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Agency Disclosures, NY State Regulations
DISCLOSURE OF AGENCY RELATIONSHIPS
Section 443 of the real property law is amended to read
as follows: Section 443. Disclosure regarding real estate agency
relationship; form.
1. Definitions. As used in this section, the following terms shall have
the following meanings:
a. "Agent" means a person who is licensed as a real estate broker or
real estate sales associate under section 440-a of this article and is
acting in a fiduciary capacity.
b. "Buyer" means a transferee or lessee in a residential real property
transaction and includes a person who executes an offer to purchase or
to lease residential real property from a seller through an agent, or
who has engaged the services of an agent with the object of entering
into a residential real property transaction as a transferee or lessee.
c. "Buyer's agent" means an agent who contracts to locate residential re
a property for a buyer or who finds a buyer for a property and presents
an offer to purchase to the seller or seller's agent and negotiates on
behalf of the buyer.
d. "Listing agent" means a person who has entered into a listing
agreement to act as an agent of the seller for compensation.
e. "Listing agreement" means a contract between an owner or owners or
residential real property and an agent, by which the agent has been
authorized to sell or lease the residential real property or to find or
obtain a buyer or lessee therefore.
f. "Residential real property" means real property improved by 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, but shall not refer to (i) unimproved real property upon which
such dwellings are to be constructed or (ii) condominium or cooperative
apartments in a building containing more than four units.
g. "Seller" means the transferor or lessor in a residential real
property transaction, and includes an owner who lists residential real
estate for sale or lease with an agent, whether or not a transfer or
lease results, or who receives an offer to purchase or lease residential
real property.
h. "Seller's agent" means a listing agent who acts alone, or an agent
who acts in cooperation with a listing agent, acts as a seller's
subagent or acts as a broker's agent to find or obtain a buyer for
residential real property.
2. This section shall apply only to transactions involving residential
real property.
3a. A listing agent shall provide the disclosure form set forth in
subdivision four of this section to a seller prior to entering into a
listing agreement with the seller and shall obtain a signed
acknowledgment from the seller, except as provided in paragraph f of
this subdivision.
3b. A seller's agent shall provide the disclosure form set forth in
subdivision four of this section to a buyer or buyer's agent at the time
of the first substantive contact with the buyer and shall obtain a
signed acknowledgment from the buyer, except as provided in paragraph f
of this subdivision.
3c. A buyer's agent shall provide the disclosure form to the buyer prior
to entering into an agreement to act as the buyer's agent and shall
obtain a signed acknowledgment from the seller, except as provided in
paragraph f of this subdivision. A buyer's agent shall provide the form
to the seller or seller's agent at the time of the first substantive
contact with the seller and shall obtain a signed acknowledgment from
the seller or the seller's listing agent, except as provided in
paragraph f of this subdivision.
3d. The parties to a contract of purchase and sale shall sign the
acknowledgment of the parties to the contract. If attorneys for the
buyer and seller arrange for the preparation and execution of a
contract, the real estate licensees are not responsible for obtaining
the acknowledgment of the parties as required by this paragraph.
3e. The agent shall provide to the buyer or seller a copy of the signed
acknowledgment and shall maintain a copy of the signed acknowledgment
for not less than three years.
3f. If the seller or buyer refuses to sign an acknowledgment of receipt
pursuant to this subdivision, the agent shall set forth under oath or
affirmation a written declaration of the facts of the refusal and shall
maintain a copy of the declaration for not less than three years.
4. The following shall be the disclosure form; [DOS NOTE: The full text
of disclosure required by this section is enclosed. You may copy this
form, for use in your business, if you wish]
5. This section shall not apply to a real estate licensee who works with
a buyer or a seller in accordance with terms agreed to by the licensee
and buyer or seller and in a capacity other than as an agent, as such
term is defined in paragraph a of subdivision one of this section.
State Agency Disclosure
DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS
Before you enter into a. discussion with a real estate agent regarding a
real estate transaction, you should understand what type of agency
relationship you wish to have with that agent. 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 relationship and the rights and
obligations it creates.
SELLER'S OR LANDLORD'S AGENT
If you are interested in selling or leasing real property, you can
engage a real estate agent as a seller's agent. A seller's agent,
including a listing agent under a listing agreement with the seller,
acts solely on behalf of the seller. You can authorize a seller's or
landlord's agent to do other things including hire subagents, broker's
agents or work with other agents such as buyer's agents on a cooperative
basis. A subagent is one who has agreed to work with the seller's agent,
often through a multiple listing service. A subagent may work in a
different real estate office.
A seller's agent has, without limitation, the following fiduciary duties
to the seller: reasonable care, undivided loyalty, confidentiality, full
disclosure, obedience and a duty to account.
The obligations of a seller's agent are also subject to any specific
provisions set forth in an agreement between the agent and the seller.
In dealings with the buyer, a seller'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.
BUYER'S OR TENANT'S AGENT
If you are interested in buying or leasing real property, you can engage
a real estate agent as a buyer's or tenant's agent. A buyer's agent acts
solely on behalf of the buyer. You can authorize a buyer's agent to do
other things including hire subagents, broker's agents or work with
other agents such as seller's agents on a cooperative basis.
A buyer's agent has, without limitation, the following fiduciary duties
to the buyer: reasonable care, undivided loyalty, confidentiality, full
disclosure, obedience and a duty to account.
The obligations of a buyer's agent are also subject to any specific
provisions set forth in an agreement between the agent and the buyer.
In dealings with the seller, a buyer'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 (e) 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
As part of your negotiations with a real estate agent, you may authorize
your agent to engage other agents whether you are a buyer/tenant or
seller/landlord. As a general rule, those agents owe fiduciary duties to
your agent and to you. You are not vicariously liable for their conduct.
AGENT REPRESENTING BOTH SELLER AND BUYER
A real estate agent acting directly or through an associated licensee,
can be the agent of both the seller/landlord and the buyer/tenant in a
transaction, but only with the knowledge and informed consent, in
writing, of both the seller/landlord and the buyer/tenant.
In such a dual agency situation, the agent will not be able to provide
the full range of fiduciary duties to the buyer/tenant and
seller/landlord.
The obligations of an agent are also subject to any specific pro-visions
set forth in an agreement between the agent and buyer/tenant and
seller/landlord.
An agent acting as a dual agent must explain carefully to both the
buyer/tenant and seller/landlord 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/tenant and seller/landlord are giving up their
right to undivided loyalty.
A BUYER/TENANT OR SELLER/LANDLORD SHOULD CAREFULLY CONSIDER THE
POSSIBLE CONSEQUENCES OF A DUAL AGENCY RELATIONSHIP BEFORE AGREEING TO
SUCH REPRESENTATION.
GENERAL CONSIDERATIONS
Throughout the transaction you may receive more than one disclosure
form. The law requires each agent assisting in the transaction to
present you with this disclosure form. You should read its contents each
time it is presented to you, considering the relationship between you
and the real estate agent in your specific transaction.
You should carefully read all agreements to ensure that they adequately
express your understanding of the transaction. A real estate agent is a
person qualified to advise about real estate. If legal, tax or other
advice is desired, consult a competent professional in that field.
ACKNOWLEDGMENT OF PROSPECTIVE BUYER/TENANT
(1) I have received and read this disclosure notice.
(2) I understand that a seller1sAandlord's agent, including a listing
agent, is the agent of the seller/landlord exclusively, unless the
seller/landlord and buyer/tenant otherwise agree.
(3) I understand that subagents, including subagents participating in a
multiple listing service, are agents of the seller/landlord exclusively.
(^ I understand that I may engage my own agent to be my buyer's/tenant's
broker.
(5) I understand that the agent presenting this form to me, (name of
licensee)_________________ of (name of firm)__________________ is:
(check applicable relationship) _______an agent of the seller/landlord
_______my agent as a buyer's/tenant's agent
Dated: _______________ Buyer/Tenant:
ACKNOWLEDGMENT OF PROSPECTIVE SELLER/LANDLORD
(1) I have received and read this disclosure notice.
(2) I understand that a seller’s/landlord's agent, including a listing
agent, is the agent of the seller/landlord exclusively, unless the
seller/landlord and buyer/tenant otherwise agree.
(3) I understand that sub agents, including sub agents participating in
a multiple listing service, are agents of the seller/landlord
exclusively.
(4) I understand that a buyer's/tenant's agent is the agent of the
buyer/tenant exclusively.
C5) I understand that the agent presenting this form to me, (name of
licensee)______________
of (name of firm)__________________ is: (check applicable relationship)
_______my agent as a seller's/landlord's agent
_______ an agent of the buyer/tenant
Date d: _______________ Seller/Landlord: _________________
ACKNOWLEDGMENT OF PROSPECTIVE BUYER/TENANT AND SELLER/LANDLORD TO
DUAL AGENCY
(1) I have received and re ad this disclosure notice.
C2) I understand that a dual agent will be working for both the
seller/landlord and buyer/tenant.
(3) 1 understand that I may engage my own agent as a seller's/landlord's
agent or a buyer's/tenant's agent.
(4) I understand that I am giving up my right to the agent's undivided
loyalty.
(5) I have carefully considered the possible consequences of a dual
agency relationship.
(6) I understand that the agent presenting this form to me, (name of
licensee) ________ of (name
of firm) ________ is a dual agent working for both the buyer/tenant and
seller/landlord, acting
as such with the consent of both the buyer/tenant and seller/landlord
and following full disclosure
to the buyer/tenant and seller/landlord.
Dated: ______________ Dated: ________________
Buyer/tenant:
Seller/landlord:
ACKNOWLEDGMENT OF THE PARTIES TO THE CONTRACT
(1) I have received, read and understand this disclosure notice.
.(name of firm) is:
(2) I understand that_______(name of real estate licensee) of _
(check applicable relationship) _______ an agent of the seller/landlord
_______ an agent of the buyer/tenant _______ a dual agent working for
both the buyer/tenant and seller/landlord, acting as such with
the consent of both buyer/tenant and seller/landlord and following full
disclosure to the buyer/tenant and seller/landlord.
I also understand that________(name of re ale state licensee)
of_________(name of firm) is: (check applicable relationship) ________
an agent of the seller/landlord ________ an agent of the buyer/tenant
________ a dual agent working for both the buyer/tenant and
seller/landlord, acting as such with
the consent of both buyer/tenant and seller/landlord and following full
disclosure to the buyer/tenant
and seller/landlord.
Dated:_______________ Dated:____
Buyer/tenant:
Seller/landlord:
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