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9/27/2017 » 9/29/2017
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Real Estate Seller Waived Commission Denial

Tuesday, May 23, 2017   (0 Comments)
Posted by: Tom Jensen
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Land seller and agent signed listing agreement. An addendum listed the potential buyers that would entitle agent to the commission. An offer to purchase was signed by the seller and one Westers; the offer allowed Westers to assign the contract to a limited liability company. Prior to closing Westers assigned the contract to the LLC, identifying it. Closing statement indicated the commission to be paid by the listing agent. Seller never objected to paying the commission prior to closing. After closing seller demanded return of the commission on grounds the buyer LLC was not listed on the addendum. In Bushman Farms Inc. v. Dairyland Real Estate LLC, 373 Wis. 2d 765 (Wis. App. 2017) the court affirmed the circuit court's decision in favor of the agent. Evidence showed conclusively that seller waived its right to return of the commission. It was undisputed that seller knew all facts pertaining to the transaction prior to closing, and it paid the commission. It therefore could not fall back on the addendum limitation of commission entitlement to deny it. Seller's "counterintuitive argument" that fiduciary and good faith and fair dealing duty violations justified commission denial, having been unbriefed, were not considered by the court.      

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