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Law and Real Estate

March 01, 1987|DOUGLAS RING and BUSTER SUSSMAN | Ring is a partner in the law firm of Howard, Ring & Chizever. Sussman is a free-lance writer

Buyers and sellers aren't the only players holding cards in a real estate deal.

Don't forget the broker.

One seller dealt what his broker complained was a fast shuffle. and the resulting suit demonstrates the value of playing by the rules.

The case was Schmidt vs. Berry (86 Daily Journal D.A.R. 2770). The seller, Berry, signed an exclusive listing agreement with his broker, Schmidt.

The listing included the specific conditions under which Berry was prepared to sell his 72-unit apartment building in Madera.

A buyer submitted an offer. Berry responded with a counteroffer containing provisions not included in the original listing. The buyer replied with his own counteroffer, agreeing to buy the property on the "exact terms" of the listing agreement.

Berry refused to sell on those terms.

Schmidt, the broker, then sued Berry demanding his commission.

The broker won. The judge said the broker had earned his commission when a buyer appeared who was "ready, willing and able" to buy the apartment for the terms set out in the original listing agreement.

How could Berry have protected himself?

He should have decided on all the terms he wanted before listing his property. Because once he'd listed, he was committed to paying a commission whether or not he agreed to the sale.

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