S T A T E O F N E W Y O R K
________________________________________________________________________
10443--A
I N A S S E M B L Y
March 26, 2010
___________
Introduced by M. of A. BING, SCHIMEL, BOYLAND, KOON, P. RIVERA, GIANAR-
IS, ZEBROWSKI, HYER-SPENCER -- Multi-Sponsored by -- M. of A. CAHILL,
DINOWITZ, HOOPER, JEFFRIES, McENENY, REILLY, SKARTADOS, WEISENBERG --
read once and referred to the Committee on Judiciary -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the real property law, in relation to disclosure regard-
ing real estate agency relationship
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs a and f of subdivision 1 of section 443 of the
real property law, as amended by chapter 549 of the laws of 2007, are
amended and two new paragraphs p and q are added to read as follows:
a. "Agent" means a person who is licensed as a real estate broker [or
real estate sales associate], ASSOCIATE REAL ESTATE BROKER OR REAL
ESTATE SALESPERSON under section four hundred forty-a of this article
and is acting in a fiduciary capacity.
f. "Residential real property" means real property USED OR OCCUPIED,
OR INTENDED TO BE USED OR OCCUPIED, WHOLLY OR PARTLY, AS THE HOME OR
RESIDENCE OF ONE OR MORE PERSONS improved by (I) a one-to-four family
dwelling [used or occupied, or intended to be used or occupied, wholly
or partly, as the home or residence of one or more persons,] OR (II)
CONDOMINIUM OR COOPERATIVE APARTMENTS but shall not refer to [(i)] unim-
proved real property upon which such dwellings are to be constructed [or
(ii) condominium or cooperative apartments in a building containing more
than four units].
P. "ADVANCE CONSENT TO DUAL AGENCY" MEANS WRITTEN CONSENT SIGNED BY
THE SELLER/LANDLORD OR BUYER/TENANT THAT THE LISTING AGENT AND/OR
BUYER'S AGENT MAY ACT AS A DUAL AGENT FOR THAT SELLER/LANDLORD AND A
BUYER/TENANT FOR RESIDENTIAL REAL PROPERTY WHICH IS THE SUBJECT OF A
LISTING AGREEMENT.
Q. "ADVANCE CONSENT TO DUAL AGENCY WITH DESIGNATED SALES AGENTS" MEANS
WRITTEN CONSENT SIGNED BY THE SELLER/LANDLORD OR BUYER/TENANT THAT INDI-
CATES THE NAME OF THE AGENT APPOINTED TO REPRESENT THE SELLER/LANDLORD
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD16207-05-0
A. 10443--A 2
OR BUYER/TENANT AS A DESIGNATED SALES AGENT FOR RESIDENTIAL REAL PROPER-
TY WHICH IS THE SUBJECT OF A LISTING AGREEMENT.
S 2. Paragraphs b and c of subdivision 3 of section 443 of the real
property law, as amended by chapter 549 of the laws of 2007, are amended
and a new paragraph f is added to read as follows:
b. A seller's agent or landlord's agent shall provide the disclosure
form set forth in subdivision four of this section to a buyer[, buyer's
agent,] OR tenant [or tenant's agent] at the time of the first substan-
tive contact with the buyer or tenant and shall obtain a signed acknowl-
edgement from the buyer or tenant, except as provided in paragraph e of
this subdivision. A SELLER'S AGENT OR LANDLORD'S AGENT IS NOT REQUIRED
TO PROVIDE THE DISCLOSURE FORM TO A BUYER OR TENANT AT FIRST SUBSTANTIVE
CONTACT IF THE BUYER OR TENANT IS IN THE PRESENCE OF THEIR BUYER'S AGENT
OR TENANT'S AGENT.
c. A buyer's agent or tenant's agent shall provide the disclosure form
to the buyer or tenant prior to entering into an agreement to act as the
buyer's agent or tenant's agent and shall obtain a signed acknowledgment
from the buyer or tenant, except as provided in paragraph e of this
subdivision. A buyer's agent or tenant's agent shall provide the form to
the seller[, seller's agent,] OR landlord [or landlord's agent] at the
time of the first substantive contact with the seller or landlord and
shall obtain a signed acknowledgment from the seller[,] OR landlord [or
the listing agent,] except as provided in paragraph e of this subdivi-
sion. A BUYER'S AGENT OR TENANT'S AGENT IS NOT REQUIRED TO PROVIDE THE
DISCLOSURE FORM TO A SELLER OR LANDLORD AT FIRST SUBSTANTIVE CONTACT IF
THE SELLER OR LANDLORD IS IN THE PRESENCE OF THEIR SELLER'S AGENT OR
LANDLORD'S AGENT.
F. A SELLER/LANDLORD OR BUYER/TENANT MAY PROVIDE ADVANCE CONSENT TO
DUAL AGENCY AND DUAL AGENCY WITH DESIGNATED SALES AGENTS BY INDICATING
THE SAME ON THE FORM SET FORTH IN SUBDIVISION FOUR OF THIS SECTION.
S 3. Paragraphs a and b of subdivision 4 of section 443 of the real
property law, as amended by chapter 549 of the laws of 2007, are amended
to read as follows:
a. For buyer-seller transactions, the following shall be the disclo-
sure form:
NEW YORK STATE DISCLOSURE FORM
FOR
BUYER AND SELLER
THIS IS NOT A CONTRACT
New York state law requires real estate licensees who are acting as
agents of buyers or sellers of property to advise the potential buyers
or sellers with whom they work of the nature of their agency relation-
ship and the rights and obligations it creates. This disclosure will
help you to make informed choices about your relationship with the real
estate broker and its sales associates.
Throughout the transaction you may receive more than one disclosure
form. The law [requires] MAY REQUIRE each agent assisting in the trans-
action to present you with this disclosure form. A real estate agent is
a person qualified to advise about real estate.
If you need legal, tax or other advice, consult with a professional in
that field.
DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS
SELLER'S AGENT
A seller's agent is an agent who is engaged by a seller to represent
the seller's interests. The seller's agent does this by securing a buyer
for the seller's home at a price and on terms acceptable to the seller.
A. 10443--A 3
A seller's agent has, without limitation, the following fiduciary duties
to the seller: reasonable care, undivided loyalty, confidentiality, full
disclosure, obedience and duty to account. A seller's agent does not
represent the interests of the buyer. The obligations of a seller's
agent are also subject to any specific provisions set forth in an agree-
ment between the agent and the seller. In dealings with the buyer, a
seller's agent should (a) exercise reasonable skill and care in perform-
ance of the agent's duties; (b) deal honestly, fairly and in good faith;
and (c) disclose all facts known to the agent materially affecting the
value or desirability of property, except as otherwise provided by law.
BUYER'S AGENT
A buyer's agent is an agent who is engaged by a buyer to represent the
buyer's interests. The buyer's agent does this by negotiating the
purchase of a home at a price and on terms acceptable to the buyer. A
buyer's agent has, without limitation, the following fiduciary duties to
the buyer: reasonable care, undivided loyalty, confidentiality, full
disclosure, obedience and duty to account. A buyer's agent does not
represent the interests of the seller. The obligations of a buyer's
agent are also subject to any specific provisions set forth in an agree-
ment between the agent and the buyer. In dealings with the seller, a
buyer's agent should (a) exercise reasonable skill and care in perform-
ance of the agent's duties; (b) deal honestly, fairly and in good faith;
and (c) disclose all facts known to the agent materially affecting the
buyer's ability and/or willingness to perform a contract to acquire
seller's property that are not inconsistent with the agent's fiduciary
duties to the buyer.
BROKER'S AGENTS
A broker's agent is an agent that cooperates or is engaged by a list-
ing agent or a buyer's agent (but does not work for the same firm as the
listing agent or buyer's agent) to assist the listing agent or buyer's
agent in locating a property to sell or buy, respectively, for the list-
ing agent's seller or the buyer agent's buyer. The broker's agent does
not have a direct relationship with the buyer or seller and the buyer or
seller can not provide instructions or direction directly to the
broker's agent. The buyer and the seller therefore do not have vicarious
liability for the acts of the broker's agent. The listing agent or
buyer's agent do provide direction and instruction to the broker's agent
and therefore the listing agent or buyer's agent will have liability for
the acts of the broker's agent.
DUAL AGENT
A real estate broker may represent both the buyer and the seller if
both the buyer and seller give their informed consent in writing. In
such a dual agency situation, the agent will not be able to provide the
full range of fiduciary duties to the buyer and seller. The obligations
of an agent are also subject to any specific provisions set forth in an
agreement between the agent, and the buyer and seller. An agent acting
as a dual agent must explain carefully to both the buyer and seller that
the agent is acting for the other party as well. The agent should also
explain the possible effects of dual representation, including that by
consenting to the dual agency relationship the buyer and seller are
giving up their right to undivided loyalty. A buyer or seller should
carefully consider the possible consequences of a dual agency relation-
ship before agreeing to such representation. A SELLER OR BUYER MAY
PROVIDE ADVANCE CONSENT TO DUAL AGENCY BY INDICATING THE SAME ON THIS
FORM.
A. 10443--A 4
DUAL AGENT
WITH
DESIGNATED SALES AGENTS
If the buyer and the seller provide their informed consent in writing,
the principals and the real estate broker who represents both parties as
a dual agent may designate a sales agent to represent the buyer and
another sales agent to represent the seller to negotiate the purchase
and sale of real estate. A sales agent works under the supervision of
the real estate broker. With the informed consent of the buyer and the
seller in writing, the designated sales agent for the buyer will func-
tion as the buyer's agent representing the interests of and advocating
on behalf of the buyer and the designated sales agent for the seller
will function as the seller's agent representing the interests of and
advocating on behalf of the seller in the negotiations between the buyer
and seller. A designated sales agent cannot provide the full range of
fiduciary duties to the buyer or seller. The designated sales agent must
explain that like the dual agent under whose supervision they function,
they cannot provide undivided loyalty. A buyer or seller should careful-
ly consider the possible consequences of a dual agency relationship with
designated sales agents before agreeing to such representation. A SELL-
ER OR BUYER MAY PROVIDE ADVANCE CONSENT TO DUAL AGENCY WITH DESIGNATED
SALES AGENTS BY INDICATING THE SAME ON THIS FORM.
This form was provided to me by ____________________ (print name of
licensee) of ____________________________ (print name of company, firm
or brokerage), a licensed real estate broker acting in the interest of
the:
( ) Seller as a ( ) Buyer as a
(check relationship below) (check relationship below)
( ) Seller's agent ( ) Buyer's agent
( ) Broker's agent ( ) Broker's agent
( ) Dual agent ( ) Dual agent with designated sales agents
______ BY INITIALING, I/WE CONSENT TO A DUAL AGENT RELATIONSHIP IN
ADVANCE
______ BY INITIALING, I/WE CONSENT TO A DUAL AGENT WITH DESIGNATED SALES
AGENT RELATIONSHIP IN ADVANCE
If dual agent with designated sales agents is [checked] INDICATED
ABOVE:
____________________ is appointed to represent the buyer; and
____________________ is appointed to represent the seller in this
transaction.
(I)(We) acknowledge receipt of a copy of this disclosure form:
Signature of { } Buyer(s) and/or { } Seller(s):
____________________ ____________________
____________________ ____________________
Date:_______________ Date:_______________
b. For landlord-tenant transactions, the following shall be the
disclosure form:
NEW YORK STATE DISCLOSURE FORM
FOR
LANDLORD AND TENANT
A. 10443--A 5
THIS IS NOT A CONTRACT
New York state law requires real estate licensees who are acting as
agents of landlords and tenants of real property to advise the potential
landlords and tenants with whom they work of the nature of their agency
relationship and the rights and obligations it creates. This disclosure
will help you to make informed choices about your relationship with the
real estate broker and its sales associates.
Throughout the transaction you may receive more than one disclosure
form. The law [requires] MAY REQUIRE each agent assisting in the trans-
action to present you with this disclosure form. A real estate agent is
a person qualified to advise about real estate.
If you need legal, tax or other advice, consult with a professional in
that field.
DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS
LANDLORD'S AGENT
A landlord's agent is an agent who is engaged by a landlord to repre-
sent the landlord's interest. The landlord's agent does this by securing
a tenant for the landlord's apartment or house at a rent and on terms
acceptable to the landlord. A landlord's agent has, without limitation,
the following fiduciary duties to the landlord: reasonable care, undi-
vided loyalty, confidentiality, full disclosure, obedience and duty to
account. A landlord's agent does not represent the interests of the
tenant. The obligations of a landlord's agent are also subject to any
specific provisions set forth in an agreement between the agent and the
landlord. In dealings with the tenant, a landlord's agent should (a)
exercise reasonable skill and care in performance of the agent's duties;
(b) deal honestly, fairly and in good faith; and (c) disclose all facts
known to the agent materially affecting the value or desirability of
property, except as otherwise provided by law.
TENANT'S AGENT
A tenant's agent is an agent who is engaged by a tenant to represent
the tenant's interest. The tenant's agent does this by negotiating the
rental or lease of an apartment or house at a rent and on terms accepta-
ble to the tenant. A tenant's agent has, without limitation, the follow-
ing fiduciary duties to the tenant: reasonable care, undivided loyalty,
confidentiality, full disclosure, obedience and duty to account. A
tenant's agent does not represent the interest of the landlord. The
obligations of a tenant's agent are also subject to any specific
provisions set forth in an agreement between the agent and the tenant.
In dealings with the landlord, a tenant's agent should (a) exercise
reasonable skill and care in performance of the agent's duties; (b) deal
honestly, fairly and in good faith; and (c) disclose all facts known to
the tenant's ability and/or willingness to perform a contract to rent
or lease landlord's property that are not inconsistent with the agent's
fiduciary duties to the buyer.
BROKER'S AGENTS
A broker's agent is an agent that cooperates or is engaged by a list-
ing agent or a tenant's agent (but does not work for the same firm as
the listing agent or tenant's agent) to assist the listing agent or
tenant's agent in locating a property to rent or lease for the listing
A. 10443--A 6
agent's landlord or the tenant agent's tenant. The broker's agent does
not have a direct relationship with the tenant or landlord and the
tenant or landlord can not provide instructions or direction directly to
the broker's agent. The tenant and the landlord therefore do not have
vicarious liability for the acts of the broker's agent. The listing
agent or tenant's agent do provide direction and instruction to the
broker's agent and therefore the listing agent or tenant's agent will
have liability for the acts of the broker's agent.
DUAL AGENT
A real estate broker may represent both the tenant and the landlord if
both the tenant and landlord give their informed consent in writing. In
such a dual agency situation, the agent will not be able to provide the
full range of fiduciary duties to the landlord and the tenant. The obli-
gations of an agent are also subject to any specific provisions set
forth in an agreement between the agent, and the tenant and landlord. An
agent acting as a dual agent must explain carefully to both the landlord
and tenant that the agent is acting for the other party as well. The
agent should also explain the possible effects of dual representation,
including that by consenting to the dual agency relationship the land-
lord and tenant are giving up their right to undivided loyalty. A land-
lord and tenant should carefully consider the possible consequences of a
dual agency relationship before agreeing to such representation. A
LANDLORD OR TENANT MAY PROVIDE ADVANCE CONSENT TO DUAL AGENCY BY INDI-
CATING THE SAME ON THIS FORM.
DUAL AGENT
WITH
DESIGNATED SALES AGENTS
If the tenant and the landlord provide their informed consent in writ-
ing, the principals and the real estate broker who represents both
parties as a dual agent may designate a sales agent to represent the
tenant and another sales agent to represent the landlord. A sales agent
works under the supervision of the real estate broker. With the informed
consent in writing of the tenant and the landlord, the designated sales
agent for the tenant will function as the tenant's agent representing
the interests of and advocating on behalf of the tenant and the desig-
nated sales agent for the landlord will function as the landlord's agent
representing the interests of and advocating on behalf of the landlord
in the negotiations between the tenant and the landlord. A designated
sales agent cannot provide the full range of fiduciary duties to the
landlord or tenant. The designated sales agent must explain that like
the dual agent under whose supervision they function, they cannot
provide undivided loyalty. A landlord or tenant should carefully consid-
er the possible consequences of a dual agency relationship with desig-
nated sales agents before agreeing to such representation. A LANDLORD
OR TENANT MAY PROVIDE ADVANCE CONSENT TO DUAL AGENCY WITH DESIGNATED
SALES AGENTS BY INDICATING THE SAME ON THIS FORM.
This form was provided to me by _____________________ (print name of
licensee) of __________________ (print name of company, firm or broker-
age), a licensed real estate broker acting in the interest of the:
( ) Landlord as a ( ) Tenant as a
A. 10443--A 7
(check relationship below) (check relationship below)
( ) Landlord's agent ( ) Tenant's agent
( ) Broker's agent ( ) Broker's agent
( ) Dual agent ( ) Dual agent with designated sales agents
BY INITIALING, I/WE CONSENT TO A DUAL AGENT RELATIONSHIP IN
ADVANCE
BY INITIALING, I/WE CONSENT TO A DUAL AGENT WITH DESIGNATED SALES
AGENT RELATIONSHIP IN ADVANCE
If dual agent with designated sales agents is [checked] INDICATED
ABOVE:
_________________________ is appointed to represent the tenant; and
_________________________ is appointed to represent the landlord in
this transaction.
(I) (We) _____________________________________________ acknowledge
receipt of a copy of this disclosure form:
Signature of { } Landlord(s) and/or { } Tenant(s):
______________________________________________________
_______________________________________________________
Date: _______________ Date: ________________
S 4. This act shall take effect January 1, 2011.