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A10443 Summary:

A10443 Actions:

A10443 Floor Votes:

A10443 Text:

 
                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
        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-
        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-
        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
        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
        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:
        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.