New York Codes, Rules and Regulations › Title 3 - BANKING › Chapter I - GENERAL REGULATIONS OF THE SUPERINTENDENT › Part 38 - Definitions Of Terms; Advertising; Application And Commitment Disclosures And Procedures; Improper Conduct Under Article 12-d › Section 38.12 - Dual agency transaction disclosures

Current through Register Vol. 46, No. 28, July 10, 2024
The dual role performed by the mortgage broker, or a mortgage
				  banker or an exempt entity acting as a mortgage broker, in those instances when
				  the mortgage broker is also the real estate broker in the same residential real
				  estate transaction, must be disclosed at the first substantive contact between
				  the mortgage broker and the buyer/borrower. In addition, any regular business
				  relationship that the mortgage broker maintains with any lender to which he/she
				  presents loan applications, if he/she intends to utilize three or fewer
				  lenders, must also be disclosed at the first substantive contact between the
				  mortgage broker and the buyer/borrower. The appropriate disclosure form and
				  acknowledgment set forth hereunder must be provided to and signed by the
				  buyer/borrower and the seller before services as a mortgage broker may be
				  rendered. The disclosures required by this section may be in writing or via
				  electronic transmission and the required signatures may be hand-written or
				  digital to the extent such signatures are recognized as binding under New York
				  State law. A hard or electronic copy of the disclosure form and signed
				  acknowledgment must be maintained by the mortgage broker for at least three
				  years.
THE FOLLOWING DISCLOSURE AND ACKNOWLEDGMENT APPLY TO THOSE
				  TRANSACTIONS IN WHICH THE REAL ESTATE BROKER REPRESENTING THE SELLER AND THE
				  MORTGAGE BROKER REPRESENTING THE BUYER/BORROWER ARE THE SAME PERSON OR
				  ENTITY.
DISCLOSURE REGARDING DUAL AGENCY ROLE IN RESIDENTIAL
				  REAL ESTATE TRANSACTIONS
I must explain what dual agency means to you.
DUAL AGENCY
1. As a real estate licensee in the pending
				transaction (Name of Real Estate Broker) represents the seller in the sale of
				the residential real property and as such the primary responsibility is to the
				seller.
2. As a mortgage broker
				(Name of Mortgage Broker) represents the buyer/borrower in the acquisition of
				the mortgage loan and as such the primary responsibility is to the
				buyer/borrower.
YOUR RIGHTS UNDER DUAL AGENCY
1. I may represent you only with the
				knowledge and informed consent of each of you.
2. By consenting to Dual Agency you are
				giving up your right to undivided loyalty. You should carefully consider the
				possible consequences of a Dual Agency relationship before agreeing to such
				representation.
3. Since I am not a
				legal expert or an attorney you may wish to consult one before signing this
				form.
4. You the buyer may retain
				the services of a real estate broker or mortgage broker who will represent only
				you in the transaction.
5. You the
				seller may, subject to any existing contract of sale and/or any real estate
				agreement which you have already signed, retain the services of a real estate
				broker who will represent only you in the transaction.
[] I place mortgage loan applications with three or fewer
				  mortgage lenders.
[] I place mortgage loan applications with more than three
				  mortgage lenders.
ACKNOWLEDGMENT OF PROSPECTIVE BUYER AND SELLER TO DUAL
				  AGENCY
(1) I have received and read
				this disclosure notice.
(2) I
				understand that as a real estate/mortgage broker you may be representing the
				interests of the seller in the sale of the residential real property and the
				buyer in the acquisition of the mortgage loan and that you will be unable to
				offer the full range of fiduciary duties to each of us.
(3) I understand that subject to the terms of
				any existing contract of sale and/or any real estate agreement which I may have
				already signed I the seller may engage my own broker as a real estate broker
				who will not act as a mortgage broker for any potential buyer/borrower in this
				transaction; or that I as a buyer/borrower may engage my own broker as a
				mortgage broker and/or my own broker as a real estate broker who will not act
				as a real estate broker for the seller in this transaction.
[] I understand that you as a mortgage broker will ordinarily
				  place mortgage loan applications with three or fewer mortgage lenders.
[] I understand that you as a mortgage broker will ordinarily
				  place mortgage loan applications with more than three mortgage lenders.
DATED:
__________________________________________________________________________________________
DATED:
__________________________________________________________________________________________
SELLER:
__________________________________________________________________________________________
BUYER:
__________________________________________________________________________________________