KEEPING CURRENT PROPERTY CASES BROKERS: Broker is not procuring cause of sale to person who viewed property during term of listing agreement but negotiated to buy from seller after expiration of agreement. Seller and Broker entered into an exclusive one-year listing agreement for the sale of a large tract of land for an asking price of $435,000 and a fixed commission of $25,000. The agreement had a one-year “tail” that compelled Seller to pay the commission if within oneyear of the agreement’s expiration, Seller sold the property and Broker was the procuring cause. Broker listed the property on several websites, including “Farm & Forest” and showed it to several potential buyers, receiving only one offer below the asking price, which Seller rejected. After the first listing expired, the parties entered into two more one-year listing agreements with the same provisions, including a one-year tail. After the third listing agreement expired, a prospective purchaser who had seen the property earlier with Broker’s assistance expressed a renewed interest in the property. Broker requested that Seller sign an additional listing, but Seller refused. Months later, the same purchaser contacted Seller directly about the property, and they entered into a purchase and sale agreement at the original asking price. Broker sued Seller and the purchaser, alleging breach of contract, quantum meruit, and negligent misrepresentation. The trial court dismissed the claim against the purchaser and rejected the claims against Seller on the grounds that the terms Keeping Current—Property Editor: Prof. Shelby D. Green, Elisabeth Haub School of Law at Pace University, White Plains, NY 10603, sgreen@law.pace.edu. Contributor: Prof. Darryl C. Wilson.
Keeping Current—Property offers a look at selected recent cases, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.
of the contract were not satisfied and that quantum meruit is not available when there is an enforceable contract. The supreme court affirmed. First, the court noted that the plain language of the contract requires a commission only if the sale is effected within 12 months of the expiration of the agreement and Broker is “the procuring cause of the sale.” This means Broker must procure a purchaser ready, willing, and able to purchase at the price and terms prescribed by Seller. Here, although Broker placed the original advertisement in Farm & Forest, which first drew the purchaser to the property and showed the property, despite several later exchanges, Broker was unable to deliver an offer during the listing term or tail. Indeed, for a while, the eventual purchaser was actively engaged with another broker and looking at other properties. The successful negotiations between Seller and the purchaser occurred after Seller had disengaged from Broker. Masiello Real Estate, Inc. v. Matteo, 2021 VT. LEXIS 105 (VT. Oct. 15, 2021). CONSTRUCTION CONTRACTS: Owner does not have cause of action against unlicensed subcontractor who does not sign construction contract. The Pommers engaged Childs to build a garage on the Pommers’ property. Childs developed designs and invoiced the Pommers, who paid him directly. Childs also provided the
Pommers with estimates for project costs and time of completion. When the Pommers met Childs to sign the construction contract, Childs explained that he did not have a contractor’s license and introduced the Pommers to Granger, who was a licensed general contractor. The Pommers signed documents with Granger Construction Company listed as the contractor and paid Granger Construction the initial draw for the project. Construction commenced with both Granger and Childs working on the garage, and with both presenting invoices to the Pommers, which the Pommers paid with checks to Granger Construction. The Pommers questioned the extensive delays, the quality of the work, and why no other workers assisted Childs and Granger. Childs and Granger ultimately requested money beyond the estimate, the total of which the Pommers had already paid, and indicated they would not work any further without receiving additional payments. The Pommers hired others to complete the garage which, because of the substandard work of Childs and Granger, faced potential demolition. The Pommers filed suit, alleging breaches of express and implied warranties, fraudulent misrepresentation, and the tort of outrage. The trial court entered judgment for the Pommers against both Childs and Granger Construction, and both parties appealed. The supreme court affirmed the judgment against Granger Construction but reversed the judgment against Childs. The court reviewed the contract between Granger Construction and the Pommers, finding it undisputed that Childs was not a signatory, was not named in the document, and was not an owner or member of Granger Construction. Although the contract referenced contractor/subcontractor relations, it did not provide for any duties owed from a subcontractor
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