II. Whether plaintiff is seeking an improper real estate commission.
Defendant Kaempfer contends that plaintiff Kassatly acted as a "real estate broker,"
who for lack of a license as such, is statutorily barred from bringing an action to collect his commission. See D.C.Code $ S 45-1926(c) (1986). Plaintiff, on the other hand, asserts that he acted as a "finder" or "business chance broker"
and was exempt from the licensing requirement.
The District of Columbia's statutory definition of "real estate broker" does not exclude the possibility that a "finder" or "business chance broker" may be deemed a "real estate broker," at least in some situations. Indeed, the title of the relevant regulations, "Real Estate and Business Chance Licenses," suggests that the District meant to require the licensing of "business chance brokers" involved in real estate transactions.
However, neither the text of the definitional provision nor its legislative history yields any significant clue one way or the other, and the District of Columbia courts have never construed the provision. Left without guidance by local law, this Court may consult other jurisdictions for assistance. See Brown v. Herman Miller, 281 U.S. App. D.C. 326, 890 F.2d 443, 445 (D.C.Cir. 1989).
As generally defined, a real estate broker is an agent who, for a commission or fee, is employed by a principal to negotiate the sale, purchase, lease or exchange of real property to a third party. A broker is an intermediary or middleman whose function and duty is to bring together the buyer and seller or owner and lessee. A broker may be employed as a "finder," i.e., to find a prospective purchaser and introduce the parties. "Finders" may be exempt from real estate licensing requirements if none of the functions of a broker are performed. The distinction between a "broker" and "finder" depends on the individual's involvement in the transaction. If the "finder" takes any part in the negotiations, no matter how slight, he will be considered a "broker" and must be licensed to collect a commission.
R. Powell, The Law of Real Property, § 938.13- (1989).
In Wickersham v. Harris, 313 F.2d 468 (10th Cir. 1963), the Tenth Circuit interpreted the earlier District of Columbia statute dealing with "real-estate brokers" to include a real-estate finder. Although the broker/finder in that case not only introduced the buyer and seller, but also advised the buyer about purchasing tactics and participated in the negotiations, the opinion suggests that real estate finders are simply a species of real-estate brokers. Wickersham, supra, 313 F.2d at 471; Brown v. Herman Miller, Inc., supra, 890 F.2d at 445. Other courts have reached similar conclusions under varying statutory regimes. Schmitt v. Coad, 24 Wash. App. 661, 604 P.2d 507, 510 (1979) (individual employed to find buyer for all capital stock of two newspapers was a "broker"); Broughall v. Black Forest Dev. Co., 196 Colo. 503, 593 P.2d 314 (1978) (finder of a buyer for a radio station whose sale involved a transfer of a leasehold interest in the land on which it was situated was a "real estate broker"); George Nangen & Co. v. Kenosha Auto Transport Corp., 238 F. Supp. 157 (E.D.Wisc. 1965) (individual employed to find buyer willing to purchase business on stated terms was a "real estate broker"); Alford v. Raschiatore, 163 Pa. Super. 635, 63 A.2d 366, 368 (1949) (mere act of bringing interested parties together for discussion suffices as the "negotiation" of a resulting sale).
This Court need not decide whether a mere "finder" qualifies as a "real estate broker" under District of Columbia law. Plaintiff's deposition testimony demonstrates that plaintiff did much more than simply introduce the parties. After Kaempfer rejected Yazbeck's initial offer for the Hotel and office building, Kassatly personally contacted Kaempfer about the deal on Yazbeck's behalf.
KASSATLY: He [Yazbeck] says, "Kassatly, I want you to go to see Kaempfer immediately and tell him that I don't agree with this and we still need to negotiate and I still am interested in buying the hotel.
QUESTION: Did you do that?