Preview
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022
HOULIHAN LAWRENCE
OPPOSITION TO MOTION TO CERTIFY
EXHIBIT 28
HL OPP. - EXHIBIT 28 - PAGE 1
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022
New York State Assembly
assembly.state.ny.us/leg
A10443 Summary:
BILL NO A10443B
SAME AS SAME AS S07672-A
SPONSOR Bing (MS)
COSPNSR Schimel, Boyland, Koon, Rivera P, Gianaris, Zebrowski, Hyer-Spencer,
Russell, Weprin D, Stirpe
MLTSPNSR Cahill, Calhoun, Dinowitz, Hooper, Jeffries, Lupardo, McEneny, O'Mara,
Pheffer, Raia, Reilly, Skartados, Titone, Weisenberg
Amd S443, RP L
Relates to disclosure regarding dual agency in real estate relationships.
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A10443 Memo:
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HL OPP. - EXHIBIT 28 - PAGE 2
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022
NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
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NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022
BILL NUMBER: A10443B
SPONSOR: Bing (MS)
TITLE OF BILL: An act to amend the real property law, in relation to
disclosure regarding real estate agency relationship
PURPOSE OR GENERAL IDEA OF BILL: The bill would amend the agency
disclosure form to allow advanced consent to dual agency and require the
use of agency disclosure forms in real estate transactions for condomin-
ium and cooperative housing.
SUMMARY OF SPECIFIC PROVISIONS: Section 1: Real property law section
443, subdivision 1, is amended to add "associate real estate broker" and
"real estate salesperson" to the definition of "agent".
The definition of residential real property is amended to include condo-
miniums and cooperatives with respect to the provisions of this section.
New definitions for "advanced consent to dual agency" and "advanced
consent to dual agency with designated sales agents" are also added to
sec. 443 of real property law.
Section 2: The real property law section 443, subdivision 3, is amended
to add a new paragraph (f) that allows sellers, landlords, buyers and
tenants to consent in advance to dual agency.
JUSTIFICATION: A statutorily required agency disclosure form is used
to provide consumers with information regarding their representation in
a real estate transaction. "Dual Agent" is currently recognized in real
estate license law as a valid form of agency relationship in which the
buyer and seller are represented by the same real estate brokerage
company.
This bill will allow consumers to select and allow a "dual agency"
relationship in advance of it actually occurring. In many cases, buyers'
agents will bring their clients to multiple properties in their search
for an appropriate property for the buyer. They will often run into
situations where the seller is represented by the same brokerage company
for whom the buyers' agent works. Currently, the property could not be
shown until a new agency disclosure form was signed by the seller and
buyer. This delays these activities and sometimes prohibits the property
from being shown. The revised agency disclosure form would streamline
this process by allowing consumers to provide advanced consent to this
"dual agency" relationship. The selection by the buyer or seller of
"dual agency" in advance of it occurring is completely optional.
The bill will also require real estate licensees to provide a written
agency disclosure form when working with clients purchasing or selling
condominiums or cooperatives. Current law requires licensees in these
types of transactions to provide verbal disclosure of the agency
relationship. Requiring written disclosure in condo and coop trans-
actions will ensure these consumers are afforded the same disclosure of
agency representation information that is provided to buyers and sellers
of residential real property.
PRIOR LEGISLATIVE HISTORY: None
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FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022
FISCAL IMPLICATIONS: None
EFFECTIVE DATE: January 1, 2011
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A10443 Text:
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HL OPP. - EXHIBIT 28 - PAGE 5
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022
STATE OF NEW YORK
________________________________________________________________________
10443--B
IN ASSEMBLY
March 26, 2010
___________
Introduced by M. of A. BING, SCHIMEL, BOYLAND, KOON, P. RIVERA, GIANAR-
IS, ZEBROWSKI, HYER-SPENCER, RUSSELL, D. WEPRIN, STIRPE -- Multi-Spon-
sored by -- M. of A. CAHILL, CALHOUN, DINOWITZ, HOOPER, JEFFRIES,
LUPARDO, McENENY, O'MARA, PHEFFER, RAIA, REILLY, SKARTADOS, TITONE,
WEISENBERG -- read once and referred to the Committee on Judiciary --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee -- again reported from said committee
with amendments, ordered reprinted as amended and recommitted to said
committee
AN ACT to amend the real property law, in relation to disclosure regard-
ing real estate agency relationship
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Paragraphs a and f of subdivision 1 of section 443 of the
2 real property law, as amended by chapter 549 of the laws of 2007, are
3 amended and two new paragraphs p and q are added to read as follows:
4 a. "Agent" means a person who is licensed as a real estate broker [or
5 real estate sales associate], associate real estate broker or real
6 estate salesperson under section four hundred forty-a of this article
7 and is acting in a fiduciary capacity.
8 f. "Residential real property" means real property used or occupied,
9 or intended to be used or occupied, wholly or partly, as the home or
10 residence of one or more persons improved by (i) a one-to-four family
11 dwelling [used or occupied, or intended to be used or occupied, wholly
12 or partly, as the home or residence of one or more persons,] or (ii)
13 condominium or cooperative apartments but shall not refer to [(i)] unim-
14 proved real property upon which such dwellings are to be constructed [or
15 (ii) condominium or cooperative apartments in a building containing more
16 than four units].
17 p. "Advance consent to dual agency" means written informed consent
18 signed by the seller/landlord or buyer/tenant that the listing agent
19 and/or buyer's agent may act as a dual agent for that seller/landlord
20 and a buyer/tenant for residential real property which is the subject of
21 a listing agreement.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD16207-06-0
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A. 10443--B 2
1 q. "Advance consent to dual agency with designated sales agents" means
2 written informed consent signed by the seller/landlord or buyer/tenant
3 that indicates the name of the agent appointed to represent the
4 seller/landlord or buyer/tenant as a designated sales agent for residen-
5 tial real property which is the subject of a listing agreement.
6 § 2. Subdivision 3 of section 443 of the real property law is amended
7 by adding a new paragraph f to read as follows:
8 f. A seller/landlord or buyer/tenant may provide advance informed
9 consent to dual agency and dual agency with designated sales agents by
10 indicating the same on the form set forth in subdivision four of this
11 section.
12 § 3. Paragraphs a and b of subdivision 4 of section 443 of the real
13 property law, as amended by chapter 549 of the laws of 2007, are amended
14 to read as follows:
15 a. For buyer-seller transactions, the following shall be the disclo-
16 sure form:
17 NEW YORK STATE DISCLOSURE FORM
18 FOR
19 BUYER AND SELLER
20 THIS IS NOT A CONTRACT
21 New York state law requires real estate licensees who are acting as
22 agents of buyers or sellers of property to advise the potential buyers
23 or sellers with whom they work of the nature of their agency relation-
24 ship and the rights and obligations it creates. This disclosure will
25 help you to make informed choices about your relationship with the real
26 estate broker and its sales [associates] agents.
27 Throughout the transaction you may receive more than one disclosure
28 form. The law [requires] may require each agent assisting in the trans-
29 action to present you with this disclosure form. A real estate agent is
30 a person qualified to advise about real estate.
31 If you need legal, tax or other advice, consult with a professional in
32 that field.
33 DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS
34 SELLER'S AGENT
35 A seller's agent is an agent who is engaged by a seller to represent
36 the seller's interests. The seller's agent does this by securing a buyer
37 for the seller's home at a price and on terms acceptable to the seller.
38 A seller's agent has, without limitation, the following fiduciary duties
39 to the seller: reasonable care, undivided loyalty, confidentiality, full
40 disclosure, obedience and duty to account. A seller's agent does not
41 represent the interests of the buyer. The obligations of a seller's
42 agent are also subject to any specific provisions set forth in an agree-
43 ment between the agent and the seller. In dealings with the buyer, a
44 seller's agent should (a) exercise reasonable skill and care in perform-
45 ance of the agent's duties; (b) deal honestly, fairly and in good faith;
46 and (c) disclose all facts known to the agent materially affecting the
47 value or desirability of property, except as otherwise provided by law.
48 BUYER'S AGENT
49 A buyer's agent is an agent who is engaged by a buyer to represent the
50 buyer's interests. The buyer's agent does this by negotiating the
51 purchase of a home at a price and on terms acceptable to the buyer. A
52 buyer's agent has, without limitation, the following fiduciary duties to
53 the buyer: reasonable care, undivided loyalty, confidentiality, full
54 disclosure, obedience and duty to account. A buyer's agent does not
55 represent the interests of the seller. The obligations of a buyer's
56 agent are also subject to any specific provisions set forth in an agree-
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NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022
A. 10443--B 3
1 ment between the agent and the buyer. In dealings with the seller, a
2 buyer's agent should (a) exercise reasonable skill and care in perform-
3 ance of the agent's duties; (b) deal honestly, fairly and in good faith;
4 and (c) disclose all facts known to the agent materially affecting the
5 buyer's ability and/or willingness to perform a contract to acquire
6 seller's property that are not inconsistent with the agent's fiduciary
7 duties to the buyer.
8 BROKER'S AGENTS
9 A broker's agent is an agent that cooperates or is engaged by a list-
10 ing agent or a buyer's agent (but does not work for the same firm as the
11 listing agent or buyer's agent) to assist the listing agent or buyer's
12 agent in locating a property to sell or buy, respectively, for the list-
13 ing agent's seller or the buyer agent's buyer. The broker's agent does
14 not have a direct relationship with the buyer or seller and the buyer or
15 seller can not provide instructions or direction directly to the
16 broker's agent. The buyer and the seller therefore do not have vicarious
17 liability for the acts of the broker's agent. The listing agent or
18 buyer's agent do provide direction and instruction to the broker's agent
19 and therefore the listing agent or buyer's agent will have liability for
20 the acts of the broker's agent.
21 DUAL AGENT
22 A real estate broker may represent both the buyer and the seller if
23 both the buyer and seller give their informed consent in writing. In
24 such a dual agency situation, the agent will not be able to provide the
25 full range of fiduciary duties to the buyer and seller. The obligations
26 of an agent are also subject to any specific provisions set forth in an
27 agreement between the agent, and the buyer and seller. An agent acting
28 as a dual agent must explain carefully to both the buyer and seller that
29 the agent is acting for the other party as well. The agent should also
30 explain the possible effects of dual representation, including that by
31 consenting to the dual agency relationship the buyer and seller are
32 giving up their right to undivided loyalty. A buyer or seller should
33 carefully consider the possible consequences of a dual agency relation-
34 ship before agreeing to such representation. A seller or buyer may
35 provide advance informed consent to dual agency by indicating the same
36 on this form.
37 DUAL AGENT
38 WITH
39 DESIGNATED SALES AGENTS
40 If the buyer and the seller provide their informed consent in writing,
41 the principals and the real estate broker who represents both parties as
42 a dual agent may designate a sales agent to represent the buyer and
43 another sales agent to represent the seller to negotiate the purchase
44 and sale of real estate. A sales agent works under the supervision of
45 the real estate broker. With the informed consent of the buyer and the
46 seller in writing, the designated sales agent for the buyer will func-
47 tion as the buyer's agent representing the interests of and advocating
48 on behalf of the buyer and the designated sales agent for the seller
49 will function as the seller's agent representing the interests of and
50 advocating on behalf of the seller in the negotiations between the buyer
51 and seller. A designated sales agent cannot provide the full range of
52 fiduciary duties to the buyer or seller. The designated sales agent must
53 explain that like the dual agent under whose supervision they function,
54 they cannot provide undivided loyalty. A buyer or seller should careful-
55 ly consider the possible consequences of a dual agency relationship with
56 designated sales agents before agreeing to such representation. A sell-
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NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022
A. 10443--B 4
1 er or buyer may provide advance informed consent to dual agency with
2 designated sales agents by indicating the same on this form.
3 This form was provided to me by ____________________ (print name of
4 licensee) of ____________________________ (print name of company, firm
5 or brokerage), a licensed real estate broker acting in the interest of
6 the:
7 ( ) Seller as a ( ) Buyer as a
8 (check relationship below) (check relationship below)
9 ( ) Seller's agent ( ) Buyer's agent
10 ( ) Broker's agent ( ) Broker's agent
11 ( ) Dual agent ( ) Dual agent with designated sales agents
12 For advance informed consent to either dual agency or dual agency with
13 designated sales agents complete section below:
14 ( ) Advance informed consent dual agency.
15 ( ) Advance informed consent to dual agency with designated sales
16 agents.
17 If dual agent with designated sales agents is [checked] indicated
18 above:
19 ____________________ is appointed to represent the buyer; and
20 ____________________ is appointed to represent the seller in this
21 transaction.
22 (I)(We) acknowledge receipt of a copy of this disclosure form:
23 Signature of { } Buyer(s) and/or { } Seller(s):
24 ____________________ ____________________
25 ____________________ ____________________
26 Date:_______________ Date:_______________
27 b. For landlord-tenant transactions, the following shall be the
28 disclosure form:
29 NEW YORK STATE DISCLOSURE FORM
30 FOR
31 LANDLORD AND TENANT
32 THIS IS NOT A CONTRACT
33 New York state law requires real estate licensees who are acting as
34 agents of landlords and tenants of real property to advise the potential
35 landlords and tenants with whom they work of the nature of their agency
36 relationship and the rights and obligations it creates. This disclosure
37 will help you to make informed choices about your relationship with the
38 real estate broker and its sales [associates] agents.
39 Throughout the transaction you may receive more than one disclosure
40 form. The law [requires] may require each agent assisting in the trans-
41 action to present you with this disclosure form. A real estate agent is
42 a person qualified to advise about real estate.
43 If you need legal, tax or other advice, consult with a professional in
44 that field.
45 DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS
46 LANDLORD'S AGENT
47 A landlord's agent is an agent who is engaged by a landlord to repre-
48 sent the landlord's interest. The landlord's agent does this by securing
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A. 10443--B 5
1 a tenant for the landlord's apartment or house at a rent and on terms
2 acceptable to the landlord. A landlord's agent has, without limitation,
3 the following fiduciary duties to the landlord: reasonable care, undi-
4 vided loyalty, confidentiality, full disclosure, obedience and duty to
5 account. A landlord's agent does not represent the interests of the
6 tenant. The obligations of a landlord's agent are also subject to any
7 specific provisions set forth in an agreement between the agent and the
8 landlord. In dealings with the tenant, a landlord's agent should (a)
9 exercise reasonable skill and care in performance of the agent's duties;
10 (b) deal honestly, fairly and in good faith; and (c) disclose all facts
11 known to the agent materially affecting the value or desirability of
12 property, except as otherwise provided by law.
13 TENANT'S AGENT
14 A tenant's agent is an agent who is engaged by a tenant to represent
15 the tenant's interest. The tenant's agent does this by negotiating the
16 rental or lease of an apartment or house at a rent and on terms accepta-
17 ble to the tenant. A tenant's agent has, without limitation, the follow-
18 ing fiduciary duties to the tenant: reasonable care, undivided loyalty,
19 confidentiality, full disclosure, obedience and duty to account. A
20 tenant's agent does not represent the interest of the landlord. The
21 obligations of a tenant's agent are also subject to any specific
22 provisions set forth in an agreement between the agent and the tenant.
23 In dealings with the landlord, a tenant's agent should (a) exercise
24 reasonable skill and care in performance of the agent's duties; (b) deal
25 honestly, fairly and in good faith; and (c) disclose all facts known to
26 the tenant's ability and/or willingness to perform a contract to rent
27 or lease landlord's property that are not inconsistent with the agent's
28 fiduciary duties to the buyer.
29 BROKER'S AGENTS
30 A broker's agent is an agent that cooperates or is engaged by a list-
31 ing agent or a tenant's agent (but does not work for the same firm as
32 the listing agent or tenant's agent) to assist the listing agent or
33 tenant's agent in locating a property to rent or lease for the listing
34 agent's landlord or the tenant agent's tenant. The broker's agent does
35 not have a direct relationship with the tenant or landlord and the
36 tenant or landlord can not provide instructions or direction directly to
37 the broker's agent. The tenant and the landlord therefore do not have
38 vicarious liability for the acts of the broker's agent. The listing
39 agent or tenant's agent do provide direction and instruction to the
40 broker's agent and therefore the listing agent or tenant's agent will
41 have liability for the acts of the broker's agent.
42 DUAL AGENT
43 A real estate broker may represent both the tenant and the landlord if
44 both the tenant and landlord give their informed consent in writing. In
45 such a dual agency situation, the agent will not be able to provide the
46 full range of fiduciary duties to the landlord and the tenant. The obli-
47 gations of an agent are also subject to any specific provisions set
48 forth in an agreement between the agent, and the tenant and landlord. An
49 agent acting as a dual agent must explain carefully to both the landlord
50 and tenant that the agent is acting for the other party as well. The
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A. 10443--B 6
1 agent should also explain the possible effects of dual representation,
2 including that by consenting to the dual agency relationship the land-
3 lord and tenant are giving up their right to undivided loyalty. A land-
4 lord and tenant should carefully consider the possible consequences of a
5 dual agency relationship before agreeing to such representation. A
6 landlord or tenant may provide advance informed consent to dual agency
7 by indicating the same on this form.
8 DUAL AGENT
9 WITH
10 DESIGNATED SALES AGENTS
11 If the tenant and the landlord provide their informed consent in writ-
12 ing, the principals and the real estate broker who represents both
13 parties as a dual agent may designate a sales agent to represent the
14 tenant and another sales agent to represent the landlord. A sales agent
15 works under the supervision of the real estate broker. With the informed
16 consent in writing of the tenant and the landlord, the designated sales
17 agent for the tenant will function as the tenant's agent representing
18 the interests of and advocating on behalf of the tenant and the desig-
19 nated sales agent for the landlord will function as the landlord's agent
20 representing the interests of and advocating on behalf of the landlord
21 in the negotiations between the tenant and the landlord. A designated
22 sales agent cannot provide the full range of fiduciary duties to the
23 landlord or tenant. The designated sales agent must explain that like
24 the dual agent under whose supervision they function, they cannot
25 provide undivided loyalty. A landlord or tenant should carefully consid-
26 er the possible consequences of a dual agency relationship with desig-
27 nated sales agents before agreeing to such representation. A landlord
28 or tenant may provide advance informed consent to dual agency with
29 designated sales agents by indicating the same on this form.
30 This form was provided to me by _____________________ (print name of
31 licensee) of __________________ (print name of company, firm or broker-
32 age), a licensed real estate broker acting in the interest of the:
33 ( ) Landlord as a ( ) Tenant as a
34 (check relationship below) (check relationship below)
35 ( ) Landlord's agent ( ) Tenant's agent
36 ( ) Broker's agent ( ) Broker's agent
37 ( ) Dual agent ( ) Dual agent with designated sales agents
38 For advance informed consent to either dual agency or dual agency with
39 designated sales agents complete section below:
40 ( ) Advance informed consent dual agency.
41 ( ) Advance informed consent to dual agency with designated sales
42 agents.
43 If dual agent with designated sales agents is [checked] indicated
44 above:
45 _________________________ is appointed to represent the tenant; and
46 _________________________ is appointed to represent the landlord in
47 this transaction.
48 (I) (We) _____________________________________________ acknowledge
49 receipt of a copy of this disclosure form:
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NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022
A. 10443--B 7
1 Signature of { } Landlord(s) and/or { } Tenant(s):
2 ______________________________________________________
3 _______________________________________________________
4 Date: _______________ Date: ________________
5 § 4. This act shall take effect January 1, 2011.
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Preview
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022 HOULIHAN LAWRENCE OPPOSITION TO MOTION TO CERTIFY EXHIBIT 28 HL OPP. - EXHIBIT 28 - PAGE 1 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022 New York State Assembly assembly.state.ny.us/leg A10443 Summary: BILL NO A10443B SAME AS SAME AS S07672-A SPONSOR Bing (MS) COSPNSR Schimel, Boyland, Koon, Rivera P, Gianaris, Zebrowski, Hyer-Spencer, Russell, Weprin D, Stirpe MLTSPNSR Cahill, Calhoun, Dinowitz, Hooper, Jeffries, Lupardo, McEneny, O'Mara, Pheffer, Raia, Reilly, Skartados, Titone, Weisenberg Amd S443, RP L Relates to disclosure regarding dual agency in real estate relationships. Go to top A10443 Memo: 1/11 HL OPP. - EXHIBIT 28 - PAGE 2 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022 NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f) 2/11 HL OPP. - EXHIBIT 28 - PAGE 3 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022 BILL NUMBER: A10443B SPONSOR: Bing (MS) TITLE OF BILL: An act to amend the real property law, in relation to disclosure regarding real estate agency relationship PURPOSE OR GENERAL IDEA OF BILL: The bill would amend the agency disclosure form to allow advanced consent to dual agency and require the use of agency disclosure forms in real estate transactions for condomin- ium and cooperative housing. SUMMARY OF SPECIFIC PROVISIONS: Section 1: Real property law section 443, subdivision 1, is amended to add "associate real estate broker" and "real estate salesperson" to the definition of "agent". The definition of residential real property is amended to include condo- miniums and cooperatives with respect to the provisions of this section. New definitions for "advanced consent to dual agency" and "advanced consent to dual agency with designated sales agents" are also added to sec. 443 of real property law. Section 2: The real property law section 443, subdivision 3, is amended to add a new paragraph (f) that allows sellers, landlords, buyers and tenants to consent in advance to dual agency. JUSTIFICATION: A statutorily required agency disclosure form is used to provide consumers with information regarding their representation in a real estate transaction. "Dual Agent" is currently recognized in real estate license law as a valid form of agency relationship in which the buyer and seller are represented by the same real estate brokerage company. This bill will allow consumers to select and allow a "dual agency" relationship in advance of it actually occurring. In many cases, buyers' agents will bring their clients to multiple properties in their search for an appropriate property for the buyer. They will often run into situations where the seller is represented by the same brokerage company for whom the buyers' agent works. Currently, the property could not be shown until a new agency disclosure form was signed by the seller and buyer. This delays these activities and sometimes prohibits the property from being shown. The revised agency disclosure form would streamline this process by allowing consumers to provide advanced consent to this "dual agency" relationship. The selection by the buyer or seller of "dual agency" in advance of it occurring is completely optional. The bill will also require real estate licensees to provide a written agency disclosure form when working with clients purchasing or selling condominiums or cooperatives. Current law requires licensees in these types of transactions to provide verbal disclosure of the agency relationship. Requiring written disclosure in condo and coop trans- actions will ensure these consumers are afforded the same disclosure of agency representation information that is provided to buyers and sellers of residential real property. PRIOR LEGISLATIVE HISTORY: None 3/11 HL OPP. - EXHIBIT 28 - PAGE 4 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022 FISCAL IMPLICATIONS: None EFFECTIVE DATE: January 1, 2011 Go to top A10443 Text: 4/11 HL OPP. - EXHIBIT 28 - PAGE 5 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022 STATE OF NEW YORK ________________________________________________________________________ 10443--B IN ASSEMBLY March 26, 2010 ___________ Introduced by M. of A. BING, SCHIMEL, BOYLAND, KOON, P. RIVERA, GIANAR- IS, ZEBROWSKI, HYER-SPENCER, RUSSELL, D. WEPRIN, STIRPE -- Multi-Spon- sored by -- M. of A. CAHILL, CALHOUN, DINOWITZ, HOOPER, JEFFRIES, LUPARDO, McENENY, O'MARA, PHEFFER, RAIA, REILLY, SKARTADOS, TITONE, WEISENBERG -- read once and referred to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee AN ACT to amend the real property law, in relation to disclosure regard- ing real estate agency relationship The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraphs a and f of subdivision 1 of section 443 of the 2 real property law, as amended by chapter 549 of the laws of 2007, are 3 amended and two new paragraphs p and q are added to read as follows: 4 a. "Agent" means a person who is licensed as a real estate broker [or 5 real estate sales associate], associate real estate broker or real 6 estate salesperson under section four hundred forty-a of this article 7 and is acting in a fiduciary capacity. 8 f. "Residential real property" means real property used or occupied, 9 or intended to be used or occupied, wholly or partly, as the home or 10 residence of one or more persons improved by (i) a one-to-four family 11 dwelling [used or occupied, or intended to be used or occupied, wholly 12 or partly, as the home or residence of one or more persons,] or (ii) 13 condominium or cooperative apartments but shall not refer to [(i)] unim- 14 proved real property upon which such dwellings are to be constructed [or 15 (ii) condominium or cooperative apartments in a building containing more 16 than four units]. 17 p. "Advance consent to dual agency" means written informed consent 18 signed by the seller/landlord or buyer/tenant that the listing agent 19 and/or buyer's agent may act as a dual agent for that seller/landlord 20 and a buyer/tenant for residential real property which is the subject of 21 a listing agreement. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD16207-06-0 5/11 HL OPP. - EXHIBIT 28 - PAGE 6 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022 A. 10443--B 2 1 q. "Advance consent to dual agency with designated sales agents" means 2 written informed consent signed by the seller/landlord or buyer/tenant 3 that indicates the name of the agent appointed to represent the 4 seller/landlord or buyer/tenant as a designated sales agent for residen- 5 tial real property which is the subject of a listing agreement. 6 § 2. Subdivision 3 of section 443 of the real property law is amended 7 by adding a new paragraph f to read as follows: 8 f. A seller/landlord or buyer/tenant may provide advance informed 9 consent to dual agency and dual agency with designated sales agents by 10 indicating the same on the form set forth in subdivision four of this 11 section. 12 § 3. Paragraphs a and b of subdivision 4 of section 443 of the real 13 property law, as amended by chapter 549 of the laws of 2007, are amended 14 to read as follows: 15 a. For buyer-seller transactions, the following shall be the disclo- 16 sure form: 17 NEW YORK STATE DISCLOSURE FORM 18 FOR 19 BUYER AND SELLER 20 THIS IS NOT A CONTRACT 21 New York state law requires real estate licensees who are acting as 22 agents of buyers or sellers of property to advise the potential buyers 23 or sellers with whom they work of the nature of their agency relation- 24 ship and the rights and obligations it creates. This disclosure will 25 help you to make informed choices about your relationship with the real 26 estate broker and its sales [associates] agents. 27 Throughout the transaction you may receive more than one disclosure 28 form. The law [requires] may require each agent assisting in the trans- 29 action to present you with this disclosure form. A real estate agent is 30 a person qualified to advise about real estate. 31 If you need legal, tax or other advice, consult with a professional in 32 that field. 33 DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS 34 SELLER'S AGENT 35 A seller's agent is an agent who is engaged by a seller to represent 36 the seller's interests. The seller's agent does this by securing a buyer 37 for the seller's home at a price and on terms acceptable to the seller. 38 A seller's agent has, without limitation, the following fiduciary duties 39 to the seller: reasonable care, undivided loyalty, confidentiality, full 40 disclosure, obedience and duty to account. A seller's agent does not 41 represent the interests of the buyer. The obligations of a seller's 42 agent are also subject to any specific provisions set forth in an agree- 43 ment between the agent and the seller. In dealings with the buyer, a 44 seller's agent should (a) exercise reasonable skill and care in perform- 45 ance of the agent's duties; (b) deal honestly, fairly and in good faith; 46 and (c) disclose all facts known to the agent materially affecting the 47 value or desirability of property, except as otherwise provided by law. 48 BUYER'S AGENT 49 A buyer's agent is an agent who is engaged by a buyer to represent the 50 buyer's interests. The buyer's agent does this by negotiating the 51 purchase of a home at a price and on terms acceptable to the buyer. A 52 buyer's agent has, without limitation, the following fiduciary duties to 53 the buyer: reasonable care, undivided loyalty, confidentiality, full 54 disclosure, obedience and duty to account. A buyer's agent does not 55 represent the interests of the seller. The obligations of a buyer's 56 agent are also subject to any specific provisions set forth in an agree- 6/11 HL OPP. - EXHIBIT 28 - PAGE 7 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022 A. 10443--B 3 1 ment between the agent and the buyer. In dealings with the seller, a 2 buyer's agent should (a) exercise reasonable skill and care in perform- 3 ance of the agent's duties; (b) deal honestly, fairly and in good faith; 4 and (c) disclose all facts known to the agent materially affecting the 5 buyer's ability and/or willingness to perform a contract to acquire 6 seller's property that are not inconsistent with the agent's fiduciary 7 duties to the buyer. 8 BROKER'S AGENTS 9 A broker's agent is an agent that cooperates or is engaged by a list- 10 ing agent or a buyer's agent (but does not work for the same firm as the 11 listing agent or buyer's agent) to assist the listing agent or buyer's 12 agent in locating a property to sell or buy, respectively, for the list- 13 ing agent's seller or the buyer agent's buyer. The broker's agent does 14 not have a direct relationship with the buyer or seller and the buyer or 15 seller can not provide instructions or direction directly to the 16 broker's agent. The buyer and the seller therefore do not have vicarious 17 liability for the acts of the broker's agent. The listing agent or 18 buyer's agent do provide direction and instruction to the broker's agent 19 and therefore the listing agent or buyer's agent will have liability for 20 the acts of the broker's agent. 21 DUAL AGENT 22 A real estate broker may represent both the buyer and the seller if 23 both the buyer and seller give their informed consent in writing. In 24 such a dual agency situation, the agent will not be able to provide the 25 full range of fiduciary duties to the buyer and seller. The obligations 26 of an agent are also subject to any specific provisions set forth in an 27 agreement between the agent, and the buyer and seller. An agent acting 28 as a dual agent must explain carefully to both the buyer and seller that 29 the agent is acting for the other party as well. The agent should also 30 explain the possible effects of dual representation, including that by 31 consenting to the dual agency relationship the buyer and seller are 32 giving up their right to undivided loyalty. A buyer or seller should 33 carefully consider the possible consequences of a dual agency relation- 34 ship before agreeing to such representation. A seller or buyer may 35 provide advance informed consent to dual agency by indicating the same 36 on this form. 37 DUAL AGENT 38 WITH 39 DESIGNATED SALES AGENTS 40 If the buyer and the seller provide their informed consent in writing, 41 the principals and the real estate broker who represents both parties as 42 a dual agent may designate a sales agent to represent the buyer and 43 another sales agent to represent the seller to negotiate the purchase 44 and sale of real estate. A sales agent works under the supervision of 45 the real estate broker. With the informed consent of the buyer and the 46 seller in writing, the designated sales agent for the buyer will func- 47 tion as the buyer's agent representing the interests of and advocating 48 on behalf of the buyer and the designated sales agent for the seller 49 will function as the seller's agent representing the interests of and 50 advocating on behalf of the seller in the negotiations between the buyer 51 and seller. A designated sales agent cannot provide the full range of 52 fiduciary duties to the buyer or seller. The designated sales agent must 53 explain that like the dual agent under whose supervision they function, 54 they cannot provide undivided loyalty. A buyer or seller should careful- 55 ly consider the possible consequences of a dual agency relationship with 56 designated sales agents before agreeing to such representation. A sell- 7/11 HL OPP. - EXHIBIT 28 - PAGE 8 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022 A. 10443--B 4 1 er or buyer may provide advance informed consent to dual agency with 2 designated sales agents by indicating the same on this form. 3 This form was provided to me by ____________________ (print name of 4 licensee) of ____________________________ (print name of company, firm 5 or brokerage), a licensed real estate broker acting in the interest of 6 the: 7 ( ) Seller as a ( ) Buyer as a 8 (check relationship below) (check relationship below) 9 ( ) Seller's agent ( ) Buyer's agent 10 ( ) Broker's agent ( ) Broker's agent 11 ( ) Dual agent ( ) Dual agent with designated sales agents 12 For advance informed consent to either dual agency or dual agency with 13 designated sales agents complete section below: 14 ( ) Advance informed consent dual agency. 15 ( ) Advance informed consent to dual agency with designated sales 16 agents. 17 If dual agent with designated sales agents is [checked] indicated 18 above: 19 ____________________ is appointed to represent the buyer; and 20 ____________________ is appointed to represent the seller in this 21 transaction. 22 (I)(We) acknowledge receipt of a copy of this disclosure form: 23 Signature of { } Buyer(s) and/or { } Seller(s): 24 ____________________ ____________________ 25 ____________________ ____________________ 26 Date:_______________ Date:_______________ 27 b. For landlord-tenant transactions, the following shall be the 28 disclosure form: 29 NEW YORK STATE DISCLOSURE FORM 30 FOR 31 LANDLORD AND TENANT 32 THIS IS NOT A CONTRACT 33 New York state law requires real estate licensees who are acting as 34 agents of landlords and tenants of real property to advise the potential 35 landlords and tenants with whom they work of the nature of their agency 36 relationship and the rights and obligations it creates. This disclosure 37 will help you to make informed choices about your relationship with the 38 real estate broker and its sales [associates] agents. 39 Throughout the transaction you may receive more than one disclosure 40 form. The law [requires] may require each agent assisting in the trans- 41 action to present you with this disclosure form. A real estate agent is 42 a person qualified to advise about real estate. 43 If you need legal, tax or other advice, consult with a professional in 44 that field. 45 DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS 46 LANDLORD'S AGENT 47 A landlord's agent is an agent who is engaged by a landlord to repre- 48 sent the landlord's interest. The landlord's agent does this by securing 8/11 HL OPP. - EXHIBIT 28 - PAGE 9 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022 A. 10443--B 5 1 a tenant for the landlord's apartment or house at a rent and on terms 2 acceptable to the landlord. A landlord's agent has, without limitation, 3 the following fiduciary duties to the landlord: reasonable care, undi- 4 vided loyalty, confidentiality, full disclosure, obedience and duty to 5 account. A landlord's agent does not represent the interests of the 6 tenant. The obligations of a landlord's agent are also subject to any 7 specific provisions set forth in an agreement between the agent and the 8 landlord. In dealings with the tenant, a landlord's agent should (a) 9 exercise reasonable skill and care in performance of the agent's duties; 10 (b) deal honestly, fairly and in good faith; and (c) disclose all facts 11 known to the agent materially affecting the value or desirability of 12 property, except as otherwise provided by law. 13 TENANT'S AGENT 14 A tenant's agent is an agent who is engaged by a tenant to represent 15 the tenant's interest. The tenant's agent does this by negotiating the 16 rental or lease of an apartment or house at a rent and on terms accepta- 17 ble to the tenant. A tenant's agent has, without limitation, the follow- 18 ing fiduciary duties to the tenant: reasonable care, undivided loyalty, 19 confidentiality, full disclosure, obedience and duty to account. A 20 tenant's agent does not represent the interest of the landlord. The 21 obligations of a tenant's agent are also subject to any specific 22 provisions set forth in an agreement between the agent and the tenant. 23 In dealings with the landlord, a tenant's agent should (a) exercise 24 reasonable skill and care in performance of the agent's duties; (b) deal 25 honestly, fairly and in good faith; and (c) disclose all facts known to 26 the tenant's ability and/or willingness to perform a contract to rent 27 or lease landlord's property that are not inconsistent with the agent's 28 fiduciary duties to the buyer. 29 BROKER'S AGENTS 30 A broker's agent is an agent that cooperates or is engaged by a list- 31 ing agent or a tenant's agent (but does not work for the same firm as 32 the listing agent or tenant's agent) to assist the listing agent or 33 tenant's agent in locating a property to rent or lease for the listing 34 agent's landlord or the tenant agent's tenant. The broker's agent does 35 not have a direct relationship with the tenant or landlord and the 36 tenant or landlord can not provide instructions or direction directly to 37 the broker's agent. The tenant and the landlord therefore do not have 38 vicarious liability for the acts of the broker's agent. The listing 39 agent or tenant's agent do provide direction and instruction to the 40 broker's agent and therefore the listing agent or tenant's agent will 41 have liability for the acts of the broker's agent. 42 DUAL AGENT 43 A real estate broker may represent both the tenant and the landlord if 44 both the tenant and landlord give their informed consent in writing. In 45 such a dual agency situation, the agent will not be able to provide the 46 full range of fiduciary duties to the landlord and the tenant. The obli- 47 gations of an agent are also subject to any specific provisions set 48 forth in an agreement between the agent, and the tenant and landlord. An 49 agent acting as a dual agent must explain carefully to both the landlord 50 and tenant that the agent is acting for the other party as well. The 9/11 HL OPP. - EXHIBIT 28 - PAGE 10 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022 A. 10443--B 6 1 agent should also explain the possible effects of dual representation, 2 including that by consenting to the dual agency relationship the land- 3 lord and tenant are giving up their right to undivided loyalty. A land- 4 lord and tenant should carefully consider the possible consequences of a 5 dual agency relationship before agreeing to such representation. A 6 landlord or tenant may provide advance informed consent to dual agency 7 by indicating the same on this form. 8 DUAL AGENT 9 WITH 10 DESIGNATED SALES AGENTS 11 If the tenant and the landlord provide their informed consent in writ- 12 ing, the principals and the real estate broker who represents both 13 parties as a dual agent may designate a sales agent to represent the 14 tenant and another sales agent to represent the landlord. A sales agent 15 works under the supervision of the real estate broker. With the informed 16 consent in writing of the tenant and the landlord, the designated sales 17 agent for the tenant will function as the tenant's agent representing 18 the interests of and advocating on behalf of the tenant and the desig- 19 nated sales agent for the landlord will function as the landlord's agent 20 representing the interests of and advocating on behalf of the landlord 21 in the negotiations between the tenant and the landlord. A designated 22 sales agent cannot provide the full range of fiduciary duties to the 23 landlord or tenant. The designated sales agent must explain that like 24 the dual agent under whose supervision they function, they cannot 25 provide undivided loyalty. A landlord or tenant should carefully consid- 26 er the possible consequences of a dual agency relationship with desig- 27 nated sales agents before agreeing to such representation. A landlord 28 or tenant may provide advance informed consent to dual agency with 29 designated sales agents by indicating the same on this form. 30 This form was provided to me by _____________________ (print name of 31 licensee) of __________________ (print name of company, firm or broker- 32 age), a licensed real estate broker acting in the interest of the: 33 ( ) Landlord as a ( ) Tenant as a 34 (check relationship below) (check relationship below) 35 ( ) Landlord's agent ( ) Tenant's agent 36 ( ) Broker's agent ( ) Broker's agent 37 ( ) Dual agent ( ) Dual agent with designated sales agents 38 For advance informed consent to either dual agency or dual agency with 39 designated sales agents complete section below: 40 ( ) Advance informed consent dual agency. 41 ( ) Advance informed consent to dual agency with designated sales 42 agents. 43 If dual agent with designated sales agents is [checked] indicated 44 above: 45 _________________________ is appointed to represent the tenant; and 46 _________________________ is appointed to represent the landlord in 47 this transaction. 48 (I) (We) _____________________________________________ acknowledge 49 receipt of a copy of this disclosure form: 10/11 HL OPP. - EXHIBIT 28 - PAGE 11 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1146 RECEIVED NYSCEF: 03/22/2022 A. 10443--B 7 1 Signature of { } Landlord(s) and/or { } Tenant(s): 2 ______________________________________________________ 3 _______________________________________________________ 4 Date: _______________ Date: ________________ 5 § 4. This act shall take effect January 1, 2011. Go to top 11/11 HL OPP. - EXHIBIT 28 - PAGE 12