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Real Property Law
Broker Agreed to Commission Based on Rent for First Five Years of Lease
Gator Hillside Village, LLC v. Schuckman Realty, Inc.
NYLJ 2/25/18, p. 24., col,. 5.
AppDiv, Second Dept.
(memorandum opinion)
In shopping center owner's action for a judgment declaring how much owner owed as a brokerage commission, broker appealed from Supreme Court's declaration that broker was owed a 5% commission on the first five years of rent. The Appellate Division affirmed, holding that broker had manifested assent to that commission.
One of broker's agents sent the shopping center owner a letter of intent on behalf of a client, proposing to begin negotiations on a 10-year lease agreement. The letter also proposed that owner pay broker a commission based on a specified rate. Owner's president made it clear that owner would not pay the commission the agent had requested. Instead, owner's president made a take-it-or-leave-it counteroffer of 5% of the rent for the first five years of the lease agreement if the deal went through. Agent did not explicitly accept or reject the counteroffer but indicated that he would speak to his client about a good faith deposit. Shopping center owner and broker's client subsequently entered into a 10-year lease without any further discussion of brokerage commissions. Broker then demanded a commission based on the rate specified in the original letter of intent. Owner refused to pay and brought this declaratory judgment action. Supreme Court awarded a commission of 5% for the first five years, and broker appealed.
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