STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) ex. rel. JOHN D. BURRESS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-015

) PROGRESS DOCKET No. 3114

IOLA A MANN, )

)

Respondent. )

)

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on April 15, 1977 at Bunnell, Florida.

APPEARANCES

For Petitioner: Manuel E. Oliver, Esquire

Staff Attorney

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Iola A. Mann

112 Essex Street

Altamonte Springs, Florida 32701 RECOMMENDED ORDER

By Administrative Complaint filed December 14, 1976 the Florida Real Estate Commission (FREC) ex rel. John A. Burress, seeks to revoke, suspend or otherwise discipline the real estate broker's license of Iola A. Mann, Respondent. As grounds therefor it is alleged that Respondent failed to return an escrow deposit to the buyer when required to do so and thereby violated Section 475.25(1)(c) and (i) F.S. Two witnesses were called by Petitioner, the Respondent testified in her own behalf and six exhibits were admitted into evidence.

FINDINGS OF FACT

1. The facts in this case were generally undisputed. Respondent is a registered real estate broker and was so acting at all times relevant to the complaint filed herein. Respondent and her husband, George L. Mann, are resident managers of an apartment complex known as Ocean Beach Club at Flagler Beach, Florida. Many of these units are owned by individuals and are rented.

   
   

2. Sheldon Carlson owned one of these rented apartments which he had listed with Respondent to sell.

3. Sawyer Young, a businessman from Virginia, was interested in purchasing an apartment in this complex as an investment and after Respondent had showed him two unfurnished units expressed a desire to see a furnished apartment. Respondent showed him the apartment owned by Carlson. Young came back the following morning and asked to see this apartment again after which he submitted an offer to purchase the apartment.

   
   

4. This offer was similar to the Contract for Sale and Purchase as shown on Exhibits 1 and 3 with one major exception, viz. that "small appliances, pots, pans, dishes, & etc., and sweeper" had not been deleted. This contract dated January 28, 1976 provided for a deposit of $300 and a purchase price of

   $30,500. At the time the offer was made Respondent was aware that the seller did not desire to sell the small appliances and kitchen articles, however, this was the offer that was made by the buyer. The contract further provided that if the contract was not accepted by the seller prior to 6:00 P.M. on January 29, 1976 the offer was null and void and the deposit would be returned to the buyer. Upon making the offer the buyer departed for Virginia.

   
   

5. Respondent contacted seller, who lived in Mount Dora, by telephone and communicated the offer to him. Carlson told Respondent that he would not include the small appliances, etc. at the offering price and asked her to delete those items from the contract. He confirmed this qualified acceptance of the offer in a mailgram dated 9:19 A.M., January 29, 1976. Upon receipt of this information from seller Respondent deleted those items from the contract that had already been executed by the buyer.

   
   

6. When the Respondent contacted the buyer a day or so later in Virginia by telephone and communicated the counter offer of the seller to him he gave every indication that he would accept the changes made by the seller.

   
   

7. During the ensuing month Respondent was in communication with the buyer several times to arrange for a closing date. The original closing date was changed by the buyer and shortly before the next scheduled closing date the buyer informed Respondent that he would not go through with the sale and demanded return of his deposit.

   
   

8. Respondent advised the buyer that the attorney had performed certain work and the buyer authorized her to pay the attorney the $75 for legal services he had performed. One month later Respondent split the $225 remaining of the deposit between herself and the seller upon the assumption that the buyer had breached the contract. Thereafter a complaint was made to the Real Estate Commission and the investigation and the complaint filed herein followed.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 475.25(1)(c) F.S. provides in pertinent part that the registration of a registrant may be suspended for a period not to exceed two years upon a finding of fact showing that the registrant has:

   
   

   "Failed to account or deliver to any person... any . . . money . . . which has come into his hands and which is not his property, or which he is not in law or equity entitled to retain, under the circumstances . . . "

   
   

10. When the seller modified the offer submitted by the buyer to delete the small appliances, pots, pans, etc. this rendered the original offer null and

    void. The counter offer made by the seller was never accepted in writing by the buyer. Although the buyer undoubtedly indicated to Respondent that he would accept the counter offer made by the seller, he never, in fact, did so. Section

    725.01 F.S. provides in pertinent part:

    
    

    "No action shall be brought...upon any contract for the sale of lands...unless the agreement or promise upon which said action shall be brought ...shall be in writing and signed by the party to be charged therewith..."

    
    

11. The oral acceptance of the counter offer by the buyer understandably led the Respondent to continue with procedures required to consummate the transaction. The attorney was instructed to send copies of the modified contract to the parties for execution. Exhibit 3 is the copy accepted by the seller, but no acceptance of the changes by the buyer was ever shown.

    
    

12. Respondent's assumption, that because the buyer was a businessman well versed in the acquisition of real estate he should know that he could not lead the seller along assuming the buyer would accept the counter offer, was certainly erroneous. By virtue of his experience the buyer undoubtedly was well aware that he was a party to no contract that was binding upon him and that he could withdraw therefrom with impunity at any time.

    
    

13. This is the classic case of a registrant being morally correct in determining that the buyer had taken unfair advantage of both the seller and the registrant, but legally impotent to do anything about it.

    
    

14. From the foregoing it is concluded that no valid contract ever existed between the buyer and the seller of the real property here involved. Therefore when the buyer demanded return of his down payment he was entitled to have this money returned to him. By failing to deliver the money deposited in escrow to the person legally entitled to this money Respondent violated Section 475.25(1)(c) and (i) as alleged.

    
    

15. As noted above Respondent was "taken" by someone more knowledgeable of the law pertaining to real estate transactions than was she. It is therefore,

Recommended that Iola A. Mann be issued a letter of admonition.

DONE and ENTERED this 23rd day of May, 1977, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1977.

COPIES FURNISHED:

Manuel E. Oliver, Esquire Staff Attorney

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Iola A. Mann

112 Essex Street

Altamonte Springs, Florida 32701

Docket for Case No: 77-000015

Orders for Case No: 77-000015