Judges: WILLIAM B. THOMAS
Agency: Department of Business and Professional Regulation
Latest Update: Mar. 12, 1982
Summary: Insertion of 110% commision clause into Real Estate contract after execution of the contract was fraud and licenses of Real Estate brokers responsible are revoked.
81-1468.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )
)
Petitioner, )
)
vs. ) CASE NO. 81-1468
) SHIRLEY L. KUNDSEN, ROBERT S. ) KINGSLAND, and KINGSLAND-HENRY ) and ASSOCIATES, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on December 15, 1981, in Orlando, Florida. The transcript was filed on January 25, 1982. Proposed findings of fact and conclusions of law were timely filed within the period allowed, as extended, and these have been considered. Where not adopted, they were found to be contrary to the weight of the credible evidence. The parties waived the time requirement for issuance of a Recommended Order as set forth in Section 28-5.402, Florida Administrative Code.
APPEARANCES
For Petitioner: James S. Quincey, Esquire
Post Office Box 1090 Gainesville, Florida 32602
For Respondents: A. Wayne Rich, Esquire Robert S. Post Office Box 1911 Kingsland and Orlando, Florida 32802 Kingsland-Henry
and Associates, Shirley L. Kundsen, in pro per Inc. Post Office Box 1888
Kissimmee, Florida 32741
By Administrative Complaint, the Petitioner seeks to revoke or suspend the real estate licenses of all three Respondents, or otherwise discipline them, for alleged violation of Section
475.25(1)(b), Florida Statutes. In addition, the Respondents, Robert S. Kingsland and Kingsland-Henry and Associates, Inc., are charged with violation of Section 475.42(1)(j), Florida Statutes. These statutes, respectively, permit discipline of a real estate licensee who is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction; and prohibit brokers or salesman from causing to be placed on the public records of a county any affidavit or other writing which purports to affect the title of any real property, under certain circumstances.
The Petitioner presented seven witnesses in support of the Administrative Complaint, together with seven exhibits which were received in evidence. The Respondents, Shirley L. Kundsen and Robert S. Kingsland, testified in their own behalf and presented two other witnesses, and identified four exhibits which were not received in evidence.
FINDINGS OF FACT
Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts:
The Respondent, Shirley L. Kundsen, is a real estate broker, having been issued License No. 0048550.
The Respondent, Robert S. Kingsland, is a real estate broker, having been issued License No. 0047741.
The Respondent, Kingsland-Henry and Associates, Inc., is a corporate real estate broker having been issued License No. 0047745.
In 1972, Charles Pullen and Beverly Pullen owned Lots 84, 85, 86, 87 and 88, Kissimmee Heights Subdivision, in Osceola County, Florida.
In 1972, Charles Pullen's sister, Myrtle Saulsbury, and her husband, Frank, owned lots 89, 90, 91, 133 and 134 in Kissimmee Heights Subdivision, Osceola County, Florida.
Myrtle Saulsbury died on January 27, 1975, and Mr. Frank Saulsbury subsequently remarried to Mary E. Saulsbury.
In 1972, the Respondent, Shirley L. Kundsen, then a salesperson for Kingsland-Henry and Associates, Inc., presented a contract to Mr. and Mrs. Pullen for the purchase of their five lots for a price of $12,500.00
At approximately the same time, the Respondent, Shirley
L. Kundsen, presented a contract to the Pullens offering to purchase the lots owned by the Saulsburys. This contract was delivered to the Saulsburys by Mr. Pullen.
Upon initially being presented the contract for purchase of their lots, the Pullens contend that they refused to accept the offer and asked that the purchase price be raised to
$17,500.00, with no real estate commission payable by the seller. They contend that they offered any excess over that price to Shirley L. Kundsen and Kingsland-Henry and Associates, Inc., in lieu of a real estate commission.
Shirley L. Kundsen subsequently crossed out the price of $12,500.00, and replaced it with the figure $17,500.00. With this change the contract was initialed by Mr. and Mrs. Pullen. The Saulsbury contract was drafted to indicate a purchase price of $17,500.00 as well.
Mr. and Mrs. Pullen subsequently signed the contract, and contend that upon Shirley L. Kundsen's request, they placed the date "way over on the right hand side of the line", thereby leaving room for the later insertion of a commission percentage in the space to the left.
The Saulsburys also subsequently signed their contract.
At the time these contracts were executed by the Pullens and by the Saulsburys, they contend that there was no reference to any commission payable to Kingsland-Henry and Associates, Inc. The contracts with Mr. and Mrs. Pullen and with Mr. and Mrs. Saulsbury have been received in evidence as Petitioner's Exhibits 1 and 3.
The language now appearing in these contracts requiring the payment of a 10 percent commission to Kingsland-Henry and Associates, Inc., was inserted after the signatures of the Sellers was placed on the contracts. This fact was established by evidence presented by a handwriting expert.
The Pullens and the Saulsburys first learned of the addition of the real estate commission at the time of closing, and after learning of this addition they refused to close on the contracts.
The Pullens and the Saulsburys never agreed to pay for any survey work performed for or by the prospective purchaser of the properties, and paragraph D on page 2 of the contracts obligated the buyer to bear this expense.
When attempting to sell their property years later, in 1978, the Saulsburys, and subsequently the Pullens, learned that their property had been encumbered by recorded Affidavits prepared at the direction of Respondent, Robert S. Kingsland.
Both Mr. and Mrs. Saulsbury's broker, and their title insurance agent, dealt directly and solely with the Respondents, Robert S. Kingsland and Kingsland-Henry and Associates, Inc., in attempting to obtain the release of the lots encumbered by these Affidavits.
The Affidavits had been recorded in order to preclude sale of the lots in question to another purchaser without payment to Robert S. Kingsland for expenses incurred in having the subject properties surveyed.
Robert S. Kingsland refused to release the lots encumbered by the Affidavits until he had been reimbursed for the expense of the surveys. The Saulsburys paid $1,100.00, or
$220.00 per lot for their five lots, to Robert S. Kingsland. Thereupon, the property of the Saulsburys was released by Quit- Claim Deed.
The Saulsburys have requested a refund of the $1,100.00 paid to Robert S. Kingsland and Kingsland-Henry and Associates, Inc., but this request has been refused.
The Affidavit encumbering the property owned by the Pullens has never been released, although requests have been made by the Pullens, and the property remains encumbered to this time.
CONCLUSIONS OF LAW
Section 475.25(1)(b), Florida Statutes, authorizes the Board of Real Estate to suspend or revoke a real estate license, or impose an administrative fine not exceeding $1,000 for each separate offense, if it finds that a licensee has been guilty of "fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction. . .". The Administrative Complaint charges the Respondents with violating this statute by altering the contracts with the Pullens and the Saulsburys by inserting a provision for a 10 percent commission after the Sellers had executed the contracts, without their consent.
The combined evidence presented by the Petitioner, including the expert handwriting witness, establishes that the typewritten language requiring the payment of a commission of 10
percent to Kingsland-Henry and Associates, Inc., was inserted in the contract after its execution by the Pullens and the Saulsburys. This alteration constitutes a fraud, and is in violation of 475.25(1)(b), Florida Statutes. Each of the Respondents participated in the alteration of the contracts, either actively or passively.
Section 475.42(1)(j), Florida Statutes, prohibits a broker or salesman from placing, or causing to be placed, upon the public records of any county, "any. . .affidavit, or other writing which purports to affect the title of. . .any real property if the same is. . .not authorized to be placed of record,. . .or the execution or recording whereof has not been authorized by the owner of the property, to coerce the payment of money to the broker or salesman. . .".
The evidence is uncontradicted that Affidavits were placed on the public records of Osceola County under the direction of Robert S. Kingsland and Kingsland-Henry and Associates, Inc., encumbering and placing a cloud on the title of the property owned by the Pullens and Saulsburys; and that these Affidavits were placed on record because the Saulsburys and the Pullens refused to close the sale of their properties when they learned that unauthorized commission language had been inserted in their contracts. Moreover, Robert S. Kingsland and Kingsland- Henry and Associates, Inc., refused to release the lots from the encumbrance of the Affidavits until payment had been made by the Saulsburys and the Pullens for survey expenses incurred by Robert
S. Kingsland and Kingsland-Henry and Associates, Inc., although no survey work was authorized by either the Saulsburys or the Pullens, and the contract required the expenses of a survey to be borne by the buyer. The placing of the Affidavits on record constitutes a violation of 475.42(1)(j), Florida Statutes. However, this violation is found to have been committed only by Robert S. Kingsland and Kingsland-Henry and Associates, Inc., and not by Shirley L. Kundsen.
None of the other charges set forth in the Administrative Complaint have been substantiated by sufficient credible evidence to enable either a finding of fact or conclusion of law to be made thereon.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Respondent, Shirley L. Kundsen, be found guilty of violating 475.25(1)(b), Florida Statutes; and that her license be suspended for six months. And it is further
RECOMMENDED that the Respondents, Robert S. Kingsland and Kingsland-Henry and Associates, Inc., found guilty of Violation of 475.25(1)(b) and 475.25(1)(j), Florida Statutes; and that their licenses be revoked, and that an administrative fine of
$1,000.00 be imposed upon these Respondents.
THIS RECOMMENDED ORDER entered on this 12th day of March, 1982, in Tallahassee, Florida.
WILLIAM B. THOMAS
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 12th day of March, 1982.
COPIES FURNISHED:
James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602
A. Wayne Rich, Esquire Post Office Box 1911 Orlando, Florida 32802
Shirley L. Kundsen Post Office Box 1888
Kissimmee, Florida 32741
Docket for Case No: 81-001468
Orders for Case No: 81-001468
| Issue Date |
Document |
Summary |
|
Mar. 12, 1982 |
Recommended Order
|
Insertion of 110% commision clause into Real Estate contract after execution of the contract was fraud and licenses of Real Estate brokers responsible are revoked.
|
