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					                                  STATE OF VERMONT
                               REAL ESTATE COMMISSION

INRE:                                        )
        David Yesman                         )              CaseFile No. RECO6-0803
        LicenseNo.82-1721                    )
                                             )
        Loralee Muse                         )              CaseFile No. REC19-0902
        LicenseNo. 81-4101                   )


            ENTRY ORDERON RESPONDENTS'MOTION TO DISMISS

       The Vermont Real EstateCommission   ("the Commission")took oral argumentsand
                                      the
reviewedthe pleadings,thenconsidered Respondents'     motion to dismiss on May 27, 2004
at 81 River Streetin Montpelier, Vermont. Commission members  Tara Dowden, Martin
Nitka, ElizabethMerrill, Jay Hooperand ad hoc memberVirginia Andrews participated in the
                                                    for
decision.ProsecutingAttorney RobertBackusappeared the State. Richard Bowen, Esq.
Appearedfor the Respondents.ChristopherWinters presided.

       For purposes of the motion to dismiss, the parties stipulated to a set of facts for the
cases. Those facts (attached) are incorporated by reference as the facts upon which this
decision is based.

      Basedon the facts as stipulatedby the parties, the Commissionconcludesthat the
conductof the Respondents                                          conductand the
                         doesnot rise to the level of unprofessional
                                 are
Chargesagainstboth Respondents DISMISSED. A summaryof the facts and the
reasoning                        s
         behind the Commis~ion' decisionis asfollows:

        The buyers made an offer on the property in question through their buyer/broker and to
the Respondent, Mr. Yesman. They made the offer in the morning and gave the sellers until
the evening to accept or reject it. That offer vias properly relayed to the Respondent's clients
within the time frame allowed. That offer was rejected and Mr. Yesman relayed that
information to the buyer/broker that very sameday.

        Later that evening, the buyer/broker spoke to her clients who agreed to different tenns
of sale. This was conveyed to the sellers. Still on the same day on question, in the evening,
the RespondentMr. Yesman brought the same purchase and sale agreementto his clients, who
agreed to the new terms of sale. The contract was modified to reflect the new terms and was
signed by the sellers. The changeswere initialed and the sellers marked the contract as having
been "accepted." These modifications had the effect of creating a counter offer which still
needed the buyers' signatures to be a legally binding document.


                                                 1
                                    the
        One of the buyerscontacted sellersthat eveningand was told they had an
agreement.The nextday, the Respondent                   the
                                            contacted buyer/brokerand told her in essence
that they had a deal. Later that day, a better (full price) offer was receivedby the sellers,
which they accepted,  sincethe counteroffer had not yet beensigned.

      The modified contract(counteroffer) was neverdeliveredto the first prospective
                           to
buyersand was later changed show that it had beenrejected.

       The Statepursuedthis casebaseduponthe Respondent's     failure to practice
                                                           standards acceptable
competently. That is, that he failed conformto the essential         of           and
prevailing real estatepracticeand that he demonstrated              to
                                                      incompetency act as a real estate
broker or salesperson..

        Baseduponthe facts as stipulated,it is not clear whetherMr. Yesmanexplainedto his
                                     to                     and              and
clients the effect of making changes the original purchase sale agreement whether
they knew at the time they were creatinga counteroffer. It appearsthey were unaware
because   they were concerned  aboutthe original buyerswhenthey consideredtaking the
second,full-price offer.

        Even so, the Respondent's duty was to act in the best interest of his clients and a full-
price offer was obviously in their best interest. It was not best practices for the Respondentto
lead everyone to believe that the first contract was a "done deal" before all signatures were
obtained and a contract in hand. The Respondentcould also have been clearer with his clients
about the ramifications of creating a counter offer. However, the Commission does not
conclude that these actions rise to the level of incompetence or are a failure to conform to the
essential standards of acceptableand prevailing real estatepractice.

                                                  Mr.
      Accordingly, the Chargesagainstthe Respondent Yesmanare DISMISSED, as are
the companion               the           Ms.
             chargesagainst Respondent Museas his supervisingbroker.


REAL ESTATE COMMISSION


By:
        ~~~~~/j-,
        Chair

Date:      {pI /6/ bl-/


OFFICE OF PROFESSIONALREGULATION

DATE OFENTRY:             ~f/ ,,;l~/Oi

                                                2
                                                      STATE OF VERMONT
                                                     SECRETARY OF STATE
                                             OFFICE OF PROFESSIONAL REGULATION
                                              VERMONT REAL ESTATE COMMISSION

                         IN RE:                        )
                         DAVID YESMAN                  )                    Docket No: RECO6-0803
                         License No. 082-0001721       )

                                                           STIPULATED    FACTS

                         NOW COMES the State of Vermont, through Robert H. Backus, prosecuting
                         attorney, and Respondent, by and through attorney Richard Bowen, and stipulate
                         that for the Commission may find the following facts to be true.

                         1) The Respondent, David Yesman, is a licensed Real Estate Salesperson, holding
                            License # 082-0001721 issued by the State of Vermont, which is currently set to
                            expire on May 31,2006.

                         2) The Respondent's address, as currently recorded in the Office of Professional
                            Regulation database, is Re/Max Black River, Realtors, Six Main St., P.O. Box 8,
                            Springfield, VT 05156, where he is independently employed.

                         3) On or about July 18, 2002, Donald Poole, the Complainant, made a written offer
                            (in the form of a Purchase and Sales Agreement) to the Sellers to buy a certain
                            parcel of property of which the Respondent was the Sellers' agent. The offer
                            was set to expire on July 18, 2002 at 5:00PM. The offer was for $141 ,500.00
                            and required the sellers to leave a number of items of personal property (e.g.
                            appliances, lawn mowers, etc.).

                         !4) In this transaction Donald Poole (the buyer) was represented by Bonnie
                         i    McPadden.

                         15) About mid morning on the 18th Ms McPadden presented the Purchase and Sales
                         I Agreement to Mr. Yesman, either in person on by delivering it to the agency
                             where he worked.

                16) In the early afternoon Mr. Yesman called Ms McPadden and told her that theI
STATEOF VERMONT      sellers had rejected the offer but would accept an offer for $144,000.00.

        .;t              7) Ms McPadden contacted the buyers who countered with an offer of $141 ,500.00
                            that removed several items from the list of personal property they wanted left with
                            the real estate.

                         Is) Approximately    Spm on the 1Sth Mr. Yesman went to the home of the sellers with
 ProsecutingAttorney     I
                         '
       Office of         I the Purchase and Sales Agreement. That document was changed to reflect the
ProfessionalRegulation
 Montpelier, VT 05602
                             last offer from the buyer and the time for acceptance was changed from the 1Sth


                                                                   1
                            at 5pm to the 19th at 5pm and the sellers made several other changes including a
                            contingency giving them thirty days to find housing.

                         9) The sellers signed the Purchase and Sales Agreement as being accepted and
                             initialed the changes.




                         11 )Approximately    9pm on the 18th the buyer's wife contacted   the sellers   by phone
                             who informed    her that they had an agreement.

                         12) The Respondent did not return the Purchase and Sale Contract to the buyer's
                            agent, but on July 19th he did leave a message to the effect that the sellers had
                            signed the Purchase and Sales Agreement.

                         13) Later in the day on July 19th Respondent left a message with buyer's agent that
                            a ~~-~      offer had been received from a third party.
                              ~'\~~
                         14) On or about July 20, 2002, Ms McPadden received a phone message from the
                            Respondent stating that the Sellers had accepted a better offer.

                         15) On July 19 Respondent brought a full price offer to the seller's.     They accepted
                            the offer in writing on July 20th.

                         16) On July 20th the Puchase and Sales Agreement from Mr. Poole changed to
                            show that it was rejected at 11 :22 am.




STATE OF VERMONT




 ProsecutingAttorney
       Office of
ProfessionalRegulation
 Montpelier, VT 05602



                                                                      2
                                                               STATE OF VERMONT
                                                              SECRETARY OF STATE
                                                      OFFICE OF PROFESSIONAL REGULATION
                                                       VERMONT REAL ESTATE COMMISSION

                                  IN RE:                         )
                                  LORALEE C. MUSE                )                       Docket No: REC19-0902
                                  License No. 081-0004101        )

                                                                       STIPULATED FACTS

                                  NOW COMES the State of Vermont, through Robert H. Backus, prosecuting
                                  attorney, and Respondent, by and through attorney Richard Bowen, and stipulate
                                  that for the Commission may find the following facts to be true.
                              I                                             Facts


                                  1)   The Respondent, Loralee C. Muse, is a licensed Real Estate Broker, holding
                                       License #081-0004101 issued by the State of Vermont, which is currently set to
                                       expire on March 31,2006.

                                       The Respondent's address, as currently recorded in the Office of Professional
                                       Regulation database, is Re/Max Black River, Realtors, Six Main St., Springfield,
                                       VT 05156, where she is the principal broker.

                                       All facts as set out in paragraphs 1 through 16 of the stipulation of facts in In Re:
                                       David Yesman, RECO6-0BO3, are incorporated by reference (see attached
                                       copy).

                                                submitted this 2/tay     of May, 2004.

                                            d

                              I ROBERT H: BACKU~                                    RICHARD BOWEN
                                      .Attornf/l                                    Attorney for Respondent




     STATE OF VERMONT




      ProsecutingAttorney
            Office of
     ProfessionalRegulation
      Montpelier, VT 05602


                                                                               1




1/
                                                      STATE OF VERMONT
                                                     SECRETARY OF STATE
                                             OFFICE OF PROFESSIONAL REGULATION
                                              VERMONT REAL ESTATE COMMISSION

                          IN RE:                        )
                          DAVID YESMAN                  )                     Docket No: RECO6-0803
                          License No. 082-0001721       )

                                               AMENDED SPECIFICATION           OF CHARGES

                         NOW COMES the State of Vermont and makes the following Charges against the
                         Respondent, David Yesman:

                                                            Commission Authority

                          1) The Vermont Real Estate Commission ("the Commission") has authority, after
                              finding unprofessional conduct, to issue warnings or reprimands, suspend,
                             revoke, limit, condition or prevent the renewal of licenses whether or not a
                              license has lapsed. 3 V.S.A. §121(2), §122(24), §129(a)(5), §129a(c) and
                             §814(d).

                         2) Demonstrating incompetency to act as a real estate broker or salesperson is
                            unprofessional conduct upon which the Commission can base disciplinary action.
                            26 V.S.A. §2296(a)(3).

                         3) Being found by the Commission to be guilty of fraud or fraudulent practices; or
                            being convicted for violating this chapter; or being convicted of forgery,
                            embezzlement, obtaining money under false pretense, or conspiring to defraud is
                            unprofessional conduct upon which the Commission can base disciplinary action.
                            26 V.S.A. §2296(a)(4).

                         4) In the course of practice, gross failure to use and exercise on a particular
                            occasion or the failure to use and exercise on repeated occasions that degree of
                            care, skill and proficiency which is commonly exercised by the ordinary skillful,
                            careful and prudent professional engaged in similar practice under the same or
                            similar conditions, whether or not actual injury to a client, patient or customer has
                            occurred. 3 V.S.A. §129a(12).
STATEOF VERMONT
                         '5) Failure to practice competently by reason of any cause on a single occasion or
        .t                   on multiple occasions may constitute unprofessional conduct. Failure to practice
                             competently includes failure to conform to the essential standards of acceptable
                             and prevailing practice. 3 V.S.A. §129a(b)(2).

 ProsecutingAttorney
                         6) Failure to comply with the provisions of state statutes or rules governing the
       Office of            practice of the profession is unprofessional conduct upon which the Commission
ProfessionalRegnlation
 Montpelier, VT 05602       can base disciplinary action. 3 V.S.A. §129a(a)(3).


                                                                    1
                                                             Commission      Rules

                         7) A brokerage firm must, until closing, submit all offers to the principal, with or
                            without a deposit, whether oral or written, whether above or below the listed
                            price. Rules of the Real Estate Commission ("RREC"). Rule 4.3(b).

                                                                     Facts

                         8) The Respondent, David Yesman, is a licensed Real Estate Salesperson, holding
                            License # 082-0001721 issued by the State of Vermont, which is currently set to
                            expire on May 31,2004.

                         9) The Respondent's address, as currently recorded in the Office of Professional
                            Regulation database, is Re/Max Black River, Realtors, Six Main St., P.O. Box 8,
                            Springfield, VT 05156.

                         10)On or about July 18, 2002, Donald Poole, the Complainant, made a written offer
                            to the Sellers to buy a certain parcel of property of which the Respondent was
                            the Sellers' agent. The offer was set to expire on July 18, 2002 at 5:00PM. The
                            offer was for $141,500.00 and required the sellers to leave a number of items of
                            personal property (e.g. appliances, lawn mowers, etc.).

                         11 )In this transaction   Donald I:>oole was represented    by Bonnie McPadden.

                         12)About mid morning on the 18th Ms McPadden presented the offer to Mr. Yesman
                            (either in person on by delivering it to the agency where he worked.

                         13)ln the early afternoon Mr. Yesman called Ms McPadden and told her that the
                             sellers had rejected the offer but would accept an offer for $144,000.00.

                         14)Ms McPadden contacted the buyers who countered with an offer of $141 ,500.00
                            that removed several items from the list of personal property they wanted left with
                            the real estate.

                         15) Approximately     8pm on the 18th Mr. Yesman went to the home of the sellers with
                            the initial written purchase offer. That offer was changed to reflect the last offer
                            from the buyer and the time for acceptance was changed from the 18th at 5pm to
STATEOF VERMONT             the 19th at 5pm.
        J.
                         116)The sellers signed the offer as being accepted and initialed the changes.

                         I 17)Respondent checked the offer as having been accepted by sellers.

 ProsecutingAttorney     18)Approximately 9pm on the 18th the buyer's wife contacted the sellers by phone
       Office of
ProfessionalRegulation
                            who informed her that they had an agreement.
 Montpelier, VT 05602



                                                                       2
                            19) The Respondent did not return the Purchase and Sale Contract to the buyer's
                               agent, but he did leave a message to the effect that they had an agreement.

                            20) On or about July 20, 2002, Ms McPadden received a phone message from the
                               Respondent stating that the Sellers had accepted a better offer.

                            21) On July 19 or 20 Respondent brought a full price offer to the seller's.   They
                               accepted the offer.

                            22) About that time the written offer from the original buyer was changed to show
                               that it was rejected.



                                                                   Charges


                               23) Because Respondent is guilty of fraud or fraudulent practices; or being
                                convicted for violating this chapter; or being convicted of forgery, embezzlement,
                                obtaining money under false pretense, or conspiring to defraud, Respondent
                               violated 26 V.S.A. §2296(a)(4).

                               24)    Because Respondent, in the course of practice, grossly failed to use and
                                exercise on a particular occasion... that degree of care, skill and proficiency
                                which is commonly exercised by the ordinary skillful, careful and prudent
                                professional engaged in similar practice under the same or similar conditions,
                                whether or not actual injury to a client, patient or customer has occurred,
                                Respondent violated 3 V.S.A. §129a(12).

                               25) Because Respondent demonstrated incompetency to act as a real estate
                                broker or salesperson, Respondent violated 26 V.S.A. §2296(a)(3).

                               26) Because Respondent failed to practice competently by reason of any
                                cause on a single occasion or on multiple occasions. Failure to practice
                                competently includes failure to conform to the essential standards of acceptable
                                and prevailing practice. 3 V.S.A. §129a(b)(2).

                               27)    Because Respondent failed to comply with the provisions of state statutes
   STATEOF VER~ONT              or rules governing the practice of the profession, Respondent violated 3 V.S.A.
                               §129a(a)(3).

                                                          Discipline   Requested

                                            the Respondent's license should be revoked, suspended,Ireprimanded,
    ProsecutingAttorney                   or otherwise disciplined.
          Office of
   ProfessionalRegulation
    Montpelier, VT 05602



                                                                        3




!WHEREFORE,
                                                                v
                                                            STATE OF


                                                      By:

                                                            State Prosecuting Attorney

                                 rec.yesman.soc




        STATE OF VERMONT




         ProsecutiugAttorney
               Office of
        ProfessionalRegulation
         Montpelier, VT 05602




    ,                                             4




2004.
I
                                                      STATE OF VERMONT
                                                     SECRETARY OF STATE
                                             OFFICE OF PROFESSIONAL REGULATION
                                              VERMONT REAL ESTATE COMMISSION

                         IN RE:                         )
                         LORALEE C. MUSE                )                     Docket No: REC19-0902
                         License No. 081-0004101        )

                                               AMENDED SPECIFICATION           OF CHARGES

                         NOW COMES the State of Vermont and makes the following Charges against the
                         Respondent, Loralee C. Muse:

                                                            Commission Authority

                         1) The Vermont Real Estate Commission ("the Commission") has authority, after
                            finding unprofessional conduct, to issue warnings or reprimands, suspend,
                            revoke, limit, condition or prevent the renewal of licenses whether or not a
                            license has lapsed. 3 V.S.A. §121(2), §122(24), §129(a)(5), §129a(c) and
                            §814(d).

                         2) Demonstrating incompetency to act as a real estate broker or salesperson is
                            unprofessional conduct upon which the Commission can base disciplinary action.
                            26 V.S.A. §2296(a)(3).

                         3) Being found by the Commission to be guilty of fraud or fraudulent practices; or
                            being convicted for violating this chapter; or being convicted of forgery,
                            embezzlement, obtaining money under false pretense, or conspiring to defraud is
                            unprofessional conduct upon which the Commission can base disciplinary action.
                            26 V.S.A. §2296(a)(4).

                         4) In the course of practice, gross failure to use and exercise on a particular
                            occasion or the failure to use and exercise on repeated occasions that degree of
                            care, skill and proficiency which is commonly exercised by the ordinary skillful,
                            careful and prudent professional engaged in similar practice under the same or
                            similar conditions, whether or not actual injury to a client, patient or customer has
                            occurred. 3 V.S.A. §129a(12).
STATE OF VERMONT
                         5) Failure to practice competently by reason of any cause on a single occasion or
                            on multiple occasions may constitute unprofessional conduct. Failure to practice
                            competently includes failure to conform to the essential standards of acceptable
                            and prevailing practice. 3 V.S.A. §129a(b)(2).

 ProsecutingAttorney
                         6) Failure to comply with the provisions of state statutes or rules governing the
       Office of            practice of the profession is unprofessional conduct upon which the Commission
ProfessionalRegulation
 Montpelier, VT 05602       can base disciplinary action. 3 V.S.A. §129a(a)(3).


                                                                    1
                                                           Commission     Rules

                         7) A brokerage firm must, until closing, submit all offers to the principal, with or
                            without a deposit, whether oral or written, whether above or below the listed
                            price. Rules of the Real Estate Commission ("RREC"), Rule4.3(b).

                         8) A principal broker is vicariously responsible for the professional conduct of all
                            licensees employed by or associated with the brokerage firm, including all
                            branches; a branch office broker is vicariously responsible for the professional
                            conduct of all licensees assigned to the branch office. RREC, Rule 4.2(a)

                                                                  Facts

                         9)   The Respondent, Loralee C. Muse, is a licensed Real Estate Broker, holding
                              License #081-0004101 issued by the State of Vermont, which is currently set to
                              expire on March 31,2004.

                         10) The Respondent's address, as currently recorded in the Office of Professional
                             Regulation database, is Re/Max Black River, Realtors, Six Main St., Springfield,
                             VT 05156, where she is the principal broker.

                         11) David Yesman, is a licensed Real Estate Salesperson, holding License # 082-
                            0001721 issued by the State of Vermont, which is currently set to expire on May
                              31,2004.

                         12) David Yesmann is employed by Re/Max Black River, Realtors, Six Main St.,
                            P.O. Box 8, Springfield, VT 05156.

                         13)On or about July 18, 2002, Donald Poole, the Complainant, made a written offer
                            to the Sellers to buy a certain parcel of property of which the Respondent was
                            the Sellers' agent. The offer was set to expire on July 18, 2002 at 5:00PM. The
                            offer was for $141 ,500.00 and required the sellers to leave a number of items of
                            personal property (e.g. appliances, lawn mowers, etc.).

                         14)ln this transaction Donald I:>oolewas represented by Bonnie McPadden.

                         15)About mid morning on the 18th Ms McPadden presented the offer to Mr. Yesman
STATE OF VERMONT            (either in person on by delivering it to the agency where he worked.
        .1
                         16)ln the early afternoon Mr. Yesman called Ms McPadden and told her that the
                             sellers had rejected the offer but would accept an offer for $144,000.00.

                         17)Ms McPadden contacted the buyers who countered with an offer of $141 ,500.00
 ProsecutingAttorney        that removed several items from the list of personal property they wanted left with
       Office of
ProfessionalRegulatiou      the real estate.
 Montpelier, VT 05602



                                                                     2
                         1S) Approximately Spm on the 1SthMr. Yesman went to the home of the sellers with
                            the initial written purchase offer. That offer was changed to reflect the last offer
                            from the buyer and the time for acceptance was changed from the 1Sth at 5pm to
                            the 19th at 5pm.




                         21 )Approximately    9pm on the 18th the buyer's wife contacted   the sellers   by phone
                             who informed    her that they had an agreement.

                         22) Mr. Yesman did not return the Purchase and Sale Contract to the buyer's agent,
                             but he did leave a message to the effect that they had an agreement.

                         23) On or about July 20,2002, Ms McPadden received a phone message from Mr.
                            Yesman stating that the Sellers had accepted a better offer.

                         24) On July 19 or 20 Mr. Yesman brought a full price offer to the seller's.      They
                            accepted the offer.

                         25) About that time the written offer from the original buyer was changed to show
                            that it was rejected.

                                                                 Charges


                         16) Because Respondent, as principal broker, is vicariously responsible for the
                             professional conduct of all licensees employed by or associated with the
                             brokerage firm, including all branches; a branch office broker is vicariously
                             responsible for the professional conduct of all licensees assigned to the branch
                             office, Respondent is liable under RREC, Rule 4.2(a) as set out below.

                         17) Because Respondent is guilty of fraud or fraudulent practices; or being
                             convicted for violating this chapter; or being convicted of forgery, embezzlement,
                             obtaining money under false pretense, or conspiring to defraud, Respondent
                             violated 26 V.S.A. §2296(a)(4).
STATE OF VERMONT
                         18) Because Respondent, in the course of practice, grossly failed to use and
                             exercise on a particular occasion or failed to use and exercise on repeated
                             occasions that degree of care, skill and proficiency which is commonly exercised
                             by the ordinary skillful, careful and prudent professional engaged in similar
                             practice under the same or similar conditions, whether or not actual injury to a
 Prosecuting Attorney        client, patient or customer has occurred, Respondent violated 3 V.S.A.
       Office of
ProfessionalRegulation       §129a(12).
Montpelier, VT 05602



                                                                     3
                         19) Because Respondent demonstrated incompetency to act as a real estate broker
                             or salesperson, Respondent violated 26 V.S.A. §2296(a)(3).

                         20) Because Respondent failed to practice competently by reason of any cause on
                             a single occasion or on multiple occasions. Failure to practice competently
                             includes failure to conform to the essential standards of acceptable and
                             prevailing practice. 3 V.S.A. §129a(b)(2).

                         21) Because Respondent failed to comply with the provisions of state statutes or
                             rules governing the practice of the profession, Respondent violated 3 V.S.A.
                             §129a(a)(3).

                                                     Discipline   Requested

                         WHEREFORE, the Respondent's license should be revoked, suspended,
                         reprimanded, or otherwise disciplined.




                                                                              STAT~OFVERMONT


                                                                                        "~~l
                                                                          State Prosecuting Attorney




STATE OF VERMONT




 Prosecuting Attorney
       Office of
ProfessionalRegulation
 Montpelier, VT 05602



                                                                   4

				
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