## Facts

- Trustees owning a commercial/industrial park retained real-estate brokers on an exclusive basis to procure “ready, willing, and able” buyers or tenants for buildings to be constructed.
- The brokers introduced Patriot Properties, Inc. as a prospective buyer.
- The owners and Patriot signed a 1988 purchase-and-sale agreement for land and a 20,000-square-foot office building to be constructed, with payment due at closing after notice of completion.
- The agreement included an environmental contingency tied to hazardous materials; an inspection later revealed oil contamination.
- After contamination was discovered, Patriot’s lender withdrew financing, and the 1988 transaction did not close.
- In 1989, the owners entered a new agreement with Patriot or related parties without the brokers; the later deal materially shifted environmental risk to the owners and ultimately led to a repurchase when remediation was not timely completed.
- The brokers sued for a commission and attorney’s fees, claiming they earned the commission upon procuring Patriot and that the failure to close was attributable to the owners.

## Issues

1. Whether the brokers earned a commission when the 1988 contract failed to close after contamination caused the buyer to lose financing and become unable to perform.
2. Whether the owners’ refusal to pay the disputed commission constituted an unfair or deceptive act or practice under Massachusetts General Laws chapter 93A.

## Decision

- The Supreme Judicial Court affirmed the Appeals Court and entered judgment for the owners.
- The court held the brokers were not entitled to a commission because the buyer was not “ready, willing, and able” to purchase on the agreed terms once financing failed following discovery of contamination.
- The court held the later 1989 agreement did not create commission entitlement because it was materially different from the 1988 deal.
- The court reversed the chapter 93A-based award of attorney’s fees and costs, concluding the conduct did not violate chapter 93A.

## Legal Principles

- A broker’s commission entitlement depends on the brokerage agreement and the transaction documents; producing a “ready, willing, and able” customer is not established where the customer cannot complete the purchase due to financing failure tied to contractual contingencies.
- When a purchase obligation is contingent on environmental conditions and contamination triggers loss of financing, the buyer may cease to be “able” to perform, defeating a commission claim absent language making commission unconditional upon contract execution.
- A subsequent transaction with the same prospect does not automatically obligate payment of a commission where the later agreement is on materially different terms.
- A bona fide contract dispute over commission entitlement, without deceptive or unscrupulous conduct, generally does not constitute an unfair or deceptive practice under chapter 93A and does not support an award of attorney’s fees on that basis.

## Conclusion

The court denied the brokers’ commission because the buyer’s contamination-related financing loss meant the buyer was not “ready, willing, and able” under the governing agreements, and it rejected chapter 93A liability because the nonpayment arose from a genuine contractual dispute rather than unfair or deceptive conduct.


Hillis v. Lake, 421 Mass. 537 (1995)