New ERA Article July, 1996

Brokers, Guns And Landlords!

      This is not a tale of mayhem between brokers and landlords!
It  is,  however,  another report to you about cases  before  the
appellate courts in California.

      Attorneys  are  always  mindful of  what  is  said  by  the
appellate  courts,  since appellate court  decisions  govern  the
decisions of trial judges.

      In  a  case  arising out of Roseville, California,  in  the
County  of  Placer, the trial court was presented with an  action
against  the landlords by a woman who was shot by a tenant  while
visiting  a friend at the leased residence.  The tenant with  the
violent propensity turned out to be the landlords' son.

      Although  the landlords knew their son misused alcohol  and
had  firearms, the plaintiff was unable to produce  any  evidence
that,  because  of those two factors, there existed  a  dangerous
condition for those entering the residence.

     The injury resulted from the fact that the tenant "displayed
a  firearm, and, while he waved it around, it accidentally fired.
The  bullet  entered and exited [the woman's] abdomen, penetrated
her elbow, reentered her body and exited her buttocks, severing a
tendon there."  The Court of Appeal concluded:

                    "When there is no evidence a tenant
          has  violent propensities or handles firearms
          unsafely   while   drinking,   a   landlord's
          knowledge that the tenant misuses alcohol and
          possesses firearms is not a cue the  landlord
          needs to protect visitors from injury."

As  a  result, the Court of Appeal agreed with the trial  court's
determination   that  the  woman's  injury  was  not   reasonably
foreseeable  and that a judgment in favor of the  defendants  was
proper.

      In  a  case involving brokers, the sellers entered  into  a
listing agreement with a real estate broker giving the broker  an
exclusive  right to sell.  Although the term of the  listing  had
not yet expired, the sellers nonetheless terminated the agreement
and  then  sold  their  property  through  another  broker.   The
original  broker  sued,  claiming that it  was  entitled  to  its
commission under the terms of its listing agreement.

      The  Court of Appeal confirmed that an exclusive  right-to-
sell  listing may provide for compensation to the initial listing
agent  if  the  property  is sold to anyone  before  the  listing
terminates, regardless of who effects the sale.


      The  sellers  argued  that they did not  have  to  pay  the
commission  because the broker had not complied  with  a  certain
provision within the listing agreement requiring written  notice,
within five calendar days after termination of the agreement,  of
the names of prospective transferees contacted during the listing
period.   The Court of Appeal rejected the argument, noting  that
the  provision calling for a list of potential buyers within five
days  did  not  apply to this situation because the clause  dealt
only  with  termination  of  an  agreement  by  expiration,   not
termination unilaterally decided upon by the sellers.

      I  wonder  what  would  have happened  if  the  broker  who
initially  was  not  paid his commission  had  firearms,  misused
alcohol, and had the sellers in his sights!


[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 1996-2002

	Myles M. Mattenson ATTORNEY AT LAW 5550 Topanga Canyon Blvd. Suite 200 Woodland Hills, California 91367 Telephone (818) 313-9060 Facsimile (818) 313-9260 *Email:* MMM@MattensonLaw.com *Web:* http://www.MattensonLaw.com	Brokers, Guns And Landlords!
Myles M. Mattenson engages in a general civil and trial practice including litigation and transactional services relating to the coin laundry and dry cleaning industries, franchising, business, purchase and sale of real estate, easements, landlord-tenant, partnership, corporate, insurance bad faith, personal injury, and probate legal matters. In providing services to the coin laundry and dry cleaning industries, Mr. Mattenson has represented equipment distributors, coin laundry and dry cleaning business owners confronted with landlord-tenant issues, lease negotiations, sale documentation including agreements, escrow instructions, and security instruments, as well as fraud or misrepresentation controversies between buyers and sellers of such businesses. Mr. Mattenson serves as an Arbitrator for the Los Angeles County Superior Court. He is also past chair of the Law Office Management Section of the Los Angeles County Bar Association. Mr. Mattenson received his Bachelor of Science degree (Accounting) in 1964 and his Juris Doctorate degree from Loyola University School of Law in 1967. Bi-monthly articles by Mr. Mattenson on legal matters of interest to the business community appear in alternate months in The Journal, a leading coin laundry industry publication of the Coin Laundry Association, and Fabricare, a leading dry cleaning industry publication of the International Fabricare Institute. During the period of May 1995 through September 2002, Mr. Mattenson contributed similar articles to New Era Magazine, a coin laundry and dry cleaning industry publication which ceased publication with the September 2002 issue. This website contains copies of Mr. Mattenson's New Era Magazine articles which can be retrieved through a subject or chronological index. The website also contains copies of Mr. Mattenson's Journal and Fabricare articles, which can be retrieved through a chronological index. In addition to Mr. Mattenson's trial practice, he has successfully prosecuted and defended appeals on behalf of his clients in various areas of the law. Some of these appellate decisions are contained within his website.