Background
University Hill Realty, Ltd. entered into a written brokerage contract with Ronda Akl and Rosette Aksterowicz, as trustees of the Milad Hatem Irrevocable Trust, to market real property. The agreement included a 12-month grace period: if the broker introduced a buyer during the listing period and that buyer closed within the grace period, the broker earned its commission.
After the grace period expired, Aksterowicz and the broker’s representative continued exchanging text messages discussing offers on the property. University Hill Realty sued for breach of contract and unjust enrichment, arguing the post-expiration exchanges gave rise to an implied-in-fact contract. Supreme Court granted defendants’ summary judgment motion.
The Court’s Holding
The Fourth Department unanimously reversed. An implied-in-fact contract — “one that the parties presumably intended as their tacit understanding, as inferred from their conduct and other circumstances” — is a recognized basis for a broker commission claim. Citing Joseph P. Day Realty Corp. v Chera (308 AD2d 148, 152 [1st Dept 2003]), “the contract may be established in some cases by the mere acceptance of the labors of a broker.”
The text messages showed that Aksterowicz and the broker “continued to discuss offers coming in after the expiration of the 12-month grace period,” creating “a question of fact whether an implied-in-fact contract existed.” Because defendants moved for summary judgment, they bore the burden of conclusively negating any implied-contract theory — a burden the post-expiration texts prevented them from meeting. Defendants also failed to establish their prima facie case on unjust enrichment.
Key Takeaways
- Text messages exchanged after a brokerage agreement expires can raise a triable issue whether an implied-in-fact contract for continued services was formed.
- In New York, a broker’s commission claim can rest on implied contract alone if the owner’s conduct reflects a tacit understanding that services were being retained.
- Unjust enrichment provides an independent pathway for brokers whose formal contracts have lapsed.
Why It Matters
For real-estate practitioners, University Hill Realty is a clear warning that informal post-expiration communications with a broker — texts, emails, calls discussing offers — can resurrect commission liability. Sellers should formally terminate all brokerage communications in writing once a listing agreement expires, and should not continue to accept the broker’s services without executing a new agreement.
For brokers, the decision confirms that continuing to work deals after a formal contract expires is not necessarily fatal to a commission claim if the owner accepts those services. Brokers should nonetheless memorialize any continued engagement to build the record.