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Must Brokers' Fees be Returned if Unable to Take Possession of Apartment

Posted by DMH on May 24, 2000 at 17:05:18:

I am a Staten Islander who through a brokered deal signed a lease for a non-rent stabilized apartment (3 top floors in a 5 floor semi-attached townhouse)that was to begin May 15. On May 15 the apartment was not ready and, after heated discussions with the broker and the landlord, confirmed via facsimile that my family (husband and 3 small children) and I would try to be reasonable since the landlord promised to have the apartment ready for Saturday, May 20.

Some of the changes that had to be made before we took possession of the apartment were fairly significant: for example, all 3 floors had to be painted, a sink had to be put into working condition and the house had to be sealed between levels 2 and 3, creating 2 separate living quarters.

That was Monday, May 15. We gave the landlord space on Tuesday and Wednesday and on Thrudsday morning I went to the apartment. Almost nothing had been done since Monday (no painting, the sink still off its pedestal, and no progress toward sealing the apartments - only a mirror had been hung in the 3rd floor bathroom). Nervous about the coming weekend and Monday (when utilities would be switched, my children's schoolbusses would come to the new address, etc.), I tried to contact the landlord, who said she'd be working on the apartment for most of the day. She was nowhere to be found and when I went back at 2:30 Thursday afternoon. No one was working on the apartment. When I finally reached her about 7:30 that evening, she said she and her boyfriend were going to do work (not the contractors she had been taling about). I said that I had no confidence in their ability to finish all the things we had agreed on by Saturday (especially since she said she would be at her job all day Friday) and, since Friday was the last business day that I could reverse the reservations, utility orders, school bus changes that were in place for Saturday and Monday, I was requesting that my $1400.00 security and my $700.00 for May 15 - 31 be returned. I said that we could not be patient any longer and needed to find a place for our family to live. She said OK. On Friday morning , I confirmed the arangement to meet that evening so that we could return the keys and she could give us our money back. She gave us a check for $2100.00, which should be fully cleared tomorrow.

I also faxed the sales agent who brokered the deal, telling him that we were unable to take possession of the apartment on May 15, and, given the lack of progress and manpower, were certain that we would not be able to do so the following day. I requested the $1400.00 broker's fee be returned, less the $15.00 administrative fee it seemshe is entitled to under NYS law.

Today I followed up the fax with a phone conversation, during which I demanded at least $1385.00 back. He said he and his broker felt they should keep $700.00, given the time he invested in the deal. I said forget it. My thinking is that the broker is not entitled to anything since we were never able to take possession.

I am considering filing in small claims court as of the 30th, 10 days after I notifed the broker via fax that we had no taken possession and would not be taking possession in the future.

Does anyone know if the law supports my position?

With many thanks,


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