Bill Text: NY A10443 | 2009-2010 | General Assembly | Amended
Bill Title: Relates to disclosure regarding dual agency in real estate relationships.
Spectrum: Moderate Partisan Bill (Democrat 22-3)
Status: (Passed) 2010-08-30 - signed chap.443 [A10443 Detail]
Download: New_York-2009-A10443-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
10443--B
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, RUSSELL, D. WEPRIN, STIRPE -- Multi-Spon-
sored by -- M. of A. CAHILL, CALHOUN, DINOWITZ, HOOPER, JEFFRIES,
LUPARDO, McENENY, O'MARA, PHEFFER, RAIA, REILLY, SKARTADOS, TITONE,
WEISENBERG -- read once and referred to the Committee on Judiciary --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee -- again reported from said committee
with amendments, 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:
1 Section 1. Paragraphs a and f of subdivision 1 of section 443 of the
2 real property law, as amended by chapter 549 of the laws of 2007, are
3 amended and two new paragraphs p and q are added to read as follows:
4 a. "Agent" means a person who is licensed as a real estate broker [or
5 real estate sales associate], ASSOCIATE REAL ESTATE BROKER OR REAL
6 ESTATE SALESPERSON under section four hundred forty-a of this article
7 and is acting in a fiduciary capacity.
8 f. "Residential real property" means real property USED OR OCCUPIED,
9 OR INTENDED TO BE USED OR OCCUPIED, WHOLLY OR PARTLY, AS THE HOME OR
10 RESIDENCE OF ONE OR MORE PERSONS improved by (I) a one-to-four family
11 dwelling [used or occupied, or intended to be used or occupied, wholly
12 or partly, as the home or residence of one or more persons,] OR (II)
13 CONDOMINIUM OR COOPERATIVE APARTMENTS but shall not refer to [(i)] unim-
14 proved real property upon which such dwellings are to be constructed [or
15 (ii) condominium or cooperative apartments in a building containing more
16 than four units].
17 P. "ADVANCE CONSENT TO DUAL AGENCY" MEANS WRITTEN INFORMED CONSENT
18 SIGNED BY THE SELLER/LANDLORD OR BUYER/TENANT THAT THE LISTING AGENT
19 AND/OR BUYER'S AGENT MAY ACT AS A DUAL AGENT FOR THAT SELLER/LANDLORD
20 AND A BUYER/TENANT FOR RESIDENTIAL REAL PROPERTY WHICH IS THE SUBJECT OF
21 A LISTING AGREEMENT.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD16207-06-0
A. 10443--B 2
1 Q. "ADVANCE CONSENT TO DUAL AGENCY WITH DESIGNATED SALES AGENTS" MEANS
2 WRITTEN INFORMED CONSENT SIGNED BY THE SELLER/LANDLORD OR BUYER/TENANT
3 THAT INDICATES THE NAME OF THE AGENT APPOINTED TO REPRESENT THE
4 SELLER/LANDLORD OR BUYER/TENANT AS A DESIGNATED SALES AGENT FOR RESIDEN-
5 TIAL REAL PROPERTY WHICH IS THE SUBJECT OF A LISTING AGREEMENT.
6 S 2. Subdivision 3 of section 443 of the real property law is amended
7 by adding a new paragraph f to read as follows:
8 F. A SELLER/LANDLORD OR BUYER/TENANT MAY PROVIDE ADVANCE INFORMED
9 CONSENT TO DUAL AGENCY AND DUAL AGENCY WITH DESIGNATED SALES AGENTS BY
10 INDICATING THE SAME ON THE FORM SET FORTH IN SUBDIVISION FOUR OF THIS
11 SECTION.
12 S 3. Paragraphs a and b of subdivision 4 of section 443 of the real
13 property law, as amended by chapter 549 of the laws of 2007, are amended
14 to read as follows:
15 a. For buyer-seller transactions, the following shall be the disclo-
16 sure form:
17 NEW YORK STATE DISCLOSURE FORM
18 FOR
19 BUYER AND SELLER
20 THIS IS NOT A CONTRACT
21 New York state law requires real estate licensees who are acting as
22 agents of buyers or sellers of property to advise the potential buyers
23 or sellers with whom they work of the nature of their agency relation-
24 ship and the rights and obligations it creates. This disclosure will
25 help you to make informed choices about your relationship with the real
26 estate broker and its sales [associates] AGENTS.
27 Throughout the transaction you may receive more than one disclosure
28 form. The law [requires] MAY REQUIRE each agent assisting in the trans-
29 action to present you with this disclosure form. A real estate agent is
30 a person qualified to advise about real estate.
31 If you need legal, tax or other advice, consult with a professional in
32 that field.
33 DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS
34 SELLER'S AGENT
35 A seller's agent is an agent who is engaged by a seller to represent
36 the seller's interests. The seller's agent does this by securing a buyer
37 for the seller's home at a price and on terms acceptable to the seller.
38 A seller's agent has, without limitation, the following fiduciary duties
39 to the seller: reasonable care, undivided loyalty, confidentiality, full
40 disclosure, obedience and duty to account. A seller's agent does not
41 represent the interests of the buyer. The obligations of a seller's
42 agent are also subject to any specific provisions set forth in an agree-
43 ment between the agent and the seller. In dealings with the buyer, a
44 seller's agent should (a) exercise reasonable skill and care in perform-
45 ance of the agent's duties; (b) deal honestly, fairly and in good faith;
46 and (c) disclose all facts known to the agent materially affecting the
47 value or desirability of property, except as otherwise provided by law.
48 BUYER'S AGENT
49 A buyer's agent is an agent who is engaged by a buyer to represent the
50 buyer's interests. The buyer's agent does this by negotiating the
51 purchase of a home at a price and on terms acceptable to the buyer. A
52 buyer's agent has, without limitation, the following fiduciary duties to
53 the buyer: reasonable care, undivided loyalty, confidentiality, full
54 disclosure, obedience and duty to account. A buyer's agent does not
55 represent the interests of the seller. The obligations of a buyer's
56 agent are also subject to any specific provisions set forth in an agree-
A. 10443--B 3
1 ment between the agent and the buyer. In dealings with the seller, a
2 buyer's agent should (a) exercise reasonable skill and care in perform-
3 ance of the agent's duties; (b) deal honestly, fairly and in good faith;
4 and (c) disclose all facts known to the agent materially affecting the
5 buyer's ability and/or willingness to perform a contract to acquire
6 seller's property that are not inconsistent with the agent's fiduciary
7 duties to the buyer.
8 BROKER'S AGENTS
9 A broker's agent is an agent that cooperates or is engaged by a list-
10 ing agent or a buyer's agent (but does not work for the same firm as the
11 listing agent or buyer's agent) to assist the listing agent or buyer's
12 agent in locating a property to sell or buy, respectively, for the list-
13 ing agent's seller or the buyer agent's buyer. The broker's agent does
14 not have a direct relationship with the buyer or seller and the buyer or
15 seller can not provide instructions or direction directly to the
16 broker's agent. The buyer and the seller therefore do not have vicarious
17 liability for the acts of the broker's agent. The listing agent or
18 buyer's agent do provide direction and instruction to the broker's agent
19 and therefore the listing agent or buyer's agent will have liability for
20 the acts of the broker's agent.
21 DUAL AGENT
22 A real estate broker may represent both the buyer and the seller if
23 both the buyer and seller give their informed consent in writing. In
24 such a dual agency situation, the agent will not be able to provide the
25 full range of fiduciary duties to the buyer and seller. The obligations
26 of an agent are also subject to any specific provisions set forth in an
27 agreement between the agent, and the buyer and seller. An agent acting
28 as a dual agent must explain carefully to both the buyer and seller that
29 the agent is acting for the other party as well. The agent should also
30 explain the possible effects of dual representation, including that by
31 consenting to the dual agency relationship the buyer and seller are
32 giving up their right to undivided loyalty. A buyer or seller should
33 carefully consider the possible consequences of a dual agency relation-
34 ship before agreeing to such representation. A SELLER OR BUYER MAY
35 PROVIDE ADVANCE INFORMED CONSENT TO DUAL AGENCY BY INDICATING THE SAME
36 ON THIS FORM.
37 DUAL AGENT
38 WITH
39 DESIGNATED SALES AGENTS
40 If the buyer and the seller provide their informed consent in writing,
41 the principals and the real estate broker who represents both parties as
42 a dual agent may designate a sales agent to represent the buyer and
43 another sales agent to represent the seller to negotiate the purchase
44 and sale of real estate. A sales agent works under the supervision of
45 the real estate broker. With the informed consent of the buyer and the
46 seller in writing, the designated sales agent for the buyer will func-
47 tion as the buyer's agent representing the interests of and advocating
48 on behalf of the buyer and the designated sales agent for the seller
49 will function as the seller's agent representing the interests of and
50 advocating on behalf of the seller in the negotiations between the buyer
51 and seller. A designated sales agent cannot provide the full range of
52 fiduciary duties to the buyer or seller. The designated sales agent must
53 explain that like the dual agent under whose supervision they function,
54 they cannot provide undivided loyalty. A buyer or seller should careful-
55 ly consider the possible consequences of a dual agency relationship with
56 designated sales agents before agreeing to such representation. A SELL-
A. 10443--B 4
1 ER OR BUYER MAY PROVIDE ADVANCE INFORMED CONSENT TO DUAL AGENCY WITH
2 DESIGNATED SALES AGENTS BY INDICATING THE SAME ON THIS FORM.
3 This form was provided to me by ____________________ (print name of
4 licensee) of ____________________________ (print name of company, firm
5 or brokerage), a licensed real estate broker acting in the interest of
6 the:
7 ( ) Seller as a ( ) Buyer as a
8 (check relationship below) (check relationship below)
9 ( ) Seller's agent ( ) Buyer's agent
10 ( ) Broker's agent ( ) Broker's agent
11 ( ) Dual agent ( ) Dual agent with designated sales agents
12 FOR ADVANCE INFORMED CONSENT TO EITHER DUAL AGENCY OR DUAL AGENCY WITH
13 DESIGNATED SALES AGENTS COMPLETE SECTION BELOW:
14 ( ) ADVANCE INFORMED CONSENT DUAL AGENCY.
15 ( ) ADVANCE INFORMED CONSENT TO DUAL AGENCY WITH DESIGNATED SALES
16 AGENTS.
17 If dual agent with designated sales agents is [checked] INDICATED
18 ABOVE:
19 ____________________ is appointed to represent the buyer; and
20 ____________________ is appointed to represent the seller in this
21 transaction.
22 (I)(We) acknowledge receipt of a copy of this disclosure form:
23 Signature of { } Buyer(s) and/or { } Seller(s):
24 ____________________ ____________________
25 ____________________ ____________________
26 Date:_______________ Date:_______________
27 b. For landlord-tenant transactions, the following shall be the
28 disclosure form:
29 NEW YORK STATE DISCLOSURE FORM
30 FOR
31 LANDLORD AND TENANT
32 THIS IS NOT A CONTRACT
33 New York state law requires real estate licensees who are acting as
34 agents of landlords and tenants of real property to advise the potential
35 landlords and tenants with whom they work of the nature of their agency
36 relationship and the rights and obligations it creates. This disclosure
37 will help you to make informed choices about your relationship with the
38 real estate broker and its sales [associates] AGENTS.
39 Throughout the transaction you may receive more than one disclosure
40 form. The law [requires] MAY REQUIRE each agent assisting in the trans-
41 action to present you with this disclosure form. A real estate agent is
42 a person qualified to advise about real estate.
43 If you need legal, tax or other advice, consult with a professional in
44 that field.
45 DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS
46 LANDLORD'S AGENT
47 A landlord's agent is an agent who is engaged by a landlord to repre-
48 sent the landlord's interest. The landlord's agent does this by securing
A. 10443--B 5
1 a tenant for the landlord's apartment or house at a rent and on terms
2 acceptable to the landlord. A landlord's agent has, without limitation,
3 the following fiduciary duties to the landlord: reasonable care, undi-
4 vided loyalty, confidentiality, full disclosure, obedience and duty to
5 account. A landlord's agent does not represent the interests of the
6 tenant. The obligations of a landlord's agent are also subject to any
7 specific provisions set forth in an agreement between the agent and the
8 landlord. In dealings with the tenant, a landlord's agent should (a)
9 exercise reasonable skill and care in performance of the agent's duties;
10 (b) deal honestly, fairly and in good faith; and (c) disclose all facts
11 known to the agent materially affecting the value or desirability of
12 property, except as otherwise provided by law.
13 TENANT'S AGENT
14 A tenant's agent is an agent who is engaged by a tenant to represent
15 the tenant's interest. The tenant's agent does this by negotiating the
16 rental or lease of an apartment or house at a rent and on terms accepta-
17 ble to the tenant. A tenant's agent has, without limitation, the follow-
18 ing fiduciary duties to the tenant: reasonable care, undivided loyalty,
19 confidentiality, full disclosure, obedience and duty to account. A
20 tenant's agent does not represent the interest of the landlord. The
21 obligations of a tenant's agent are also subject to any specific
22 provisions set forth in an agreement between the agent and the tenant.
23 In dealings with the landlord, a tenant's agent should (a) exercise
24 reasonable skill and care in performance of the agent's duties; (b) deal
25 honestly, fairly and in good faith; and (c) disclose all facts known to
26 the tenant's ability and/or willingness to perform a contract to rent
27 or lease landlord's property that are not inconsistent with the agent's
28 fiduciary duties to the buyer.
29 BROKER'S AGENTS
30 A broker's agent is an agent that cooperates or is engaged by a list-
31 ing agent or a tenant's agent (but does not work for the same firm as
32 the listing agent or tenant's agent) to assist the listing agent or
33 tenant's agent in locating a property to rent or lease for the listing
34 agent's landlord or the tenant agent's tenant. The broker's agent does
35 not have a direct relationship with the tenant or landlord and the
36 tenant or landlord can not provide instructions or direction directly to
37 the broker's agent. The tenant and the landlord therefore do not have
38 vicarious liability for the acts of the broker's agent. The listing
39 agent or tenant's agent do provide direction and instruction to the
40 broker's agent and therefore the listing agent or tenant's agent will
41 have liability for the acts of the broker's agent.
42 DUAL AGENT
43 A real estate broker may represent both the tenant and the landlord if
44 both the tenant and landlord give their informed consent in writing. In
45 such a dual agency situation, the agent will not be able to provide the
46 full range of fiduciary duties to the landlord and the tenant. The obli-
47 gations of an agent are also subject to any specific provisions set
48 forth in an agreement between the agent, and the tenant and landlord. An
49 agent acting as a dual agent must explain carefully to both the landlord
50 and tenant that the agent is acting for the other party as well. The
A. 10443--B 6
1 agent should also explain the possible effects of dual representation,
2 including that by consenting to the dual agency relationship the land-
3 lord and tenant are giving up their right to undivided loyalty. A land-
4 lord and tenant should carefully consider the possible consequences of a
5 dual agency relationship before agreeing to such representation. A
6 LANDLORD OR TENANT MAY PROVIDE ADVANCE INFORMED CONSENT TO DUAL AGENCY
7 BY INDICATING THE SAME ON THIS FORM.
8 DUAL AGENT
9 WITH
10 DESIGNATED SALES AGENTS
11 If the tenant and the landlord provide their informed consent in writ-
12 ing, the principals and the real estate broker who represents both
13 parties as a dual agent may designate a sales agent to represent the
14 tenant and another sales agent to represent the landlord. A sales agent
15 works under the supervision of the real estate broker. With the informed
16 consent in writing of the tenant and the landlord, the designated sales
17 agent for the tenant will function as the tenant's agent representing
18 the interests of and advocating on behalf of the tenant and the desig-
19 nated sales agent for the landlord will function as the landlord's agent
20 representing the interests of and advocating on behalf of the landlord
21 in the negotiations between the tenant and the landlord. A designated
22 sales agent cannot provide the full range of fiduciary duties to the
23 landlord or tenant. The designated sales agent must explain that like
24 the dual agent under whose supervision they function, they cannot
25 provide undivided loyalty. A landlord or tenant should carefully consid-
26 er the possible consequences of a dual agency relationship with desig-
27 nated sales agents before agreeing to such representation. A LANDLORD
28 OR TENANT MAY PROVIDE ADVANCE INFORMED CONSENT TO DUAL AGENCY WITH
29 DESIGNATED SALES AGENTS BY INDICATING THE SAME ON THIS FORM.
30 This form was provided to me by _____________________ (print name of
31 licensee) of __________________ (print name of company, firm or broker-
32 age), a licensed real estate broker acting in the interest of the:
33 ( ) Landlord as a ( ) Tenant as a
34 (check relationship below) (check relationship below)
35 ( ) Landlord's agent ( ) Tenant's agent
36 ( ) Broker's agent ( ) Broker's agent
37 ( ) Dual agent ( ) Dual agent with designated sales agents
38 FOR ADVANCE INFORMED CONSENT TO EITHER DUAL AGENCY OR DUAL AGENCY WITH
39 DESIGNATED SALES AGENTS COMPLETE SECTION BELOW:
40 ( ) ADVANCE INFORMED CONSENT DUAL AGENCY.
41 ( ) ADVANCE INFORMED CONSENT TO DUAL AGENCY WITH DESIGNATED SALES
42 AGENTS.
43 If dual agent with designated sales agents is [checked] INDICATED
44 ABOVE:
45 _________________________ is appointed to represent the tenant; and
46 _________________________ is appointed to represent the landlord in
47 this transaction.
48 (I) (We) _____________________________________________ acknowledge
49 receipt of a copy of this disclosure form:
A. 10443--B 7
1 Signature of { } Landlord(s) and/or { } Tenant(s):
2 ______________________________________________________
3 _______________________________________________________
4 Date: _______________ Date: ________________
5 S 4. This act shall take effect January 1, 2011.
