Victor M. Metsch, Esq.

Did Salzberg or Sena Own The Formerly Unusable Forest Like Area?

Charles Andrew Salzberg and Kenneth Sena owned adjacent parcels of real property in Croton-on-Hudson. Salzberg purchased his property in 2011 from Daniel Scalzi, who had previously owned the property jointly with his former wife, Victoria Manes, until she transferred ownership to him in 2004. According to Scalzi, in 1987, he spent $12,000 clearings a portion of land along the common boundary of the properties, which at that time consisted of unusable forest-like area, and erecting a split rail fence on the strip, so as to integrate it into his lawn. Scalzi asserted that, thereafter and for the duration of his ownership of the property, he cultivated and maintained the strip, which also included a portion of a barbeque pit that had been built onto his property by a predecessor. Scalzi admitted that during the process of clearing the strip and erecting the fence, he realized, upon his discovery of concrete monuments in the ground, that he was over the boundary line of his property and encroaching somewhat onto the neighboring property. However, Scalzi asserted that he never advised the then owners of  Sena’s property or asked their permission to use a portion of their land.

Court Determines Liability Under Contract That Was Modified by Seller

Jean Julian Delly sued Arvy Realty and Javier Morales for the refund of a $9,000 real estate brokerage commission that he paid to Arvy under protest. At a nonjury trial, it was established that Hector Villatoro was a licensed real estate broker doing business as Arvy Realty. It was undisputed that, after a buyer for Delly’s property whom he had located without the assistance of a real estate broker was unable to secure financing,

Delly contacted Arvy and Morales. Arvy, a licensed real estate salesperson associated with Arvy, emailed documents to Delly, including a proposed brokerage agreement which Morales had presigned on behalf of Arvy. The form proposed agreement was titled “Exclusive Right to Sell Agreement” but was modified, apparently by Delly, to state that it was “non-exclusive.” Under its compensation provisions, the emailed presigned proposed agreement stated that Delly, as “owner,” would pay the listing broker a total commission of 4% of the selling price, and specified how the payment would potentially be divided with a cooperating broker. But Delly wrote into the agreement and initialed the words “total 2% from seller” before signing and returning the agreement to Arvy and Morales.  The agreement also included a provision “that no change, amendment, modification or termination of this AGREEMENT shall be binding on any party unless the same shall be in writing and signed by the parties.”