2019 New York Laws
RPP - Real Property
Article 12-A - Real Estate Brokers and Real Estate Salesmen
443 - Disclosure Regarding Real Estate Agency Relationship; Form.
§ 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,
associate real estate broker or real estate salesperson under section
four hundred forty-a of this article and is acting in a fiduciary
capacity.
b. "Buyer" means a transferee in a residential real property
transaction and includes a person who executes an offer to purchase
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.
c. "Buyer's agent" means an agent who contracts to locate residential
real 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 or landlord for compensation.
e. "Listing agreement" means a contract between an owner or owners of
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 therefor.
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 or (ii) condominium or cooperative apartments but shall not
refer to unimproved real property upon which such dwellings are to be
constructed.
g. "Seller" means the transferor in a residential real property
transaction, and includes an owner who lists residential real property
for sale with an agent, whether or not a transfer results, or who
receives an offer to purchase 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.
i. "Dual agent" means an agent who is acting as a buyer's agent and a
seller's agent or a tenant's agent and a landlord's agent in the same
transaction.
j. "Designated sales agent" means a licensed real estate salesman or
associate broker, working under the supervision of a real estate broker,
who has been assigned to represent a client when a different client is
also represented by such real estate broker in the same transaction.
k. "Broker's agent" means an agent that cooperates or is engaged by a
listing agent, buyer's agent or tenant's agent (but does not work for
the same firm as the listing agent, buyer's agent or tenant's agent) to
assist the listing agent, buyer's agent or tenant's agent in locating a
property to sell, buy or lease respectively, for the listing agent's
seller or landlord, the buyer agent's buyer or the tenant's agent
tenant. The broker's agent does not have a direct relationship with the
seller, buyer, landlord or tenant and the seller, buyer, landlord or
tenant can not provide instructions or direction directly to the
broker's agent. Therefore, the seller, buyer, landlord or tenant do not
have vicarious liability for the acts of the broker's agent. The listing
agent, buyer's agent or tenant's agent do provide direction and
instruction to the broker's agent and therefore the listing agent,
buyer's agent or tenant's agent will have liability for the broker's
agent.
l. "Tenant" means a lessee in a residential real property transaction
and includes a person who executes an offer to lease residential real
property from a landlord 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 lessee.
m. "Landlord" means the lessor in a residential real property
transaction, and includes an owner who lists residential real property
for lease with an agent, whether or not a lease results, or who receives
an offer to lease residential real property.
n. "Tenant's agent" means an agent who contracts to locate residential
real property for a tenant or who finds a tenant for a property and
presents an offer to lease to the landlord or landlord's agent and
negotiates on behalf of the tenant.
o. "Landlord's agent" means a listing agent who acts alone, or an
agent who acts in cooperation with a listing agent, acts as a landlord's
subagent or acts as a broker's agent to find or obtain a tenant for
residential real property.
p. "Advance consent to dual agency" means written informed 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 informed consent signed by the seller/landlord or buyer/tenant
that indicates the name of the agent appointed to represent the
seller/landlord or buyer/tenant as a designated sales agent for
residential real property which is the subject of a listing agreement.
2. This section shall apply only to transactions involving residential
real property.
3. a. A listing agent shall provide the disclosure form set forth in
subdivision four of this section to a seller or landlord prior to
entering into a listing agreement with the seller or landlord and shall
obtain a signed acknowledgment from the seller or landlord, except as
provided in paragraph e of this subdivision.
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, tenant or tenant's agent at the time of the first substantive
contact with the buyer or tenant and shall obtain a signed
acknowledgement from the buyer or tenant, except as provided in
paragraph e of this subdivision.
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, 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, landlord or the listing
agent, except as provided in paragraph e of this subdivision.
d. The agent shall provide to the buyer, seller, tenant or landlord a
copy of the signed acknowledgment and shall maintain a copy of the
signed acknowledgment for not less than three years.
e. If the seller, buyer, landlord or tenant 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.
f. A seller/landlord or buyer/tenant may provide advance informed
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.
4. a. For buyer-seller transactions, the following shall be the
disclosure 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
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 agents.
Throughout the transaction you may receive more than one disclosure
form. The law may require each agent assisting in the transaction 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 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
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 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
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 (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
listing 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 listing 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
relationship before agreeing to such representation. A seller or buyer
may provide advance informed consent to dual agency by indicating the
same on this form.
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
function 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 carefully consider the possible consequences of a dual agency
relationship with designated sales agents before agreeing to such
representation. A seller or buyer may provide advance informed 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
For advance informed consent to either dual agency or dual agency with
designated sales agents complete section below: ) Advance informed consent dual agency. ) Advance informed consent to dual agency with designated sales
agents.
If dual agent with designated sales agents is 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
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 agents.
Throughout the transaction you may receive more than one disclosure
form. The law may require each agent assisting in the transaction 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
represent 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, undivided 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
acceptable to the tenant. A tenant's agent has, without limitation, the
following 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
listing 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
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
obligations 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
landlord and tenant are giving up their right to undivided loyalty. A
landlord 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 informed consent to dual agency
by indicating the same on this form.
DUAL AGENT
WITH
DESIGNATED SALES AGENTS
If the tenant and the landlord 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
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
designated 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
consider the possible consequences of a dual agency relationship with
designated sales agents before agreeing to such representation. A
landlord or tenant may provide advance informed 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:
) Landlord as a ) Tenant as a
(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
For advance informed consent to either dual agency or dual agency with
designated sales agents complete section below: ) Advance informed consent dual agency. ) Advance informed consent to dual agency with designated sales
agents.
If dual agent with designated sales agents is 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: ________________
5. This section shall not apply to a real estate licensee who works
with a buyer, seller, tenant or landlord in accordance with terms agreed
to by the licensee and buyer, seller, tenant or landlord and in a
capacity other than as an agent, as such term is defined in paragraph a
of subdivision one of this section.
6. Nothing in this section shall be construed to limit or alter the
application of the common law of agency with respect to residential real
estate transactions.
