Preview
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022
HOULIHAN LAWRENCE
OPPOSITION TO MOTION TO CERTIFY
EXHIBIT 65
HL OPP. - EXHIBIT 65 - PAGE 1
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022
REALTORS®
New York State Association of
A risk management tool
G ET S New York's
for
REALTORS®
THIRD QUARTER 2010
Governor Paterson signs landmark agency disclosure bill
By Anthony Gatto, Esq., NYSAR Legal Counsel
On August 30,2010, Gov. David Paterson selleris represented by the seller's
agent, (and advanced consent todual agency with
Prop- arises."
signed a bill
into law amending Real dual agency This position meant designated sales agents) once an agency
Law §443 to add two new components thatdual was transactionalinnature isestablishedatfirstsubstan-
erty agency relationship
to the agency disclosure law relatingto (inother words, dual agency cannot be tivecontact.
advanced consent to dual agency and consented to until such time as itactually
agency disclosurefor condominiums and arises)and advanced consent tothe same When dual agency isdiscussed with the
cooperative apartments/units.The new law was prohibited.By taking such client,the clientwill then be
and required forms do not take effect
until a position,the DOS required able to indicatetheir consent
January 1, 2011. that dual agency be consented New York News to dual agency in advance by
to priorto an in-house indicatingthe same on the new
showing
Under the new buyers
law, sellers,landlords, of a listed
property. disclosure form. Ad-
agency
and tenantsare permitted to consentto dual vanced consent todual agency
or dual with designated sales It wasNYSAlfs opinion that permit-
agency agency by not with designated salesagents can be done
agents in advanceby indicatingthesame on ting advanced consent todual agency, the in thesame manner. The only differenceis
a new revised disclosureform. consumer was the penal- thatthe seller,
landlord,buyer or tenantwill
agency only party being
ized.Without the optionto consent to dual be ableto designate a specificlicenseeas a
The concept of advanced consent to dual in advance, theconsumer would be designated agent should itarise. Itis not
agency
agency has beenaround forquitesome time, requiredto signnumerous disclosure required thatboth designated agents are
agency
but was notpermitted under theReal Prop- forms timeanother buyer'sagent from filledinwhen advanced consent is given.In
every
ertyLaw. The NewYork State Departmentof the listingbrokerage wanted to show the other words, when a seller
consents todual
State,Divisionof Services(DOS) toa buyer-client.Often,the buyer with designated salesagentsin ad-
Licensing property agency
issuedalegalmemorandum onpoint
directly would be unable to viewa property because vance,it is likely
thatthe seller
willdesignate
with thisissue. to "IrgalMemo- the seller
was unavailableat thetime. Fur- their agent (unlessthe agent is
According listing listing
Agency"
randum LI12:Be Wary of Dual dual thermore, sellers
were oftenconfused as to the principalbroker sinceprincipalbrokers
agency typicallyarosein thefollowing way: the reason were requiredto sign are prohibited from as a designated
why they acting
a real estate
broker employs two salespeople, numerous forms. agent). Likewise, a buyer will most likely
one who works for the buyer as a buyer's designate theirbuyer'sagent as theirdesig-
agent and theother who works fortheseller Advanced consent to dual agency (and nated agent(exceptin theinstancewhere the
as a seller's
agent.The realestatebroker and advanced consent todual with des- buyer's agent is theprincipal).Once dual
agency
same"
hissalespeopleare "oneand the entity ignatedsales agents)
should notbe utilized agency with designated sales agentsarises,
when analyzingwhether dual agency exists. by licenseesuntilJanuary 1, 2011when the both sides willknowtheidentityof theother
The memorandum goes one step furtherby law becomes effective.
On or afterJanuary designated agent.
stating·
"As soonas the buyer's
agent licenseeswillbe able tohave their
expressly 1, 2011,
introducesthe buyerto propertyinwhich the respectiveclients consent to dual agency Indiscussions with the Department of State,
NYSAR has clarified
the responsibilityofa
licensee once dual agency or dual agency
with designated salesagents arises.Ifdual
agency arises as a result
of a showing, the
The new agency disclosure forms are available in this issue
. licenseeis not requiredto notifythe seller
and the legal section of NYSAR.com. These forrns should not reason-
immediately sincethe seller
should
be used until January 1, 2011. ably presume that dual agency showings
will occur during the time ofthe listing.
See Dislosure,
page 2
HL OPP. - EXHIBIT 65 - PAGE 2
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022
Disclosure: Law allows advanced consent to dual agency continueatrom gage i
However, itis highly recommended that ofa licensee's
agency status. at first
substantivecontact pursuant to Real
the seller
be informed as toallinstances of Property Law §443(3)(a-c).
dual agency thatare theresultof a showing. Licensees should be aware that dual
This notification
can be done via telephone, agency must be discussed with the seller Priorto thepassage of this Real
bill, Property
e-mail the address provided the and/or buyer at the onset of discussions Law §443(1)(f) exempted condo-
(using by specifically
fax
seller), the faxnumber provided concerning agency. The law specifically miniums and cooperative apartments/units
(using
statesthat the client is consent to from the requirement of providingan agency
by the seller)
or by letter.
As always,NYSAR giving
consent."
recommends allnoticesbe in so the "advanced informed This means disclosure form. Only licensees having
writing
licenseewillhave documented proof of any the client must be fully informed as to substantive contact with a seller,
landlord,
such notification. allaspects of dual agency. Clients need buyer or tenantof a 1-4 family
dwelling were
to be fully informed as tothe fiduciary required to provide the agency disclosure
After dual if
arises, a potentialpur- obligations willbe losing form to those individual(s).With the re-
agency they by agreeing
chaser begins negotiationsof any type,itis to dual agency as well. Licensees must moval of theexemption and theinclusion of
required thatthe licenseecontact theseller make itperfectly clear what theclient is condominiums and cooperativeapartments/
and inform them thatthereis a dualagency consenting to and how itwill affectthe units,licenseeswill be requiredto provide
situationwhere the buyer is showing inter- representation are receivingfrom the the disclosureform forall1-4 fam-
they agency
est intheproperty. Again, thisnotification licensee. Failure to do so can be consid- dwellings as wellas condominiums and
ily
can be done viatelephone, e-mail(using the ered a violationof Article12-A of theReal cooperative apartments/units.
address provided by the fax
seller), (using Property Law and may subjectthe licensee
the faxnumber provided The new forms arealso available
inthe legal
by theseller)or by to DOS disciplinary action.
letter. Inorder to minimize the potential section of NYSAR.com, but should not be
for all
liability, noticesshould be inwriting New law requires disclosure for used untilJanuary 1, 2011.
and made at the time of negotiations or condominiums and cooperative
immediately thereafter.Ifa dual agency a pa rtments/units
showing resultsin the presentation of a
Under the new law,condominiums and co-
purchase offer,itisrecommended that the
OPerativeapartments/units are added inthe
signed agency disclosureforms be attached
definition real property
ofresidential as it re-
to the purchaseofferso it is dear
to the
seller
latesto agencydisclosure. Thischange now
and buyer thatthe transactionis dual
agency
requires realestatelicenseesrepresenting a
in nature. There isnothing prohibiting a
seller,
landlord, buyer or tenantof a condo-
licenseefrom having theirclient(s)execute
minium or cooPerativeapartment/unit to be
a new agency disclosureform at thetimeof
Presented with the agency disdosure form
contractto memorialize theirunderstanding
Visit the NYSAR Media Center at NYSAR.com
for webinars covering key legal topics
including:
ni " with the Commission Escrow Act
Complying
" Do-Not-Call compliance
" The to disclose a stigmatized
duty property
" And much more
Visit www.nysar.com today.
HL OPP. - EXHIBIT 65 - PAGE 3
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022
PAGE 3
NEW YORK STATE DISCLOSURE FORM FOR BUYER AND SELLER
THIS IS NOT A CONTRACT
New York state law requires real estate licensees who to account. A buyer's agent does not represent the
are acting as agents of buyers or sellers of property to interests of the seller. The obligations of a buyer's
advise the potential buyers or sellers with whom they agent are also subject to any specific provisions set
work of the nature of their agency relationship and forth in an agreement between the agent and the buy-
the rights and obligations it creates. This disclosure er. In dealings with the seller, a buyer's agent should
will help you to make informed choices about your (a) exercise reasonable skill and care in performance
relationship with the real estate broker and its sales of the agent's duties; (b) deal honestly, fairly and in
agents. good faith; and (c) disclose all facts known to the
agent materially affecting the buyer's ability and/or
Throughout the transaction you may receive more
willingness to perform a contract to acquire seller's
than one disclosure form. The law may require each
property that are not inconsistent with the agent's fi-
agent assisting in the transaction to present you with
duciary duties to the buyer.
this disclosure form. A real estate agent is a person
qualified to advise about real estate.
BROKER'S AGENTS
If you need legal, tax or other advice, consult with a
A broker's agent is an agent that cooperates or is en-
professional in that field.
gaged by a listing agent or a buyer's agent (but does
not work for the same firm as the listing agent or
DISCLOSURE REGARDING REAL ESTATE
buyer's agent) to assist the listing agent or buyer's
AGENCY RELATIONSHIPS
agent in locating a property to sell or buy, respective-
ly, for the listing agent's seller or the buyer agent's
SELLER'S AGENT
buyer. The broker's agent does not have a direct rela-
A seller's agent is an agent who is engaged by a seller tionship with the buyer or seller and the buyer or sel-
to represent the seller's interests. The seller's agent ler cannot provide instructions or direction directly to
does this by securing a buyer for the seller's home at the broker's agent. The buyer and the seller therefore
a price and on terms acceptable to the seller. A sel- do not have vicarious liability for the acts of the bro-
ler's agent has, without limitation, the following fidu- ker's agent. The listing agent or buyer's agent do pro-
ciary duties to the seller: reasonable care, undivided vide direction and instruction to the broker's agent
loyalty, confidentiality, full disclosure, obedience and and therefore the listing agent or buyer's agent will
duty to account. A seller's agent does not represent have liability for the acts of the broker's agent.
the interests of the buyer. The obligations of a seller's
agent are also subject to any specific provisions set DUAL AGENT
forth in an agreement between the agent and the sel-
A real estate broker may represent both the buyer and
ler. In dealings with the buyer, a seller's agent should
the seller if both the buyer and seller give their in-
(a) exercise reasonable skill and care in performance
formed consent in writing. In such a dual agency sit-
of the agent's duties; (b) deal honestly, fairly and in
uation, the agent will not be able to provide the full
good faith; and (c) disclose all facts known to the
range of fiduciary duties to the buyer and seller. The
agent materially affecting the value or desirability of
obligations of an agent are also subject to any specif-
property, except as otherwise provided by law.
ic provisions set forth in an agreement between the
agent, and the buyer and seller. An agent acting as a
BUYER'S AGENT
dual agent must explain carefully to both the buyer
A buyer's agent is an agent who is engaged by a buy- and seller that the agent is acting for the other party
er to represent the buyer's interests. The buyer's agent as well. The agent should also explain the possible
does this by negotiating the purchase of a home at a effects of dual representation, including that by con-
price and on terms acceptable to the buyer. A buyer's senting to the dual agency relationship the buyer and
agent has, without limitation, the following fiduciary seller are giving up their right to undivided loyalty. A
duties to the buyer: reasonable care, undivided loyal- buyer or seller should carefully consider the possible
ty, confidentiality, full disclosure, obedience and duty consequences of a dual agency relationship before
HL OPP. - EXHIBIT 65 - PAGE 4
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022
PAGE 4
agreeing to such representation. A seller or buyer the interests of and advocating on behalf of the buyer
may provide advance informed consent to dual agen- and the designated sales agent for the seller will func-
cy by indicating the same on this form. tion as the seller's agent representing the interests of
and advocating on behalf of the seller in the negotia-
DUAL AGENT WITH DESIGNATED SALES tions between the buyer and seller. A designated sales
AGENTS agent cannot provide the full range of fiduciary duties
to the buyer or seller. The designated sales agent
If the buyer and the seller provide their informed
must explain that like the dual agent under whose
consent in writing, the principals and the real estate
supervision they function, they cannot provide undi-
broker who represents both parties as a dual agent
vided loyalty. A buyer or seller should carefully con-
may designate a sales agent to represent the buyer
sider the possible consequences of a dual agency re-
and another sales agent to represent the seller to ne-
lationship with designated sales agents before agree-
gotiate the purchase and sale of real estate. A sales
ing to such representation. A seller or buyer may
agent works under the supervision of the real estate
provide advance informed consent to dual agency
broker. With the informed consent of the buyer and
with designated sales agents by indicating the same
the seller in writing, the designated sales agent for the
on this form.
buyer will function as the buyer's agent representing
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 (check relationship below) ( ) Buyer as a (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 sec-
tion 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:__________________________
HL OPP. - EXHIBIT 65 - PAGE 5
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022
PAGE 5
NEW YORK STATE DISCLOSURE FORM FOR LANDLORD AND TENANT
THIS IS NOT A CONTRACT
New York state law requires real estate licensees who agent does not represent the interest of the landlord.
are acting as agents of landlords and tenants of real The obligations of a tenant's agent are also subject to
property to advise the potential landlords and tenants any specific provisions set forth in an agreement be-
with whom they work of the nature of their agency tween the agent and the tenant. In dealings with the
relationship and the rights and obligations it creates. landlord, a tenant's agent should (a) exercise reasona-
This disclosure will help you to make informed ble skill and care in performance of the agent's duties;
choices about your relationship with the real estate (b) deal honestly, fairly and in good faith; and (c)
broker and its sales agents. disclose all facts known to the tenant's ability and/or
willingness to perform a contract to rent or lease lan-
Throughout the transaction you may receive more
dlord's property that are not inconsistent with the
than one disclosure form. The law may require each
agent's fiduciary duties to the buyer.
agent assisting in the transaction to present you with
this disclosure form. A real estate agent is a person
BROKER'S AGENTS
qualified to advise about real estate. If you need le-
gal, tax or other advice, consult with a professional in A broker's agent is an agent that cooperates or is en-
that field. gaged by a listing agent or a tenant's agent (but does
not work for the same firm as the listing agent or te-
DISCLOSURE REGARDING REAL ESTATE
nant's agent) to assist the listing agent or tenant's
AGENCY RELATIONSHIPS
agent in locating a property to rent or lease for the
LANDLORD'S AGENT listing agent's landlord or the tenant agent's tenant.
A landlord's agent is an agent who is engaged by a The broker's agent does not have a direct relationship
landlord to represent the landlord's interest. The lan- with the tenant or landlord and the tenant or landlord
dlord's agent does this by securing a tenant for the cannot provide instructions or direction directly to the
landlord's apartment or house at a rent and on terms broker's agent. The tenant and the landlord therefore
acceptable to the landlord. A landlord's agent has, do not have vicarious liability for the acts of the bro-
without limitation, the following fiduciary duties to ker's agent. The listing agent or tenant's agent do pro-
the landlord: reasonable care, undivided loyalty, con- vide direction and instruction to the broker's agent
fidentiality, full disclosure, obedience and duty to and therefore the listing agent or tenant's agent will
account. A landlord's agent does not represent the have liability for the acts of the broker's agent.
interests of the tenant. The obligations of a landlord's
agent are also subject to any specific provisions set DUAL AGENT
forth in an agreement between the agent and the lan- A real estate broker may represent both the tenant
dlord. In dealings with the tenant, a landlord's agent and the landlord if both the tenant and landlord give
should (a) exercise reasonable skill and care in per- their informed consent in writing. In such a dual
formance of the agent's duties; (b) deal honestly, fair- agency situation, the agent will not be able to provide
ly and in good faith; and (c) disclose all facts known the full range of fiduciary duties to the landlord and
to the agent materially affecting the value or desira- the tenant. The obligations of an agent are also sub-
bility of property, except as otherwise provided by ject to any specific provisions set forth in an agree-
law. ment between the agent, and the tenant and landlord.
An agent acting as a dual agent must explain careful-
TENANT'S AGENT ly to both the landlord and tenant that the agent is
A tenant's agent is an agent who is engaged by a te- acting for the other party as well. The agent should
nant to represent the tenant's interest. The tenant's also explain the possible effects of dual representa-
agent does this by negotiating the rental or lease of an tion, including that by consenting to the dual agency
apartment or house at a rent and on terms acceptable relationship the landlord and tenant are giving up
to the tenant. A tenant's agent has, without limitation, their right to undivided loyalty. A landlord and tenant
the following fiduciary duties to the tenant: reasona- should carefully consider the possible consequences
ble care, undivided loyalty, confidentiality, full dis- of a dual agency relationship before agreeing to such
closure, obedience and duty to account. A tenant's representation. A landlord or tenant may provide ad-
HL OPP. - EXHIBIT 65 - PAGE 6
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022
PAGE 6
vance informed consent to dual agency by indicating landlord will function as the landlord's agent
the same on this form. representing the interests of and advocating on behalf
of the landlord in the negotiations between the tenant
DUAL AGENT WITH DESIGNATED SALES and the landlord. A designated sales agent cannot
AGENTS provide the full range of fiduciary duties to the lan-
dlord or tenant. The designated sales agent must ex-
If the tenant and the landlord provide their informed
plain that like the dual agent under whose supervision
consent in writing, the principals and the real estate
they function, they cannot provide undivided loyalty.
broker who represents both parties as a dual agent
A landlord or tenant should carefully consider the
may designate a sales agent to represent the tenant
possible consequences of a dual agency relationship
and another sales agent to represent the landlord. A
with designated sales agents before agreeing to such
sales agent works under the supervision of the real
representation. A landlord or tenant may provide ad-
estate broker. With the informed consent in writing of
vance informed consent to dual agency with desig-
the tenant and the landlord, the designated sales agent
nated sales agents by indicating the same on this
for the tenant will function as the tenant's agent
form.
representing the interests of and advocating on behalf
of the tenant and the designated sales agent for the
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 (check relationship below) ( ) Tenant as a (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 sec-
tion 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:__________________________
HL OPP. - EXHIBIT 65 - PAGE 7
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022
'
Broker loses commission for
lack of an extension clause NYSAR Legal Hotline call report
By Anthony Gatto, Esq., Second quarter 2010
NYSAR Legal Counsel
In UnitedReal Estate& Property Manage-
Inc. v. Charnyshov and Yablons-
ment, HOTUNE ISSUES
kaya, the issueof a disputed commission
between a licensee and c onsumer was E COMMISSION
decided based on representations made
m LICENSE LAW
in a signedlistingagreement.
FAIR HOUSING
On April 1, 2006, United entered intoan m CONTRACT
2%
exclusiverightto sell agreement
listing with
m DISCLOSURE
Chrnyshov and Yablonskaya (defendants)for 1%1%
a period on AGENCY
ending July1, 2006. Priortothe
2%
terminationof the listing
agreement, an agent m DOS
of thedefendantd procured a purchaser that 2%
m REFERRALS
was willing topurchase the listedproperty.
Thepurchaser didnot sign apurchasecontract ARBITRATION
priorto the expiration agreement.
ofthelisting m CODE OF ETHICS
On July 2, 2006
(one day after expired)'
listing m BOARD/ASSOCIATION
United enteredintoanother exclusiveright
to
m MLS
sellagreement with Maximillion Realty for
the same property. Maximillion advised the N OTHER HOTLINE ISSUE
defendantsto lower theasking priceof their
property. On 5,
July 2006, defendantsentered
intoa purchase contractwith thebuyers that
"willing" prop-
were originally to purchasethe
COMMISSION 102 12%
erty under the priorlistingagreement with
LICENSE LAW 110 13%
United. Upon Maxumllion
closing, received
the commission forthe sale.
FAIR HOUSING 19 2%
The defendant
initiated
the lawsuitto recoverthe commis- CONTRACT 205 25%
sion believed were entitledtoas the DISCLOSURE 115 14%
they they
procuring causeofthe sale. AGENCY 54 7%
DOS 21 3%
In New York, a broker can only make a REFERRALS 15 2%
claim forcommissions when: 1)the broker ARBITRATION 10 1%
islicensed;2) the broker had a contract,
CODE OF ETHICS 11 1%
expressed or implied,with the party to be
BOARD/ASSOCIATION 12 1%
charged with paying the commission; and
MLS 48 6%
3) the brokerwas theprocuring cause ofthe
OTHER HOTLINE ISSUE 102 12%
sale. Itisuncontested that the defendant
secured the buyers thatwere ready, willing TOTAL ISSUES...................................... 824
and able topurchase the property priorto
theexpiration of the listing
agreement. Since
Average length Of call:11 minuteS
the contract was not signed until afterthe
listingagreement expired, thecourt looked
Preview
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022 HOULIHAN LAWRENCE OPPOSITION TO MOTION TO CERTIFY EXHIBIT 65 HL OPP. - EXHIBIT 65 - PAGE 1 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022 REALTORS® New York State Association of A risk management tool G ET S New York's for REALTORS® THIRD QUARTER 2010 Governor Paterson signs landmark agency disclosure bill By Anthony Gatto, Esq., NYSAR Legal Counsel On August 30,2010, Gov. David Paterson selleris represented by the seller's agent, (and advanced consent todual agency with Prop- arises." signed a bill into law amending Real dual agency This position meant designated sales agents) once an agency Law §443 to add two new components thatdual was transactionalinnature isestablishedatfirstsubstan- erty agency relationship to the agency disclosure law relatingto (inother words, dual agency cannot be tivecontact. advanced consent to dual agency and consented to until such time as itactually agency disclosurefor condominiums and arises)and advanced consent tothe same When dual agency isdiscussed with the cooperative apartments/units.The new law was prohibited.By taking such client,the clientwill then be and required forms do not take effect until a position,the DOS required able to indicatetheir consent January 1, 2011. that dual agency be consented New York News to dual agency in advance by to priorto an in-house indicatingthe same on the new showing Under the new buyers law, sellers,landlords, of a listed property. disclosure form. Ad- agency and tenantsare permitted to consentto dual vanced consent todual agency or dual with designated sales It wasNYSAlfs opinion that permit- agency agency by not with designated salesagents can be done agents in advanceby indicatingthesame on ting advanced consent todual agency, the in thesame manner. The only differenceis a new revised disclosureform. consumer was the penal- thatthe seller, landlord,buyer or tenantwill agency only party being ized.Without the optionto consent to dual be ableto designate a specificlicenseeas a The concept of advanced consent to dual in advance, theconsumer would be designated agent should itarise. Itis not agency agency has beenaround forquitesome time, requiredto signnumerous disclosure required thatboth designated agents are agency but was notpermitted under theReal Prop- forms timeanother buyer'sagent from filledinwhen advanced consent is given.In every ertyLaw. The NewYork State Departmentof the listingbrokerage wanted to show the other words, when a seller consents todual State,Divisionof Services(DOS) toa buyer-client.Often,the buyer with designated salesagentsin ad- Licensing property agency issuedalegalmemorandum onpoint directly would be unable to viewa property because vance,it is likely thatthe seller willdesignate with thisissue. to "IrgalMemo- the seller was unavailableat thetime. Fur- their agent (unlessthe agent is According listing listing Agency" randum LI12:Be Wary of Dual dual thermore, sellers were oftenconfused as to the principalbroker sinceprincipalbrokers agency typicallyarosein thefollowing way: the reason were requiredto sign are prohibited from as a designated why they acting a real estate broker employs two salespeople, numerous forms. agent). Likewise, a buyer will most likely one who works for the buyer as a buyer's designate theirbuyer'sagent as theirdesig- agent and theother who works fortheseller Advanced consent to dual agency (and nated agent(exceptin theinstancewhere the as a seller's agent.The realestatebroker and advanced consent todual with des- buyer's agent is theprincipal).Once dual agency same" hissalespeopleare "oneand the entity ignatedsales agents) should notbe utilized agency with designated sales agentsarises, when analyzingwhether dual agency exists. by licenseesuntilJanuary 1, 2011when the both sides willknowtheidentityof theother The memorandum goes one step furtherby law becomes effective. On or afterJanuary designated agent. stating· "As soonas the buyer's agent licenseeswillbe able tohave their expressly 1, 2011, introducesthe buyerto propertyinwhich the respectiveclients consent to dual agency Indiscussions with the Department of State, NYSAR has clarified the responsibilityofa licensee once dual agency or dual agency with designated salesagents arises.Ifdual agency arises as a result of a showing, the The new agency disclosure forms are available in this issue . licenseeis not requiredto notifythe seller and the legal section of NYSAR.com. These forrns should not reason- immediately sincethe seller should be used until January 1, 2011. ably presume that dual agency showings will occur during the time ofthe listing. See Dislosure, page 2 HL OPP. - EXHIBIT 65 - PAGE 2 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022 Disclosure: Law allows advanced consent to dual agency continueatrom gage i However, itis highly recommended that ofa licensee's agency status. at first substantivecontact pursuant to Real the seller be informed as toallinstances of Property Law §443(3)(a-c). dual agency thatare theresultof a showing. Licensees should be aware that dual This notification can be done via telephone, agency must be discussed with the seller Priorto thepassage of this Real bill, Property e-mail the address provided the and/or buyer at the onset of discussions Law §443(1)(f) exempted condo- (using by specifically fax seller), the faxnumber provided concerning agency. The law specifically miniums and cooperative apartments/units (using statesthat the client is consent to from the requirement of providingan agency by the seller) or by letter. As always,NYSAR giving consent." recommends allnoticesbe in so the "advanced informed This means disclosure form. Only licensees having writing licenseewillhave documented proof of any the client must be fully informed as to substantive contact with a seller, landlord, such notification. allaspects of dual agency. Clients need buyer or tenantof a 1-4 family dwelling were to be fully informed as tothe fiduciary required to provide the agency disclosure After dual if arises, a potentialpur- obligations willbe losing form to those individual(s).With the re- agency they by agreeing chaser begins negotiationsof any type,itis to dual agency as well. Licensees must moval of theexemption and theinclusion of required thatthe licenseecontact theseller make itperfectly clear what theclient is condominiums and cooperativeapartments/ and inform them thatthereis a dualagency consenting to and how itwill affectthe units,licenseeswill be requiredto provide situationwhere the buyer is showing inter- representation are receivingfrom the the disclosureform forall1-4 fam- they agency est intheproperty. Again, thisnotification licensee. Failure to do so can be consid- dwellings as wellas condominiums and ily can be done viatelephone, e-mail(using the ered a violationof Article12-A of theReal cooperative apartments/units. address provided by the fax seller), (using Property Law and may subjectthe licensee the faxnumber provided The new forms arealso available inthe legal by theseller)or by to DOS disciplinary action. letter. Inorder to minimize the potential section of NYSAR.com, but should not be for all liability, noticesshould be inwriting New law requires disclosure for used untilJanuary 1, 2011. and made at the time of negotiations or condominiums and cooperative immediately thereafter.Ifa dual agency a pa rtments/units showing resultsin the presentation of a Under the new law,condominiums and co- purchase offer,itisrecommended that the OPerativeapartments/units are added inthe signed agency disclosureforms be attached definition real property ofresidential as it re- to the purchaseofferso it is dear to the seller latesto agencydisclosure. Thischange now and buyer thatthe transactionis dual agency requires realestatelicenseesrepresenting a in nature. There isnothing prohibiting a seller, landlord, buyer or tenantof a condo- licenseefrom having theirclient(s)execute minium or cooPerativeapartment/unit to be a new agency disclosureform at thetimeof Presented with the agency disdosure form contractto memorialize theirunderstanding Visit the NYSAR Media Center at NYSAR.com for webinars covering key legal topics including: ni " with the Commission Escrow Act Complying " Do-Not-Call compliance " The to disclose a stigmatized duty property " And much more Visit www.nysar.com today. HL OPP. - EXHIBIT 65 - PAGE 3 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022 PAGE 3 NEW YORK STATE DISCLOSURE FORM FOR BUYER AND SELLER THIS IS NOT A CONTRACT New York state law requires real estate licensees who to account. A buyer's agent does not represent the are acting as agents of buyers or sellers of property to interests of the seller. The obligations of a buyer's advise the potential buyers or sellers with whom they agent are also subject to any specific provisions set work of the nature of their agency relationship and forth in an agreement between the agent and the buy- the rights and obligations it creates. This disclosure er. In dealings with the seller, a buyer's agent should will help you to make informed choices about your (a) exercise reasonable skill and care in performance relationship with the real estate broker and its sales of the agent's duties; (b) deal honestly, fairly and in agents. good faith; and (c) disclose all facts known to the agent materially affecting the buyer's ability and/or Throughout the transaction you may receive more willingness to perform a contract to acquire seller's than one disclosure form. The law may require each property that are not inconsistent with the agent's fi- agent assisting in the transaction to present you with duciary duties to the buyer. this disclosure form. A real estate agent is a person qualified to advise about real estate. BROKER'S AGENTS If you need legal, tax or other advice, consult with a A broker's agent is an agent that cooperates or is en- professional in that field. gaged by a listing agent or a buyer's agent (but does not work for the same firm as the listing agent or DISCLOSURE REGARDING REAL ESTATE buyer's agent) to assist the listing agent or buyer's AGENCY RELATIONSHIPS agent in locating a property to sell or buy, respective- ly, for the listing agent's seller or the buyer agent's SELLER'S AGENT buyer. The broker's agent does not have a direct rela- A seller's agent is an agent who is engaged by a seller tionship with the buyer or seller and the buyer or sel- to represent the seller's interests. The seller's agent ler cannot provide instructions or direction directly to does this by securing a buyer for the seller's home at the broker's agent. The buyer and the seller therefore a price and on terms acceptable to the seller. A sel- do not have vicarious liability for the acts of the bro- ler's agent has, without limitation, the following fidu- ker's agent. The listing agent or buyer's agent do pro- ciary duties to the seller: reasonable care, undivided vide direction and instruction to the broker's agent loyalty, confidentiality, full disclosure, obedience and and therefore the listing agent or buyer's agent will duty to account. A seller's agent does not represent have liability for the acts of the broker's agent. the interests of the buyer. The obligations of a seller's agent are also subject to any specific provisions set DUAL AGENT forth in an agreement between the agent and the sel- A real estate broker may represent both the buyer and ler. In dealings with the buyer, a seller's agent should the seller if both the buyer and seller give their in- (a) exercise reasonable skill and care in performance formed consent in writing. In such a dual agency sit- of the agent's duties; (b) deal honestly, fairly and in uation, the agent will not be able to provide the full good faith; and (c) disclose all facts known to the range of fiduciary duties to the buyer and seller. The agent materially affecting the value or desirability of obligations of an agent are also subject to any specif- property, except as otherwise provided by law. ic provisions set forth in an agreement between the agent, and the buyer and seller. An agent acting as a BUYER'S AGENT dual agent must explain carefully to both the buyer A buyer's agent is an agent who is engaged by a buy- and seller that the agent is acting for the other party er to represent the buyer's interests. The buyer's agent as well. The agent should also explain the possible does this by negotiating the purchase of a home at a effects of dual representation, including that by con- price and on terms acceptable to the buyer. A buyer's senting to the dual agency relationship the buyer and agent has, without limitation, the following fiduciary seller are giving up their right to undivided loyalty. A duties to the buyer: reasonable care, undivided loyal- buyer or seller should carefully consider the possible ty, confidentiality, full disclosure, obedience and duty consequences of a dual agency relationship before HL OPP. - EXHIBIT 65 - PAGE 4 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022 PAGE 4 agreeing to such representation. A seller or buyer the interests of and advocating on behalf of the buyer may provide advance informed consent to dual agen- and the designated sales agent for the seller will func- cy by indicating the same on this form. tion as the seller's agent representing the interests of and advocating on behalf of the seller in the negotia- DUAL AGENT WITH DESIGNATED SALES tions between the buyer and seller. A designated sales AGENTS agent cannot provide the full range of fiduciary duties to the buyer or seller. The designated sales agent If the buyer and the seller provide their informed must explain that like the dual agent under whose consent in writing, the principals and the real estate supervision they function, they cannot provide undi- broker who represents both parties as a dual agent vided loyalty. A buyer or seller should carefully con- may designate a sales agent to represent the buyer sider the possible consequences of a dual agency re- and another sales agent to represent the seller to ne- lationship with designated sales agents before agree- gotiate the purchase and sale of real estate. A sales ing to such representation. A seller or buyer may agent works under the supervision of the real estate provide advance informed consent to dual agency broker. With the informed consent of the buyer and with designated sales agents by indicating the same the seller in writing, the designated sales agent for the on this form. buyer will function as the buyer's agent representing 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 (check relationship below) ( ) Buyer as a (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 sec- tion 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:__________________________ HL OPP. - EXHIBIT 65 - PAGE 5 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022 PAGE 5 NEW YORK STATE DISCLOSURE FORM FOR LANDLORD AND TENANT THIS IS NOT A CONTRACT New York state law requires real estate licensees who agent does not represent the interest of the landlord. are acting as agents of landlords and tenants of real The obligations of a tenant's agent are also subject to property to advise the potential landlords and tenants any specific provisions set forth in an agreement be- with whom they work of the nature of their agency tween the agent and the tenant. In dealings with the relationship and the rights and obligations it creates. landlord, a tenant's agent should (a) exercise reasona- This disclosure will help you to make informed ble skill and care in performance of the agent's duties; choices about your relationship with the real estate (b) deal honestly, fairly and in good faith; and (c) broker and its sales agents. disclose all facts known to the tenant's ability and/or willingness to perform a contract to rent or lease lan- Throughout the transaction you may receive more dlord's property that are not inconsistent with the than one disclosure form. The law may require each agent's fiduciary duties to the buyer. agent assisting in the transaction to present you with this disclosure form. A real estate agent is a person BROKER'S AGENTS qualified to advise about real estate. If you need le- gal, tax or other advice, consult with a professional in A broker's agent is an agent that cooperates or is en- that field. gaged by a listing agent or a tenant's agent (but does not work for the same firm as the listing agent or te- DISCLOSURE REGARDING REAL ESTATE nant's agent) to assist the listing agent or tenant's AGENCY RELATIONSHIPS agent in locating a property to rent or lease for the LANDLORD'S AGENT listing agent's landlord or the tenant agent's tenant. A landlord's agent is an agent who is engaged by a The broker's agent does not have a direct relationship landlord to represent the landlord's interest. The lan- with the tenant or landlord and the tenant or landlord dlord's agent does this by securing a tenant for the cannot provide instructions or direction directly to the landlord's apartment or house at a rent and on terms broker's agent. The tenant and the landlord therefore acceptable to the landlord. A landlord's agent has, do not have vicarious liability for the acts of the bro- without limitation, the following fiduciary duties to ker's agent. The listing agent or tenant's agent do pro- the landlord: reasonable care, undivided loyalty, con- vide direction and instruction to the broker's agent fidentiality, full disclosure, obedience and duty to and therefore the listing agent or tenant's agent will account. A landlord's agent does not represent the have liability for the acts of the broker's agent. interests of the tenant. The obligations of a landlord's agent are also subject to any specific provisions set DUAL AGENT forth in an agreement between the agent and the lan- A real estate broker may represent both the tenant dlord. In dealings with the tenant, a landlord's agent and the landlord if both the tenant and landlord give should (a) exercise reasonable skill and care in per- their informed consent in writing. In such a dual formance of the agent's duties; (b) deal honestly, fair- agency situation, the agent will not be able to provide ly and in good faith; and (c) disclose all facts known the full range of fiduciary duties to the landlord and to the agent materially affecting the value or desira- the tenant. The obligations of an agent are also sub- bility of property, except as otherwise provided by ject to any specific provisions set forth in an agree- law. ment between the agent, and the tenant and landlord. An agent acting as a dual agent must explain careful- TENANT'S AGENT ly to both the landlord and tenant that the agent is A tenant's agent is an agent who is engaged by a te- acting for the other party as well. The agent should nant to represent the tenant's interest. The tenant's also explain the possible effects of dual representa- agent does this by negotiating the rental or lease of an tion, including that by consenting to the dual agency apartment or house at a rent and on terms acceptable relationship the landlord and tenant are giving up to the tenant. A tenant's agent has, without limitation, their right to undivided loyalty. A landlord and tenant the following fiduciary duties to the tenant: reasona- should carefully consider the possible consequences ble care, undivided loyalty, confidentiality, full dis- of a dual agency relationship before agreeing to such closure, obedience and duty to account. A tenant's representation. A landlord or tenant may provide ad- HL OPP. - EXHIBIT 65 - PAGE 6 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022 PAGE 6 vance informed consent to dual agency by indicating landlord will function as the landlord's agent the same on this form. representing the interests of and advocating on behalf of the landlord in the negotiations between the tenant DUAL AGENT WITH DESIGNATED SALES and the landlord. A designated sales agent cannot AGENTS provide the full range of fiduciary duties to the lan- dlord or tenant. The designated sales agent must ex- If the tenant and the landlord provide their informed plain that like the dual agent under whose supervision consent in writing, the principals and the real estate they function, they cannot provide undivided loyalty. broker who represents both parties as a dual agent A landlord or tenant should carefully consider the may designate a sales agent to represent the tenant possible consequences of a dual agency relationship and another sales agent to represent the landlord. A with designated sales agents before agreeing to such sales agent works under the supervision of the real representation. A landlord or tenant may provide ad- estate broker. With the informed consent in writing of vance informed consent to dual agency with desig- the tenant and the landlord, the designated sales agent nated sales agents by indicating the same on this for the tenant will function as the tenant's agent form. representing the interests of and advocating on behalf of the tenant and the designated sales agent for the 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 (check relationship below) ( ) Tenant as a (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 sec- tion 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:__________________________ HL OPP. - EXHIBIT 65 - PAGE 7 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 04:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1129 RECEIVED NYSCEF: 03/22/2022 ' Broker loses commission for lack of an extension clause NYSAR Legal Hotline call report By Anthony Gatto, Esq., Second quarter 2010 NYSAR Legal Counsel In UnitedReal Estate& Property Manage- Inc. v. Charnyshov and Yablons- ment, HOTUNE ISSUES kaya, the issueof a disputed commission between a licensee and c onsumer was E COMMISSION decided based on representations made m LICENSE LAW in a signedlistingagreement. FAIR HOUSING On April 1, 2006, United entered intoan m CONTRACT 2% exclusiverightto sell agreement listing with m DISCLOSURE Chrnyshov and Yablonskaya (defendants)for 1%1% a period on AGENCY ending July1, 2006. Priortothe 2% terminationof the listing agreement, an agent m DOS of thedefendantd procured a purchaser that 2% m REFERRALS was willing topurchase the listedproperty. Thepurchaser didnot sign apurchasecontract ARBITRATION priorto the expiration agreement. ofthelisting m CODE OF ETHICS On July 2, 2006 (one day after expired)' listing m BOARD/ASSOCIATION United enteredintoanother exclusiveright to m MLS sellagreement with Maximillion Realty for the same property. Maximillion advised the N OTHER HOTLINE ISSUE defendantsto lower theasking priceof their property. On 5, July 2006, defendantsentered intoa purchase contractwith thebuyers that "willing" prop- were originally to purchasethe COMMISSION 102 12% erty under the priorlistingagreement with LICENSE LAW 110 13% United. Upon Maxumllion closing, received the commission forthe sale. FAIR HOUSING 19 2% The defendant initiated the lawsuitto recoverthe commis- CONTRACT 205 25% sion believed were entitledtoas the DISCLOSURE 115 14% they they procuring causeofthe sale. AGENCY 54 7% DOS 21 3% In New York, a broker can only make a REFERRALS 15 2% claim forcommissions when: 1)the broker ARBITRATION 10 1% islicensed;2) the broker had a contract, CODE OF ETHICS 11 1% expressed or implied,with the party to be BOARD/ASSOCIATION 12 1% charged with paying the commission; and MLS 48 6% 3) the brokerwas theprocuring cause ofthe OTHER HOTLINE ISSUE 102 12% sale. Itisuncontested that the defendant secured the buyers thatwere ready, willing TOTAL ISSUES...................................... 824 and able topurchase the property priorto theexpiration of the listing agreement. Since Average length Of call:11 minuteS the contract was not signed until afterthe listingagreement expired, thecourt looked