NYS Supreme Court : Broker not entitled to recover

New York State Association of REALTORS®
LEGALLINES
A risk management tool
for
New York’s REALTORS®
FIRST QUARTER 2014
NYS Supreme Court : Broker not entitled to recover commission
By S. Anthony Gatto, Esq., NYSAR Legal Counsel
was silent as to the specific amount of comWinzone Realty, Inc. (Winzone) began a
mission, Winzone is entitled to a fair and
legal proceeding against Yuan Xiu Lii (Lii)
reasonable fee. And, even if the court were
in the Supreme Court of New York, Queens
to find no enforceable contract,
County for payment of a comWinzone asserts that it is still
mission allegedly earned by
entitled to a fee pursuant to
Winzone for the purchase of a
New York News
unjust enrichment. In support
property by Lii’s wife.
of the allegations, Winzone subWinzone alleges that its licensee, Guo Yu
mitted affidavit of the plaintiff ’s salesperson,
Sun (Sun), had made tremendous efforts to
Sun, along with a copy of the original listing
search for the subject premises. Sun took Lii
agreement and pictures of the subject premto the premises to meet the previous owners
ises. It also submitted a copy of the recording
and inspect the premises, and negotiated with
and endorsement page indicating that the
the previous owners about the contract price.
defendant’s wife owns the subject premises.
Winzone further alleges that although Sun
The court set forth the conditions under
himself did not procure the premises, the fact
which a broker may recover a commission.
that Lii’s wife was the purchaser is proof of the
According to the decision: “A real estate
Lii’s attempt to avoid paying a commission.
broker is entitled to recover a commission
Lastly, Winzone asserts that despite the fact
upon establishing that he or she (1) is duly
that the broker’s commission agreement
licensed, (2) had a contract, express or
implied, with the party to be charged with
paying the commission, and (3) was the
procuring cause of the sale.” Furthermore,
“a broker will be deemed to have earned a
commission [only when] it produces a buyer
who is ready, willing, and able to purchase
upon the seller’s terms.”
Winzone relied upon the terms of its customer application that was allegedly signed
by Lii for the property in question. Lii claims
the customer application was blank when he
signed it and did not list any specific address
for the property. The court quickly determined that even if the customer application
contained the address of the property, it could
not be considered a commission agreement.
The court then discussed Winzone’s claim
that it was entitled to a commission under
See Commission, page 2
NYC broker hit with $20,000 fine for violating Human Rights Law
By S. Anthony Gatto, Esq., NYSAR Legal Counsel
The New York City Commission on Human
Rights (commission) commenced an action
against Michael Jenkins (Jenkins) pursuant
to the New York City Human Rights Law. A
hearing was held before the New York City
Office of Administrative Trials and Hearings. The commission alleged that Jenkins,
while acting as a licensed real estate broker,
engaged in unlawful discrimination by advertising an apartment for rent on Craigslist
that used discriminatory language as well
as refusing to rent to an individual based
on marital status and whether children will
reside with that person.
According to the decision, on or about
March 30, 2011, Jenkins placed an advertisement on Craigslist for the rental of an
apartment in Canarsie, Brooklyn for $1,100/
month. The advertisement stated the apartment was a one-bedroom for rent on “E 85
St.” The advertisement specifically required
the following: “. . .WE MUST HAVE A
WORKING COUPLE WITH 2 INCOMES”
and “A FAMILY SIZE OF 2 PEOPLE ONLY
!!! !!!!!”
On or about the same day, a tester from the
commission posing as an interested tenant
called the number provided in the advertisement and spoke with Jenkins. During
the conversation, Jenkins identified himself
as a real estate broker and inquired as to
the marital status of the tester. The tester
informed Jenkins that she was married.
Jenkins called the tester back later that day
and informed the tester that the landlord
was “very excited” about the tester, and
scheduled an appointment for her to view
the apartment. Sometime around April 4,
2011, Jenkins left three text messages and
four voice mails on the tester’s cell phone to
confirm the appointment.
On or about March 31, 2011, a second tester
from the commission called the number provided in the advertisement inquiring about
the apartment and spoke with Jenkins. The
second tester told Jenkins that he wanted to
move into the apartment with his “pregnant
partner.” The second tester provided personal information such as his and his girlSee Human Rights Law, page 2
PAGE 2
Human Rights Law continued from page 1
friend’s occupations, and stated that their
combined income was between $65,000 and
$70,000. Jenkins told the tester that “the
owners preferred only two adults and that
he was unsure about whether the owners
would accept a couple who were expecting
a child,” and that he had paged the owner
“to see whether the owner would allow a
couple who was expecting a child to rent
out the apartment.” In any event, the second
tester left a contact telephone number with
Jenkins. Jenkins did not contact the second
tester again. When the second tester had
not heard from Jenkins by April 7, 2011, he
called and was told by Jenkins that the owners had rented out the apartment on April 4.
partner were unmarried. Even though he
did not overtly refuse to rent to the second
tester, an inference may be drawn from the
testimony and documentary evidence that
Jenkins demonstrated his preference for a
married couple, because he scheduled an
appointment to show the apartment to the
first tester, whom he thought to be married. In fact, according to the first tester,
Jenkins “seemed quite excited” when the
first tester indicated that she was married,
earned $60,000 annually, and did not have
children. On the other hand, Jenkins expressed no such excitement with the second
tester, promised to contact him, but did not,
and failed to schedule an appointment for
According to the Human Rights Law [NYC
Admin. Code § 8-107(5)], it is an unlawful
discriminatory practice for any real estate
broker, real estate salesperson or employee
or agent: “To refuse to sell, rent or lease any
housing accommodation . . . because of the
actual or perceived . . . marital status, . . . or
because children are, may be or would be
residing with such person or persons . . . .
Commission continued from page 1
To declare, print or circulate or cause to be
declared, printed or circulated any statement, advertisement or publication . . .
which expresses, directly or indirectly, any
limitation, specification or discrimination
as to . . . marital status, . . . or to whether
children are, may be or would be residing
with a person…”
The Administrative Law Judge (ALJ) found
that Jenkins violated the Human Rights Law
by posting an ad on Craigslist that implicitly precluded children from residing with
prospective tenants, by expressly requiring
a working couple and limiting the family
size to two people only. Likewise, Jenkins
statement to the second tester that the owners preferred to rent to two adults and that
he was unsure whether a couple expecting
a child would be eligible also violated the
Human Rights Law.
It was also found that Jenkins violated the
Human Rights Law by implicitly refusing to
consider the second tester because he and his
the theory of quantum meruit. In its examination, the court set forth the elements
of a quantum meruit claim: “(1) the performance of the services in good faith, (2) the
acceptance of the services by the person to
whom they are rendered, (3) an expectation of compensation therefore, and (4) the
reasonable value of the services.” The court
found that it was undisputed that the property was off the market at least nine months
prior to the defendant’s wife purchasing it.
The court also found that Lii never purchased the premises, and despite Winzone’s
accusations of fraud, no evidence has been
submitted beyond Sun’s self-serving and
conclusory affidavit containing same. The
court found that Winzone did not procure
a ready, willing and able to purchase buyer
for the premises, nor did Winzone play any
role in the purchase, nine months after the
original listing had expired. The court also
found that there was no proof sufficient to
show that there was a connection between
Winzone and Lii’s wife needed to support a
claim of quantum meruit.
Lastly, Winzone claims that the language
of the customer application entitles it to
the commission. The language Winzone is
relying on is as follows: “In consideration of
receiving the following confidential information from Winzone Realty Inc. I agree
the second tester to view the apartment, as
Jenkins had done almost immediately with
the first tester.
The commission stated that a cumulative
penalty of $20,000 would be appropriate.
It should be noted that the Human Rights
Law permits a penalty of up to $125,000.
There were no prior discrimination complaints against Jenkins, but the commission
justified the $20,000 amount by considering
the fact that Jenkins refused to participate
in the proceeding. The ALJ agreed with
the $20,000 penalty in addition to Jenkins
attending an anti-discrimination course
covering national, state and local laws.
that in the event I desire to purchase or rent
any of the above properties, that I will not
make any offer without first notifying the
broker. If I fail to do so, I will be personally
liable for the commission to the broker.”
The court found that even if the customer
application were valid, it only applied to Lii
and not his wife as his wife was not a signatory to the document.
As such, the court found that Winzone was
not entitled to a commission for the purchase of the property by Lii’s wife and the
matter was dismissed.
NYSAR offers
a variety
of
legal resources
at NYSAR.com.
PAGE 3
Connecticut court overturns association arbitration decision
A Connecticut federal court has considered a challenge to an arbitration
award made by a REALTOR® association.
Sotheby’s International Realty (listing
broker) served as a listing broker for a
property located in Greenwich, Connecticut. The listing broker placed the
property into the Greenwich Multiple
Listing Service (MLS), offering a cooperative commission to other participants
who produced a buyer for the property.
the dispute. The trial court found that
Article 17 of NAR’s Code of Ethics required the arbitration of the dispute and so
stayed the lawsuit pending the arbitration. The association’s arbitration panel awarded
half of the commission to Relocation. The
listing broker requested a procedural review
of the decision, but the association’s board of
directors adopted the decision of the arbitration panel. The listing broker withdrew its
state court action and filed a lawsuit in federal court challenging the arbitration conducted by the association. Both parties filed
motions seeking judgment in their favor.
this statute. The court ruled that Relocation
was attempting to collect a commission
pursuant to the listing broker’s agreement
with the seller. Therefore, Relocation’s commission claim from the listing broker would
need to comply with the seven requirements in the state statute for commissions. The court found that Relocation had failed
to meet the requirements of the statute, as
Relocation did not have a representation
agreement with the buyer at the time of
the transaction because its representation
Meanwhile, real estate firm The Relocation
agreement had expired two months before
Group (Relocation) entered into a repreclosing. Because the court found that Resentation agreement with Amy Kauffman
location had not complied with the com(buyer) on October 19, 2010. The agreement
The United States District Court for the
mission statute, the court ruled that Relocaexpired on June 30, 2011. tion could not collect
a commission under
On August 19, 2011, the
state law. Based on
The
United
States
District
Court
for
the
District
of
buyer entered into a new
assertions made by the
representation agreement Connecticut ruled that the association’s arbitration panel’s listing broker’s counsel
with the listing broker. A
award to Relocation constituted a “manifest disregard for that he had mentioned
week later, the buyer enthe commission statute
tered into an agreement the law” and so the court vacated the award. during the arbitration,
to purchase the Greenthe court determined
wich property, directing
that the association’s
the entire commission to
arbitration panel
the listing broker. Prior to closing, RelocaDistrict of Connecticut ruled that the ashad been aware of the commission stattion filed a broker’s lien on the property,
sociation’s arbitration panel’s award to Reute and so its award constituted a manclaiming that it was entitled to its portion
location constituted a “manifest disregard
ifest disregard for the law. Thus, the
of the commission for producing a buyer
for the law” and so the court vacated the
court vacated the award to Relocation.
for the property. The listing broker also
award. When courts review challenges to
filed a broker’s lien claiming the entire
arbitration proceedings, the proceedings are
Sotheby’s Int’l Realty, Inc. v. Relocation Grp.,
commission, and the commission from
entitled to judicial deference and the review
LLC, No. CIV.A. 12-01322-WGY, 2013 WL
the buyer’s representative side of the sale
is usually limited to the grounds enumerated
6704876 (D. Conn. Dec. 9, 2013). [This is
was placed into escrow at the closing, as
by statute. However, courts within the Seca citation to a Westlaw document. Westlaw
required by the state’s broker lien law.
ond Circuit also recognize a non-statutory
is a subscription, online legal research serground for review if the arbitrator’s decision
vice. If an official reporter citation should
Thereafter, the listing broker filed a lawsuit
constitutes a manifest disregard for the law.
become available for this case, the citation
seeking a judicial determination over who
will be updated to reflect this information].
was entitled to receive the cooperative comThe court looked at the state statute allowmission from the sale of the property. Two
ing licensees to collect commissions. The
Editor’s Note: Upon the recommendation
months after the listing broker filed the
statute contains seven specific requirements
of NAR’s Legal Action Committee, NAR
lawsuit, Relocation filed a motion seeking
for those seeking to collect a commission
provided financial support to Relocation in
to compel arbitration and stay the lawsuit,
including that there be a written agreeits attempt to uphold the arbitration award
arguing that both parties’ membership in
ment allowing the individual to collect the
by the association’s panel. Relocation is apthe Greenwich Association of REALTORS®
commission. Since Relocation was seeking
pealing the trial court decision. Reprinted
with permission from The Letter of the Law,
(association) and the National Association
a portion of the commission, the court de©National Association of REALTORS®.
of REALTORS® required them to arbitrate
termined that it would need to comply with
PAGE 4
NYSAR Legal Hotline call report
January - December 2013
HOTLINE ISSUES
COMMISSION
LICENSE LAW
11%
12%
CONTRACT
7%
2%
DISCLOSURE
2%
AGENCY
17%
2%
2%
FAIR HOUSING
DOS
4%
REFERRALS
2%
8%
ARBITRATION
CODE OF ETHICS
11%
20%
BOARD/ASSOCIATION
MLS
OTHER HOTLINE ISSUE
ISSUES2013
2012
COMMISSION
49640212%
LICENSE LAW
71533617%
FAIR HOUSING 98512%
CONTRACT
82248520%
DISCLOSURE
45743811%
AGENCY
3394068%
DOS175
177
4%
REFERRALS 66822%
ARBITRATION 62871%
CODE OF ETHICS
95
72
2%
BOARD/ASSOCIATION 77972%
MLS308
499
7%
OTHER HOTLINE ISSUE
433 227 10%
TOTAL ISSUES…………… 4143 3359
Average length of call9 minutes
Average calls per day 16
The NYSAR Legal Hotline is available to members
by calling 518-436-9727 Monday through Friday from 9 a.m. to 3 p.m.
PAGE 5
Tennessee broker accountable for affiliate negligence
In Crumpton v. Grissom, a Tennessee apThe trial court entered summary judgment in
pellate court found that a managing broker
favor of the managing broker, holding that she
(managing broker) could be held accountable
had no knowledge of the substance or details
for the misrepresentations and negligence
of the transaction, and that “neither Tennessee
of an affiliate broker (affiliate
statutes nor Tennessee case law
broker), even though the mansuggests that managing brokers’
National
Case
aging broker was not personduty to supervise their affiliates
ally involved in the transaction.
can create liability on the part of
the managing broker where the
After closing on a mixed-use property,
managing broker has no direct involvement
plaintiff Reid Crumpton (buyer) discovered
with or knowledge of the transaction.”
that a five-year, non-compete clause in an adThe buyer appealed the trial court’s ruling,
dendum to the real estate sales contract had
and the appellate court reversed and assessed
been excluded from some signed copies of the
the costs of the appeal against the managing
contract. The non-compete clause affected
broker. In its opinion, the appellate court
the buyer’s ability to conduct his business
stated that under the Tennessee Real Estate
on the premises. The buyer sued the affiliate
Broker License Act, it is the unambiguous
broker and managing broker, alleging that the
duty of a managing broker to ensure that her
affiliate broker had made misrepresentations
subordinate licensees “conduct their busiand been otherwise negligent in regard to the
ness in accordance with appropriate laws,
sales contract, and that the managing broker
rules, and regulations.” In this case, held the
had breached her duty to supervise the affiliappellate court, the managing broker had
ate broker in the transaction. clearly owed such a duty to the buyer, and
had failed to produce any evidence that she
had satisfied this duty. In short, stated the appellate court, the trial
court’s erroneous ruling would, if put into
practice, allow managing brokers to avoid
their statutory duties “by simply and purposefully remaining ignorant of the substance and
details” of a subordinate licensee’s transactions. Crumpton v. Grissom, No. E2013-00218COA-R3-CV, 2013 WL 6835154 (Tenn. Ct.
App. Dec. 23, 2013). [This is a citation to a
Westlaw document. Westlaw is a subscription,
online legal research service. If an official
reporter citation should become available for
this case, the citation will be updated to reflect
this information].
Editor’s Note: Reprinted with permission
from The Letter of the Law, ©National
Association of REALTORS®.
A review: Accommodations for service animals in housing
Federal law, through the federal Fair Housing Act (FHA) and the Rehabilitation Act
of 1973 (applies to housing that received
federal funding assistance), may require
accommodations by housing providers for
service animals that provide assistance to individuals with a disability. This will include
housing that may have a “no pets” policy or
similar restrictions on the types of animals
that residents may have in their housing
units. An accommodation request under
the FHA isn’t limited to a particular type
of service animal, and so could require accommodations for such animals as snakes or
birds. A reasonable accommodation request
can be made to a landlord for rental property
or to a condominium or co-op board.
A reasonable request for accommodation to
a housing provider for a service animal must
meet the following criteria:
• The person making the request must have
a disability, which is a physical or mental
impairment that substantially limits one or
more major life activities.
• The person has a disability-related need for
the assistance animal.
Both elements must be present before a
housing provider has to consider providing
an accommodation for the service animal. Looking at the first requirement, the housing provider cannot deny the request simply
because he/she cannot readily determine
that the requestor has a disability. The housing provider can ask for documentation
from a reliable source if the disability is not
apparent. Even if the disability is apparent,
the housing provider could inquire about
the need for a particular service animal if
the connection between the disability and
the need for the identified service animal is
not apparent. Examples provided by the U.S.
Department of Housing and Urban Development (HUD) of what could constitute proper
documentation of a disability includes a letter
from a physician, social worker, psychologist,
or “other mental health professional.”
While housing providers can request further documentation to support an accom-
modation request if the disability is not
immediately apparent, the FHA does not
permit the questioning of individuals with
apparent disabilities. For example, a person
with severe vision impairment could not be
asked to demonstrate the need for a guide
dog. In addition, the housing provider cannot demand to see the applicant’s medical
records, or demand specific details about the
applicant’s condition. An accommodation
request can be denied if an applicant has
failed to adequately support the request or
has failed to respond to appropriate requests
for information from the housing provider.
Assuming the individual has met the criteria
in their request for an accommodation, the
housing provider will need to provide an
exception to its “no pet” policy or similar
rules in the dwelling and all common areas,
unless the housing provider can show that
the service animal presents a particular risk
of harm to others or the property of others, or otherwise creates an undue burden. When the housing provider is considering
See Service animals, page 6
PAGE 6
Federal appellate court disregards HUD policy statement
In Carter v. Welles-Bowen, a federal appellate court affirmed the district court’s
opinion that a HUD policy statement was
not entitled to consideration in determining
whether the defendant real estate companies
(companies) had violated the Real Estate
Settlement Procedures Act (RESPA).
The defendant companies in this case were
a real estate brokerage (brokerage) and two
title companies (title companies). Both title
companies were affiliated with the brokerage
through mutual ownership. The plaintiff
homebuyers (homebuyers) engaged the
brokerage when purchasing their homes in
2005, and the brokerage referred the homebuyers to the title companies to complete the
associated title work.
The homebuyers objected to this referral
as a violation of RESPA, which generally
prohibits settlement companies from paying referral fees to brokers and punishes
violators with up to a year in prison and
monetary damages. However, RESPA sets
forth a notable “safe harbor” exception
to this law. Referral fees between affiliated businesses are permissible when the
following three factors are met: (1) the
person making the referral discloses the
arrangement to the client; (2) the client remains free to reject the referral; and (3) the
person making the referral does not receive
any “thing of value” from the arrangement
other than a return on the ownership interest or franchise arrangement.
The homebuyers conceded that companies met all three factors of the RESPA
safe harbor exception. Nonetheless, they
sued the companies based on a 1996 HUD
policy statement that purported to set forth
a fourth factor to the RESPA exemption: That the entity receiving the referral “must
be a … bona fide provider of settlement
services.” The HUD statement listed 10
factors to consider when separating “bona
fide” providers from “shams,” including
whether the provider had “its own employees” and “sufficient initial capital and
net worth,” and whether the affiliated businesses shared offices.
In affirming the lower court’s grant of sumcitation should become available for this
mary judgment in favor of the companies,
case, the citation will be updated to reflect
the appellate court roundly rejected apthis information].
plication of HUD’s “fourth
Editor’s Note: The National Asfactor” test, holding that the
sociation of REALTORS® particiNational Case
policy statement amounted to
pated in an Amici Curiae brief in
“non-binding advice about the
support of defendant Companies
agency’s enforcement agenda.” in this appeal. The full text of the brief can be
“A statutory safe harbor,” concluded the
found at: http://www.a-e-a.org/userfiles/file/
court, “is not very safe if a federal agency
Carter_v_Welles-Bowen.pdf
may add a new requirement to it through a
policy statement.”
Second Editor’s Note: For additional reading on the courts’ rejection of HUD policies
Carter v. Welles-Bowen Realty, Inc. No.
interpreting RESPA, see Freeman v. Quicken
10-3922, 2013 WL 6183851 (6th Cir. Nov.
Loans. Reprinted with permission from The
27, 2013). [This is a citation to a Westlaw
Letter of the Law, ©National Association
document. Westlaw is a subscription, online
of REALTORS®.
legal research service. If an official reporter
Service animals continued from page 5
whether to grant the accommodation, he/
she needs to evaluate the particular service
animal in question and not other criteria,
such as a particular breed or size. However,
if the animal in question poses a risk of harm
to others or would otherwise create an undue
financial burden for the housing provider,
the request can be denied. An example of
when an accommodation might be denied
could involve an animal with a history of
attacking people or that poses a health risk
for others. The presumption in the law is
that the housing provider should grant the
accommodation request, and so the housing
will need to be able to demonstrate a legitimate basis for denying a request.
For real estate professionals, the determination on whether to grant an accommodation
request for a service animal needs to be made
by the housing provider and not the real estate
professional. While the real estate professional could request documentation from the
applicant in support of the accommodation
request, this information should always be
gathered at the direction of the housing provider. In addition, the real estate professional
should always make it clear to the applicant
that the request is being made to the housing
provider, not the real estate professional.
Editor’s Note: Reprinted with permission
from The Letter of the Law, ©National Association of REALTORS®.
Missed the latest
NYSAR Legal Update or
NYSAR Radio show?
Visit the NYSAR.com
Media Center for videos
and podcasts.
PAGE 7
Court finds in favor of posters of negative online review
In Kruger v. Daniel, a Washington appellate
court determined that a defamation lawsuit
brought against the posters of a negative
online review of a real estate broker should
be considered for dismissal under the terms
of a state law designed to protect freedom
of speech.
Jeff Daniel (broker), a Washington real estate broker, served as the listing and selling
broker for a homebuilding company owned
by Jeffrey and Renee Kruger (posters). In
2010, broker and posters terminated their
business relationship after a dispute over the
broker’s representation of other homebuilders. In 2011, posters wrote a scathing review
of broker on Zillow.com (website) stating
that they would never recommend the broker’s services, and calling into question the
broker’s ethics and business practices. The
posting remained viewable on website for
several days, until the broker was alerted to
it by a colleague and successfully petitioned
website to remove the content.
The broker filed suit against posters, alleging defamation, unfair competition,
and intentional interference with business
relationships. In response to the lawsuit,
the posters filed a special motion under
Washington’s “anti-SLAPP” statute, a law
designed to help defendants defeat “Strategic
Lawsuits Against Public Participation” - in
other words, abusive and meritless lawsuits
filed with the intention of drowning defendants in court costs and silencing their
future expression.
In order to successfully defeat a lawsuit by
means of the anti-SLAPP statute, a defendant must show that the lawsuit is based
on communication that (1) took place in a
public forum and (2) involved an issue “of
public concern.” The trial court denied the
posters’ anti-SLAPP motion, stating that
their posting “does not pertain to a matter
of public concern, but appears to be a personal dispute as a result of a failed business
relationship between the parties.”
The appellate court disagreed. In ruling
that the posters’ anti-SLAPP motion should
be remanded to the trial court for further
consideration, the appellate court stated
that “[t]he public has a significant interest in
the conduct of real estate professionals, who
often conduct their business in the capacity
of a fiduciary,” and that the posters’ review
was, therefore, directly connected to an issue
of public concern.
In attempting to overcome the antiSLAPP motion, and presumably because
the broker represented other homebuilders, the broker contended that a statement
made by a business competitor with the
intention of harming a rival should not
be considered a protected “issue of public
| New York State Association of REALTORS® |
Listen. Call. Learn
NYSAR Radio
Get answers to your legal questions.
Visit NYSAR.com for air times and details.
concern.” In making this argument, the
broker looked to California’s anti-SLAPP
statute, which, while similar to Washington’s, had been recently amended to
exclude from its protection a business’s
statements about competitors. While the
appellate court agreed that “the act can
be abused and that shielding unfounded
attacks by competitors can be a prime
vehicle for that abuse,” because Washington’s anti-SLAPP statute did not contain
a carve-out for business competitors, the
broker’s argument was moot.
Upon remand to the trial court, the broker
must show “by clear and convincing evidence” the probability that he will prevail in
his claims against the posters. If he is unable
to do so, the case against the posters will be
dismissed. This article will be updated as
further information regarding the court’s
final ruling becomes available.
Kruger v. Daniel, No. 43155-6-II, 2013 WL
5339143 (Wash. Ct. App. 2013). [This is a
citation to a Westlaw document. Westlaw is
a subscription, online legal research service.
If an official reporter citation should become
available for this case, the citation will be
updated to reflect this information].
Editor’s Note: Reprinted with permission
from The Letter of the Law, ©National Association of REALTORS®.
PAGE 8
DOS publishes
4Q 2013 ALJ decisions
The Department of State, Division of
Licensing Services (DOS) receives complaints about real estate licensees. The
DOS investigates the complaints and if
they are found to have merit, a licensee
may be subject to a hearing before an administrative law judge (ALJ) to determine
whether the licensee violated any law,
rule, regulation or other duty expected of
a licensee.
The following citations refer to DOS decisions before an administrative law judge.
Each decision provides a brief description regarding the subject matter of the
violation(s) being heard before the administrative law judge.
NYSAR is providing this information to
REALTORS® in an effort to better educate
our members as to what constitutes a violation, and how to avoid having a complaint
filed against you. Full copies of the decisions are available in the Legal Resources
section of NYSAR.com via the court and
DOS decisions link.
The following are the fourth quarter 2013
decisions:
• 333 DOS 13
denial of license
•340 DOS 13
censed activity
agency disclosure, unli-
• 342 DOS 13 u n l i c e n s e d a c t i v i t y,
unearned commission, failure to supervise
• 361 DOS 13 failure to cooperate with
DOS, failure to notify DOS of change of
address
• 365 DOS 13
denial of license
• 372 DOS 13
denial of license
• 386 DOS 13 agency disclosure, unauthorized marketing of property, unauthorized extension of listing agreement,
unauthorized contact with witness
FCC revises robocall rules
The Federal Communications Commission
(FCC) has refined its rules for automated
prerecorded telemarketing calls, or robocalls. The new rules took effect on October 13, 2013.
The FCC has the authority to regulate interstate telecommunications via the Telephone
Consumer Protection Act of 1991. The FCC
has revised its robocall rules to now only allow
telemarketing robocalls to consumers after the
caller has first obtained the express, written
consent of the recipient, bringing its rules in line
with the Federal Trade Commission’s rules for
intrastate calls. Formerly, the FCC’s rules had
only required an established business relationship with the recipient for all telemarketing
robocalls made to residential numbers. Under
the new rules, an established business relationship is insufficient for making telemarketing
robocalls to a residential landline. ous disclosure” of the consequences of his/
her agreement to receive these calls. Second,
the agreement must show that the recipient
unambiguously agreed to receive these types
of calls. Finally, the consumer’s consent must
be given voluntarily, not as a condition of
purchasing goods or services. Consent can
be obtained electronically from the consumer.
The impact of this change is that all sellers
and telemarketers must now obtain the
recipient›s signed, written agreement to
receive prerecorded automated telemarketing calls, even when there is an established
business relationship between the parties.
In addition, all prerecorded automated telemarketing calls must provide an automated
or voice-activated opt-out mechanism so
that consumers can opt out from the call.
The requirements are the same for telemarketing text messages or robocalls made to
wireless phone numbers. For all other types
of robocalls or text messages to wireless
numbers, only express consent (not written)
is required.
The FCC’s rules do not prevent companies
from using robocalls for messages that are
informational in nature, such as calls that
reconfirm appointments or reservations.
The proposed rules would also not prevent
prerecorded calls from political organizations or charities to residential numbers.
The written consent requirement has three
parts. First, the agreement must show that
the consumer received “clear and conspicu-
For more information, please visit the FCC
website here: http://www.fcc.gov/guides/
robocalls.
NYSAR Radio
Listen. Call. Learn
April 22
In the case of Acquino v. Ballester heard
before the Civil Court of the City of New
York, Richmond County, the issue of illegal
rentals by real estate licensees is discussed.
Fair Housing Month
The issue began when Mary Beth Acquino
was rented an apartment by the landlord,
Legal Hotline FAQs
Gilbert Ballester.
May 6
In
June
2011,
leased
basement
Editor’s
Note:Acquino
Reprinted
witha permission
How to Lose Your
License
May 20
Utilizing the
Get answers to your legal questions.
April 8
apartment
fromofBallester
be occupied
from The Letter
the Law,to©National
As®
on
July 15,
Acquino
. paid a security
sociation
of 2011.
REALTORS
Commission
Escrow Act
deposit of $1,400, monthly rent of $1,200
and a $1,400 fee to a broker for locating the
property. In June 2012, Acquino learned
All shows start at 10 a.m. Visit NYSAR.com for more information.