S T A T E O F N E W Y O R K
________________________________________________________________________
9686
I N S E N A T E
May 20, 2024
___________
Introduced by Sen. MYRIE -- read twice and ordered printed, and when
printed to be committed to the Committee on Judiciary
AN ACT to amend the real property law, in relation to prohibiting
single-agent dual agency, requiring representation agreements, allow-
ing buyers and tenants to negotiate brokers' fees, and prohibiting
landlords, lessors, sub-lessors, and grantors from requiring a tenant
to pay brokers' fees as a condition of entering into a lease agreement
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (a) of subdivision 1 of section 238-a of the real
property law, as amended by chapter 789 of the laws of 2021, is amended
to read as follows:
(a) Except in instances where statutes or regulations provide for a
payment, fee or charge, no landlord, lessor, sub-lessor or grantor may
demand any payment, fee, or charge for the processing, review or accept-
ance of an application, or demand any other payment, fee or charge
before or at the beginning of the tenancy, INCLUDING BUT NOT LIMITED TO
BROKERS' FEES, except background checks and credit checks as provided by
paragraph (b) of this subdivision, provided that this subdivision shall
not apply to entrance fees charged by continuing care retirement commu-
nities licensed pursuant to article forty-six or forty-six-A of the
public health law, assisted living providers licensed pursuant to arti-
cle forty-six-B of the public health law, adult care facilities licensed
pursuant to article seven of the social services law, senior residential
communities that have submitted an offering plan to the attorney gener-
al, or not-for-profit independent retirement communities that offer
personal emergency response, housekeeping, transportation and meals to
their residents. Nothing in this paragraph shall prohibit a cooperative
housing corporation, other than a cooperative housing corporation
subject to the provisions of article two, article four, article five or
article eleven of the private housing finance law, from demanding from a
prospective tenant any payment, fee or charge which is necessary to
compensate a managing agent and/or transfer agent for the processing,
review or acceptance of such prospective tenant's application where such
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14491-01-4
S. 9686 2
prospective tenant would become a dwelling unit owner or shareholder of
such cooperative housing corporation.
§ 2. The real property law is amended by adding a new section 443-b to
read as follows:
§ 443-B. AGENCY RELATIONSHIPS. 1. DEFINITIONS. FOR THE PURPOSES OF
THIS SECTION:
(A) "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.
(B) "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 TRANS-
ACTION.
(C) "REPRESENTATION AGREEMENT" MEANS A WRITTEN CONTRACT BETWEEN A
BUYER OR TENANT OF RESIDENTIAL REAL PROPERTY AND A LICENSEE, BY WHICH
THE LICENSEE HAS BEEN AUTHORIZED TO ACT AS AN AGENT ON BEHALF OF THE
BUYER OR TENANT TO LOCATE RESIDENTIAL REAL PROPERTY, PRESENT AN OFFER TO
PURCHASE OR LEASE TO THE SELLER, SELLER'S AGENT, LANDLORD OR LANDLORD'S
AGENT, AND NEGOTIATES ON BEHALF OF THE BUYER OR TENANT.
2. APPLICATION. THE AGENCY RELATIONSHIPS AND REQUIREMENTS AS SPECIFIED
IN THIS SECTION OR IN RULES OR REGULATIONS PROMULGATED BY THE SECRETARY
OF STATE SHALL SUPERSEDE ANY AGENCY RELATIONSHIPS AND REQUIREMENTS
BETWEEN A LICENSEE AND A PARTY TO A RESIDENTIAL REAL ESTATE TRANSACTION
WHICH ARE BASED UPON COMMON LAW PRINCIPLES OF AGENCY TO THE EXTENT THAT
THOSE COMMON LAW PRINCIPLES ARE INCONSISTENT WITH THOSE SPECIFIED IN
THIS SECTION. THIS SECTION SHALL APPLY ONLY TO TRANSACTIONS INVOLVING
RESIDENTIAL REAL PROPERTY.
3. INDIVIDUAL DUAL AGENCY PROHIBITED. NO INDIVIDUAL REAL ESTATE
BROKER, ASSOCIATE REAL ESTATE BROKER OR REAL ESTATE SALESPERSON MAY ACT
AS A BUYER'S AGENT AND SELLER'S AGENT IN THE SAME TRANSACTION. NO REAL
ESTATE BROKER, ASSOCIATE REAL ESTATE BROKER OR REAL ESTATE SALESPERSON
MAY ACT AS A TENANT'S AGENT AND LANDLORD'S AGENT IN THE SAME TRANS-
ACTION. HOWEVER, A REAL ESTATE BROKER MAY ASSIGN A SEPARATE REAL ESTATE
SALESPERSON OR ASSOCIATE BROKER WORKING UNDER THEIR SUPERVISION TO ACT
AS A DESIGNATED SALES AGENT TO REPRESENT A CLIENT WHEN A DIFFERENT
CLIENT IS ALSO REPRESENTED BY SUCH REAL ESTATE BROKER IN THE SAME TRANS-
ACTION.
4. BUYER OR TENANT REPRESENTATION AGREEMENTS. (A) A REPRESENTATION
AGREEMENT SHALL:
(I) BE WRITTEN IN CLEAR AND UNAMBIGUOUS LANGUAGE.
(II) FULLY SET FORTH ALL MATERIAL TERMS, INCLUDING THE TERMS OF LICEN-
SEE COMPENSATION.
(III) HAVE A DEFINITE DURATION OR EXPIRATION DATE, SHOWING DATES OF
INCEPTION AND EXPIRATION.
(IV) BE SIGNED BY ALL PARTIES TO THE AGREEMENT.
(B) NO REAL ESTATE BROKER, ASSOCIATE REAL ESTATE BROKER OR REAL ESTATE
SALESPERSON SHALL LOCATE RESIDENTIAL REAL PROPERTY FOR A TENANT AND/OR
NEGOTIATE ON BEHALF OF THE TENANT UNLESS THE REAL ESTATE BROKER, ASSOCI-
ATE REAL ESTATE BROKER OR REAL ESTATE SALESPERSON HAS ENTERED INTO A
REPRESENTATION AGREEMENT TO REPRESENT THE TENANT AS A TENANT'S AGENT.
THE REPRESENTATION AGREEMENT MUST BE ENTERED INTO PRIOR TO OR IMMEDIATE-
LY AFTER A LICENSEE SHOWS ANY PROPERTY TO A TENANT FOR THE FIRST TIME.
(C) NO REAL ESTATE BROKER, ASSOCIATE REAL ESTATE BROKER OR REAL ESTATE
SALESPERSON SHALL PRESENT AN OFFER TO PURCHASE RESIDENTIAL REAL PROPERTY
TO A SELLER OR SELLER'S AGENT AND NEGOTIATE ON BEHALF OF THE BUYER
S. 9686 3
UNLESS THE REAL ESTATE BROKER, ASSOCIATE REAL ESTATE BROKER, OR REAL
ESTATE SALESPERSON HAS ENTERED INTO A WRITTEN REPRESENTATION AGREEMENT
TO REPRESENT THE BUYER AS A BUYER'S AGENT. THE REPRESENTATION AGREEMENT
MUST BE ENTERED INTO NO LATER THAN THE PRESENTATION OF THE OFFER TO
PURCHASE TO THE SELLER OR SELLER'S AGENT.
5. AGENT COMPENSATION FROM BUYER OR TENANT. (A) NO REAL ESTATE BROKER,
ASSOCIATE REAL ESTATE BROKER OR REAL ESTATE SALESPERSON SHALL COLLECT OR
DEMAND COMPENSATION FROM A TENANT IN CONNECTION WITH A RESIDENTIAL REAL
PROPERTY TRANSACTION UNLESS THE REAL ESTATE BROKER, ASSOCIATE REAL
ESTATE BROKER OR REAL ESTATE SALESPERSON HAS ENTERED INTO A SIGNED
REPRESENTATION AGREEMENT WITH THE TENANT TO ACT AS A TENANT'S AGENT IN
THE TRANSACTION.
(B) NO REAL ESTATE BROKER, ASSOCIATE REAL ESTATE BROKER OR REAL ESTATE
SALESPERSON SHALL COLLECT OR DEMAND COMPENSATION FROM A BUYER IN
CONNECTION WITH A RESIDENTIAL REAL PROPERTY TRANSACTION UNLESS THE REAL
ESTATE BROKER, ASSOCIATE REAL ESTATE BROKER OR REAL ESTATE SALESPERSON
HAS ENTERED INTO A SIGNED REPRESENTATION AGREEMENT WITH THE BUYER TO ACT
AS THE BUYER'S AGENT IN THE TRANSACTION.
6. NO DISCRIMINATION. NO REAL ESTATE BROKER, ASSOCIATE REAL ESTATE
BROKER, REAL ESTATE SALESPERSON, OR LANDLORD MAY DISCRIMINATE OR TAKE
ADVERSE ACTION AGAINST A POTENTIAL TENANT OR BUYER BASED ON THEIR REPRE-
SENTATION STATUS.
7. WRITTEN PERMISSION OR AUTHORIZATION TO OFFER OR ADVERTISE PROPERTY
FOR SALE OR LEASE REQUIRED. (A) NO REAL ESTATE BROKER, ASSOCIATE REAL
ESTATE BROKER OR REAL ESTATE SALESPERSON SHALL OFFER OR ADVERTISE RESI-
DENTIAL REAL PROPERTY FOR SALE OR LEASE UNLESS THE REAL ESTATE BROKER,
ASSOCIATE REAL ESTATE BROKER OR REAL ESTATE SALESPERSON HAS THE WRITTEN
PERMISSION OR AUTHORIZATION OF THE OWNER OR THE OWNER'S AUTHORIZED
REPRESENTATIVE.
(B) IF A REAL ESTATE BROKER, ASSOCIATE REAL ESTATE BROKER OR REAL
ESTATE SALESPERSON OFFERS OR ADVERTISES RESIDENTIAL REAL PROPERTY FOR
LEASE WITH THE WRITTEN PERMISSION OR AUTHORIZATION OF THE OWNER OR THE
OWNER'S AUTHORIZED REPRESENTATIVE UNDER THIS SECTION AND DOES NOT HAVE A
LISTING AGREEMENT WITH THE OWNER OR THE OWNER'S AUTHORIZED REPRESEN-
TATIVE, THE REAL ESTATE BROKER, ASSOCIATE REAL ESTATE BROKER OR REAL
ESTATE SALESPERSON SHALL NOT ENTER INTO A REPRESENTATION AGREEMENT WITH
AND/OR BE COMPENSATED BY ANY TENANT IN CONNECTION WITH THE RESIDENTIAL
REAL PROPERTY OFFERED OR ADVERTISED FOR LEASE.
§ 3. Section 443 of the real property law, as amended by chapter 549
of the laws of 2007, paragraphs a and f of subdivision 1 and paragraphs
a and b of subdivision 4 as amended and paragraphs p and q of subdivi-
sion 1 and paragraph f of subdivision 3 as added by chapter 443 of the
laws of 2010, and paragraph j of subdivision 1 as amended by chapter 529
of the laws of 2022, is amended to read as follows:
§ 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 capac-
ity.
b. "Buyer" means a transferee in a residential real property trans-
action and includes a person who executes an offer to purchase residen-
tial 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.
S. 9686 4
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 nego-
tiates 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 trans-
action, 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 suba-
gent or acts as a broker's agent to find or obtain a buyer for residen-
tial 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.] "REPRESENTATION AGREEMENT" MEANS A WRITTEN CONTRACT
BETWEEN A BUYER OR TENANT OF RESIDENTIAL REAL PROPERTY AND A LICENSEE,
BY WHICH THE LICENSEE HAS BEEN AUTHORIZED TO ACT AS AN AGENT ON BEHALF
OF THE BUYER OR TENANT TO LOCATE RESIDENTIAL REAL PROPERTY, PRESENT AN
OFFER TO PURCHASE OR LEASE TO THE SELLER, SELLER'S AGENT, LANDLORD OR
LANDLORD'S AGENT, AND NEGOTIATES ON BEHALF OF THE BUYER OR TENANT.
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 trans-
action.
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 instruc-
tion 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.
S. 9686 5
m. "Landlord" means the lessor in a residential real property trans-
action, 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 nego-
tiates 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 enter-
ing 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 acknowledge-
ment 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.
S. 9686 6
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 relation-
ship 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 agree-
ment between the agent and the seller. In dealings with the buyer, a
seller's agent should (a) exercise reasonable skill and care in perform-
ance 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] THE
REPRESENTATION agreement between the agent and the buyer. A REPRESEN-
TATION AGREEMENT MUST BE ENTERED INTO PRIOR TO THE PRESENTATION OF THE
OFFER TO PURCHASE TO THE SELLER OR SELLER'S AGENT. 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 affect-
ing 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 list-
ing 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 list-
S. 9686 7
ing 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 relation-
ship 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 func-
tion 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 careful-
ly 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 desig-
nated 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
S. 9686 8
( ) Dual agent WITH ( ) Dual agent with designated sales agents
DESIGNATED SALES
AGENT
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 repre-
sent 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, undi-
vided 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
S. 9686 9
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 accepta-
ble to the tenant. A tenant's agent has, without limitation, the follow-
ing 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] THE REPRESENTATION agreement between the
agent and the tenant. A REPRESENTATION AGREEMENT MUST BE ENTERED INTO
PRIOR TO OR IMMEDIATELY AFTER THE TENANT'S AGENT SHOWS ANY PROPERTY TO
THE TENANT FOR THE FIRST TIME. 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 list-
ing 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 obli-
gations 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 land-
lord and tenant are giving up their right to undivided loyalty. A land-
lord 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.]
S. 9686 10
DUAL AGENT
WITH
DESIGNATED SALES AGENTS
If the tenant and the landlord provide their informed consent in writ-
ing, 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 desig-
nated 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 consid-
er the possible consequences of a dual agency relationship with desig-
nated 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 broker-
age), 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 WITH ( ) Dual agent with designated sales agents
DESIGNATED SALES
AGENT
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):
______________________________________________________
_______________________________________________________
S. 9686 11
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 capac-
ity other than as an agent, as such term is defined in paragraph a of
subdivision one of this section.
6. [Nothing] EXCEPT AS OUTLINED IN SECTION FOUR HUNDRED FORTY-THREE-B
OF THIS ARTICLE, NOTHING in this section shall be construed to limit or
alter the application of the common law of agency with respect to resi-
dential real estate transactions.
§ 4. This act shall take effect on the one hundred eightieth day after
it shall have become a law.
