Therefore, I am of the opinion that the plaintiff has borne the burden of proving that he carried out marketing activities of the property during the exclusivity period, and therefore he has the presumption set forth in section 14(b) of the Realtors Law, according to which he was the effective party with respect to a transaction that was concluded during the exclusivity period, and in our case with respect to a transaction that was concluded within the magnetic field of exclusivity.
Agreed Compensation for Breach of the Exclusivity Agreement
- In addition to the brokerage fees (discussed above), the plaintiff claims "agreed compensation" at the rate of 2% plus additional tax appeals, for breach of the exclusivity agreement, since he claims that he lost the brokerage fees that he would have been expected to receive from the buyers if the defendants had referred them to him, as they had undertaken.
The plaintiff relies on clause 3 of the exclusivity agreement, which states as follows:
"... It should be emphasized that, since I (the seller) am aware that the broker will charge the buyers a brokerage fee, if I comply with the provisions of clause 2 of this contract, I will pay in addition to the brokerage fee on my part an agreed and pre-estimated compensation of 2% + VAT."
Section 2 of the exclusivity agreement, the breach of which entitles the plaintiff to agreed compensation, states:
"Since I am aware that you are investing efforts and money in order to sell the property I own and that it is possible that you advertise the property and its exact address by various means, such as: signage, advertising in the press and various other marketing methods, I undertake to cooperate fully with you and to direct any request from a potential buyer to the property throughout the exclusivity period as detailed. I understand that exclusivity gives you the exclusive right to market the property I own for the period listed below."
(Emphasis is not in the original - A.H.).
- According to the plaintiff, "The referral mechanism is the core of the agreement. Without it, there is no exclusivity." In other words, according to him, exclusivity is the defendants' undertaking to refer any potential buyer to him, so that he can also enter into a brokerage agreement with the buyer and receive brokerage fees from him. Since the defendants did not refer the buyers to him, they breached the exclusivity agreement, and this entitles him to the agreed compensation.
On the other hand, according to the defendants, the meaning of exclusivity is the plaintiff's exclusive right to market the property during the exclusivity period. In other words, during the period of exclusivity, the defendants cannot sell the property through another broker or without needing the services of the plaintiff. If the property is sold during the exclusivity period, the plaintiff will be entitled to the brokerage fees that the defendants committed to in the brokerage agreement, in any case (provided that it meets the requirements of the Realtors Law).