Pagano Co. v. 48 South Franklin Turnpike, LLC

965 A.2d 1172, 198 N.J. 107, 2009 N.J. LEXIS 49
CourtSupreme Court of New Jersey
DecidedMarch 9, 2009
StatusPublished
Cited by1 cases

This text of 965 A.2d 1172 (Pagano Co. v. 48 South Franklin Turnpike, LLC) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pagano Co. v. 48 South Franklin Turnpike, LLC, 965 A.2d 1172, 198 N.J. 107, 2009 N.J. LEXIS 49 (N.J. 2009).

Opinions

Justice LONG

delivered the opinion of the Court.

At issue in this appeal is whether a purchaser of commercial property is liable for the real estate broker commissions due under the leases it acquired under a general assignment from the seller. In VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 556, 641 A.2d 519 (1994), we held that in order to incur liability by virtue of such an assignment, the purchaser must have “affirmatively assume[d]” the seller’s obligation to pay the commissions. A separate express promise by the purchaser to pay broker commissions certainly will satisfy that standard. But that is not the only way to do so. Rather, determining whether an “affirmative assumption” has taken place requires an analysis of all of the facts and circumstances surrounding the assignment and, in particular, the documentary record. If, taken as a whole, the record signals that the assignee agreed to assume the obligation, he or she will be held to it despite the absence of a separate express promise to do so. Applying that standard, we hold that the purchaser in this case affirmatively assumed the commission agreement between the seller and the broker.

I.

In February 1997, plaintiff Pagano Company (“Pagano”), a licensed real estate broker, entered into an agreement with Heri[110]*110tage III Office Center (“Heritage”), the owner of commercial property located at 48 South Franklin Turnpike in Ramsey.1 That agreement gave Pagano the exclusive right to procure tenants to lease space in the property, and to negotiate those tenants’ leases on behalf of Heritage. The agreement also provided that the “Owner agrees to pay PAGANO COMPANY a Real Estate Brokerage commission of five (5%) percent of the total lease price” in connection with any lease entered into pursuant to the brokerage agreement, including any options, extensions, and renewals. The “Schedule of Lease Commissions” accompanying the brokerage agreement addressed the commission obligation in the event of an assignment:

The undersigned Owner hereby acknowledges receipt of a copy of this Schedule and further agrees that it shall be binding upon the heirs, successors and assigns of the undersigned. The term Owner when used herein shall be deemed to mean the owner of the property, a Tenant under a ground lease, and any Tenant desiring to effect a sublease[ ].

In June 2004, Heritage and defendant 48 South Franklin Turnpike, LLC (“Franklin”) entered into a contract for the purchase and sale of the property. That contract included a “Due Diligence and Investigation” provision granting Franklin

a period of thirty (30) days from the date of this Agreement ... to perform the following inspections in order to satisfy itself as to the condition of the Property, specifically:
4.1.1 Business Records. During the Due Diligence Period, Buyer shall have the right to review the books and records relating to the Property, including but not limited to:
A. Copies of all leases presently in effect;
B. Copies of all correspondence relating to present tenants;
C. Any correspondence with municipal or other governing authorities relating to the Premises;
D. Any and all statements of rents due and received maintained by Seller or Seller’s manager(s); and
E. Operating statements for the past three (3) years[J

[111]*111Exhibit B of the contract provided that if “Buyer has been unable to locate a document or information which the Buyer feels is required to complete its due diligence, Buyer shall notify Seller that it requires such information/documentation and Seller shall make reasonable efforts to provide such information/documentation to Buyer.”

Franklin “reviewed the Lease Agreements at issue during the due diligence period and made no further requests for any additional documents from the Seller.” A closing was held on September 20, 2004, and, as part of that transaction, Heritage assigned to Franklin “all of the Leases, Rents and Security deposits related to any and all existing tenancies at the Property,” and Franklin agreed to assume all of Heritage’s obligations under those tenancies:

1. Assignment. Assignor hereby assigns to Assignee all of Assignor’s right, title and interest in and to
(a) any and, all leases, tenancies, licenses, rental agreements, occupancy agreements and other agreements of whatever foam now m• hereafter affecting all or any pari of the Property and any and all guarantees, extensions, renewals, replacements and modifications thereof and all remainders, reversions and other rights and estates appurtenant thereto, including, but not limited to renewal options and expansion rights, all modifications, extensions and renewals thereof and all rights to renew or extend the te[r]m thereof, all right and privilege of Assignor to terminate, cancel, abridge, merge, modify, surrender or amend the foregoing and any and all possessory rights of Assignor and other rights and/or privileges of possession (collectively, the “Leases”); and
2. Performance of duties. Assignee hereby assumes and, agrees to perform, all of Assignor’s obligations under the Leases. Assignee shall indemnify and hold harmless Assignor from and against any claim, liability, and expense which Assignee may incur (including, without limitation, attorneys’ fees and litigation expenses) that arise[ ] out of Assignee’s performance of, or failure to perform the obligations assumed hereby.
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns. [ (Emphasis added).!

At the time Franklin purchased the property, three tenants still occupied the space pursuant to lease agreements and extensions procured and negotiated by Pagano. The specifics of those leases are unimportant except insofar as they contained the following [112]*112paragraph relating to the applicability of the leases to each party’s successors:

41. APPLICABILITY TO HEIRS AND ASSIGNS: The provisions of this Lease shall apply to, bind and [ijnure to the benefit of Lessor and Lessee, and their respective heirs, successors, legal representatives and assigns. It is understood that the term “Lessor” as used in this Lease means only the Owner, a mortgagee in possession!,] or a term lessee of the Building, so that in the event of any sale of the Building or of any lease thereof, or if a mortgagee shall take possession of the Premises, the Lessor named herein shall be and hereby [i]s entirely freed and relieved of all covenants and obligations of Lessor hereunder accruing thereafter, and it shall be deemed without further agreement that the purchaser, the term lessee of the Building, or the mortgagee in possession has assumed and agreed to carry out any and all covenants and obligations of the Lessor hereunder.
[ (Emphasis added).]

Each lease also contained, in pertinent part, the following paragraph explaining the Lessor’s liability for commissions owed to Pagano:

44.

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Related

Pagano Co. v. 48 South Franklin Turnpike, LLC
965 A.2d 1172 (Supreme Court of New Jersey, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
965 A.2d 1172, 198 N.J. 107, 2009 N.J. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pagano-co-v-48-south-franklin-turnpike-llc-nj-2009.