My Yacht Broker Hasn't Sold My Boat Yet - Can I Work With Another Broker?
Posted: October 14, 2011 | By: David Weil, Esq.
My boat has been listed for sale with a yachtbroker for more than a year. I understand that boat sales in general are pretty slow right now, but I am not convinced that my broker has been doing everything possible to market the boat. A few days ago,I was approached by another broker who indicated that he has a buyer for my boat — and that he could have a legitimate offer in my hands right away, if I sign a listing agreement with him. I am concerned that this might cause problems with my existing broker, but the new broker said that I would have nothing to worry about, since the boat has not been properly marketed. What are my legal options in a case like this?
We need to start this discussion by noting that it is impossible to advise our reader of his legal options without looking at the listing agreement that he signed with his current broker. We can,however, review the structure of a typical yacht brokerage listing agreement and offer a few observations based on the features of that agreement.
Yacht brokers in California must comply with the provisionsof the California Yacht and Ship Brokers Act, which is enforced by the Department of Boating and Waterways. Under this law, a broker must obtain a signed authorization from a boat owner before the broker can represent the owner in the sale of the boat. This signed authorization is a listing agreement.
Listing agreements are classified under two broad categories:“Open” agreements and“Exclusive” (sometimes referred to as “Central”) agreements. An open listing agreement allows the owner to list the boat with more than one broker or to market the boat without a broker, and the agreement does not require an expiration date. Conversely, under an exclusive listing agreement, the boat is marketed exclusively by the broker with whom the agreement is made — and, under California law, the agreement must include an expiration date.
Open and exclusive listing agreements both spell out the broker’s duties in general terms, and they both provide for a commission to be paid to the broker upon the sale of the vessel. Both agreements also typically call for a commission to be paid to the broker if the boat is sold to someone who was introduced to the boat by the broker, even if the boat was eventually sold through a different broker.
Also, an exclusive agreement will invariably require a commission to be paid to the broker if the boat is sold to anyone during the term of the agreement, regardless of who introduced the owner to the buyer, or whether the broker was involved at all in the transaction. This is where our reader may find himself in some hot water.
As noted above, the broker’s duties under a listing agreement are described in very general terms, and as such it is extremely difficult to establish that a boat was not “properly marketed” or that the broker otherwise failed to meet his or her obligations under the agreement. Therefore, assuming that our reader has an exclusive listing agreement with his current broker, the sale of his boat through a different broker will likely require him to pay a full commission to both brokers.
Our reader is primarily concerned with his own legal options, but the relationship between the two brokers should also be examined. If the new broker was aware that the boat was the subject of an exclusive listing agreement, and if he intentionally persuaded our reader to breach the listing agreement with the first broker, then the new broker may be liable to the first broker for interfering with the existing contract. This would not let our reader off the hook, but it would give the first broker another litigation target if the boat owner is unwilling or unable to pay the second commission.
If the new broker in this case really has a legitimate buyer who is interested in making an offer on our reader’s boat, the proper approach would be for the new broker to enter into a cooperative brokerage agreement (often referred to as a “co-op”), which provides for the commission to be split between the two brokerages. These agreements are used in one form or another throughout the country, and they allow for the sale of the boat through a second broker without affecting the owner’s listing agreement with the first broker.
David Weil is licensed to practice law in the state of California and, as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Therefore, the information provided in this column should not be regarded as individual legal advice, and readers should not act upon this information without seeking the opinion of an attorney in their home state.
David Weil is the managing attorney at Weil & Associates (weilmaritime.com) in Long Beach. He is an adjunct professor of Admiralty Law at Loyola University Law School, is a member of the Maritime Law Association of the United States and is former legal counsel to the California Yacht Brokers Association. He is also one of a small group of attorneys to be certified as an Admiralty and Maritime Law Specialist by the State Bar of California. If you have a maritime law question for Weil, he can be contacted at (562) 438-8149 or at email@example.com