§ 294-B — Recording brokers affidavit of entitlement to commission for completed brokerage services

§ 294-b. Recording brokers affidavit of entitlement to commission for\ncompleted brokerage services. 1. A duly licensed real estate broker who\nasserts that he or she has produced a person who was ready, able and\nwilling to purchase or lease all or any part of a parcel of real\nproperty or any interest in a cooperative apartment pursuant to a\nwritten or oral contract of brokerage employment between the owner of\nsaid parcel of real property or interest in a cooperative apartment and\nsuch broker, and who asserts that such person or a party acting on his\nor her behalf subsequently contracted to purchase or lease, or did\npurchase or lease such real property or any part thereof, or any\ninterest in a cooperative apartment and who asserts that he or she is\nentitled to a commission pursuant to such written or oral contract, may\nfile an affidavit of entitlement to commission for completed brokerage\nservices in the office of the recording officer of any county in which\nany of the real property is situated.\n 2. Such affidavit shall include: (i) the name and license number of\nthe broker claiming the commission; (ii) the name of the seller or\nperson responsible for commission; (iii) the name of the person\nauthorizing the sale on behalf of the seller, if any, and the date of\nsuch authorization; (iv) a copy of the written agreement, if any; (v) a\ndescription of the real property or interest in the cooperative\napartment involved; (vi) the amount of commission claimed; (vii) a\ndescription of the brokerage services performed; and (viii) the dates\nthereof. Recording such affidavit shall not invalidate any transfer of\nreal property or lease thereof. Such affidavit shall not be deemed to\ncreate a lien and shall be discharged one year after filing.\n 3. Upon receipt by the county clerk of a broker's affidavit of\nentitlement to commission for completed brokerage services for the\npurpose of recording, entering and indexing, the clerk shall record such\naffidavit in the lien docket and shall note thereon that such notice\ndoes not constitute a lien nor shall it invalidate any transfer or\nlease. In payment for said services the county clerk shall be entitled\nto receive a fee equivalent to that received for recording a deed and\npages thereof.\n 4. (a) Within five business days after filing the affidavit of\nentitlement, the broker shall serve a copy of such affidavit, along with\nthe fee required pursuant to paragraph (c) of subdivision five of this\nsection, upon the seller by registered or certified mail, return receipt\nrequested or by personal delivery, to the address set forth in the\nwritten contract of brokerage employment. If the delivery of the deed or\ndelivery of the stock certificate and/or proprietary lease will occur in\nfive business days or less from the filing of the affidavit of\nentitlement, then the broker shall personally deliver a copy of the\naffidavit of entitlement to the seller. Where there is more than one\nseller, service upon one seller shall be deemed sufficient to meet the\nrequirements of this paragraph. Failure to serve the affidavit of\nentitlement upon the seller pursuant to this paragraph shall cause a\nforfeiture of the broker's rights under subdivision five of this\nsection. In the event the seller fails to deposit any monies pursuant to\nparagraph (a) of subdivision five of this section, the seller shall\nimmediately return the fee provided by the broker.\n (b) If the seller is represented by an attorney and has provided the\nattorney's contact information to the broker prior to the filing of the\naffidavit of entitlement, the broker shall provide a copy of the\naffidavit of entitlement to the seller's attorney via mail, facsimile,\ne-mail, personal delivery or any other agreed upon method within five\nbusiness days of the filing of the affidavit of entitlement. Failure to\ndeliver a copy of the affidavit of entitlement to the seller's attorney\npursuant to this paragraph shall not cause a forfeiture of the brokers\nrights under subdivision five of this section.\n 5. (a) Whenever an affidavit of entitlement by a duly licensed real\nestate broker, which includes a written contract of brokerage employment\ncontaining the notices set forth in paragraph (j) of this subdivision,\nhas been recorded pursuant to this section prior to the delivery of a\ndeed in connection with a sale of all or any part of a parcel of real\nproperty, or delivery of the stock certificate and/or proprietary lease\nin connection with the sale of a cooperative apartment, and the broker\ndoes not receive the compensation called for under the terms of such\nwritten contract at or prior to the delivery of the deed or delivery of\nthe stock certificate and/or proprietary lease, the lesser of the net\nproceeds of the sale or the amount of the unpaid portion of the\ncompensation agreed to in such written contract shall be deposited by\nthe seller, at the time of delivery of the deed or delivery of the stock\ncertificate and/or proprietary lease, with the recording officer in\nwhose office such affidavit of entitlement had been recorded.\n (b) In the event multiple affidavits of entitlement are filed in\nconnection with a sale of real property or any interest in a cooperative\napartment pursuant to this section, the seller shall be obligated to\ndeposit an amount equal to the lesser of the net proceeds of the sale or\nthe greatest amount of the unpaid portion of the compensation agreed to\nin the written contracts of brokerage employment attached to the\nmultiple affidavits of entitlement.\n (c) Upon deposit of any monies pursuant to paragraph (a) of this\nsubdivision, the recording officers shall be entitled to receive a fee\nof twenty-five dollars, which shall be paid by the real estate broker.\nThe real estate broker shall make the twenty-five dollar fee payable to\nthe recording officer in such form of payment that is accepted by the\nrecording officer.\n (d) The monies deposited with the recording officer pursuant to this\nsubdivision shall be held pursuant to subdivision (b) of section\ntwenty-six hundred one of the civil practice law and rules until the\nrights of the seller and broker to such monies have been determined by\norder of a court of competent jurisdiction as provided in this\nparagraph. All deposits of money pursuant to this subdivision shall be\ndeemed paid into court and shall be subject to the provisions of article\ntwenty-six of the civil practice law and rules, except as otherwise\nprovided in this subdivision. An order for the payment of such monies to\nthe broker or seller may be made in any action or proceeding determining\nor declaring the entitlement, if any, of the broker to compensation\nunder the written contract of brokerage employment recorded with the\naffidavit of entitlement or as otherwise provided in rule twenty-six\nhundred six of the civil practice law and rules or, whether or not an\naction or proceeding has been commenced, may be based upon a stipulation\nsigned by the seller and the broker. Any application for an order\npursuant to this paragraph made by the broker or the seller shall be on\nmotion with notice to the other party, except that an application based\nupon a stipulation signed by the seller and the broker may be submitted\nwithout notice if the stipulation so provides.\n (e) If neither the broker nor the seller commences an action or\nproceeding described in paragraph (d) of this subdivision within sixty\ndays from the day of deposit of monies pursuant to paragraph (a) of this\nsubdivision, which time limit shall not be extended, the seller, upon\npetition, shall be entitled to an order directing the payment to the\nseller of such monies out of court, including any accrued interest\nthereon, less any fees to which any public officer may be entitled\npursuant to law, but such an order shall not be deemed to determine the\nbroker's claim for a commission.\n (f) Notwithstanding any other provision of law to the contrary, upon\nthe seller making the deposit required by paragraph (a) of this\nsubdivision, any action or proceeding based upon the contractual\nobligation to pay a commission under the contract of brokerage of\nemployment shall be commenced by the broker within six months of the\ndeposit of the monies pursuant to paragraph (a) of this subdivision.\n (g) The obligation to deposit monies pursuant to this subdivision or\nthe seller's failure to do so shall not constitute or be deemed to\ncreate a lien or encumbrance against any real property. Any violation of\nthis subdivision shall not invalidate any transfer of real property.\n (h) In any action or proceeding commenced pursuant to this subdivision\nwhen the seller has not made the deposit required by this subdivision,\nand it is determined by a court that the broker is entitled to\ncompensation pursuant to the written contract of brokerage employment,\nthe broker shall be awarded costs, including the fee paid pursuant to\nparagraph (c) of this subdivision, and reasonable attorneys' fees.\n (i) Nothing in this subdivision shall be construed to prohibit a\nbroker from waiving a seller's obligation to deposit money under this\nsubdivision, provided such waiver is set forth in an instrument signed\nby or on behalf of the broker. Such instrument may be a written contract\nof brokerage employment or any other instrument.\n (j) The provisions of this subdivision shall only apply when the\nwritten contract of brokerage employment contains the following\nstatement to the seller in clear and conspicuous bold face type:\n "At the time of closing, you may be required to deposit the broker's\ncommission with the county clerk in the event that you do not pay the\nbroker his or her commission as set forth herein. Your obligation to\ndeposit the broker's commission with the county clerk may be waived by\nthe broker."\n (k) The provisions of this subdivision shall only apply to real\nproperty improved by a one to four family dwelling and to individual\ncondominium units and individual cooperative apartments where the one to\nfour family dwelling, condominium unit or cooperative apartment is used\nor occupied, or intended to be used or occupied, wholly or partly, as\nthe home or residence of one or more persons.\n