THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, March 25, 1995 TAG: 9503230469
SECTION: REAL ESTATE WEEKLY PAGE: 02 EDITION: FINAL
COLUMN: Landlords & Tenants
SOURCE: Albert Teich Jr.
LENGTH: Medium: 82 lines
My daughter has moved to New York City and has been searching for the right place to live - safety, convenience, etc. She engaged the services of a real estate company and a broker showed her an apartment.
After being shown that unit, they went back to the real estate office, filled out many forms, wrote up a rental contract - which was signed - and even called me to have financial papers faxed for their approval.
The apartment was actually a condo. My daughter was told that the board of the condo association would have to meet and approve her. On Jan. 17, she was to meet with a board member so that this person could be satisfied that a 27-year-old was suitable for the condo even though her financial papers were in order.
Therein lies the problem. She was instructed to meet the board member in the lobby of one building, but when they began talking about her unit, my daughter realized they were discussing different condos. She found that the wrong building had been inserted into the contract.
The real estate company refunded the broker's fee of $1,620, which had been forwarded to the owner of the second condo, who was also trying to rent his unit. He still has that money and refuses to send it back to the real estate company.
The real estate company won't refund the money to my daughter until the owner gives it to them.
Who is at fault here: the real estate company for filling out the contract with the right condo owner but the wrong street address or my daughter because she signed the papers that the real estate company put before her, with the correct unit number but wrong street address, or the owner of the second condo whose unit is not rented?
Do we need legal representation?
First of all, no Norfolk lawyer who has never practiced in New York can possibly give you adequate advice in this situation. The laws of New York are so different from those in most other states, it would almost appear that it is another country.
If your daughter wants to regain the $1,650, she should certainly retain an attorney in New York City. However, I realize that New York lawyers are far more expensive than Virginia lawyers as a general rule.
In this situation, it seems there is plenty of fault to go around.
Your daughter was shown one apartment, signed a lease agreement for another and the lease was then signed by all parties. Your daughter should have read the lease very carefully before signing it because courts will not allow evidence of oral agreements to vary the terms of a written agreement.
However, there is another rule of law that when there is a question over the interpretation of a contract that, in Virginia and in most other states, the contract is strictly construed against the party who drew it, which would mean the burden would shift generally to the real estate company.
When the real estate company is an agent for the owner and sends money involved in a dispute to the owner, the owner will be bound by the acts of the agent and the agent will only be liable to your daughter, the third person, if it exceeded its authority, committed fraud or, in some cases, was negligent.
In this situation, it appears that the real estate company was negligent, probably innocently so, so the real estate company would have no legal responsibility to your daughter.
If the real estate firm did make the mistake in acting as the agent for the owner of the premises you did not intend to rent, its mistakes would be imputed to the owner and that gives your daughter another grounds to recover from the owner.
There is also another rule that indicates that money wrongfully had and received, or money received under mistake, is not the property of the recipient, but must be returned to the proper party, in this case your daughter.
I have no doubt that your daughter has a right to recover against the owner of the premises and that the owner has a legal responsibility to return the $1,650 to her.
Please let me state that your daughter contact an attorney in New York and find out whether it is financially feasible to sue the owner for the return of her $1,650. MEMO: Albert Teich Jr. is a real estate lawyer based in Norfolk. Send
comments and questions to him at Real Estate Weekly, 150 W. Brambleton
Ave., Norfolk, Va. 23510. by CNB