The Issue Whether recording a claim of lien by a registered real estate broker for the purpose of collecting a commission pursuant to an exclusive listing contract violated the provision of Section 475.42(1)(j)?
Findings Of Fact Robert F. Tully is a registered real estate broker holding Certificate #0090289 issued by the Florida Real Estate Commission. Robert F. Tully, on April 24, 1975, entered into a 30 day exclusive listing contract with James and Joyce Deede to find a purchaser for their residence located at 4150 Rector Road, Cocoa Beach, Florida. This contract was to continue in effect after the end of the 30 day period but could then be terminated on 10 day written notice. The Deedes were unable to produce any evidence of having given 10 day written notice and the Respondent and his agents denied having received written notice of cancellation of the contract. On August 21, 1975, Mr. DeVaughn Bird, a registered real estate broker, personally contacted the Deedes to inquire about selling their house for them. At that time the property had a Tully "FOR SALE" located on it, but Bird did not contact Tully or his associate sales personnel. The Deedes advised Bird that the exclusive sales contract with Tully was no longer valid and gave Bird an open listing. On August 23 and 24, 1975, Bird showed the subject property to Richard and Diane McClure at which time the Tully sign was still located on the property. A contract for sale and purchase was negotiated by Bird between the Deedes and McClures, and a closing date set. Because of difficulties, the closing was delayed and a new contract executed on October 15, 1975 for a November 7, 1975 closing. Following the execution of the initial contract, Bird put his own "SOLD" on the property. Tully became aware of the sale by Bird, and contacted Bird advising him of the existence of his exclusive listing contract, and his expectation to participate in the commission. Bird informed Tully that he would not share a commission and that Tully would have to look to the Deedes for any commission due him. The Deedes refused to acknowledge Tully's claim for any commission or share thereof. At this point, Tully sought the advice of his attorney. Tully's attorney advised him that Tully's contract was in full force and on the basis of the attorney's opinion law applicable to the situation, Tully was entitled to file an equitable lien against the property. Tully, based on his attorney's advice, authorized his attorney to negotiate a settlement if possible; and, if that failed, to file an equitable lien on the property. Negotiations were unsuccessful and on October 30, 1975, just prior to closing, Tully's attorney filed a claim of lien for real estate commission in the amount of $3,314.50 with the Clerk of the Circuit Court of Brevard County, Florida, and this was recorded in OR Book 1570 at Page 349 of the official records of that county. Copies of, the claim of lien were also served on the closing agent for the sale of the property. The Deedes, as a result of the claim of lien, directed the closing agent to pay Tully one half the amount claimed, or $1,175.00, when Bird agreed to drop his commission from 7 percent to 5 percent of the selling price of $47,000. Having received payment of $1,175.00, Tully had the claim of lien immediately satisfied, which satisfaction may be found in OR Book 1572 at Page 115 of the Public Records of Brevard County.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer would recommend that the Florida Real Estate Commission direct Robert F. Tully to repay the $1,175.00 to the Deedes within 30 days, said period to be extended if the Deedes cannot be located, or face immediate suspension for 30 days; further, said repayment shall not act as a bar to any action by Robert F. Tully against the Deedes based on his contract with them. DONE and ORDERED this 10th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Edward L. Stahley, Esquire Goshorn, Stahley & Miller Post Office Box 1446 Cocoa, Florida 32922 Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
Findings Of Fact Respondent Sheldon Greene & Associates, Inc., is a corporate real estate broker having been issued license number 0133685. The Respondent Sheldon Greene is the licensed real estate broker of record for Sheldon Greene & Associates, Inc., and holds license number 0033812. Henry Berman, a registered real estate salesman was employed as an associate by the Respondents between July 10, 1980 and July 2, 1982. Shortly after commencing his employment, Berman entered into a written agreement with the Respondents which set forth the division of real estate commissions earned by Berman and the firm on future sales. The agreement covered three distinct categories and included: When Berman listed and sold property entirely by his efforts, the commission split would be 60 percent to Berman and 40 percent to the firm; When Berman either had the listing or the buyer and the firm had the other, the commission split would be 50 percent to Berman and 50 percent to the firm; When Berman listed and sold property and the firm was involved in the sale through participation in negotiations, preparation of the submittal and the like, the commission split would be 50 percent to Berman and 50 percent to the firm. During the period of Berman's employment by the Respondents, a Memorandum was circulated among all of the salespersons of Associates covering the division of commissions earned by Associates in situations in which more than one salesperson employed by Associates was involved in a single transaction. Berman was furnished a copy of this Memorandum and was aware of its contents. While in the employ of Respondents, Berman obtained a verbal open listing from Seymour Deutsch to sell the Metropole Hotel at 635 Collins Avenue, Miami Beach, Florida. Thereafter, on or about November 4, 1980, Berman procured a written sales contract for the purchase of the Metropole Hotel by Andres Herrada upon terms and conditions satisfactory to Deutsch. The sales contract between Deutsch and Herrada failed to provide, however, for the amount of the commission payable to Associates as compensation for its services as the broker in the transaction. Following unsuccessful negotiations between Greene and Deutsch, Associates commenced suit against Deutsch in the Circuit Court of Dade County, Florida, Case No. 81-5133, claiming a commission in the amount of $40,000 based upon the verbal agreement of Berman and Deutsch, which action resulted in the entry of a Final Judgment in favor of Associates and against Deutsch in the amount of $40,000 plus interest. As a result of a post-judgment settlement entered into under threat of an appeal by Deutsch, Associates agreed to accept the sum of $25,000 in cash and the sum of $17,455.28 plus interest at the rate of 14 percent per annum in 35 monthly installments of $596.59 each, commencing on July 15, 1982 and ending on May 15, 1985. Prior to instituting suit against Deutsch, Associates, through its President, Greene, entered into a verbal agreement for the purpose of rearranging the terms of the letter agreement dated July 14, 1980, for the purpose of imposing upon Associates the obligation of bearing all legal fees and litigation expenses in the event the outcome of the suit against Deutsch were unsuccessful. In consideration thereof, Berman agreed that in the event of a successful outcome (i.e., a judgment in the amount of $40,000), Associates would be entitled to retain 75 percent and Berman only 25 percent of the net commission after deducting legal fees and litigation expenses. During the pendency of the litigation involving Deutsch, on or about October 16, 1981, Berman obtained a written exclusive listing from Herrada authorizing Associates to sell the Metropole Hotel once again. Pursuant to this listing, Berman procured a written contract on behalf of Donald Mitchell to purchase the Metropole Hotel subject, however, to certain contingencies, primarily, the sale by Mitchell of another property as part of a multi-party, multi-property, tax-free exchange. Thereafter, Berman failed to participate further in performing the duties normally incumbent upon a real estate salesman between the date of contract and date of closing. During this period, it became necessary for Bernard Bastacky, another salesman employed by Associates, to perform those duties normally incumbent upon Berman in such transaction, which services proved to be instrumental in bringing the transaction to a successful conclusion. In addition, Greene, personally performed services in the preparation of the listing brochure and with respect to subsequent negotiations between the parties which led to substantial modifications in the terms of the original sales contract procured by Berman. On or about April 30, 1982, the sale from Herrada to Mitchell was closed. On or about May 15, 1982, Associates received its share of the commission from the Herrada/Mitchell sale in the approximate amount of $27,000. Thereafter, Greene asked Berman and Bastacky to meet, personally, for the purpose of reaching an amicable arrangement as to the division of the salesman's share of the commission. When Berman and Bastacky were unable to resolve their dispute, Greene deposited their share in an interest-bearing account to await a resolution of the dispute between them. Shortly thereafter, the $25,000 portion of the commission earned from the Deutsch/Herrada transaction became available as a result of the entry of the Final Judgment and post-judgment Stipulation between Associates and Deutsch, and Associates began to receive the monthly installments of the deferred portion of the commission. These sums were initially deposited to the Associates operating account from which were disbursed legal fees and litigation expenses totaling approximately $12,400. When efforts to resolve Berman's proper share of the Deutsch/Herrada commission failed, Berman instituted suit against Associates in the Circuit Court of Dade County, Case No. 82-15570, claiming 60 percent of the commissions received by Associates on each of the two sales of the Metropole Hotel. In its Answer, Associates alleged that Berman was entitled to 25 percent of the Deutsch/Herrada commission in accordance with the verbal agreement between Greene and Berman, and to 25 percent of the Herrada/Mitchell commission, based upon the involvements of Greene and Bastacky in that transaction. Associates has deposited the disputed portions of each of the commissions in controversy in special interest-bearing accounts pending a resolution of the pending civil action and has listed the amount of Berman's claim as a liability on its books. In reliance upon his attorney's advice and interpretation of the statute under which Respondents have been charged in these proceedings, Respondents did not seek to obtain a disbursement order from the Florida Real Estate Commission as to the funds in dispute between Berman and the Respondents. The civil action instituted by Berman against Associates is still pending and has not yet been scheduled for trial. Berman acknowledges that he instructed his attorney to allow that action to become temporarily inactive while the administrative action was prosecuted in hopes that it would compel Associates to enter into a favorable settlement in his favor. All issues in dispute between Associates and Berman are capable of being finally resolved in the pending civil action.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Florida Real Estate Commission dismissing the Administrative Complaint filed against the Respondents. DONE and ENTERED this day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH 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 26th day of March, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Donald M. Klein, Esquire KLINE MOORE & KLEIN, P.A. 407 Lincoln Road Miami Beach, Florida 33139 Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The parties' pre-hearing stipulation filed on July 18, 1986, establishes the following: Respondent Charles A. Alario Sr. is now and was at all times material hereto a licensed real estate broker in Florida having been issue license number 0229080. Respondent Real Estate Services Unlimited, Inc. is now and was at all times material hereto a cor- poration licensed as a real estate broker in Florida having been issued license number 0209707. Respondent Real Estate Services Unlimited, Inc.'s broker license is currently "in limbo". At all times material hereto, Respondent Alario was officer of and qualifying broker for Respondent Real Estate Services, Inc. [sic] That a judgement was entered on December 14, 1984. That the judgement has not been satisfied. That the Respondents failed to maintain $37,000.00 of the money or any part thereof in their real estate brokerage trust account without the prior knowledge or consent of Rider, Opitz and Seale Realty, Inc. [This sub-paragraph reflects the parties' amendment on the record at hearing. T-24,2.5] Phyllis Bell was a real estate salesperson at Rider and Opitz, Inc. [previously called Rider, Opitz and Seale] from January 1979 through August 1980. (T-19). In early 1980, Ms. Bell had some dealings with Charles Alario and made some arrangements for a meeting regarding the listing of Palm Island, a property located in Charlotte County. (T-32-34) Charles Alario and Real Estate Services Unlimited represented a group of persons interested in purchasing this property. (T 31,32) On June 19, 1980, an agreement for sale and purchase of Palm Island was entered between Palm Island Partners, Ltd., seller, and Buck Creek Development Corporation, buyer. (Respondent's exhibit #8) Respondents did not have a co-buyer agreement with Rider and Opitz nor with Ms. Bell. (T-20,40,41) Charles Alario offered Phyllis Bell a referral fee to be paid to her broker of record. (T-41, Respondents' exhibit #6) This offer was refused and Rider, Opitz and Seale Realty demanded half the Palm Island sales commission: $145,100.00. (T-18,20,21, Respondent's exhibits #1 and #9) Rider, Opitz and Seale filed a civil action for the commission in 1982. Defendants were Real Estate Services Unlimited, Inc., Charles A. Alario and Knight Island Associates, Limited. (T-17, Petitioner's exhibits #4 and 5) A judgement was entered on December 14, 1984, dismissing Charles A. Alario and confirming the jury verdict of $37,000.00 against Real Estate Services, Unlimited, Inc. (Petitioner's exhibit #6) Real Estate Services Unlimited, Inc. has lawsuits for commissions against Buck Creek Development Corporation, whom it represented in sales other than the Palm Island parcel, and against Knight Island Associates, to whom the Palm Island contract for sale and purchase was assigned. (T-52-54)
Recommendation It is recommended that the Complaint against the Respondent be dismissed. ENTERED this 9th day of June, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Staff Attorney, Florida Real Estate Commission 17 Ponce de Leon Boulevard Coral Gables, Florida 33134 Lawrence Scherr 2222 Southwest 22nd Terrace Miami, Florida 33145 C. B. Stafford, Executive Director Florida Real Estate Commission 699 Lee Road Winter Park, Florida 32789
Findings Of Fact Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following pertinent facts are found: Respondent Charles Shane was formerly employed by IREC, Inc. (International Real Estate Consultants). His assigned duties were administrative in nature and included the performance of research and field work pertaining to appraisals. It was not one of his assigned duties to procure appraisals and his salary was not contingent upon the appraisals performed by IREC, Inc. By application dated January 22, 1973, respondent Shane applied to the Florida Real Estate Commission for registration as a real estate salesman. By certificate number 0117007, Shane was registered as a real estate salesman effective December 20, 1973. He is presently registered as a non-active salesman. By letter dated January 9, 1973, on IREC stationary, respondent Shane, signing as Vice President, wrote a letter to John R. Vereen stating that, upon acceptance by Vereen, IREC would conduct a market value appraisal of certain property for a compensation of $2,500.00. This letter bears the handwritten notation "cancelled with no liability 3/5/73." On March 5, 1973, respondent Shane, again signing as Vice President of IREC on IREC stationary, wrote a letter to Mr. Vereen stating "I will conduct a market value appraisal. . ." of the same property as that described in the January 9th letter for a compensation of $2,500.00. The checks in payment of this amount were made payable to respondent Shane individually and not to IREC, Inc. As indicated by Exhibits 6,7,10,11,12 and 13, appraisal reports were submitted to various entities on dates ranging from December 29, 1971, through March 20, 1973. The cover letters are each signed by respondent Shane as Vice- President and by one other person as "M.A.I. Consultant." These reports contain several pages concerning the qualifications of the appraiser. Respondent Shane's qualifications are included. Mr. Edward Waronker, who co-signed five of the six reports listed above, did not write or prepare the reports. It was Waronker's duty as an independent appraiser for IREC to inspect the property and review the appraisal reports prepared. A letter on IREC stationary dated July 23, 1974, from respondent Shane makes reference to a June 19, 1973, appraisal report. In such letter, Mr. Shane states "I have reviewed the referenced appraisal, which was conducted under my direction as of June 19, 1973." As noted above, respondent Shane did not appear at the hearing and therefore no evidence was offered in his behalf. A "petition for mitigation" was filed with the Real Estate Commission stating that respondent did not sign the appraisal reports with any intention of holding himself out as an appraiser or salesman. In summary, said petition states that respondent Shane signed these documents as the person of the corporation and not as a real estate appraiser or broker and that, had he been fully informed of the Florida real estate law, "he would not have continued in the manner that he did." Respondent Richard W. King has been registered with the Florida Real Estate Commission since 1957 and, prior to the instant complaint, has never been cited for a violation of the statutes, rules or regulations governing brokers or salesmen. Respondent King was employed with IREC, Inc. in June of 1973. According to the testimony, the registration of IREC and King was not approved by the Real Estate Commission until October of 1973. From the time that respondent King went to work with IREC, he had effective control and supervision of all appraisals performed by IREC. To King's knowledge, respondent Shane was never involved in the decision-making process surrounding appraisal work, and did not sign appraisal reports after June of 1973.
Recommendation Based upon the findings of fact and conclusions of law recite above, it is recommended that: the registration of respondent Charles Shane be suspended for a period of three (3) months; and the charges relating to respondent Richard King be dismissed. Respectfully submitted and entered this 10th day of September, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION THOMAS M. MURRAY, Petitioner, vs. PROGRESS DOCKET NO. 2709 DADE COUNTY CHARLES SHANE, IREC, INC., CASE NO. 76-844 and RICHARD W. KING, Respondents. /
Findings Of Fact At all times relevant to this proceeding, the Respondent, Jack Folk, has held an active real estate brokers license. From February 9, 1978, till December 14, 1978, Mrs. Evelyn Wilhelm, the Complainant, worked for the Respondent as a real estate broker. Pursuant to an employment agreement signed by Mrs. Wilhelm and the Respondent, she was to receive 80 percent commission on sales subject to exceptions for sales made by the Bo-Jac Realty Office or Bo-Jac Realty Listings. Out of the 80 percent, Mrs. Wilhelm was expected to pay all of her expenses. Due to continuing disagreements between the Complainant and Mr. Folk, Mrs. Wilhelm listed her license with another broker on December 14, 1978, without informing the Respondent of such action within 30 days prior to such termination as required by their employment agreement. The broker that she listed her license with was not a member of the Multiple Listing Service and Mrs. Wilhelm continued to use the Respondent's Multiple Listing Service after she had severed their professional relationship. Between December 18, 1978 and January 11, 1979, the Complainant continued to take referral calls from Respondent's office. When the Respondent learned from Mr. Wilhelm, the complainant's husband, on January 11, 1979, that the Complainant was registered with another broker, he immediately notified the Florida Real Estate Commission of such dual registration. At the time Mrs. Wilhelm left the Bo-Jac office, there were five pending or completed real estate closings in which she was involved and was owed money by the Respondent. One of these was designated as "Hart-Esposito" by the parties and is referred to as "Hart" in the Administrative Complaint. The Respondent was reluctant to pay the commissions to the Complainant because of legal advice he had received from his attorney concerning Section 475.42(1)(d), Florida Statutes and a possible breach of the employment agreement. This information was forwarded to the Complainant on January 25, 1979, via letter from Mr. Robert Saylor, attorney fro the Respondent. Upon the advice of counsel, Mr. folk deposited the disputed commissions in an escrow account and through his attorney notified the parties of this occurrence. The Complainant retained counsel who filed suit on the commissions on March 2, 1979. The Respondent counter-claimed and presented affirmative defenses outlining his position concerning the alleged breach of the employment contract and the dispute over the percentage of commissions due. Counsel for both parties entered into settlement negotiations which led to a voluntary dismissal by the Complainant on January 15, 1980 of the pending civil action. Although the civil action was filed by the Complainant, the Respondent also contemplated filing suit over the commissions. The Complainant simply filed her action before the Respondent's counsel file his.
Recommendation Therefore, it is RECOMMENDED: That the complaint filed against the Respondent, is DISMISSED. DONE and ORDERED this 26th day of November, 1980, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1980. COPIES FURNISHED: Salvatore A. Carpino, Esquire C. B. Stafford, Executive Director Staff Attorney Florida Real Estate Commission Department of Professional 400 W. Robinson Street Regulation Post Office Box 1900 2009 Apalachee Parkway Orlando, Florida 32801 Tallahassee, Florida 32301 Robert L. Saylor, Esquire 618 U.S. Highway One Post Office Box 14667 North Palm Beach, Florida 33408
