Lang Real Estate Vermont - Download as PDF

Document Sample
Lang Real Estate Vermont - Download as PDF Powered By Docstoc
					                                       STATE OF VERMONT
                                    REAL ESTATE COMMISSION

     INRE:                                       )
             DouglassSymmes                      )              CaseFile No. RECO4-0803
             LicenseNo.81-3410                   )



             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.

                                              to            of
           At the outset,the partiesstipulated the admission 34 exhibits and to limit the
     evidence                       to
             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").

             4.                     and
                     The Respondent the Sellerenteredinto a non-exclusive                     to
                                                                              listing agreeme~t
                     marketthe Royaltonproperty, signedby the Respondent May 10, 2002 and
                     signedby the Selleron May 13, 2002. The term of the listing agreement was
                     one year.

             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~'     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
                   Respondent's          and
                                services there was a disputeover what commissionwas ~ueto
                   the Respondent.

                   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
                  is            and
      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                      "

       A.               to
              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
     )(2)                           by
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
services begin.

        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

 REA ,

By:   (                                      :~ C
               Susan Matthews,Acting Chair

 Date:              g j2B f ()~

 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:

                                                                                                                                                                  Commission                                                     Authority

                             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.

                         §2252(b                                )(3).

                         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).

                                                                                                                                                                                       The Rules

                         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).

                         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..
       Office of
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 .

                                                       Discipline   Requested

                           WHEREFORE, the Respondent's license should be revokE~d,suspended,
                           reprimanded, or otherwise disciplined.

                           Datedat Montpelier,
                                                  thiS~-<                                       .
         Office of
  ProfessionalRegulation                                                  STATE OF v'ERMONT
   Montpelier, VT 05602



       Office of
 Montpelier, VT 05602


Description: Lang Real Estate Vermont document sample