Opinion
No. 627
Decided June 8, 1966.
Real estate brokers — Suspension of license — Section 4735.18 (S), Revised Code, construed — "Written outstanding contract granting exclusive agency" — Statute violated, when — Negotiating sale, knowing of prior listing agreement.
1. A provision in a real estate listing agreement that the owner will pay a commission on a sale made within a specified time after the listing has expired, to anyone with whom the owner knows the realtor has negotiated during the listing, is, during such specified time, an integral part of "a written outstanding contract granting exclusive agency" within the purview of Section 4735.18 (S), Revised Code.
2. A licensed real estate broker or salesman violates Section 4735.18 (S), Revised Code, when, knowing of a prior listing agreement with another realtor and of negotiations thereunder on behalf of the owner and a certain prospect, he negotiates a sale of such real property directly with the owner and such prospect, within the specified time during which, by the terms of the prior listing agreement, the owner is obligated to pay a commission to the original broker.
APPEAL: Court of Appeals for Clark County.
Mr. William B. Saxbe, attorney general, and Mr. James D. Newcomer, for appellee.
Messrs. Worman, Simpson Falknor, for appellant.
This is an appeal from a judgment of the Court of Common Pleas affirming an order of the Ohio Real Estate Commission suspending appellant-broker's license for a period of ninety days.
The order was based upon a finding of the commission, following notice and hearing:
"That the licensee is guilty of a violation of Subparagraph S, Section 4735.18, Revised Code [having negotiated the sale, exchange, or lease of any real property directly with an owner or lessor knowing that such owner or lessor had a written outstanding contract granting exclusive agency in connection with such property to another real estate broker], by having negotiated the sale, on land contract, of the Gladys Martin property on Bellefontaine Road, New Carlisle, Ohio, to McDonald directly with Martin's Attorney-in-Fact while knowing that the Martin property was the subject of a written outstanding contract which granted exclusive agency to the John J. Kaiser Realty organization, which organization was a real estate broker."
There is no dispute as to the essential facts. Appellant, Harold R. Thomas, was employed by John J. Kaiser Realty as a real estate salesman, and in that capacity secured on August 1, 1962, a listing agreement from Gladys E. Martin, owner of certain real estate, such agreement to continue for the period of three months ending November 1, 1962.
On August 2, 1962, appellant obtained from the W. A. Ewing Company a written offer from Harold McDonald to purchase Gladys E. Martin's premises, the offer being contingent upon McDonald's ability to secure certain financing. On November 19, 1962, the financing was refused.
On or about September 26, 1962, appellant, Harold R. Thomas, obtained his license as a real estate broker.
On December 6, 1962, appellant secured an offer from Harold McDonald to purchase Mrs. Martin's property and, on the same date, secured an acceptance of the offer by Mrs. Martin through her daughter and agent, and the sale was consummated on January 19, 1963.
The crux of the case is to be found in the following language contained in the listing agreement of August 1 between Gladys E. Martin, owner, and John J. Kaiser Realty (for which appellant then acted as agent):
"It is further agreed that you [the realtor] shall be entitled to your commission if the property * * * is sold within ninety days after the period of this agency to anyone with whom you have negotiated with respect to a sale during the period of this agency and of whom I have notice or knowledge."
During such ninety-day period this provision remained in effect and was an important integral part of a "written outstanding contract granting exclusive agency in connection with such property."
Hence, the order appealed from is supported by reliable, probative and substantial evidence and is in accordance with law. Section 119.12, Revised Code. The Court of Common Pleas properly affirmed the order.
The judgment of the Court of Common Pleas will be, and hereby is, affirmed.
Judgment affirmed.
SHERER, P. J., and KERNS, J., concur.