NY Real Prop L § 443 (2021)
2021 New York Laws RPP - Real Property Article 12-A - Real Estate Brokers and Real Estate Salesmen 443 - Disclosure Regarding Real Estate Agency Relationship; Form.

§  443. Disclosure regarding real estate agency relationship; form. 1. Definitions. As used in this section, the following terms shall have the following meanings:   a. "Agent" means a person who is licensed as  a  real  estate  broker, associate  real  estate  broker or real estate salesperson under section four hundred forty-a of this  article  and  is  acting  in  a  fiduciary capacity.   b.   "Buyer"  means  a  transferee  in  a  residential  real  property transaction and includes a person who  executes  an  offer  to  purchase residential  real  property  from  a seller through an agent, or who has engaged the services of an agent with the  object  of  entering  into  a residential real property transaction as a transferee.   c.  "Buyer's agent" means an agent who contracts to locate residential real property for a buyer or who  finds  a  buyer  for  a  property  and presents  an  offer  to  purchase  to  the  seller or seller's agent and negotiates on behalf of the buyer.   d. "Listing agent" means a person  who  has  entered  into  a  listing agreement to act as an agent of the seller or landlord for compensation.   e.  "Listing agreement" means a contract between an owner or owners of residential real property and an agent, by  which  the  agent  has  been authorized  to sell or lease the residential real property or to find or obtain a buyer or lessee therefor.   f. "Residential real property" means real property used  or  occupied, or  intended  to  be  used or occupied, wholly or partly, as the home or residence of one or more persons improved by (i)  a  one-to-four  family dwelling  or  (ii)  condominium  or cooperative apartments but shall not refer to unimproved real property upon which such dwellings  are  to  be constructed.   g.  "Seller"  means  the  transferor  in  a  residential real property transaction, and includes an owner who lists residential  real  property for  sale  with  an  agent,  whether  or  not a transfer results, or who receives an offer to purchase residential real property.   h. "Seller's agent" means a listing agent who acts alone, or an  agent who  acts  in  cooperation  with  a  listing  agent,  acts as a seller's subagent or acts as a broker's agent to  find  or  obtain  a  buyer  for residential real property.   i.  "Dual agent" means an agent who is acting as a buyer's agent and a seller's agent or a tenant's agent and a landlord's agent  in  the  same transaction.   j.  "Designated  sales agent" means a licensed real estate salesman or associate broker, working under the supervision of a real estate broker, who has been assigned to represent a client when a different  client  is also represented by such real estate broker in the same transaction.   k.  "Broker's agent" means an agent that cooperates or is engaged by a listing agent, buyer's agent or tenant's agent (but does  not  work  for the  same firm as the listing agent, buyer's agent or tenant's agent) to assist the listing agent, buyer's agent or tenant's agent in locating  a property  to  sell,  buy  or lease respectively, for the listing agent's seller or landlord, the  buyer  agent's  buyer  or  the  tenant's  agent tenant.  The broker's agent does not have a direct relationship with the seller, buyer, landlord or tenant and the  seller,  buyer,  landlord  or tenant  can  not  provide  instructions  or  direction  directly  to the broker's agent. Therefore, the seller, buyer, landlord or tenant do  not have vicarious liability for the acts of the broker's agent. The listing agent,  buyer's  agent  or  tenant's  agent  do  provide  direction  and instruction to the broker's  agent  and  therefore  the  listing  agent, buyer's  agent  or  tenant's  agent will have liability for the broker's agent.    l. "Tenant" means a lessee in a residential real property  transaction and  includes  a  person who executes an offer to lease residential real property from a landlord through  an  agent,  or  who  has  engaged  the services of an agent with the object of entering into a residential real property transaction as a lessee.   m.  "Landlord"  means  the  lessor  in  a  residential  real  property transaction, and includes an owner who lists residential  real  property for lease with an agent, whether or not a lease results, or who receives an offer to lease residential real property.   n. "Tenant's agent" means an agent who contracts to locate residential real  property  for  a  tenant  or who finds a tenant for a property and presents an offer to lease to  the  landlord  or  landlord's  agent  and negotiates on behalf of the tenant.   o.  "Landlord's  agent"  means  a  listing agent who acts alone, or an agent who acts in cooperation with a listing agent, acts as a landlord's subagent or acts as a broker's agent to find  or  obtain  a  tenant  for residential real property.   p.  "Advance  consent  to  dual agency" means written informed consent signed by the seller/landlord or buyer/tenant  that  the  listing  agent and/or  buyer's  agent  may act as a dual agent for that seller/landlord and a buyer/tenant for residential real property which is the subject of a listing agreement.   q. "Advance consent to dual agency with designated sales agents" means written informed consent signed by the seller/landlord  or  buyer/tenant that  indicates  the  name  of  the  agent  appointed  to  represent the seller/landlord  or  buyer/tenant  as  a  designated  sales  agent   for residential real property which is the subject of a listing agreement.   2. This section shall apply only to transactions involving residential real property.   3.  a.  A listing agent shall provide the disclosure form set forth in subdivision four of this section  to  a  seller  or  landlord  prior  to entering  into a listing agreement with the seller or landlord and shall obtain a signed acknowledgment from the seller or  landlord,  except  as provided in paragraph e of this subdivision.   b.  A  seller's agent or landlord's agent shall provide the disclosure form set forth in subdivision four of this section to a  buyer,  buyer's agent,  tenant  or  tenant's  agent at the time of the first substantive contact  with  the  buyer  or  tenant  and   shall   obtain   a   signed acknowledgement  from  the  buyer  or  tenant,  except  as  provided  in paragraph e of this subdivision.   c. A buyer's agent or tenant's agent shall provide the disclosure form to the buyer or tenant prior to entering into an agreement to act as the buyer's agent or tenant's agent and shall obtain a signed acknowledgment from the buyer or tenant, except as provided  in  paragraph  e  of  this subdivision. A buyer's agent or tenant's agent shall provide the form to the  seller, seller's agent, landlord or landlord's agent at the time of the first substantive contact with the  seller  or  landlord  and  shall obtain  a signed acknowledgment from the seller, landlord or the listing agent, except as provided in paragraph e of this subdivision.   d. The agent shall provide to the buyer, seller, tenant or landlord  a copy  of  the  signed  acknowledgment  and  shall maintain a copy of the signed acknowledgment for not less than three years.   e. If the seller,  buyer,  landlord  or  tenant  refuses  to  sign  an acknowledgment  of receipt pursuant to this subdivision, the agent shall set forth under oath or affirmation a written declaration of  the  facts of the refusal and shall maintain a copy of the declaration for not less than three years.    f.  A  seller/landlord  or  buyer/tenant  may provide advance informed consent to dual agency and dual agency with designated sales  agents  by indicating  the  same  on the form set forth in subdivision four of this section.   4.  a.  For  buyer-seller  transactions,  the  following  shall be the disclosure form:                      NEW YORK STATE DISCLOSURE FORM                                    FOR                             BUYER AND SELLER                          THIS IS NOT A CONTRACT   New York state law requires real estate licensees who  are  acting  as agents  of  buyers or sellers of property to advise the potential buyers or  sellers  with  whom  they  work  of  the  nature  of  their   agency relationship  and the rights and obligations it creates. This disclosure will help you to make informed choices about your relationship with  the real estate broker and its sales agents.   Throughout  the  transaction  you may receive more than one disclosure form. The law may require each agent assisting  in  the  transaction  to present  you  with this disclosure form. A real estate agent is a person qualified to advise about real estate.   If you need legal, tax or other advice, consult with a professional in that field.           DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS                              SELLER'S AGENT   A seller's agent is an agent who is engaged by a seller  to  represent the seller's interests. The seller's agent does this by securing a buyer for  the seller's home at a price and on terms acceptable to the seller. A seller's agent has, without limitation, the following fiduciary duties to the seller: reasonable care, undivided loyalty, confidentiality, full disclosure, obedience and duty to account. A  seller's  agent  does  not represent  the  interests  of  the  buyer. The obligations of a seller's agent are also subject to  any  specific  provisions  set  forth  in  an agreement  between the agent and the seller. In dealings with the buyer, a seller's agent should  (a)  exercise  reasonable  skill  and  care  in performance of the agent's duties; (b) deal honestly, fairly and in good faith;  and  (c)  disclose  all  facts  known  to  the  agent materially affecting the value or desirability of  property,  except  as  otherwise provided by law.                               BUYER'S AGENT   A buyer's agent is an agent who is engaged by a buyer to represent the buyer's  interests.  The  buyer's  agent  does  this  by negotiating the purchase of a home at a price and on terms acceptable to  the  buyer.  A buyer's agent has, without limitation, the following fiduciary duties to the  buyer:  reasonable  care,  undivided loyalty, confidentiality, full disclosure, obedience and duty to account.  A  buyer's  agent  does  not represent  the  interests  of  the  seller. The obligations of a buyer's agent are also subject to  any  specific  provisions  set  forth  in  an agreement  between the agent and the buyer. In dealings with the seller, a buyer's agent  should  (a)  exercise  reasonable  skill  and  care  in performance of the agent's duties; (b) deal honestly, fairly and in good faith;  and  (c)  disclose  all  facts  known  to  the  agent materially affecting the buyer's ability and/or willingness to perform  a  contract to  acquire seller's property that are not inconsistent with the agent's fiduciary duties to the buyer.                              BROKER'S AGENTS   A broker's agent is an agent  that  cooperates  or  is  engaged  by  a listing agent or a buyer's agent (but does not work for the same firm as the  listing  agent  or  buyer's  agent)  to assist the listing agent or  buyer's agent in locating a property to sell or buy,  respectively,  for the  listing  agent's  seller  or  the buyer agent's buyer. The broker's agent does not have a direct relationship with the buyer or  seller  and the  buyer  or seller can not provide instructions or direction directly to the broker's agent. The buyer and the seller therefore  do  not  have vicarious  liability  for  the  acts  of the broker's agent. The listing agent or buyer's agent do  provide  direction  and  instruction  to  the broker's  agent  and  therefore  the listing agent or buyer's agent will have liability for the acts of the broker's agent.                                DUAL AGENT   A real estate broker may represent both the buyer and  the  seller  if both  the  buyer  and  seller give their informed consent in writing. In such a dual agency situation, the agent will not be able to provide  the full  range of fiduciary duties to the buyer and seller. The obligations of an agent are also subject to any specific provisions set forth in  an agreement  between  the agent, and the buyer and seller. An agent acting as a dual agent must explain carefully to both the buyer and seller that the agent is acting for the other party as well. The agent  should  also explain  the  possible effects of dual representation, including that by consenting to the dual agency relationship  the  buyer  and  seller  are giving  up  their  right  to undivided loyalty. A buyer or seller should carefully  consider  the  possible  consequences  of   a   dual   agency relationship  before  agreeing to such representation. A seller or buyer may provide advance informed consent to dual agency  by  indicating  the same on this form.                                DUAL AGENT                                   WITH                          DESIGNATED SALES AGENTS   If the buyer and the seller provide their informed consent in writing, the principals and the real estate broker who represents both parties as a  dual  agent  may  designate  a sales agent to represent the buyer and another sales agent to represent the seller to  negotiate  the  purchase and  sale  of  real estate. A sales agent works under the supervision of the real estate broker. With the informed consent of the buyer  and  the seller  in  writing,  the  designated  sales  agent  for  the buyer will function  as  the  buyer's  agent  representing  the  interests  of  and advocating on behalf of the buyer and the designated sales agent for the seller will function as the seller's agent representing the interests of and  advocating  on behalf of the seller in the negotiations between the buyer and seller. A designated sales agent cannot provide the full range of fiduciary duties to the buyer or seller. The designated  sales  agent must  explain  that  like  the  dual  agent under whose supervision they function, they cannot provide  undivided  loyalty.  A  buyer  or  seller should  carefully  consider  the  possible consequences of a dual agency relationship with  designated  sales  agents  before  agreeing  to  such representation.  A  seller or buyer may provide advance informed consent to dual agency with designated sales agents by indicating  the  same  on this form.    This  form  was  provided to me by ____________________ (print name of licensee) of ____________________________ (print name of  company,  firm or  brokerage),  a licensed real estate broker acting in the interest of the: ) Seller as a     ) Buyer as a  (check relationship below)  (check relationship below) ) Seller's agent  ) Buyer's agent ) Broker's agent  ) Broker's agent ) Dual agent      ) Dual agent with designated sales agents    For advance informed consent to either dual agency or dual agency with designated sales agents complete section below: ) Advance informed consent dual agency. )  Advance  informed  consent to dual agency with designated sales agents.    If dual agent with designated sales agents is indicated above:   ____________________ is appointed to represent the buyer; and   ____________________ is appointed to  represent  the  seller  in  this transaction.  (I)(We) acknowledge receipt of a copy of this disclosure form:   Signature of { } Buyer(s) and/or { } Seller(s):   ____________________             ____________________   ____________________             ____________________   Date:_______________             Date:_______________   b.  For  landlord-tenant  transactions,  the  following  shall  be the disclosure form:                      NEW YORK STATE DISCLOSURE FORM                                    FOR                            LANDLORD AND TENANT                           THIS IS NOT A CONTRACT   New York state law requires real estate licensees who  are  acting  as agents of landlords and tenants of real property to advise the potential landlords  and tenants with whom they work of the nature of their agency relationship and the rights and obligations it creates. This  disclosure will  help you to make informed choices about your relationship with the real estate broker and its sales agents.   Throughout the transaction you may receive more  than  one  disclosure form.  The  law  may  require each agent assisting in the transaction to present you with this disclosure form. A real estate agent is  a  person qualified to advise about real estate. If  you  need legal, tax or other advice, consult with a professional in that field.            DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS                             LANDLORD'S AGENT    A landlord's agent is an  agent  who  is  engaged  by  a  landlord  to represent  the  landlord's  interest.  The landlord's agent does this by securing a tenant for the landlord's apartment or house at a rent and on terms acceptable to  the  landlord.  A  landlord's  agent  has,  without limitation,  the  following fiduciary duties to the landlord: reasonable care, undivided loyalty, confidentiality, full disclosure, obedience and duty to account. A landlord's agent does not represent the interests  of the  tenant.  The  obligations of a landlord's agent are also subject to any specific provisions set forth in an agreement between the agent  and the landlord. In dealings with the tenant, a landlord's agent should (a) exercise reasonable skill and care in performance of the agent's duties; (b)  deal honestly, fairly and in good faith; and (c) disclose all facts known to the agent materially affecting the  value  or  desirability  of property, except as otherwise provided by law.                               TENANT'S AGENT    A  tenant's  agent is an agent who is engaged by a tenant to represent the tenant's interest. The tenant's agent does this by  negotiating  the rental  or  lease  of  an  apartment  or  house  at  a rent and on terms acceptable to the tenant. A tenant's agent has, without limitation,  the following  fiduciary  duties  to  the tenant: reasonable care, undivided loyalty,  confidentiality,  full  disclosure,  obedience  and  duty   to account.  A  tenant's  agent  does  not  represent  the  interest of the landlord. The obligations of a tenant's agent are also  subject  to  any specific  provisions set forth in an agreement between the agent and the tenant. In dealings with the  landlord,  a  tenant's  agent  should  (a) exercise reasonable skill and care in performance of the agent's duties; (b)  deal honestly, fairly and in good faith; and (c) disclose all facts known to the  tenant's ability and/or willingness to perform a  contract to  rent or lease landlord's property that are not inconsistent with the agent's fiduciary duties to the buyer.                               BROKER'S AGENTS    A broker's agent is an agent  that  cooperates  or  is  engaged  by  a listing  agent  or a tenant's agent (but does not work for the same firm as the listing agent or tenant's agent) to assist the listing  agent  or tenant's  agent  in locating a property to rent or lease for the listing agent's landlord or the tenant agent's tenant. The broker's  agent  does not  have  a  direct  relationship  with  the tenant or landlord and the tenant or landlord can not provide instructions or direction directly to the broker's agent. The tenant and the landlord therefore  do  not  have vicarious  liability  for  the  acts  of the broker's agent. The listing agent or tenant's agent do provide  direction  and  instruction  to  the broker's  agent  and  therefore the listing agent or tenant's agent will have liability for the acts of the broker's agent.                                 DUAL AGENT    A real estate broker may represent both the tenant and the landlord if both the tenant and landlord give their informed consent in writing.  In such  a dual agency situation, the agent will not be able to provide the full range of fiduciary duties to  the  landlord  and  the  tenant.  The obligations  of an agent are also subject to any specific provisions set forth in an agreement between the agent, and the tenant and landlord. An agent acting as a dual agent must explain carefully to both the landlord and tenant that the agent is acting for the other  party  as  well.  The agent  should  also explain the possible effects of dual representation, including that  by  consenting  to  the  dual  agency  relationship  the landlord  and  tenant  are giving up their right to undivided loyalty. A landlord and tenant should carefully consider the possible  consequences of a dual agency relationship before agreeing to such representation.  A landlord  or  tenant may provide advance informed consent to dual agency by indicating the same on this form.                                 DUAL AGENT                                   WITH                          DESIGNATED SALES AGENTS    If the tenant and the  landlord  provide  their  informed  consent  in writing,  the  principals and the real estate broker who represents both parties as a dual agent may designate a sales  agent  to  represent  the tenant  and another sales agent to represent the landlord. A sales agent works under the supervision of the real estate broker. With the informed  consent in writing of the tenant and the landlord, the designated  sales agent  for  the  tenant will function as the tenant's agent representing the interests of  and  advocating  on  behalf  of  the  tenant  and  the designated  sales agent for the landlord will function as the landlord's agent representing the interests of and  advocating  on  behalf  of  the landlord  in  the  negotiations  between  the tenant and the landlord. A designated sales agent cannot provide the full range of fiduciary duties to the landlord or tenant. The designated sales agent must explain  that like  the  dual agent under whose supervision they function, they cannot provide  undivided  loyalty.  A  landlord  or  tenant  should  carefully consider  the  possible  consequences of a dual agency relationship with designated sales agents before  agreeing  to  such  representation.    A landlord  or  tenant may provide advance informed consent to dual agency with designated sales agents by indicating the same on this form.    This form was provided to me by _____________________ (print  name  of licensee)   of  __________________  (print  name  of  company,  firm  or brokerage), a licensed real estate broker acting in the interest of the: ) Landlord as a ) Tenant as a (check relationship below) (check relationship below) ) Landlord's agent  (  ) Tenant's agent ) Broker's agent) Broker's agent ) Dual agent    ) Dual agent with designated sales agents    For advance informed consent to either dual agency or dual agency with designated sales agents complete section below: ) Advance informed consent dual agency. ) Advance informed consent to dual agency  with  designated  sales agents.    If dual agent with designated sales agents is indicated above:   _________________________ is appointed to represent the tenant; and   _________________________ is  appointed  to  represent the landlord in this transaction.  (I)  (We)  _____________________________________________   acknowledge receipt of a copy of this disclosure form:      Signature of { } Landlord(s) and/or { } Tenant(s):  ______________________________________________________  _______________________________________________________  Date: _______________              Date: ________________    5.  This  section  shall not apply to a real estate licensee who works with a buyer, seller, tenant or landlord in accordance with terms agreed to by the licensee and buyer,  seller,  tenant  or  landlord  and  in  a capacity  other than as an agent, as such term is defined in paragraph a of subdivision one of this section.   6. Nothing in this section shall be construed to limit  or  alter  the application of the common law of agency with respect to residential real estate transactions.