This section is from the book "Practical Real Estate Methods For Broker, Operator & Owner", by Thirty Experts. Also available from Amazon: Practical Real Estate Methods for Broker, Operator, Owner.
This fact can be easily ascertained by an examination of the deed, or, in case the deed cannot be procured, by an examination of the records. An unintentional misrepresentation by the owner as to the size of the plot does not amount to a warranty, and the owner is not liable for commissions, although the purchaser is willing and ready to purchase and the price has been agreed upon, but is unwilling to enter into a contract upon ascertaining that the dimensions are not as they had been represented. An owner through error represented his property to be fifty feet front and seventy-six feet deep; negotiations had been carried on for some time and finally the price and all other terms were agreed upon. Upon examining the deed for the purpose of drawing the contract, it was ascertained that the plot was only sixty-six feet deep, and as the purchaser declined to enter into a contract, suit was brought against the owner for commission, and the court decided that the owner was not liable. Hausman vs. Herdtfelder, 81 App. Div., 46. An examination of the deed in the first instance would have prevented much trouble and litigation.
Of equal, if not more, importance it is to ascertain whether any restrictive covenants against erecting any kind of building or tenement exist, or whether there are any restrictions to using the entire lot for building purposes. This can as a rule be ascertained by an examination of the deed or abstract. As to the terms of sale, whether all cash, or whether the property is subject to mortgages or leases, it is hardly necessary for me to discuss how important it is to get these matters in proper shape before negotiations are undertaken. Assuming that all of the foregoing matters have been satisfactorily arranged, we come to discuss the next question. What efforts of the broker will entitle him to compensation? It is a fundamental principle of law that the broker must be the procuring cause of the sale; that he must bring the minds of the seller and purchaser together, and that through his efforts they have agreed upon all the terms and conditions imposed by the vendor. Having accomplished this, he is entitled to his compensation, even if the sale is not consummated by reason of any act or fault of the principal. While a contract for the sale of real estate to be binding must be in writing, yet an agent who has been authorized to make the sale at a certain price earns his commission when he has procured a purchaser ready and willing to purchase at the terms fixed, with whom the vendor refuses to contract or to whom he refuses to convey upon payment. It is indispensable that the minds of the contracting parties should meet, before the broker is entitled to commission. This is illustrated more particularly by the following case. .