducation: Toby Schifsky Executive Real Director, Manderfeld Development Editor:fody IN NEW YORK FOR SALESPERSONS ESTATE PRACTICE MODERN REAL THIRTEENTH EDITION ©2019 Kaplan, Inc. Dearborn Real EstateEducation Inc., lastitute, d/b/a Published by DF Front 501 St. S., Suite 332 La Crosse,WI 54601 publication,or partthereof,may not be reproduced in any reserved. rights The textof this any All writtenpermission from thepublisher. manner whatsoever without in theUnited StatesofAmerica Printed Firstrevision,March 2020 ISBN: 978-1-4754-8641-4 HL OPP.-EXHIBIT 10-PAGE 6