Broker’s cancellation of listing ruled proper

legal scales and gavel with booksRead the Full Decision: Open Container, Ltd. V. CB Richard Ellis, Inc.

An Ohio court has affirmed that a listing broker complied with its statutory obligation to remove a listing once it discovered that its commercial client did not own the listed property or otherwise have authority to sell.

In 1997, Open Container, Ltd. (“Tenant”) entered into a long-term lease for a commercial restaurant space from the Greater Ohio Leasing Corporation (“Landlord”). In 2003, Tenant and Landlord entered into an “Offer to Purchase Real Estate” agreement (“Offer to Purchase”), specifying that Tenant had 45 days to secure financing and purchase the property. If Tenant failed to do so within the allotted time period, the agreement would be null and void. Tenant was unable to secure financing, and the 45 day period lapsed. Nonetheless, two years later, Tenant entered into a listing agreement with CB Richard Ellis (“Broker”) to list the property for sale. Upon Broker’s request that Tenant to show proof of authority to list the property, Tenant proffered the Offer to Purchase.

Two months after Tenant and Broker entered into the listing agreement, Landlord terminated Tenant’s lease of the property due to Tenant’s failure to pay rent. Shortly thereafter, Broker was informed of Tenant’s lack of authority to sell the property. Broker immediately cancelled the listing agreement with Tenant and removed the property listing.

Six months after Landlord terminated the lease with Tenant, Landlord initiated eviction proceedings against Tenant. Tenant filed a counterclaim against Landlord, and also brought claims against Broker, including a claim for breach of the cancelled listing agreement. Tenant claimed that the listing agreement was not only for the sale of the real estate property itself, but also for the sale of the “turnkey restaurant” and its “long term lease,” and that Broker therefore breached its duties to Tenant by cancelling the listing agreement. In addition, according to Tenant, after the Offer to Purchase had lapsed, landlord orally waived the 45-day financing requirement, and that thereafter Tenant and Landlord made a number of oral agreements regarding Tenant’s right to market the property, and an oral “long-term agreement for sale.” Therefore, argued Tenant, Tenant had authority to list the property with Broker.

The lower court rejected all of Tenant’s arguments, and granted summary judgment in favor of Landlord and Broker, affirmed on appeal. In regard to Tenant’s claim that Broker had an “ethical duty” to continue listing for Tenant, the court found that, quite to the contrary, once Broker became aware that Tenant was not authorized to sell the property, “it would need to terminate the contract or face possible disciplinary sanctions.” In addition, held the court, all evidence showed that the listing agreement was not for a “long term lease for a turnkey restaurant” but rather for the real estate property itself.

Finally, held the court, the statute of frauds — a legal doctrine holding that certain agreements be reduced to writing — prevented Tenant’s claims that Landlord had orally waived the 45-day limit on the Offer to Purchase. “Even if,” stated the court, “[Landlord] did in fact waive the financing requirement, such a waiver would still be required to be reduced to writing.”

Open Container, Ltd. V. CB Richard Ellis, Inc., No. 14AP-133, 2015 WL 149960 (Ohio Ct. App. Jan. 13, 2015). [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information].

Source: National Association of REALTORS

Tags: legal

Coaching Corner: Are we having fun yet??

By “Coach” Marilou Butcher Roth

In typing this title, I am having the thought that I have typed that same title before. Could be, however, this topic deserves several rounds! Fun — what a word! It brings up all kinds of thoughts, feelings and stories, doesn’t it? Each of us has some sort of belief, or consistent thought, around fun. What is yours?

Children are like sponges and soak up whatever is around them. As children, we absorbed what beliefs our parents and/or significant people in our lives had around fun. So, part of this discussion is identifying our current belief and the other part is determining your own thoughts around the idea of fun.

I, not unlike many others I know, had the belief that fun could not happen until all of my work/chores were done. Fun was presented to me as somewhat of a reward system. Now my realization is that I can have fun with whatever activity I am choosing to engage in. Wow! What a difference. Let’s notice the difference, using writing this blog post as an example. If I were under my old way of thinking, this would feel like drudgery, something to get done and check off of the list. With my new perception of the concept of fun, I find complete enjoyment in the process of writing. This difference evolved from identifying old beliefs and creating new ones.

Awareness is the key to this shift! One way to generate this shift is to notice the thought and/or response that occurs for you when you are presented with something fun to do during work hours. Or, you may want to do a fill in the blank… “Having fun is ________________,” or “I can create fun in my life when ________________.” Even… “My parents had fun when ________________.”

Each of us have our own flavor of fun and beliefs surrounding it. Uncover what belief you are carrying around fun. Is that yours, or have you developed that belief over the years from your observations? What would you like your belief to be? Remember that a belief is merely something you consistently think about, so now it’s up to you! My suggestion would be to do some journaling around this topic and see what comes up. You may generate a statement that identifies what you want fun to be for you.  And, as always… have FUN with this exercise!!


Marilou Butcher Roth is the owner of The MBR Group, a coaching and training company working primarily with REALTORS who have a desire to work and live from a more inspired place. She is also the Broker/Owner of Group REALTORS in Cincinnati.

Marilou is a member of the OAR Board of Directors and past chairman of the organization’s Communications Committee. Feel free to contact Marilou to see if coaching is right for you:


Tags: Coaching Corner, training

Ohio Safety Series: Taking precaution in the rural environment

think safety

Over the past 10-plus years hundreds of real estate professionals throughout the country have been murdered, violently assaulted, raped, beaten and robbed in the workplace. In fact, tragedy hit close to home four years ago when two of our own — Vivian Martin and Andrew VonStein — were killed in separate incidents on back-to-back days when showing vacant homes. More recently, the industry was shocked by the tragic, unfortunate murder of an Arkansas REALTOR who was similarly killed doing what a real estate professional does — simply showing a home. These incidents illustrate the importance of taking safety precautions in your daily activities. Our Ohio Safety Series is an ongoing effort to provide you with insights to ensure the safety of you and your clients. 


By Terri Jensen, ALC Advanced, 2015 REALTORS Land Institute National President, Investor Relations and Appraisal Manager, Farmers National Company

Safety involves humans, animals, weather, situations, and more. Below are safety points from land professionals on safety in the rural environment. Some of these suggestions are appropriate for real estate professionals in all areas of real estate.


  1. Don’t talk on the phone, write, and drive at the same time. Likewise, don’t drive, look at a map, or take photos while driving with your knee.
  2. Use DOT construction maps/road updates to save time and prevent ending up in an unfamiliar area, being in an area where one prefers not to be, or being on a road closed due to snow or other natural disaster.
  3. Always have car keys easily accessible and lock car doors. All equipment, briefcases, and other items should be placed in the trunk.
  4. Don’t crest a hill on a gravel road while on a cell phone in the middle of the road.
  5. Drive a vehicle that can handle rough terrain and mud.


  1. When driving into a rural area, wait a bit before getting out of the car to give dogs plenty of time to come to the truck and adjust. Talk to them out of the window before departing the vehicle.
  2. Some might find comfort in carrying a weapon to protect themselves in case they encounter an extremely aggressive situation. This might happen in the woods or rural areas.
  3. When making an appointment to view a rural property, ask if the owner has dogs, if the animals are friendly, and what their names are. Ask the owner to put the dogs in a barn, kennel, or other shelter if he believes the dogs are not friendly. Consider asking the owners to be on the premises when arriving to property with dogs.


  1. Wear boots and keep them available in your truck or vehicle to wear for protection.
  2. If a rock needs to be turned over, pick up the side facing away.
  3. Consider carrying a weapon, such as a firearm.


  1. During the tick season, apply permethrin to your clothes. Here is a link to explain what permethrin is. If placed on clothing — not skin — it will last through six washings.


  1. During hunting season, wear bright colored clothing and, at least, a bright hat. Do not go out during firearm deer season. A 30.06 bullet can carry two miles. Wear red, blaze orange or glow-in-the dark green.

Personal Safety

  1. Use common sense and do not get close to animals who do not know you.
  2. Have a cell phone in hand with safety numbers plugged in for easy dialing.
  3. Attempt to obtain names, residence—city and state—cell number, office, home phone numbers, occupation, and make, model and color of vehicles for unknown prospective buyers or lessees land. Inform them in advance of the make, model and color of the practitioner’s vehicle.
  4. Share this information with someone you work with, including the property location and time of appointments.
  5. A female should try not show alone.
  6. Always have your phone charged.
  7. Carrying a can of hornet spray is a good defense, easy to use, and very effective when sprayed in the face. Carry mace or a weapon.
  8. If it doesn’t feel right, get out of there!
  9.  When going into a basement, let the client go downstairs first or let them go alone and stay on the main floor. Always leave yourself an exit strategy.
  10. If you feel uncomfortable in doing something — your intuition is an asset — don’t do it. Trust your instincts.
  11. Besides giving a colleague, friend, or partner a map, address, and owner’s name, have that person call you 10 minutes after you should have arrived for the appointment; have a code word that would signal a problem, but that wouldn’t give away that you are using the code if someone is listening.
  12. When working with strangers, have them walk in front of you.
  13. Know what some of the materials are to make meth and what they look like. If you see evidence of this type of material, leave and contact law enforcement.
  14. If a firearm is carried, make sure that lessons have been taken and the appropriate licenses have been applied for and granted. Only use when you know that your life is in danger.


  1. Have a weather app on our phone that will send a warning in the event of a tornado, hail, blizzard or other weather hazards.
  2. Be prepared for winter weather. Have a survival kit in your trunk — a blanket, extra hats, gloves, boots, non-perishable food, and water.


Take safety seriously!


Terri Jensen, ALC Advanced, 2015 Institute National President of REALTORS Land Institute, is the Investor Relations and Appraisal Manager for Farmers National Company. She earned the prestigious Accredited Land Consultant (ALC) designation in 2005, an indication of the most knowledgeable, productive, and trusted land professional. As a result of her completion of professional development to stay current in the profession, she has earned recognition as an ALC Advanced Jensen has been active in Government Affairs and protection of the 1031 Like-Exchange tax code and has worked together with the National Association of REALTORS and other professional organizations on the matter.

Tags: Ohio Safety Series, safety

Ohio housing market heats up in June

sold with bursting sky

By Carl Horst, OAR Director of Publications/Media Relations

The number of homes sold across Ohio in June increased 9.3 percent from the level posted during the month a year ago, the market’s 10th consecutive monthly year-over-year gain, according to the Ohio Association of REALTORS.

Additionally, home sales activity in June rose 1.8 percent from the level reached May 2015.

“Through the mid-point of 2015 the Ohio housing market has been able to experience a strong level of sales activity and steady growth in pricing,” said OAR President Greg Hrabcak. “It’s evident that we’re continuing to make significant progress in building a stable foundation for the housing sector, as more Ohioans are exhibiting confidence that a home purchase is a solid, long-term investment.”

June’s average home price of $171,968 reflects a 4.8 percent increase from the $164,048 mark posted during the month last year.

Sales in June reached a seasonally adjusted annual rate of 143,488, increasing 9.3 percent from the 131,319 level posted in June 2014. The market also experienced a 1.8 percent increase in sales from May 2014’s seasonally adjusted annual rate of 140,920. Sales during June 2015 reached the highest level for the month since 2005.

Around the state, 14 of the 19 markets tracked reported increases in sales activity levels during the month. All but two local markets showed an increase in average sales price.

Home sales during the second quarter were up 10.8 percent from the same period a year ago. Sales also posted a 9.9 percent gain from the mark set in first quarter 2015. Specifically, second quarter 2015’s seasonally adjusted annual rate reached 140,413, a 10.8 percent increase from the quarterly pace a year ago of 126,748. Sales during the recent quarter were 9.9 percent ahead of the first quarter 2015 mark of 127,746. Second quarter 2015 dollar volume of more than $6.5 billion is up 16.2 percent from the same period last year.

Data provided to OAR by Multiple Listing Services includes residential closings for new and existing single-family homes and condominiums/co-ops. The Ohio Association of REALTORS, with more than 28,000 members, is the largest professional trade association in Ohio.

Click here to view OAR’s seasonally adjusted Ohio home sales report. To access a market-by-market analysis of sales activity throughout Ohio, click here.

Tags: home sales, research

Buckeye Lake disaster declaration forms due by July 24

Ohio State BuckeyesThe deadline for businesses to return forms to be part of the application for federal economic disaster declaration in the Buckeye Lake area is this coming Friday, July 24. For those who may not know, these forms will be part of the application of the State of Ohio to receive economic disaster declaration status for the Buckeye Lake area. To be clear, this form is NOT a loan application, it will be used as part of the package sent to the US Small Business Administration to convince them to approve a disaster declaration. If approved, this will then give business owners the opportunity to apply for low interest federal loans.

Click here for a copy of the form. Completed forms can be emailed to or mailed to: Carrie Manno, Ohio Development Services Agency, 77 South High Street, Columbus, OH 43215

Tags: politics

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