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Sahn Ward Coschignano, PLLC

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Homeowner Granted Summary Judgment against Real Estate Agent Who Claimed Breach of Contract

Christian Browne, a Partner with the Firm, recently successfully represented a defendant homeowner in a real estate commission litigation matter.

The plaintiff, a real estate agent, alleged breach of real estate agency contract. In 2012, the client listed her and her late husband's home with an expiration date of November 1, 2012, which was extended to January 30, 2013. In the interim, a prospective buyer engaged in negotiations for the purchase of the property, but no agreement was reached. In July 2013, the agent contacted the client, indicating the same buyer was still interested in the property, and a price was agreed upon, requiring that the sale be made with no contingencies and the property be sold "as is." The defendant's usual attorney was unavailable and the client agreed to be represented by an attorney, who was referred to by the agent. While waiting for the contract, the client was contacted by another buyer, but was told a sale was pending. When the contract was received, the Firm's client rejected it, based on the contingencies it contained. The defendant client later sold the property to the second buyer, closing in November 2013.

Based on the facts of the case, Mr. Browne moved for summary judgment as a matter of law. According to the court, "to establish the right to a commission, a broker must demonstrate that he or she produced a ready, willing, and able purchaser who came to a meeting of the minds with the seller as to all of the material terms of the sale." The court went on to state that this duty extends not only to the price, but also other essential matters, "such as the closing date and delivery of possession, and matters pertaining to restrictions, encumbrances, mortgages, and the payment of taxes; until this is done his right to a commission does not accrue."

The court found that the plaintiff failed to produce evidence that the contingency language referred to was not standard, or that its omission would be tantamount to legal malpractice. It found further that the agent apologized for the failure of the sale, took responsibility for the failure, and found that the plaintiff's papers "consist of nothing more than general conclusory statements lacking in evidentiary support and legal argument," and therefore granted summary judgment on behalf of the Firm's client.

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