Is it legal for a professional ethics group to demand that I &quot;respect&quot; other agents&#39; exclusive relationships with their clients? I previously asked this question on the legality of anti-poaching agreements. If it's not illegal for two companies to enter into an agreement not to poach each others' talent, why is it legal for a NAR® to state, REALTORS® shall not solicit a listing which is currently listed exclusively with another broker. Why is that though? I mean if I solicit a listing from a client who is locked into an exclusive listing with another broker, but the other broker isn't the procuring cause of the sale it sounds to me like the other broker will not be entitled to a commission and I will (subject to my contract). How is a non-compete between two brokers for a client in contract permissible in real estate, but not in other forms of employment? Here are two questions from my practice ethics quiz (not exam) When can a REALTOR® “solicit” another broker’s exclusive listing? a. Never. b. At any time – anti-trust laws prohibit restrictions on such activities . c. If the owner initiates the contact and the REALTOR® has not directly or in direct ly initiated the discussion¸ the REALTOR® can discuss the terms of a future li sting . d. If the owner does not initiate the contact but the REALTOR® initiates a d iscussion at a social event¸ the REALTOR® can discuss the terms of a future listing. They're saying the answer is &quot;C&quot;. But how can it be legal to tell me that I compete with another broker for a client through a discussion I initiate with social even When can a REALTOR® deal with the client of another REALTOR® who has an exclusive agreement with the client? a. Never. b. At any time – there are no restrictions on this activity. c. If the client initiates the dealings. d. If the client returns a call after the REALTOR® has initiated the dealings. They're saying the answer is &quot;C&quot;. But again, if I prospective client calls me after a general mailing (which they permit) it's not clear to my how it's legal to say we can't compete and &quot;deal&quot; in terms of future listing or for business? Just wanting to get a better idea of how these non-competition agreements work in real estate and what guiding law limits their use, and when they reach over into being anti-competitive.
They are merely telling you what the law is There is a tort called interference with contractual relations: The question strikes at the heart of our economic and legal system both of which are based upon principles of freedom of contract and freedom of choice. However, parties that freely enter contracts cannot freely breach such contracts and Courts have shown that they are prepared in some cases to provide relief against unlawful interferences with contractual relations. If A (the vendor) has contracted with B (the realtor) it is unlawful for a third-party (you) to induce A to breach their contract. If you were to approach A and they then broke their contract with B, B could sue A for breach of contract and you for interference in contractual relations. Anti-competition law is directed at ensuring there is a free and fair market for goods and services but once two parties have willingly entered a contract, they are no longer participating in the market. Now, if A approaches you, that's on A and hence why the answer o both questions is c.
Only if the company consents While some jurisdictions have by statute allowed corporations to be bound by pre-incorporation contracts, New York is not one of them and holds to the common law principle that a person cannot enter a contract before that person exists. In your circumstances the company is only bound by the second contract. So, who is bound by the first? Well, corporations can only act through agents and agency law tells us that an agent who purportedly acts for a non-existent principal is actually acting on their own behalf. So, the person(s) who signed for Company X on the first contract are personally bound to the contract. Unless they explicitly told Company Y that they wouldn’t be. It seems that they didn’t so Company Y can require performance of the first contract by them and of the second by Company X. Company Y must, of course, fulfil its obligations under both contracts - it needs to bear this in mind if it is actually impossible to do both, for example, transferring the same property to the signers of the first contract and Company X or becoming a full time employee of both. If so, it might be in Company Y’s best interests to let the first contract “die”.
Short Answer The question of whether a real property mortgage is recourse or non-recourse is governed by the law of the jurisdiction where the real property is located. The place where the parties to the agreement reside, or where the documents are signed, is irrelevant. I am not aware of any exceptions to this rule anywhere in the world. In some circumstances, the parties may reach an agreement regarding whether a real property mortgage is recourse or non-recourse if the law of the jurisdiction permits agreements of this type. But, often the parties are not allowed to vary this aspect of their real property mortgage agreement by contract. Choice is law for loans secured by collateral which is property other than real property is pretty much irrelevant in the U.S. This because the law is the same in every U.S. state, territory, or district. Long Answer Background regarding recourse and non-recourse loans To clarify, the terms &quot;recourse&quot; and &quot;non-recourse&quot; are normally used to refer to the remedies available in the event of foreclosure of a loan secured by property that serves as collateral for the loan. When the collateral is real property, the core documents in the transaction are a promissory note that represents a borrower's promise to reply the funds borrowed from any assets available to the borrower that is not exempt from creditor's claims, and a document representing the fact that the collateral may be seized if the promissory note is not paid as agreed, and that the creditor's interest in that collateral has priority over all third parties seeking to collect their debts out of that property which cannot be erased by transferring the property to someone else. This document is sometimes called a mortgage, and a substantially equivalent document used mostly in the Western U.S. is called a deed of trust. I will call this document a mortgage for simplicity, whatever its true name in your locality. In the case of a recourse mortgage, if the borrower defaults, the lender can foreclose on the mortgage, which results in a foreclosure sale at which the lender can bid all or part of the debt secured by the collateral together with any additional cash desired, and their parties may make cash bids. Ignoring for the moment the complications involved when there are multiple mortgages and liens with different priorities encumbering the real property, the person who makes the highest bid at the foreclosure sale is given ownership of the real property in exchange for paying the price bid at the foreclosure sale either in cash (in the case of a third-party bid) or in the from of a reduction in the debt owed, in the case of a lender bidding the debt owed against the property. If the mortgage is a recourse mortgage, then if the lender bids less than the full amount of the debt owed on the promissory note and is the highest bidder at the foreclosure sale, then the debt owed on the promissory note is reduced by the amount of the bid made by the lender and the remainder of the balance owing on the promissory note is a personal debt owed by the borrower to the lender called a deficiency judgment. For example, suppose that you buy a house for $1,000,000 with a $200,000 down payment and an $800,0000 recourse mortgage loan. Some time later, the balance owed on the mortgage loan from regular monthly principal and interest payments is $775,000. But, due to a collapse in the real estate market in the real estate market where your house is located, your house, which had a fair market value of $1,000,000 when you bought it, now has a fair market value of $725,000. You lose you job due to the same economic downturn that has caused the market value of your house to decline and are unable to make mortgage payments. The lender forecloses on your house and bids $725,000 at the foreclosure sale, even though you still owe $775,000 on the promissory note. After the foreclosure sale is completely, the lender owns your house, and you still owe the lender a deficiency judgment of $50,000. The lender may now collect the $50,000 deficiency judgment in much the ame way that the lender would collect a judgment entered by a court on an unpaid credit card bill for $50,000. The lender can garnish your wages (once you get some), can seize your bank accounts, and can seize other property which you own which is not protected by a statutory exemption from creditors. In a recourse mortgage the economic risk of declining property values that wipe out the down payment equity is born by the borrower. In contrast, if you had a non-recourse mortgage, the lender's sole remedy would be to seize the collateral and the lenders would not be able to obtain a deficiency judgment no matter how little your house was worth. Operationally, this means that the lender is required to bid the full amount of the debt owed by the borrower to the lender at the foreclosure sale, even if the property is worth much less than the amount of the debt owed. In the case of a non-recourse mortgage the economic risk of declining property values that wipe out the down payment equity is born by the lender. Choice of Law For Real Property The place where the documents are signed and the domiciles or place of organization of the parties to the agreement are irrelevant to the question of whether a real property mortgage is recourse or non-recourse. In the U.S. (and everywhere else that I am aware of), the law governing security interests in real property, such as mortgages and deeds of trust and liens is the law of the place where the real property is located. So, if you take out a mortgage on property in a non-recourse state, the mortgage will be a non-recourse mortgage. Usually, in a non-recourse state, it is not possible for a lender and a borrower to mutually agree to make the mortgage a recourse mortgage when the default rule is that mortgages are non-recourse mortgages. In contrast, if you take out a mortgage on property in a recourse state, the mortgage will be a recourse mortgage, unless the borrower and lender expressly waive the right of the lender to obtain a deficiency judgment in a foreclosure within the mortgage document. Choice of Law For Other Property The law governing security interests in property other than real property in the U.S. is usually the Uniform Commercial Code which contains choice of law rules. While, in theory, different rules that states could adopt regarding whether security interests in property other than real property are recourse or non-recourse, in practice, every U.S. state has adopted the Uniform Commercial Code as a matter of state or territorial or district law, and at the level of generality of whether a security interest (which is the legal name for a mortgage with collateral other than real property under the Uniform Commercial Code) is recourse or non-recourse, the law is uniform throughout the United States, although there might be slight technical differences between the laws of different states or other jurisdictions within the U.S. based upon the version of the Uniform Commercial Code that is on the books or the decision of state legislators to deviate from the uniform statute's language. The Uniform Commercial Code of each state contains choice of law rules determine which state's version of the Uniform Commercial Code applies to a case. And, the choice of law rules of the Uniform Commercial Code in the state where a lawsuit pertaining to the personal property security interest is what a court in that state applies to resolve the choice of law question. These rules are generally consistent with each other. Footnote on Macroeconomic Implications Of Recourse v. Nonrecourse Mortgages The incentives of lenders and borrowers when entering into mortgage loan arrangements is different in recourse and nonrecourse mortgages, particularly, when the decision to give a borrower a loan is made by a third-party mortgage broker subject to bureaucratic conditions, or by a low level bank employee who acts in the same way, rather than by someone with an economic stake the financial well being of the lender. When mortgage loans are non-recourse, down payments are small, and housing prices are rising, and may be entering a real estate bubble, a borrower is in a &quot;heads I win, tails you lose&quot; situation. If real property values collapse, the borrow loses only his small down payment. If real property values go up, the borrower can sell the property and pocket all of the profits (in some circumstances the profits are even tax free). The borrower has little incentive to worry about the possibility that the fair market value of the real estate could collapse at some point. But, if the decision to allow the borrower to borrow is made by an employee or broker with nothing to lose if a loan is authorized when it shouldn't have been because the risk that the property values will collapse due to a real estate bubble are too great, the mortgage broker has an incentive to be lax in underwriting the loan to make sure that the borrower can really make the payments and that a foreclosure of the loan will realize enough value to pay of the loan if a real estate price bubble collapses. And, since the bank can get its money back and more by foreclosing if the borrower doesn't make payments while prices are going up, there isn't much of an incentive to make sure that the evidence of the borrower's ability to make the payments on the mortgage is accurate. The incentive of the broker or employee is usually to get as many mortgages processed as possible, even if that means overlooking problems with paperwork in a loan application, or using an appraiser who will say that the property being financed is worth what is necessary to get the loan approved, even if you know that the appraiser is cutting corners or just making up inaccurate values to get what the broker wants done. These events can conspire to make a real estate mortgage very bad and to expose the entire community of lenders who make loans in a non-recourse state to catastrophic losses in the event that a real estate bubble collapses. In contrast, this is much less likely to happen in a recourse mortgage state, where the risk of a downside loss deficiency judgment discourages borrowers from trying to finance the purchase of a house that could easily lose more value than the down payment if it was apparent that a real estate bubble was developing. So borrowers would self-police. The reason for this extended footnote and story is that this was one of the root causes of the financial crisis. A handful of states with big real estate markets and non-recourse mortgages (California, Florida and Texas mostly) started to experience real estate bubbles and mortgage lenders, because they had bad incentives in their mortgage origination systems didn't do enough to prevent themselves from financing the purchases of overprices houses. Eventually, the real estate bubble collapsed, lots of borrowers with overpriced houses and little money down defaulted on very large mortgage loans, and the lenders took huge losses on their real estate mortgage portfolios which were supposed to be ultra-low risk but weren't because the people evaluating the real estate mortgage investments overlooked or willfully ignored the risks. This, in turn, resulted in losses so great at the financial institution level that almost every major investment bank in the country and almost every subprime lender in the country went out of business or went bankrupt, and the collapse of this part of the financial industry, in turn, wrecked havoc on every firm in the economy that relied of these financial institutions as a source of investment or a source of financing for their unrelated businesses. The result was the worst recession since the Great Depression.
It is very unlikely that such a sentence (&quot;A 6 month non-compete/solicitation is required&quot;) is enforceable, because it is way too broad. The reasonable interpretation of the sentence is that the employer has thereby put the employee on notice that such an agreement will be required, and the actual terms of that agreement will be spelled out at that time, but that sentence does not constitute an &quot;agreement&quot;. Ad actual agreement has to be supported by consideration, and have a reasonable scope (including place and activities). Texas law disfavors restrictions on job-changing, so an agreement would have to go beyond just saying that &quot;a non-compete is required&quot;. Since the letter asserts that it is not a contract, there is no clear contractual obligation (they can fire you anytime they want, it seems).
the first two highlighted parts seem to contradict each other. No, in this case they do not. The first highlighted portion refers to works or items produced "for or under the direction of the Company", whereas the second highlight refers to your creations that satisfy conditions (a) and (b). Where contradictions actually exist, the doctrine of contra proferentem entitles you (the non-draftsman of the contract) to adopt the portion or reasonable interpretation that favors your legal position. Also wondering how valid those statements actually are They are valid and become enforceable as soon as you sign the contract or your subsequent conduct reflects your acceptance thereof. it's a matter of privacy. So the question is what I can do or what the reality is of the situation The reality is that you are asked to sign a contract that is abusive and ridiculous. One vulnerability from describing your inventions (presumably in Appendix A) is that the employer gets "irrevocable, worldwide, etc" rights on them as soon as you "use or disclose any [items listed in Appendix A] when acting within the scope of [your] employment". This means that if instead of reinventing the wheel you share or apply any portion of your prior creations so as to enhance your productivity, you knowingly and irreversibly grant to the employer perpetual rights to those items. Legal disputes regarding APIs can become extremely intricate. And, since judges usually have no decent background on IT, even those few judges with integrity are unlikely to grasp the key subtleties that would lead to a correct ruling. "not useful with or related to any Company Interest" is very vague. The company could be interested in literally anything these days. Clauses which are too vague or excessively wide-encompassing are supposedly stricken as unconscionable, unenforceable, etc. However, I personally would foreclose upfront the risk of judicial hassle and decline the abusive contract. Legal issues aside, keep in mind that you are offering your expertise (in terms of supply &amp; demand, you are on the supply side). This fact has a less derogatory connotation than "asking for a job". Accordingly, the relation between the parties should be more leveled.
One of the principles of contract law is that the offer and acceptance are evaluated based on the objectively ascertainable intentions as judged by a reasonable person. On the facts that you have provided - even if your friend claims that they filled it out wrong, there is no reason for someone to objectively think so, particularly given the fact that they went to the trouble of writing the information in. However, this will depend on what kind of legally binding document this is. If it is, in fact, a contract, then the employer must accept it before it becomes legally binding, and they must actually communicate this acceptance to your friend (the offeror). If this is a policy document, then it is only legally binding if another contract has said that it is legally binding - generally, (smart) employers will include a clause in their employment contract stating that you are to adhere to policies but that those policies do not form part of the contract. If that is the case, then your friend is legally bound by the terms of the policy and will breach their employment contract if they do not adhere to this policy. This is unlikely to be an issue of contract law in and of itself - your friend cannot unilaterally bind their employer to terms as he sees fit. More information - including the nature of the document and other agreements that were made - would be required to provide more useful information (and that's what you would give to a lawyer).
To put it as nicely as possible, you're not being very smart by threatening to make the house guest's predicament the worst mistake they ever made. Drawing up a notarized contract with a financial penalty is ludicrous and likely simply illegal in terms of contracting for something that is against the law. Beyond that, any threats you make to against house guest could be grounds for them to file a civil suit against you, either for eviction or physical harm, and you'll end up in court rather than simply getting the house guest to leave. An Unlawful Detainer applies if there is verbal or written lease, and as such you would have to go through the formal eviction process. But if this is a simple house guest issue, with no lease or rental agreement in the past, and they are not a family member with some legal right to be in the house, law enforcement is the way to deal with it. It's very simple: set a move out date and say you will call the police or county sheriff if they don't move out on that date. If they don't leave and you do call the police or sheriff, simply say you have a house guest who won't leave, i.e. a trespasser. Law enforcement will come out and you will explain the story; they will likely make the determination that you are the property owner and the guest is indeed not welcome. Law enforcement will tell the guest to leave or be arrested, as per Florida Law - Chapter 810. You can call the police or county sheriff ahead of the move out date and determine the appropriate laws; and get advice on what you might need to do on the actual move out day. If the house guest has property, law enforcement will stand by at that time while they retrieve their property, or make arrangements for them get it at a later date, with or without law enforcement.
Generally speaking, ex parte communications with a judge (i.e. communications to which all parties to a case are not notified) are prohibited, both by law and as a matter of judicial and attorney ethics, subject to some narrow exceptions (e.g. applications for arrest warrants prior to the arrest warrant being carried out). Generally speaking, communications with the court (which is to say with judges or their subordinates) are made a matter of public record, and if the communication is about a particular case, all attorneys in the case must be given notice of it (if someone is not represented by an attorney, the notice goes to the defendant rather than their non-existent attorney). The attorney may then communicate the communication to their client, and generally speaking should communicate it to the client. I don't see anything in the question that suggests that this proposed communication would fall outside the general rule. But, the question isn't very specific and I wouldn't rule out the possibility that an exception might apply in a case with very unusual facts. Also, usually, a request to reconsider a sentence has to be made by a formal motion filed by the prosecutor or the defendant. Generally speaking, a third-party cannot file that motion unilaterally. A third-party or victim would usually only have input into the decision through the prosecutor's office. Third parties and victims are not generally permitted to file motions to reconsider sentences that have been imposed even in states with "victim's rights" statutes, but can publicly provide input to the court before a sentence is imposed, usually at the behest of either the prosecutor or the defendant. Furthermore, generally a criminal defendant has a constitutional right to not have a sentence made more severe after being sentenced the first time around. Reconsideration of a sentence once it is imposed may only be in the direction of leniency. Once a sentence is imposed, it can't be reconsidered to be made more harsh.