35 A.3d 100
Vt.2011Background
- Hinsdales owned 56-acre Charlotte property with a residence and berry fields, marketed as The Charlotte Berry Farm.
- In 2007 Lang entered into an Exclusive Right to Market Property Agreement, listing price $1,250,000 with a 6% commission on the sale price.
- Purchase agreement in November 2007 set total price at $900,000, with $725,000 to real estate, $100,000 for the Berry Farm business, and $75,000 for equipment.
- Lang mistakenly calculated commission as 5% of $900,000 at closing and sought an additional $9,000 after discovery.
- Hinsdales argued the listing covered real estate only, not the business or equipment; Lang argued the contract covered the entire transaction.
- Trial court granted summary judgment to Lang; on appeal the court limited Lang’s recovery due to Real Estate Commission Rule 4.8(2) and reversed parts of the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lang may recover commission on the business and equipment. | Lang: sale included real, business, and equipment under the listing. | Hinsdales: listing covered real estate only; business/equipment not described. | Lang cannot recover for business/equipment portion. |
| Whether Lang violated Vermont Real Estate Commission Rules | Lang argues rules apply to real estate; broader interpretation acceptable. | Hinsdales: lack of clear description violates Rule 4.8(2); should bar recovery. | Lang violated Rule 4.8(2); this bars collection of commission on omitted property. |
| What remedy follows from Rule violation | Lang seeks full or partial recovery despite rule violation. | If violation taints contract, recovery may be barred; otherwise limited. | Denied Lang’s commission on omitted property; remand for attorney’s fees decision. |
| Status of consumer fraud claims under CFA | Lang asserts CFA violations through misrepresentations about commission and mediation. | Hinsdales contend no material misrepresentation or damages. | CFA claims are without merit. |
Key Cases Cited
- MacDonald v. Roderick, 158 Vt. 1 (Vt. 1992) (rules bar recovery when listing rule violation taints agreement)
- Fish v. Green Mountain Realty, Inc., 133 Vt. 296 (Vt. 1975) (rules to protect fair dealing; writing requirement enforceable)
- Gall v. 158 Vt. 112, 158 Vt. 112 (Vt. 1992) (requirement of writing to memorialize terms; predicated recovery)
- Currier v. Letourneau, 135 Vt. 196 (Vt. 1977) (duly executed listing agreement is sole vehicle for commission recovery)
- Jipac v. Silas, 174 Vt. 57 (Vt. 2002) ( Restatement factors for unenforceability when public policy implicated)
- My Sister’s Place v. City of Burlington, 139 Vt. 602 (Vt. 1981) (Restatement-based analysis on illegality and enforcement)