N.Y. Real Property Law § 443: Disclosure regarding real estate agency relationship; form

§ 443. Disclosure regarding real estate agency relationship; form. 1.

Definitions. As used in this section, the following terms shall have the

following meanings:

a. "Agent" means a person who is licensed as a real estate broker,

associate real estate broker or real estate salesperson under section

four hundred forty-a of this article and is acting in a fiduciary

capacity.

b. "Buyer" means a transferee in a residential real property

transaction and includes a person who executes an offer to purchase

residential real property from a seller through an agent, or who has

engaged the services of an agent with the object of entering into a

residential real property transaction as a transferee.

c. "Buyer's agent" means an agent who contracts to locate residential

real property for a buyer or who finds a buyer for a property and

presents an offer to purchase to the seller or seller's agent and

negotiates on behalf of the buyer.

d. "Listing agent" means a person who has entered into a listing

agreement to act as an agent of the seller or landlord for compensation.

e. "Listing agreement" means a contract between an owner or owners of

residential real property and an agent, by which the agent has been

authorized to sell or lease the residential real property or to find or

obtain a buyer or lessee therefor.

f. "Residential real property" means real property used or occupied,

or intended to be used or occupied, wholly or partly, as the home or

residence of one or more persons improved by (i) a one-to-four family

dwelling or (ii) condominium or cooperative apartments but shall not

refer to unimproved real property upon which such dwellings are to be

constructed.

g. "Seller" means the transferor in a residential real property

transaction, and includes an owner who lists residential real property

for sale with an agent, whether or not a transfer results, or who

receives an offer to purchase residential real property.

h. "Seller's agent" means a listing agent who acts alone, or an agent

who acts in cooperation with a listing agent, acts as a seller's

subagent or acts as a broker's agent to find or obtain a buyer for

residential real property.

i. "Dual agent" means an agent who is acting as a buyer's agent and a

seller's agent or a tenant's agent and a landlord's agent in the same

transaction.

j. "Designated sales agent" means a licensed real estate salesperson

or associate broker, working under the supervision of a real estate

broker, who has been assigned to represent a client when a different

client is also represented by such real estate broker in the same

transaction.

k. "Broker's agent" means an agent that cooperates or is engaged by a

listing agent, buyer's agent or tenant's agent (but does not work for

the same firm as the listing agent, buyer's agent or tenant's agent) to

assist the listing agent, buyer's agent or tenant's agent in locating a

property to sell, buy or lease respectively, for the listing agent's

seller or landlord, the buyer agent's buyer or the tenant's agent

tenant. The broker's agent does not have a direct relationship with the

seller, buyer, landlord or tenant and the seller, buyer, landlord or

tenant can not provide instructions or direction directly to the

broker's agent. Therefore, the seller, buyer, landlord or tenant do not

have vicarious liability for the acts of the broker's agent. The listing

agent, buyer's agent or tenant's agent do provide direction and

instruction to the broker's agent and therefore the listing agent,

buyer's agent or tenant's agent will have liability for the broker's

agent.

l. "Tenant" means a lessee in a residential real property transaction

and includes a person who executes an offer to lease residential real

property from a landlord through an agent, or who has engaged the

services of an agent with the object of entering into a residential real

property transaction as a lessee.

m. "Landlord" means the lessor in a residential real property

transaction, and includes an owner who lists residential real property

for lease with an agent, whether or not a lease results, or who receives

an offer to lease residential real property.

n. "Tenant's agent" means an agent who contracts to locate residential

real property for a tenant or who finds a tenant for a property and

presents an offer to lease to the landlord or landlord's agent and

negotiates on behalf of the tenant.

o. "Landlord's agent" means a listing agent who acts alone, or an

agent who acts in cooperation with a listing agent, acts as a landlord's

subagent or acts as a broker's agent to find or obtain a tenant for

residential real property.

p. "Advance consent to dual agency" means written informed consent

signed by the seller/landlord or buyer/tenant that the listing agent

and/or buyer's agent may act as a dual agent for that seller/landlord

and a buyer/tenant for residential real property which is the subject of

a listing agreement.

q. "Advance consent to dual agency with designated sales agents" means

written informed consent signed by the seller/landlord or buyer/tenant

that indicates the name of the agent appointed to represent the

seller/landlord or buyer/tenant as a designated sales agent for

residential real property which is the subject of a listing agreement.

2. This section shall apply only to transactions involving residential

real property.

3. a. A listing agent shall provide the disclosure form set forth in

subdivision four of this section to a seller or landlord prior to

entering into a listing agreement with the seller or landlord and shall

obtain a signed acknowledgment from the seller or landlord, except as

provided in paragraph e of this subdivision.

b. A seller's agent or landlord's agent shall provide the disclosure

form set forth in subdivision four of this section to a buyer, buyer's

agent, tenant or tenant's agent at the time of the first substantive

contact with the buyer or tenant and shall obtain a signed

acknowledgement from the buyer or tenant, except as provided in

paragraph e of this subdivision.

c. A buyer's agent or tenant's agent shall provide the disclosure form

to the buyer or tenant prior to entering into an agreement to act as the

buyer's agent or tenant's agent and shall obtain a signed acknowledgment

from the buyer or tenant, except as provided in paragraph e of this

subdivision. A buyer's agent or tenant's agent shall provide the form to

the seller, seller's agent, landlord or landlord's agent at the time of

the first substantive contact with the seller or landlord and shall

obtain a signed acknowledgment from the seller, landlord or the listing

agent, except as provided in paragraph e of this subdivision.

d. The agent shall provide to the buyer, seller, tenant or landlord a

copy of the signed acknowledgment and shall maintain a copy of the

signed acknowledgment for not less than three years.

e. If the seller, buyer, landlord or tenant refuses to sign an

acknowledgment of receipt pursuant to this subdivision, the agent shall

set forth under oath or affirmation a written declaration of the facts

of the refusal and shall maintain a copy of the declaration for not less

than three years.

f. A seller/landlord or buyer/tenant may provide advance informed

consent to dual agency and dual agency with designated sales agents by

indicating the same on the form set forth in subdivision four of this

section.

4. a. For buyer-seller transactions, the following shall be the

disclosure form:

NEW YORK STATE DISCLOSURE FORM

FOR

BUYER AND SELLER

THIS IS NOT A CONTRACT

New York state law requires real estate licensees who are acting as

agents of buyers or sellers of property to advise the potential buyers

or sellers with whom they work of the nature of their agency

relationship and the rights and obligations it creates. This disclosure

will help you to make informed choices about your relationship with the

real estate broker and its sales agents.

Throughout the transaction you may receive more than one disclosure

form. The law may require each agent assisting in the transaction to

present you with this disclosure form. A real estate agent is a person

qualified to advise about real estate.

If you need legal, tax or other advice, consult with a professional in

that field.

DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS

SELLER'S AGENT

A seller's agent is an agent who is engaged by a seller to represent

the seller's interests. The seller's agent does this by securing a buyer

for the seller's home at a price and on terms acceptable to the seller.

A seller's agent has, without limitation, the following fiduciary duties

to the seller: reasonable care, undivided loyalty, confidentiality, full

disclosure, obedience and duty to account. A seller's agent does not

represent the interests of the buyer. The obligations of a seller's

agent are also subject to any specific provisions set forth in an

agreement between the agent and the seller. In dealings with the buyer,

a seller's agent should (a) exercise reasonable skill and care in

performance of the agent's duties; (b) deal honestly, fairly and in good

faith; and (c) disclose all facts known to the agent materially

affecting the value or desirability of property, except as otherwise

provided by law.

BUYER'S AGENT

A buyer's agent is an agent who is engaged by a buyer to represent the

buyer's interests. The buyer's agent does this by negotiating the

purchase of a home at a price and on terms acceptable to the buyer. A

buyer's agent has, without limitation, the following fiduciary duties to

the buyer: reasonable care, undivided loyalty, confidentiality, full

disclosure, obedience and duty to account. A buyer's agent does not

represent the interests of the seller. The obligations of a buyer's

agent are also subject to any specific provisions set forth in an

agreement between the agent and the buyer. In dealings with the seller,

a buyer's agent should (a) exercise reasonable skill and care in

performance of the agent's duties; (b) deal honestly, fairly and in good

faith; and (c) disclose all facts known to the agent materially

affecting the buyer's ability and/or willingness to perform a contract

to acquire seller's property that are not inconsistent with the agent's

fiduciary duties to the buyer.

BROKER'S AGENTS

A broker's agent is an agent that cooperates or is engaged by a

listing agent or a buyer's agent (but does not work for the same firm as

the listing agent or buyer's agent) to assist the listing agent or

buyer's agent in locating a property to sell or buy, respectively, for

the listing agent's seller or the buyer agent's buyer. The broker's

agent does not have a direct relationship with the buyer or seller and

the buyer or seller can not provide instructions or direction directly

to the broker's agent. The buyer and the seller therefore do not have

vicarious liability for the acts of the broker's agent. The listing

agent or buyer's agent do provide direction and instruction to the

broker's agent and therefore the listing agent or buyer's agent will

have liability for the acts of the broker's agent.

DUAL AGENT

A real estate broker may represent both the buyer and the seller if

both the buyer and seller give their informed consent in writing. In

such a dual agency situation, the agent will not be able to provide the

full range of fiduciary duties to the buyer and seller. The obligations

of an agent are also subject to any specific provisions set forth in an

agreement between the agent, and the buyer and seller. An agent acting

as a dual agent must explain carefully to both the buyer and seller that

the agent is acting for the other party as well. The agent should also

explain the possible effects of dual representation, including that by

consenting to the dual agency relationship the buyer and seller are

giving up their right to undivided loyalty. A buyer or seller should

carefully consider the possible consequences of a dual agency

relationship before agreeing to such representation. A seller or buyer

may provide advance informed consent to dual agency by indicating the

same on this form.

DUAL AGENT

WITH

DESIGNATED SALES AGENTS

If the buyer and the seller provide their informed consent in writing,

the principals and the real estate broker who represents both parties as

a dual agent may designate a sales agent to represent the buyer and

another sales agent to represent the seller to negotiate the purchase

and sale of real estate. A sales agent works under the supervision of

the real estate broker. With the informed consent of the buyer and the

seller in writing, the designated sales agent for the buyer will

function as the buyer's agent representing the interests of and

advocating on behalf of the buyer and the designated sales agent for the

seller will function as the seller's agent representing the interests of

and advocating on behalf of the seller in the negotiations between the

buyer and seller. A designated sales agent cannot provide the full range

of fiduciary duties to the buyer or seller. The designated sales agent

must explain that like the dual agent under whose supervision they

function, they cannot provide undivided loyalty. A buyer or seller

should carefully consider the possible consequences of a dual agency

relationship with designated sales agents before agreeing to such

representation. A seller or buyer may provide advance informed consent

to dual agency with designated sales agents by indicating the same on

this form.

This form was provided to me by ____________________ (print name of

licensee) of ____________________________ (print name of company, firm

or brokerage), a licensed real estate broker acting in the interest of

the:

( ) Seller as a ( ) Buyer as a

(check relationship below) (check relationship below)

( ) Seller's agent ( ) Buyer's agent

( ) Broker's agent ( ) Broker's agent

( ) Dual agent ( ) Dual agent with designated sales agents

For advance informed consent to either dual agency or dual agency with

designated sales agents complete section below:

( ) Advance informed consent dual agency.

( ) Advance informed consent to dual agency with designated sales

agents.

If dual agent with designated sales agents is indicated above:

____________________ is appointed to represent the buyer; and

____________________ is appointed to represent the seller in this

transaction.

(I)(We) acknowledge receipt of a copy of this disclosure form:

Signature of { } Buyer(s) and/or { } Seller(s):

____________________ ____________________

____________________ ____________________

Date:_______________ Date:_______________

b. For landlord-tenant transactions, the following shall be the

disclosure form:

NEW YORK STATE DISCLOSURE FORM

FOR

LANDLORD AND TENANT

THIS IS NOT A CONTRACT

New York state law requires real estate licensees who are acting as

agents of landlords and tenants of real property to advise the potential

landlords and tenants with whom they work of the nature of their agency

relationship and the rights and obligations it creates. This disclosure

will help you to make informed choices about your relationship with the

real estate broker and its sales agents.

Throughout the transaction you may receive more than one disclosure

form. The law may require each agent assisting in the transaction to

present you with this disclosure form. A real estate agent is a person

qualified to advise about real estate.

If you need legal, tax or other advice, consult with a professional in

that field.

DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS

LANDLORD'S AGENT

A landlord's agent is an agent who is engaged by a landlord to

represent the landlord's interest. The landlord's agent does this by

securing a tenant for the landlord's apartment or house at a rent and on

terms acceptable to the landlord. A landlord's agent has, without

limitation, the following fiduciary duties to the landlord: reasonable

care, undivided loyalty, confidentiality, full disclosure, obedience and

duty to account. A landlord's agent does not represent the interests of

the tenant. The obligations of a landlord's agent are also subject to

any specific provisions set forth in an agreement between the agent and

the landlord. In dealings with the tenant, a landlord's agent should (a)

exercise reasonable skill and care in performance of the agent's duties;

(b) deal honestly, fairly and in good faith; and (c) disclose all facts

known to the agent materially affecting the value or desirability of

property, except as otherwise provided by law.

TENANT'S AGENT

A tenant's agent is an agent who is engaged by a tenant to represent

the tenant's interest. The tenant's agent does this by negotiating the

rental or lease of an apartment or house at a rent and on terms

acceptable to the tenant. A tenant's agent has, without limitation, the

following fiduciary duties to the tenant: reasonable care, undivided

loyalty, confidentiality, full disclosure, obedience and duty to

account. A tenant's agent does not represent the interest of the

landlord. The obligations of a tenant's agent are also subject to any

specific provisions set forth in an agreement between the agent and the

tenant. In dealings with the landlord, a tenant's agent should (a)

exercise reasonable skill and care in performance of the agent's duties;

(b) deal honestly, fairly and in good faith; and (c) disclose all facts

known to the tenant's ability and/or willingness to perform a contract

to rent or lease landlord's property that are not inconsistent with the

agent's fiduciary duties to the buyer.

BROKER'S AGENTS

A broker's agent is an agent that cooperates or is engaged by a

listing agent or a tenant's agent (but does not work for the same firm

as the listing agent or tenant's agent) to assist the listing agent or

tenant's agent in locating a property to rent or lease for the listing

agent's landlord or the tenant agent's tenant. The broker's agent does

not have a direct relationship with the tenant or landlord and the

tenant or landlord can not provide instructions or direction directly to

the broker's agent. The tenant and the landlord therefore do not have

vicarious liability for the acts of the broker's agent. The listing

agent or tenant's agent do provide direction and instruction to the

broker's agent and therefore the listing agent or tenant's agent will

have liability for the acts of the broker's agent.

DUAL AGENT

A real estate broker may represent both the tenant and the landlord if

both the tenant and landlord give their informed consent in writing. In

such a dual agency situation, the agent will not be able to provide the

full range of fiduciary duties to the landlord and the tenant. The

obligations of an agent are also subject to any specific provisions set

forth in an agreement between the agent, and the tenant and landlord. An

agent acting as a dual agent must explain carefully to both the landlord

and tenant that the agent is acting for the other party as well. The

agent should also explain the possible effects of dual representation,

including that by consenting to the dual agency relationship the

landlord and tenant are giving up their right to undivided loyalty. A

landlord and tenant should carefully consider the possible consequences

of a dual agency relationship before agreeing to such representation. A

landlord or tenant may provide advance informed consent to dual agency

by indicating the same on this form.

DUAL AGENT

WITH

DESIGNATED SALES AGENTS

If the tenant and the landlord provide their informed consent in

writing, the principals and the real estate broker who represents both

parties as a dual agent may designate a sales agent to represent the

tenant and another sales agent to represent the landlord. A sales agent

works under the supervision of the real estate broker. With the informed

consent in writing of the tenant and the landlord, the designated sales

agent for the tenant will function as the tenant's agent representing

the interests of and advocating on behalf of the tenant and the

designated sales agent for the landlord will function as the landlord's

agent representing the interests of and advocating on behalf of the

landlord in the negotiations between the tenant and the landlord. A

designated sales agent cannot provide the full range of fiduciary duties

to the landlord or tenant. The designated sales agent must explain that

like the dual agent under whose supervision they function, they cannot

provide undivided loyalty. A landlord or tenant should carefully

consider the possible consequences of a dual agency relationship with

designated sales agents before agreeing to such representation. A

landlord or tenant may provide advance informed consent to dual agency

with designated sales agents by indicating the same on this form.

This form was provided to me by _____________________ (print name of

licensee) of __________________ (print name of company, firm or

brokerage), a licensed real estate broker acting in the interest of the:

( ) Landlord as a ( ) Tenant as a

(check relationship below) (check relationship below)

( ) Landlord's agent ( ) Tenant's agent

( ) Broker's agent ( ) Broker's agent

( ) Dual agent ( ) Dual agent with designated sales agents

For advance informed consent to either dual agency or dual agency with

designated sales agents complete section below:

( ) Advance informed consent dual agency.

( ) Advance informed consent to dual agency with designated sales

agents.

If dual agent with designated sales agents is indicated above:

_________________________ is appointed to represent the tenant; and

_________________________ is appointed to represent the landlord in

this transaction.

(I) (We) _____________________________________________ acknowledge

receipt of a copy of this disclosure form:

Signature of { } Landlord(s) and/or { } Tenant(s):

______________________________________________________

_______________________________________________________

Date: _______________ Date: ________________

5. This section shall not apply to a real estate licensee who works

with a buyer, seller, tenant or landlord in accordance with terms agreed

to by the licensee and buyer, seller, tenant or landlord and in a

capacity other than as an agent, as such term is defined in paragraph a

of subdivision one of this section.

6. Nothing in this section shall be construed to limit or alter the

application of the common law of agency with respect to residential real

estate transactions.