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Tannenbaum & Milask, Inc. v. Mazzola

309 N.J. Super. 88, 706 A.2d 780 (App. Div. 1998)

BROKERS; CONTRACTS—It is possible for a listing agreement to be binding on the seller even if only one of two tenants in common signed the agreement, provided it can be shown that the tenant who signed was the agent of the other.

A real estate brokerage firm sought its commission under an exclusive listing agreement for the sale of a restaurant and the real property on which it is located. The restaurant was owned by a corporation and the real property was owned by the corporation’s two shareholders as tenants in common. One of the shareholders signed the listing agreement twice, once on behalf of the company and once personally. The other shareholder did not sign the listing agreement at all. The real estate broker sought payment of the commission from both shareholders individually and from the corporation. The trial judge granted summary judgment against the real estate broker.

The Appellate Division reversed the lower court and held that the individual who signed the agreement, and his company, may be responsible for the commission. The Court affirmed the dismissal against the shareholder that did not sign the listing agreement. The Court stated the first question to be whether there was, in fact, a binding listing agreement, or whether the parties agreed to modify substantial portions of the listing agreement after it was signed. If there was a binding agreement, the next question was whether the individual had the authority to bind the company. The Court found these were factual disputes resolvable only by assessing credibility and weighing the evidence, and not by summary judgment. Also, if an individual signs a listing agreement, personally, for a property owned by a corporation, that person can be held liable for the real estate commission. In addition, had the evidence in this case shown that the person who signed was the agent of the company’s other owner, the non-signing owner would have also been personally liable.


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