Monday, November 29, 2010

Email from Department of State on Dual Agency

Dear Real Estate Education Coordinator,




Please be advised that the recent amendments to Article 12-a of the Real Property Law, regarding agency disclosure requirements, have been added to the real estate qualifying course curriculum.



Effective January 1, 2011, the amendment will permit real estate licensees to obtain advance consent to dual agency from consumers. This consent would be obtained at the time of the first substantive contact between the agent and consumer. The amendment is clear that advance consent to dual agency must be ‘informed’.



Accordingly, the Department is of the opinion that the bill would require real estate licensees to disclose the benefits and detriments of providing advance consent prior to the form being executed and to provide later disclosure when the dual agency relationship has actually been consummated. Not providing this follow-up disclosure would be a violation of the broker’s fiduciary duties of full disclosure and reasonable care to the consumer and would be a demonstration of untrustworthiness pursuant to section 441-c of the Real Property Law.



Additionally, condominium and cooperative apartments in buildings containing more than four units are currently exempt from the disclosure form requirements of section 443 of the Real Property Law. This amendment eliminates this exemption.



Attached to this communication are the statutory amendment, the updated real estate sales and broker syllabus, learning objectives and the amended agency disclosure form which take effect on January 1, 2011. Although the new agency disclosure form will not be required to be used until January 1, 2011, it is recommended that you immediately begin including this new curriculum in your qualifying course lesson plan.



The attached new agency disclosure form will be posted on our website at www.dos.state.ny.us in the near future.



Please feel free to contact me if you have any questions.



Sincerely,



Marc Mastrobuono

Department of State

Division of Licensing Services

Bureau of Educational Standards