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02/12/13
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02/12/13
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Meetings
Meeting Document Type
Agenda
Document Title
Housing & Redevelopment Authority
Document Date
02/12/2013
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not qualify for the developer exemption because: 1.) It does not improve the property it <br />acquires for resale, and 2.) It does not maintain a trust account which is reportable and on <br />file with the Department of Commerce. The trust account requirements are very strict, <br />with the account being so identified by the financial institution, deposits being made <br />directly into the account, separate ledgers being maintained for the account, and proper <br />reporting being made to the Commissioner of Commerce. Minn. Stat §82.75. <br />Minnesota law makes it clear that an unlicensed broker may not maintain any action in <br />the courts for collection of compensation. Specifically, the statues provide as follows: <br />"No person shall bring or maintain any action in the <br />courts of this state for the collection of compensation for <br />the performance of any of the acts for which a license is <br />required under this chapter without alleging and proving <br />that the person was a duly licensed real estate broker, <br />salesperson, or closing agent at the time the alleges cause <br />of action arose." <br />Minn. Stat. §82.85, subd. 1. . The Courts have uniformly held that this statute is penal in <br />nature and will defeat a claim for commissions if a plaintiff fails to allege and prove that <br />he or she is licensed. Ike v. Anderson, 369 N.W. 2d. 321, 322 (Mn. App. 1985); Albers v. <br />Fitschen, 274 Minn. 375, 143 N.W. 2d 841, 843 (1966) The Courts have uniformly been <br />so strict on this issue that it prohibited an unlicensed broker from bringing a lawsuit to <br />claim unjust enrichment. Relocation Realty Services Cot p. v. Carlson Companies, Inc., <br />264 N.W. 2d 643 (Minn 1978) To do otherwise, the Court reasoned, would "decrease the <br />risks of doing business by unlicensed brokers and dilute the protections provided to the <br />public." Id. <br />In the sixties, the Minnesota Supreme Court tried to carve out an exemption in a situation <br />where the parties were both sophisticated and where all parties knew that the broker was <br />unlicensed. Peske v. Liberty Equities Corp, 283 Minn, 167, 167 N.W. 2d 30 (1969) <br />After the Peske decision was rendered, the legislature amended the law to make it clear <br />that the court can not look at the equities of the arrangement. Rather, the Courts must <br />solely look to whether the activity was that of a licensed broker and, if so, whether the <br />broker was licensed. Gahagan v. Patterson, 316 F. Supp. 1099 (D. Minn, 1970); <br />Dellwood Enterprises v. Pac. Am. Real Estate Fund, 505, F. Supp 187 (1981) Absent the <br />required license, a broker may not use the courts to enforce any compensation <br />arrangement required such activity. <br />The above case law makes it clear that, unless Landform is licensed as a real estate <br />broker or is exempt from licensure, it may not file any action in court to collect on any <br />fees relating to brokerage activity, which includes the activity involving the McDonalds <br />Restaurants, the SuperAmerica service stations, and the Flaherty & Collins project. <br />The statutes also provide that any person who violates any provision of the real estate <br />code is guilty of a gross misdemeanor, Minn. Stat. §82.83. <br />8 <br />
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