§ 443 — Disclosure regarding real estate agency relationship; form

New York § 443

• Jurisdiction: New York
• Law RPP: Real Property
• Art. 12-A: Real Estate Brokers and Real Estate Salespersons

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§ 443. Disclosure regarding real estate agency relationship; form. 1.\nDefinitions. As used in this section, the following terms shall have the\nfollowing meanings:\n a. "Agent" means a person who is licensed as a real estate broker,\nassociate real estate broker or real estate salesperson under section\nfour hundred forty-a of this article and is acting in a fiduciary\ncapacity.\n b. "Buyer" means a transferee in a residential real property\ntransaction and includes a person who executes an offer to purchase\nresidential real property from a seller through an agent, or who has\nengaged the services of an agent with the object of entering into a\nresidential real property transaction as a transferee.\n c. "Buyer's agent" means an agent who contracts to locate residential\nreal property for a buyer or who finds a buyer for a property and\npresents an offer to purchase to the seller or seller's agent and\nnegotiates on behalf of the buyer.\n d. "Listing agent" means a person who has entered into a listing\nagreement to act as an agent of the seller or landlord for compensation.\n e. "Listing agreement" means a contract between an owner or owners of\nresidential real property and an agent, by which the agent has been\nauthorized to sell or lease the residential real property or to find or\nobtain a buyer or lessee therefor.\n f. "Residential real property" means real property used or occupied,\nor intended to be used or occupied, wholly or partly, as the home or\nresidence of one or more persons improved by (i) a one-to-four family\ndwelling or (ii) condominium or cooperative apartments but shall not\nrefer to unimproved real property upon which such dwellings are to be\nconstructed.\n g. "Seller" means the transferor in a residential real property\ntransaction, and includes an owner who lists residential real property\nfor sale with an agent, whether or not a transfer results, or who\nreceives an offer to purchase residential real property.\n h. "Seller's agent" means a listing agent who acts alone, or an agent\nwho acts in cooperation with a listing agent, acts as a seller's\nsubagent or acts as a broker's agent to find or obtain a buyer for\nresidential real property.\n i. "Dual agent" means an agent who is acting as a buyer's agent and a\nseller's agent or a tenant's agent and a landlord's agent in the same\ntransaction.\n j. "Designated sales agent" means a licensed real estate salesperson\nor associate broker, working under the supervision of a real estate\nbroker, who has been assigned to represent a client when a different\nclient is also represented by such real estate broker in the same\ntransaction.\n k. "Broker's agent" means an agent that cooperates or is engaged by a\nlisting agent, buyer's agent or tenant's agent (but does not work for\nthe same firm as the listing agent, buyer's agent or tenant's agent) to\nassist the listing agent, buyer's agent or tenant's agent in locating a\nproperty to sell, buy or lease respectively, for the listing agent's\nseller or landlord, the buyer agent's buyer or the tenant's agent\ntenant. The broker's agent does not have a direct relationship with the\nseller, buyer, landlord or tenant and the seller, buyer, landlord or\ntenant can not provide instructions or direction directly to the\nbroker's agent. Therefore, the seller, buyer, landlord or tenant do not\nhave vicarious liability for the acts of the broker's agent. The listing\nagent, buyer's agent or tenant's agent do provide direction and\ninstruction to the broker's agent and therefore the listing agent,\nbuyer's agent or tenant's agent will have liability for the broker's\nagent.\n l. "Tenant" means a lessee in a residential real property transaction\nand includes a person who executes an offer to lease residential real\nproperty from a landlord through an agent, or who has engaged the\nservices of an agent with the object of entering into a residential real\nproperty transaction as a lessee.\n m. "Landlord" means the lessor in a residential real property\ntransaction, and includes an owner who lists residential real property\nfor lease with an agent, whether or not a lease results, or who receives\nan offer to lease residential real property.\n n. "Tenant's agent" means an agent who contracts to locate residential\nreal property for a tenant or who finds a tenant for a property and\npresents an offer to lease to the landlord or landlord's agent and\nnegotiates on behalf of the tenant.\n o. "Landlord's agent" means a listing agent who acts alone, or an\nagent who acts in cooperation with a listing agent, acts as a landlord's\nsubagent or acts as a broker's agent to find or obtain a tenant for\nresidential real property.\n p. "Advance consent to dual agency" means written informed consent\nsigned by the seller/landlord or buyer/tenant that the listing agent\nand/or buyer's agent may act as a dual agent for that seller/landlord\nand a buyer/tenant for residential real property which is the subject of\na listing agreement.\n q. "Advance consent to dual agency with designated sales agents" means\nwritten informed consent signed by the seller/landlord or buyer/tenant\nthat indicates the name of the agent appointed to represent the\nseller/landlord or buyer/tenant as a designated sales agent for\nresidential real property which is the subject of a listing agreement.\n 2. This section shall apply only to transactions involving residential\nreal property.\n 3. a. A listing agent shall provide the disclosure form set forth in\nsubdivision four of this section to a seller or landlord prior to\nentering into a listing agreement with the seller or landlord and shall\nobtain a signed acknowledgment from the seller or landlord, except as\nprovided in paragraph e of this subdivision.\n b. A seller's agent or landlord's agent shall provide the disclosure\nform set forth in subdivision four of this section to a buyer, buyer's\nagent, tenant or tenant's agent at the time of the first substantive\ncontact with the buyer or tenant and shall obtain a signed\nacknowledgement from the buyer or tenant, except as provided in\nparagraph e of this subdivision.\n c. A buyer's agent or tenant's agent shall provide the disclosure form\nto the buyer or tenant prior to entering into an agreement to act as the\nbuyer's agent or tenant's agent and shall obtain a signed acknowledgment\nfrom the buyer or tenant, except as provided in paragraph e of this\nsubdivision. A buyer's agent or tenant's agent shall provide the form to\nthe seller, seller's agent, landlord or landlord's agent at the time of\nthe first substantive contact with the seller or landlord and shall\nobtain a signed acknowledgment from the seller, landlord or the listing\nagent, except as provided in paragraph e of this subdivision.\n d. The agent shall provide to the buyer, seller, tenant or landlord a\ncopy of the signed acknowledgment and shall maintain a copy of the\nsigned acknowledgment for not less than three years.\n e. If the seller, buyer, landlord or tenant refuses to sign an\nacknowledgment of receipt pursuant to this subdivision, the agent shall\nset forth under oath or affirmation a written declaration of the facts\nof the refusal and shall maintain a copy of the declaration for not less\nthan three years.\n f. A seller/landlord or buyer/tenant may provide advance informed\nconsent to dual agency and dual agency with designated sales agents by\nindicating the same on the form set forth in subdivision four of this\nsection.\n 4. a. For buyer-seller transactions, the following shall be the\ndisclosure form:\n NEW YORK STATE DISCLOSURE FORM\n FOR\n BUYER AND SELLER\n THIS IS NOT A CONTRACT\n New York state law requires real estate licensees who are acting as\nagents of buyers or sellers of property to advise the potential buyers\nor sellers with whom they work of the nature of their agency\nrelationship and the rights and obligations it creates. This disclosure\nwill help you to make informed choices about your relationship with the\nreal estate broker and its sales agents.\n Throughout the transaction you may receive more than one disclosure\nform. The law may require each agent assisting in the transaction to\npresent you with this disclosure form. A real estate agent is a person\nqualified to advise about real estate.\n If you need legal, tax or other advice, consult with a professional in\nthat field.\n DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS\n SELLER'S AGENT\n A seller's agent is an agent who is engaged by a seller to represent\nthe seller's interests. The seller's agent does this by securing a buyer\nfor the seller's home at a price and on terms acceptable to the seller.\nA seller's agent has, without limitation, the following fiduciary duties\nto the seller: reasonable care, undivided loyalty, confidentiality, full\ndisclosure, obedience and duty to account. A seller's agent does not\nrepresent the interests of the buyer. The obligations of a seller's\nagent are also subject to any specific provisions set forth in an\nagreement between the agent and the seller. In dealings with the buyer,\na seller's agent should (a) exercise reasonable skill and care in\nperformance of the agent's duties; (b) deal honestly, fairly and in good\nfaith; and (c) disclose all facts known to the agent materially\naffecting the value or desirability of property, except as otherwise\nprovided by law.\n BUYER'S AGENT\n A buyer's agent is an agent who is engaged by a buyer to represent the\nbuyer's interests. The buyer's agent does this by negotiating the\npurchase of a home at a price and on terms acceptable to the buyer. A\nbuyer's agent has, without limitation, the following fiduciary duties to\nthe buyer: reasonable care, undivided loyalty, confidentiality, full\ndisclosure, obedience and duty to account. A buyer's agent does not\nrepresent the interests of the seller. The obligations of a buyer's\nagent are also subject to any specific provisions set forth in an\nagreement between the agent and the buyer. In dealings with the seller,\na buyer's agent should (a) exercise reasonable skill and care in\nperformance of the agent's duties; (b) deal honestly, fairly and in good\nfaith; and (c) disclose all facts known to the agent materially\naffecting the buyer's ability and/or willingness to perform a contract\nto acquire seller's property that are not inconsistent with the agent's\nfiduciary duties to the buyer.\n BROKER'S AGENTS\n A broker's agent is an agent that cooperates or is engaged by a\nlisting agent or a buyer's agent (but does not work for the same firm as\nthe listing agent or buyer's agent) to assist the listing agent or\nbuyer's agent in locating a property to sell or buy, respectively, for\nthe listing agent's seller or the buyer agent's buyer. The broker's\nagent does not have a direct relationship with the buyer or seller and\nthe buyer or seller can not provide instructions or direction directly\nto the broker's agent. The buyer and the seller therefore do not have\nvicarious liability for the acts of the broker's agent. The listing\nagent or buyer's agent do provide direction and instruction to the\nbroker's agent and therefore the listing agent or buyer's agent will\nhave liability for the acts of the broker's agent.\n DUAL AGENT\n A real estate broker may represent both the buyer and the seller if\nboth the buyer and seller give their informed consent in writing. In\nsuch a dual agency situation, the agent will not be able to provide the\nfull range of fiduciary duties to the buyer and seller. The obligations\nof an agent are also subject to any specific provisions set forth in an\nagreement between the agent, and the buyer and seller. An agent acting\nas a dual agent must explain carefully to both the buyer and seller that\nthe agent is acting for the other party as well. The agent should also\nexplain the possible effects of dual representation, including that by\nconsenting to the dual agency relationship the buyer and seller are\ngiving up their right to undivided loyalty. A buyer or seller should\ncarefully consider the possible consequences of a dual agency\nrelationship before agreeing to such representation. A seller or buyer\nmay provide advance informed consent to dual agency by indicating the\nsame on this form.\n DUAL AGENT\n WITH\n DESIGNATED SALES AGENTS\n If the buyer and the seller provide their informed consent in writing,\nthe principals and the real estate broker who represents both parties as\na dual agent may designate a sales agent to represent the buyer and\nanother sales agent to represent the seller to negotiate the purchase\nand sale of real estate. A sales agent works under the supervision of\nthe real estate broker. With the informed consent of the buyer and the\nseller in writing, the designated sales agent for the buyer will\nfunction as the buyer's agent representing the interests of and\nadvocating on behalf of the buyer and the designated sales agent for the\nseller will function as the seller's agent representing the interests of\nand advocating on behalf of the seller in the negotiations between the\nbuyer and seller. A designated sales agent cannot provide the full range\nof fiduciary duties to the buyer or seller. The designated sales agent\nmust explain that like the dual agent under whose supervision they\nfunction, they cannot provide undivided loyalty. A buyer or seller\nshould carefully consider the possible consequences of a dual agency\nrelationship with designated sales agents before agreeing to such\nrepresentation. A seller or buyer may provide advance informed consent\nto dual agency with designated sales agents by indicating the same on\nthis form.\n This form was provided to me by ____________________ (print name of\nlicensee) of ____________________________ (print name of company, firm\nor brokerage), a licensed real estate broker acting in the interest of\nthe:\n ( ) Seller as a ( ) Buyer as a\n (check relationship below) (check relationship below)\n ( ) Seller's agent ( ) Buyer's agent\n ( ) Broker's agent ( ) Broker's agent\n ( ) Dual agent ( ) Dual agent with designated sales agents\n For advance informed consent to either dual agency or dual agency with\ndesignated sales agents complete section below:\n ( ) Advance informed consent dual agency.\n ( ) Advance informed consent to dual agency with designated sales\nagents.\n If dual agent with designated sales agents is indicated above:\n ____________________ is appointed to represent the buyer; and\n ____________________ is appointed to represent the seller in this\ntransaction.\n (I)(We) acknowledge receipt of a copy of this disclosure form:\n Signature of { } Buyer(s) and/or { } Seller(s):\n ____________________ ____________________\n ____________________ ____________________\n Date:_______________ Date:_______________\n b. For landlord-tenant transactions, the following shall be the\ndisclosure form:\n NEW YORK STATE DISCLOSURE FORM\n FOR\n LANDLORD AND TENANT\n THIS IS NOT A CONTRACT\n New York state law requires real estate licensees who are acting as\nagents of landlords and tenants of real property to advise the potential\nlandlords and tenants with whom they work of the nature of their agency\nrelationship and the rights and obligations it creates. This disclosure\nwill help you to make informed choices about your relationship with the\nreal estate broker and its sales agents.\n Throughout the transaction you may receive more than one disclosure\nform. The law may require each agent assisting in the transaction to\npresent you with this disclosure form. A real estate agent is a person\nqualified to advise about real estate.\nIf you need legal, tax or other advice, consult with a professional in\nthat field.\n DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS\n LANDLORD'S AGENT\n A landlord's agent is an agent who is engaged by a landlord to\nrepresent the landlord's interest. The landlord's agent does this by\nsecuring a tenant for the landlord's apartment or house at a rent and on\nterms acceptable to the landlord. A landlord's agent has, without\nlimitation, the following fiduciary duties to the landlord: reasonable\ncare, undivided loyalty, confidentiality, full disclosure, obedience and\nduty to account. A landlord's agent does not represent the interests of\nthe tenant. The obligations of a landlord's agent are also subject to\nany specific provisions set forth in an agreement between the agent and\nthe landlord. In dealings with the tenant, a landlord's agent should (a)\nexercise reasonable skill and care in performance of the agent's duties;\n(b) deal honestly, fairly and in good faith; and (c) disclose all facts\nknown to the agent materially affecting the value or desirability of\nproperty, except as otherwise provided by law.\n TENANT'S AGENT\n A tenant's agent is an agent who is engaged by a tenant to represent\nthe tenant's interest. The tenant's agent does this by negotiating the\nrental or lease of an apartment or house at a rent and on terms\nacceptable to the tenant. A tenant's agent has, without limitation, the\nfollowing fiduciary duties to the tenant: reasonable care, undivided\nloyalty, confidentiality, full disclosure, obedience and duty to\naccount. A tenant's agent does not represent the interest of the\nlandlord. The obligations of a tenant's agent are also subject to any\nspecific provisions set forth in an agreement between the agent and the\ntenant. In dealings with the landlord, a tenant's agent should (a)\nexercise reasonable skill and care in performance of the agent's duties;\n(b) deal honestly, fairly and in good faith; and (c) disclose all facts\nknown to the tenant's ability and/or willingness to perform a contract\nto rent or lease landlord's property that are not inconsistent with the\nagent's fiduciary duties to the buyer.\n BROKER'S AGENTS\n A broker's agent is an agent that cooperates or is engaged by a\nlisting agent or a tenant's agent (but does not work for the same firm\nas the listing agent or tenant's agent) to assist the listing agent or\ntenant's agent in locating a property to rent or lease for the listing\nagent's landlord or the tenant agent's tenant. The broker's agent does\nnot have a direct relationship with the tenant or landlord and the\ntenant or landlord can not provide instructions or direction directly to\nthe broker's agent. The tenant and the landlord therefore do not have\nvicarious liability for the acts of the broker's agent. The listing\nagent or tenant's agent do provide direction and instruction to the\nbroker's agent and therefore the listing agent or tenant's agent will\nhave liability for the acts of the broker's agent.\n DUAL AGENT\n A real estate broker may represent both the tenant and the landlord if\nboth the tenant and landlord give their informed consent in writing. In\nsuch a dual agency situation, the agent will not be able to provide the\nfull range of fiduciary duties to the landlord and the tenant. The\nobligations of an agent are also subject to any specific provisions set\nforth in an agreement between the agent, and the tenant and landlord. An\nagent acting as a dual agent must explain carefully to both the landlord\nand tenant that the agent is acting for the other party as well. The\nagent should also explain the possible effects of dual representation,\nincluding that by consenting to the dual agency relationship the\nlandlord and tenant are giving up their right to undivided loyalty. A\nlandlord and tenant should carefully consider the possible consequences\nof a dual agency relationship before agreeing to such representation. A\nlandlord or tenant may provide advance informed consent to dual agency\nby indicating the same on this form.\n DUAL AGENT\n WITH\n DESIGNATED SALES AGENTS\n If the tenant and the landlord provide their informed consent in\nwriting, the principals and the real estate broker who represents both\nparties as a dual agent may designate a sales agent to represent the\ntenant and another sales agent to represent the landlord. A sales agent\nworks under the supervision of the real estate broker. With the informed\nconsent in writing of the tenant and the landlord, the designated sales\nagent for the tenant will function as the tenant's agent representing\nthe interests of and advocating on behalf of the tenant and the\ndesignated sales agent for the landlord will function as the landlord's\nagent representing the interests of and advocating on behalf of the\nlandlord in the negotiations between the tenant and the landlord. A\ndesignated sales agent cannot provide the full range of fiduciary duties\nto the landlord or tenant. The designated sales agent must explain that\nlike the dual agent under whose supervision they function, they cannot\nprovide undivided loyalty. A landlord or tenant should carefully\nconsider the possible consequences of a dual agency relationship with\ndesignated sales agents before agreeing to such representation. A\nlandlord or tenant may provide advance informed consent to dual agency\nwith designated sales agents by indicating the same on this form.\n This form was provided to me by _____________________ (print name of\nlicensee) of __________________ (print name of company, firm or\nbrokerage), a licensed real estate broker acting in the interest of the:\n ( ) Landlord as a ( ) Tenant as a\n(check relationship below) (check relationship below)\n ( ) Landlord's agent ( ) Tenant's agent\n ( ) Broker's agent ( ) Broker's agent\n ( ) Dual agent ( ) Dual agent with designated sales agents\n For advance informed consent to either dual agency or dual agency with\ndesignated sales agents complete section below:\n ( ) Advance informed consent dual agency.\n ( ) Advance informed consent to dual agency with designated sales\nagents.\n If dual agent with designated sales agents is indicated above:\n _________________________ is appointed to represent the tenant; and\n _________________________ is appointed to represent the landlord in\nthis transaction.\n (I) (We) _____________________________________________ acknowledge\nreceipt of a copy of this disclosure form:\n Signature of { } Landlord(s) and/or { } Tenant(s):\n______________________________________________________\n_______________________________________________________\nDate: _______________ Date: ________________\n 5. This section shall not apply to a real estate licensee who works\nwith a buyer, seller, tenant or landlord in accordance with terms agreed\nto by the licensee and buyer, seller, tenant or landlord and in a\ncapacity other than as an agent, as such term is defined in paragraph a\nof subdivision one of this section.\n 6. Nothing in this section shall be construed to limit or alter the\napplication of the common law of agency with respect to residential real\nestate transactions.\n