Summary
The Georgia Court of Appeals affirmed summary judgment for Fickling & Company in its action against Silver Pigeon Properties for breach of a property management agreement and recovery of brokerage commissions. The court held that the agreement was not void as against public policy for failing to specify termination terms required by a Georgia Real Estate Commission regulation, and that Silver Pigeon owed six percent commissions for as long as the existing tenant occupied the property. The court declined to consider a Rule Against Perpetuities argument raised for the first time on appeal.
Topics
Practice areas
Questions Presented
- Whether the management agreement was void as against public policy because it did not include termination terms allegedly required by Georgia Real Estate Commission Rule 520-1-.06 (2) (a) (8).
- Whether Silver Pigeon waived its Rule Against Perpetuities argument by failing to raise it in the trial court.
- Whether the management agreement required Silver Pigeon to pay six percent commissions through the date the Air Force vacated the property.
Holdings
- Even assuming the management agreement violated the Georgia Real Estate Commission regulation by failing to include termination terms, the violation did not render the agreement void as against public policy.
- The Rule Against Perpetuities argument was waived because it was not raised in the trial court.
- The management agreement unambiguously required Silver Pigeon to pay Fickling six percent of operating income collected on existing and new leases for as long as the tenants occupied the property; summary judgment awarding commissions through the Air Force's vacancy date was proper.
Key quotations
“Agent shall be paid the amount of 6% of operating income collected on all existing and new leases entered into for as long as such existing and new tenants occupy space on the property. Said 6% shall be vested and include management of the property.” (at 168-169)
Factual background
Fickling's independent agent obtained an Air Force lease for commercial property in Warner Robins, Georgia. Silver Pigeon purchased the property in April 2008 and entered into a management agreement obligating it to pay Fickling six percent of operating income collected from existing and new leases for as long as the tenants occupied the property. Silver Pigeon took over management in September 2009 and stopped paying commissions, although the Air Force continued leasing the property until approximately March 2011.
Procedural history
Fickling sued Silver Pigeon for breach of contract, foreclosure of broker's liens, and attorney fees. Silver Pigeon counterclaimed for declaratory relief, asserting that the management agreement was invalid and unenforceable. The trial court granted Fickling summary judgment, ruling that Fickling was entitled to six percent commissions through the date the Air Force vacated the property, and the Court of Appeals affirmed.