Keyes Co. v. Dade County Bar Ass'n

• Decision Date: 09 May 1950
• Citation: 46 So.2d 605
• Parties: KEYES CO. v. DADE COUNTY BAR ASS'N, et al.
• Court: Florida Supreme Court

Page 605

46 So.2d 605

KEYES CO. v. DADE COUNTY BAR ASS'N, et al.

Supreme Court of Florida, en Banc.

May 9, 1950.

Rehearing Denied June 12, 1950.

Grady C. Harris, Miami, for appellant.

Loftin, Anderson, Scott, McCarthy & Preston, Robert H. Anderson and Milton M. Ferrell, Miami, for appellees.

W. H. Poe, Orlando, as amicus curiae on behalf of the Florida Association of Realtors.

Robert D. Tylander, West Palm Beach, Norman H. Brown, West Palm Beach, William W. Arnold, Orlando, Harvie J. Belser, Bonifay, James T. Earle, St. Petersburg, R. tion, and others, against the Keyes Com-Brownlee Eggart, Pensacola, Dante B. Fascell, Miami, John Marshall Green, Ocala, J. B. Hodges, Lake City, Julian Lifsey, Jr., Miami, John M. McCarthy, Fort Pierce, John B. Orr, Jr., Miami, Lloyd M. Phillips, Clearwater, Samuel J. Powers, Jr., Miami, Wayne K. Ramsay, Jacksonville, Paul G. Rogers, Douglas Bourne Shivers, Tallahassee, William P. Tomasello, Bartow, Tom B. Walker, Louis M. Wallace, Warren M. Goodrich, Bradenton, as amicus curiae for Junior Bar Section, Florida State Bar Association.

John M. Allison, Tampa, Charles S. Ausley, Tallahassee, and Edward S. Hemphill, Jacksonville, for Florida State Bar Ass'n as amicus curiae.

Ward & Ward, Miami, for Miami Beach Realty Board and others, amicus curiae.

THOMAS, Justice.

In this case we are going to depart from the pattern usually followed in stating the facts and the contentions of the parties as introductory to our discussion of relevant principles of law, and go directly to the heart of the controversy, which we shall consider more or less in an abstract way.

It is obvious from an examination of the record that the fundamental question of law involved is the line of demarkation between the sphere in which the realtor operates under the statute regulating his business (Chapter 475, Florida Statutes, 1941, and F.S.A.) and the sphere in which a member of the bar operates when he represents clients who are parties to real estate transactions.

If is our view--and in adopting it we hope to escape the criticism that we are begging the question, temporizing, or compromising--that these ambits may be so defined that there will not be undue interference by the attorney in the activities of the qualified realtor, encroachment by the realtor on the field of the attorney, or oppressive requirement that persons engaged in all real estate transactions employ members of the bar.

At the very outset we should turn to paragraph two of Section 475.01, Florida Statutes, 1941, and F.S.A. (the Real Estate License Law) to determine Just what it is that a realtor within his sphere is authorized to do. There it is specified that he may, for a consideration, appraise, auction, exchange, buy, or rent the property of another; also he may attempt to do these things and, in addition, may sell or 'negotiate' a sale; further, any person is a broker who participates in the 'procuring' of sellers, purchasers, lessors, or lessees of real property or who directs or assists 'in the procuring of prospects, or the negotiation or closing of any transaction which does, or is calculated to, result in a sale, exchange, or leasing' of property. (Italics supplied.)

When we study the phraseology of this section of the act, and particularly the words which we have emphasized, we have a very definite impression that the part of the realtor is in its nature preliminary except in the matter of appraisals and, in some instances, rentals, and that in most, if not all, cases certain steps must ultimately be taken before the transactions between those whom he represents and those with whom they deal may be consummated by the exchange of instruments permanent in their nature. It is these additional steps which we think the realtor may not guide, or charge for guiding, and if the parties themselves with a representative after the realtor has brought them together, they should select him from the Bar.

For instance, if a broker is employed to find a purchaser of the property of the one by whom he is employed or to effect its sale, he performs his service when he produces a prospective purchaser ready, willing, and able to buy or procures from the purchaser a binding contract. So it seems logical and fair that the realtor be restricted in the drafting of papers to those, such as a memorandum, deposit receipt, or the contract, as the case may be, recording his handiwork--that is, the bringing together of buyer and seller. Thus his activities would coincide with the service he was employed to perform and which, performed, would entitle him to his compensation. Once this point is reached, the field is the lawyer's, and he then should do those things necessary to the consummation of the contract.

While the preliminary arrangement between the buyer and the seller is from its nature relatively informal, despite the possibility that any contract drawn by the realtor may become the basis of a suit for specific performance, the services to be performed thereafter are usually highly technical and ones which could not likely be expertly discharged except by a trained attorney. The examination of a abstracts, the quieting of titles, the conduct of suits in ejectment, and the like fall entirely within the sphere of the attorney; and the preparation and execution of the instruments effectuating the transfer should be under the lawyer's supervision, if the parties decide that they need expert advice and service.

After all, the fundamental purpose of the act, Chapter 475, supra, and, for that matter, the requirement that one must be fully qualified in order to practice law are for the protection of the public. By holding that there are two ambits within which the lawyer and the realtor may function, this security is safeguarded. It is patent from an examination of the act that a realtor must possess certain technical knowledge before he may be licensed to act, and of course the lawyer must likewise be qualified before he can hold himself out to the public as a member of that profession. We may assume that each, then, is fitted to perform the services within his field and that if neither impinges on the other's territory each will prosper and the public will not suffer.

We are not shaken in this view because of the argument that ofttimes the instrument to be executed is a copy of one which has been prepared by an attorney. An instrument entirely adequate in one instance may be totally inadequate in another, and even if a particular from may be common to many transactions, it may not serve to effectuate the transfer if there are errors in the parties, the description, the signatures, or the acknowledgement. It too ofter happens that one receives an instrument which is valid on its face, only to discover later that it has been ineffectual, and then finds himself put to expense to correct an error which could well have been avoided had he been properly advised at the outset.

It must of course always be borne in mind that the things written here and those appearing in the act do not affect one who is acting as an attorney in fact, administrator, executor, receiver, trustee, master, or one dealing with property which he owns or partly owns.

We realize that situations will arise from time to time where the boundary here attempted to be drawn will become indistinct, but if the general principle we have undertaken to announce be kept in mind, neither attorney nor realtor will infringe on the field of the other, and the interests of a member of the public who seeks expert advice in one of the fields, or both, will be safeguarded.

It is our direction that the chancellor revise the decree specifically to enjoin whatever the appellant may be doing in the instant case beyond the scope of realtor.

Affirmed in part; reversed in part.

ADAMS, C. J., and CHAPMAN, THOMAS, SEBRING and ROBERTS, JJ., concur.

TERRELL and HOBSON, JJ., dissent.

TERRELL, Justice (disse...