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Adloo v. H.T. Brown Real Estate Inc.12/16/1996
NO. 143, September Term, 1995.
Opinion by: Bell
In this case, we are asked to resolve whether, as a matter of law, clauses in a real estate listing contract between the petitioners, Abdolrahman Adloo, and Monireh, his wife, and the respondent H.T. Brown Real Estate, Inc., and in a related lock-box authorization are exculpatory clauses, which absolve the real estate company from liability for its future negligence. The Circuit Court for Montgomery County having denied the respondent's motion for judgment premised on the clauses being exculpatory, the jury returned a verdict in favor of the petitioners. The respondent successfully appealed to the Court of Special Appeals, which, in an unreported opinion, held that "a provision in an agreement between homeowners and their real estate broker exculpating the broker from any liability for the loss of the homeowners' personal property ... is enforceable." We granted the petitioner's petition and issued the writ of certiorari to consider the issue. We shall reverse the judgment of the intermediate appellate court.
I
The petitioners entered into an exclusive listing agreement with the respondent for the sale of the petitioner's home. That listing agreement contained the following clause:
Neither REALTOR nor his agents or sub-agents are responsible for vandalism, theft or damage of any nature whatsoever to the property, nor is REALTOR responsible for the custody of the property, its management, maintenance, upkeep or repair.
It also provided that the petitioners' home would be available for showing "at all reasonable hours."
Consistent with the latter provision and in order to facilitate the showing of the petitioners' home, the petitioners subsequently executed a lock-box authorization. Pursuant to that authorization, the petitioners agreed to the installation and use of a lock-box device, which allowed their home to be shown without either the petitioners or the respondent's agent being present. While the respondent instructed the petitioners to disengage the security system monitoring their home to allow access to the home, the authorization cautioned the petitioners to "safeguard" their valuables. It also contained the following provision:
SELLER further acknowledges that neither Listing or Selling BROKER nor their agents are an insurer against the loss of personal property; SELLER agrees to waive and releases BROKER and his agents and/or cooperating agents and brokers from any responsibility therefore .
The respondent received a telephone call from a man who identified himself as Alvin Harris and represented that he was an agent of Shannon and Luchs, another real estate broker. Informing the respondent's employee of his intention to show the petitioners' home that afternoon, "Mr. Harris" requested, and eventually secured, the lock-box combination. In providing that information, the employee followed the respondent's established policy of verifying the bona fides of the caller, his identity and affiliation with the named agency, by calling, without first conducting any independent investigation, the number the caller gave her. Subsequently, it was discovered that the caller was an impostor; Shannon and Luchs did not have an agent named Alvin Harris. According to the records of the Maryland Real Estate Commission, no real estate license has been issued in that name, and the number given to the respondent's employee was not a Shannon and Luchs number. It was also discovered that cash, jewelry, and other property totalling nearly $40,000 had been taken from the petitioners' home.
Having filed, and settled, a claim with their insurance
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