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Property II
University of Dayton School of Law
Reilly, Tracy

Property II Outline
Professor Reilly

1. REAL ESTATE AGENTS/BROKER
a. Multiple Listing Service (MLS): a listing of properties only available to members of the MLS.
b. Three Types of Listing Agreements
i. Open Listing Agreement
a. Commission is received by the broker if they can prove their actions actually caused the selling of the property
b. buyer retains the right to sell the property himself as well as the right to use another broker to sell the property
ii. Exchange Agency Listing Agreement
a. Authorizes only one broker to sell the property but allows the property owner to sell the property themselves without incurring an obligation to pay broker commission
iii. Exclusive Right to Sell Listing Agreement
a. Sale of the property during the contract period, no matter who negotiates or sells, obligates property owner to pay commission to the listing broker
c. Drake v. Hosley (MAJORITY RULE)
i. Facts: Seller and broker get into exclusive listing agreement. Alaska law = broker entitled to commission if produces ready and willing buyer.
ii. Ct. Holding (Majority Position)
a. Broker is entitled to commission when he produces a buyer ready and willing and able to purchase the property on the seller’s terms, even if sale isn’t completed
b. Dobbs Court (Minority Position)
a. Broker is not entitled to commission unless the contract of sale if completely performed. Must prove 3 things.
i. Found a buyer ready and able to but the property on the seller’s terms based on the listing contract
ii. The buyer entered into a earnest purchase agreement (k)
iii. The contract was actually closed
b. Exception: Broker is entitled to commission if the owner displays improper or frustrating conduce that prevents the title from passing
d. Duty to Disclose Material Facts
i. Easton Case
a. Broker has to disclose to buyer potential problems, even though you represent the seller
b. Broker shou

oved in before closing with $500 payment to show good faith
ii. Ct. Holding:
1. There are exceptions to statutes of frauds because buyer gave money of $500 to show good faith. There was clear and convincing evidence of partial performance of the K.
2. Payments, possession, or improvements are acts to be seen as enough to get around the statutes of fraud (partial performance)
3. Oral modifications of contract in subject to statute of
iii. Statute of Frauds and Electronic Communication
a. E-Sign Act – electronic signatures ARE legally binding and therefore fulfill the SOF
a. Modern e-mails can contract around e-sign
b. Rosenfeld v. Zerneck
a. E-mails MUST lay out the essential terms of the agreement (see above SOF for essential terms)
iv. Form Contracts