STATE OF VERMONT
REAL ESTATE COMMISSION
DouglassSymmes ) CaseFile No. RECO4-0803
FINDINGS OF FACT, CONCLUSIONSOF LAW AND ORDER
The Vermont Real Estate Commission ("the Commission") held a hearing in this qase
on August 26, 2004 at 81 River Street in Montpelier, Vermont. Commission members
Elizabeth Merrill, Stuart Baraw, Jay Hooper, Tara Dowden and ad hoc member Martin Nitka
participated in the decision. Prosecuting Attorney Robert Backus appeared for the State.
Douglass Symmes ("the Respondent") was present and was represented by Attorney J. Scott
Cameron. Christopher Winters was the presiding officer.
At the outset,the partiesstipulated the admission 34 exhibits and to limit the
beforethe Commission thoseexhibitsplus the Respondent's testimony.
Findings of Fact
1. The Respondentis a licensed real estate broker holding license number 81-2764
issued by the State of Vermont. I
At all times relevant,the Respondent the principal real estatebroker fdr
D.R. Symmes Associates, locatedin White River Junction,Vermont.
3.. Respondentwas the listing agent for a certain piece of property located in
Royalton, Vermont consisting of three commercial lots ("the Royalton
property") owned by JamesKachadorian ("the Seller").
The Respondent the Sellerenteredinto a non-exclusive to
marketthe Royaltonproperty, signedby the Respondent May 10, 2002 and
signedby the Selleron May 13, 2002. The term of the listing agreement was
5. On or aboutMay 1, 2003, the Respondentpreparedanotherlisting agreemttnt
because was awarethe currentone was aboutto expire. He sentit to the
Sellerbut it was neverreturnedto him.
6. expiredaccordingto its own terms on May 11, 2003
The listing agreement
7 On or about May 13, 2003, Lang Durfee ("the Buyer") contacted the lf ;~;i;¥;!
Respondentexpressing an interest in the Royalton property. The Respond nt
wrote up an offer in the form of a purchase and sale agreement and sent it 0 the
Seller on or about May 14, 2003.
9. The offer was rejected by the Seller and the Respondentcontinued to be th~ go-
between in attempting to negotiate and otherwise facilitate the sale betwee~ the
Seller and the Buyer, including several communications with the Seller and the
10. The Seller continued to treat the Respondentas his broker fmd~'..no meption
of the expired listing agreement.
The Respondent continuedto pursuethe saleof the Royaltonproperty to thb
Buyeruntil May 31, 2003 whenthe Sellertold hin1to do nothing further ~til
hearing from him.
Respondent's continuing efforts on the Roya1tonprope~ between May 10,1
2003 and May 31, 2003 were regarding this particular Buyer (Lang Durfee~ .
only. Respondenttook no further action in marketing the prope~ to anyo~e
else after May 10, 2003.
The Buyer had expressedan interest in the property some time around Aug}1st
2002 while the listing agreementwas in effect and had contacted the Respo~dent
again in early May 2003.
The Seller eventuallysold the property to the Buyer without using the
services there was a disputeover what commissionwas ~ueto
The Respondentbelieved he could continue to perform brokerage services With
respect to this particular Buyer becausehe had been the procuring cause foi this
buyer prior to the expiration of the listing agreement. I
The Respondent arguesthatthe rules are unclearregardingcontinuinga courseof
prospectiveselleroncea listing agreement
conductwith an established expires. The
Commission unconvinced believesthe rules are clear as setforth below in the
conclusions law section.
asserts thereare certainduties that carry on beyondthe expir,tion
The Respondent that
Many of these arguments are persuasive. The Commission is not insensitive to
difficulties in interpreting its rules or the reality of what is being practiced across the state as
opposed to what is optimal practice. Indeed, it may be the practice of some brokers to
continue Tepresentationwith a certain client after the expiration of a listing agreement wh n
there is a contract in place and the transaction is on its way to closing. This is not accep ble
practice. This is a violation of the intent of the administrative rule requiring a written
agreementwhile performing brokerage services for a client. It is essential to always have
current, valid, written agreement in place to govern the relationship between the parties. t
The fact remains that an administrative rule of the Commission ha1;been violated.
However, given the specific facts of this case, including the Commission':s acknowledgme t of
this particular Respondent's many years of practice as a licensee in this state without a
complaint, the Commission does not believe that discipline is warranted.
Conclusionsof Law "
Pursuant 3 V.S.A. §129and 26 V.S.A. § 2252, the Real EstateCOmmis
may, after due notice and an opportunityfor a hearing,revoke, suspend,discipline or ,lion
conditionthe practiceof a licensee in
who engages unprofessional conductas defmed by 3
V.S.A. § 129a,26 V.S.A. §2296and the Commission's AdministrativeRules.
B. Under 26 V.S.A. §2296(e), after a hearing and upon a finding of unprofess~onal
conduct, the Commission mgy revoke, suspend or issue a warning or reprimand to a licen&ees.
See also 3 VoS.A. §129a(d).
C. The to practicecompetently reason any
did of conductin a single of 3 V.S.A §
129a(b (FailureRespondent commitunprofessional causeonviolationoccasionorton
multiple occasions mayconstituteunprofessionalconduct.Failure to practice competently
standards acceptable prevailing practi e)
includes:...failure to conformto the essential of and
whenhe failed to comply with AdministrativeRule 4.7(a). .
D. Rule 4.7(a) requires that: "Before rendering any brokerage services a brOk ! age
firm must have executed: (1) a written listing or seller service agreement with the seller... '
While the Respondentdid execute a listing agreementinitially, that agreement expired and the
Respondentcontinued to provide brokerage services in violation of this Rule.
E. Rule 4.7(d) goes on to further clarify that listing agreements shall not have I
provisions for automatic extension or renewal and shall not exceed 12 months from the date
F. Rules 4.8(c) and 4.3(b), cited by the Respondentas examples of ongoing
obligations and actions allowed under an expired listing agreement, in no way obviate the I
mandate of Rule 4.7(a) as outlined above or excuse the rendering of brokerage services I
without a valid listing agreement. 4.8(c) (clauses seller service agreements may contain
regarding commissions) applies to the protection of earned commissions for services already
rendered under a valid listing agreementand 4.3(b) (requiring a broker to transmit all offers to
a seller up to closing) can easily coexist with 4.7(a) without contradicting it.
In light of the foregoing findings and conclusions specific to this case, the ChargesI
against the Respondentare proved and unprofessional conduct has been found by the I
Commission in this instance. However, under the circumstances, the Commission desires Ito
use its discretion and determines that disciplinary action in addition to itS fmding of
unprofessional conduct is not warranted in this instance.
Similar conduct in the future will likely result in disciplinary action.
This is a final administrative detennination by the Vermont Real Estate ComInissiOfl.
You may appeal by sending a notice of appeal in writing to the Director of the Office of ;
Professional Regulation within 30 days of the date of entry of this order. If you wish to I
request a stay of the Commission's decision, please refer to the attached stay instructions. i
By: ( :~ C
Susan Matthews,Acting Chair
Date: g j2B f ()~
OFFICE OF PROFESSIONALREGULATION
DATE OF ENTRY:-1-Qt 5,1 °i -
STATE OF VERMONT
SECRETARY OF STATE
OFFICE OF PROFESSIONAL REGUL.ATION
VERMONT REAL ESTATE COMMIS~)ION
IN RE: )
Douglas Symmes ) Docket Nlo: REG 04-0803
License No. 081-0002764
SPECIFICATION OF CHARG~~~
NOW COMES the State of Vermont and makes the following Charges ag~inst the
Respondent, Douglas Symmes:
1. The Vermont Real Estate Commission ("the Commission") has authO
finding unprofessional conduct, to issue warnings or reprimands, suspen ~ ,
itY' revoke, after
limit, condition or prevent the renewal of licenses whether I:>r not a license has
lapsed. 3 V.S.A. §121(2), §122(24), §129(a)(4), §129a(d), §814(d); and 6 V.S.A.
2. Failure to comply with the provisions of state statutes or rules governihg the
practice of the profession is unprofessional conduct upon \ivhich the Comri1ission can
base disciplinary action. 3 V.S.A. §129a(a)(3).
3. Failure to practice competently by reason of any cause on a single ocdasion or on
multiple occasions may constitute unprofessional conduct. Failure to pradtice
competently includes failure to conform to the essential standards of acceptable and
prevailing practice. 3 V.S.A. §129a(b)(2).
4. The Rules of the Real Estate Commission ("RREC") re(~uire a brokerage firm to
have executed a written buyer service agreement before rE~ndering any brpkerage
services. RREC 4.7(a).
STATE OF VERMONT
5. The Respondent is a licensed Real Estate Broker holdil19 License # 081-0002764
issued by the State of Vermont, which is currently set to e)(:pire on March 31,2004.
6. The Respondent's address, as currently recorded in thE~Office of Professional
Regulation database, is Douglas R. Symmes & Associates, 2 Gilman Office Center
#6, White River Junction, Vermont 05001..
ProfessionalRegulation 7. On or about May 10, 2002, the Respondent signed a lisiting agreement with
Montpelier, VT 05602
James Kachadorian to sell property. Mr. Kachadorian signed the agreement on May
13, 2002. The agreement, by its terms, expired at midnight on May 10, 2p03. The
agreement was not renewed.
8. On May 13, 2003 the Respondent communicated with Lang Durfee about
purchasing the subject properties and sent by fax a purchase and sale contract to
Mr. Durfee for purchase by Bethel Mills, Inc.
9. On May 14, 2003 Bethel Mills made a check to D.R. S~/mmes and Associates as
a deposit for the subject property.
10. On May 16, 2003 Respondent sent by fax a Jetter to Mr. Durfee conce~ning
negotiating for the subject property.
11. On May 23,2003 Respondent sent a fax to Mr. Kachaclorian concerni~g an offer
from Lang Durfee. Mr. Kachadorian responded later that clay stating "Keep working
on him. You need to now (sic) how to earn a commission (sic)", Respondent also
sent a fax to Mr. Durfee as part of negotiations for the subject property. !
13. On May 31, 2003 Mr. Kachadoriantold Respondent to stop working o~ marketing
the property. It appears that Respondent did so. '
14. Upon the subsequent sale of the property to Bethel Mills without using
Respondent's services a dispute arose over the commission Respondent claimed
was due him and a complaint was filed in this matter.
15. Because there was no written agreement in effect wherl Respondent was
rendering services, the Respondent failed to comply with f;~REC4.7(a).
16. Because Respondent failed to practice competently on a single or on
occasions by failing to conform to the essential standards of acceptable af d
prevailing practice, Respondent failed to comply with 3 V.S,.A. §129a(b)(2 .
WHEREFORE, the Respondent's license should be revokE~d,suspended,
STATE OF VERMONT
reprimanded, or otherwise disciplined.
ProfessionalRegulation STATE OF v'ERMONT
Montpelier, VT 05602
STATE OF VERMONT
Montpelier, VT 05602