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Showing posts with label Real Estate Commissions. Show all posts
Showing posts with label Real Estate Commissions. Show all posts

Tuesday, February 14, 2017

Commission Rates in Real Estate Brokerage are Discretionary to the Broker and Property Owner

A Lieb School student recently took a final exam for our Conflicts of Interest ONLINE course and explained how commission rates are set by the Department of State.

They are NOT.

In fact, the Department of State says the following about commission rates:

Commission Rates

The commission or compensation of a real estate broker is not regulated by statute or regulation, therefore the amount and terms are negotiable. A real estate broker shall never offer a property for sale or lease without the authorization of the owner. Therefore, prior to the listing or marketing of a client’s real property, it is incumbent upon the real estate broker and the client to mutually agree on a reasonable rate of compensation. 

As a result, real estate salespersons and property owners should carefully negotiate commission rates where they also set the consideration that the real estate brokerage will provide to the property owner in exchange for higher or lower rates. To illustrate, a real estate brokerage that is willing to create a video about the property should be able to demand a higher rate than a real estate brokerage who will not create any digital advertising. 

Thursday, August 27, 2015

Fortune Attacks Real Estate Brokers – Do You Agree?

Yesterday, Chris Matthews’ article “Real estate agents may be colluding to rip you off” was published by Fortune while citing to a paper published by the National Bureau of Economic Research and authored by Panle Jia Barwick, Parag A. Pathak, and Maisy Wong.

The article claims that “brokers who charge lower commissions are punished in the marketplace” and that sellers are “uniquely incapable to gauge the quality of what they’re buying”.
According to the authors of the cited article, Conflicts of Interest and the Realtor Commission Puzzle,
“[t]hese adverse outcomes reflect decreased willingness of buyers' agents to intermediate low commission properties (steering) rather than heterogeneous seller preferences or reduced effort of listing agents.”
So, in English, it’s not that seller’s agents’ efforts are adversely affected by lower commissions, but instead, that buyer’s agents, who are generally compensated by seller’s agents, are less likely to bring buyers to properties where they are offered a lower percentage for procuring.

As an industry, we need to make sellers capable of gauging the quality of what they’re buying; to make informed decisions as to commission payments.

To accomplish this, brokers need to explain to sellers that they offer a split of their commission to other brokerage companies in the area (i.e., cooperative brokerage) in order to induce such other brokers to act as buyer’s agents and/or broker’s agents in procuring their purchaser to buy the property (i.e., this practice increases demand and consequently the price for real estate).
Seller’s agents need to explain that buyer’s agents and/or broker’s agents are money driven and will steer their buyers to the properties where they are compensated at a higher level (as stated in the study).

Consequently, the amount of the commission that is to be paid to the cooperating brokers must be discussed when a seller’s agent initially takes the listing and such percentage should be included within the brokerage contract (i.e., exclusive right to sell agreement).

In Long Island, the local REALTOR© Board, LIBOR, permits the seller’s agent to control the commission percentage offered to cooperating brokers in each individual deal.
To illustrate, if a seller is paying a broker 6% one cannot deduce that the cooperating broker, who procures, will always get 3% for their efforts. Instead, the cooperating broker will get whatever percentage that is listed on the cooperating brokerage listing (i.e., Stratus) agreement by the seller’s agent (each region in New York has a different cooperating brokerage agreement and therefore this blog’s suggestion does not hold true everywhere).

As a result, sellers need to be educated that they have 5 points of negotiating commissions when hiring their real estate agent, as follows:
  1. The commission percentage to pay the seller’s agent for merely listing the property and negotiating for the seller;
  2. The commission percentage to pay the seller’s agent if such agent individually lists and procures the purchaser (i.e., direct deal);
  3. The commission percentage to pay the seller’s agent if such agent lists, and the commission percentage to pay a colleague within the same brokerage if such colleague procures the buyer  (i.e., in-house deal; this will be one total commission number for both the listing and procuring because the brokerage and not the salespersons is paid the commission);
  4. The commission percentage to pay the cooperating broker where the seller’s agent lists only, but another brokerage procures the buyer while such cooperating broker is negotiating for the interests of the seller (i.e., broker’s agent);
  5. The commission percentage to pay the cooperating broker where the seller’s agent lists only, but another brokerage procures the buyer while such cooperating broker is negotiating for the interests of the buyer (i.e., buyer’s agent)

The article’s title attacks an industry (“colluding to rip you off”). Yet, this blogger theorizes that sellers care more about themselves and getting the job done (i.e., selling) than fixing an industry. Without commenting as to whether the authors have a point about collusion, its submitted that simply having our brokerage industry inform and educate our buyers of the statistical effects of their commission offerings will make meaningful change. Let’s give our clients the tools to make smart choices. Let’s educate the vulnerable consumers that we serve. It’s the job of a seller’s agent to explain to their seller the 5 points of negotiating commissions.

Thursday, March 06, 2014

Broker Entitled to Implied Commission even without Agreement

The Appellate Court recently decided Harris v. Clancy, a case where the Court ruled that a seller had the burden to prove that a broker had "agreed to forgo a commission" or the Court stated that one would be implied by the Court regardless of the nonexistence of a brokerage agreement.

The Court found support in precedent that held "[a]bsent an agreement not to pay a commission, where a broker has performed as a broker and the seller has accepted the broker's services, an agreement to pay a commission will be implied even in the absence of an agreement regarding a commission ..., and the court will be charged with determining the amount of the commission".

So brokers, while you should always have a brokerage agreement with your client or co-broker to prove how much you are owed, its really your client or co-broker who benefits the most from the agreement, not you. Remember this case the next time that your client or co-broker resists signing your brokerage agreement; then, you may want to share this case with them and say that you are only asking them to sign your agreement to help them out.


Thursday, January 09, 2014

The Plight of the Broker

Many look with envy at the good fortune of the broker, who reaps a large pot from simply introducing the parties to the deal, but to those who do not live in his shoes, think this:

"[A] broker is never entitled to commissions for unsuccessful efforts.

The risk of failure is wholly his.

The reward comes only with his success.

That is the plain contract and contemplation of the parties.

The broker may devote his time and labor, and expend his money with ever so much of devotion to the interests of his employer, and yet if he fails, if without effecting an agreement or accomplishing a bargain, he abandons the effort, or his authority is fairly and in good faith terminated, he gains no right to commissions.

He loses the labor and effort which was staked upon success.

And in such event it matters not that after his failure, and the termination of his agency, what he has done proves of use and benefit to the principal.

In a multitude of cases that must necessarily result.

He may have introduced to each other parties who otherwise would have never met; he may have created impressions which, under later and more favorable circumstances, naturally lead to and materially assist in the consummation of a sale; he may have planted the very seeds from which others reap the harvest; but all that gives him no claim.

It was part of his risk that failing himself, not successful in fulfilling his obligation, others might be left to some extent to avail themselves of the fruit of his labors."

This is the life of a broker as articulated by NY's Highest Court in the case of Sibbald v. Bethlehem Iron Co. in 1881, which remains true to this day. A broker deserves everything he gets as he must live in an all or nothing world. Here is to the broker who makes the deals happen!

Tuesday, November 26, 2013

Hotel Occupancy Tax on Expedia, are brokers next to be taxed for their rentals?

Last week, the Court of Appeals, NY's highest court, ruled that "Local Law 43, a hotel room occupancy tax applicable to online travel companies", is constitutional.

At issue before the Court was the legality of the City's "authority to tax the fees they collect from their customers" in Expedia v. City of NY Dept. of Finance where this fee represents an amount, which is larger than the amount actually paid the hotel for the actual occupancy of the room.

So the question before the Court was whether the brokerage fee, on hotel occupancy, was taxable? 

This decision is most interesting to real estate professionals because they always wonder why there are rules for transient (short-term) rentals of housing. As they can see from this decision, there are rules for establishments that offer transient housing such as hotels, motels & inns in the form of the imposition of a tax, among other rules. Further there are rules for companies that "broker" those deals whereas those "brokers" have to pay a tax on their commission, among other rules. Aren’t these websites, called “room remarketers” in the applicable tax, analogous to real estate brokerage companies for landlord / tenant rentals that aren’t transient? At the least, aren’t they analogous to Airbnb in the transient setting?

In opposition, the online travel companies argued that the City was taxing “a service fee under the guise of a tax on hotel rent” and therefore the tax was improper. The Court explained that the online travel companies were incorrect. The Court stated: “[u]nder the statute, the City may tax a ‘rent or charge,’ and it may collect the tax from a hotel ‘owner . . . or . . . person entitled to be paid the rent or charge’".  Further, “the City may tax any service fee that is a ‘condition of occupancy.’”

Aren’t brokerage fees on landlord / tenant a condition of occupancy? Maybe, but maybe not. Doesn’t a condition mean that its failure prevents the result? Can a broker prevent the result? No, therein is the difference between brokerage companies and travel sites. Real estate brokers often are cut out of deals and cannot prevent occupancy in order to get paid, but instead have a claim for commission that is separate from occupancy. In fact, no Lis Pendens is available to brokers and a mechanic’s lien is only available for a lease with a term of more than 3 years for non-residential property.

However, doesn’t Airbnb do just the same as Expedia? So, will companies like Expedia try to level the playing field next by lobbying that this tax is imposed on Airbnb as well? Right now, the cost of doing business for Airbnb just got cheaper and they now have a strategic financial advantage in the City of New York. What happens next is tantalizing.  

Wednesday, February 27, 2013

Does the Department of State hear Brokerage Commission Claims?

Generally no.

Real Property Law 442-e(5) provides the Secretary of State with the power to enforce the provisions of Real Property Law Article 12-A, which is the statute applicable to Real Estate Agents in the State of New York. Section 442-e is the basis under which the Department of State hears Administrative Complaints.

With respect to commission disputes, Section 442-e(3) provides as follows:

Penalty recoverable by person aggrieved. In case the offender shall 
have received any sum of money as commission, compensation or profit by 
or in consequence of his violation of any provision of this article, he shall 
also be liable to a penalty of not less than the amount of the sum of money 
received by him as such commission, compensation or profit and not more 
than four times the sum so received by him, as may be determined by the 
court, which penalty may be sued for and recovered by any person aggrieved 
and for his use and benefit, in any court of competent jurisdiction.

Therefore, it appears that commission disputes could be heard by the Department of State, at first glance. Yet, the Courts have also spoken on this issue in Matter of Gouiran v. Department of State of State of N.Y., at 82 AD2d 832. 

In this case, the Appellate Division adopted the Dissent from Partridge v. Lomenzo when it states: "it is ”improper for the Secretary of State to interfere with pending civil actions relative to brokerage claims and such actions ought to be left to judicial determination "“. 

Consequently, while commission can be addressed by the Department of State, it should not serve as the primary basis for the complaint, but instead for violations of license law, whereas the Courts or arbitration are the best forum for commission disputes. 

To learn about this and other commission topics, register for Lieb School's continuing education course, Deal Killers, Don't Let Your Deal Die, this Friday at Chase Plaza in NYC by clicking here

Tuesday, November 20, 2012

The FTC is Investigating Deceptive Ads in Real Estate Marketing

According to Ad Age, the leading publication in the advertising industry, the Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) are jointly investigating deceptive ads concerning mortgage modifications, short sales and workouts.

To read the article, click here.

The article expressly states that real estate agents have received warning letters from the FTC. Of specific concern to the FTC & CFPB was the practice of utilizing images of President Barack Obama in ads promoting loan-modification services, which wrongfully communicate to consumers that certain services are affiliated with the government. If you use the President's image on your advertisements, take it down now! 

Real estate agents this is important. When you work in mortgage relief, you must be mindful of the Mortgage Assistance Relief Services (MARS) Rules from the FTC, a summary of which can be found by clicking here.  Also, in New York, Distressed Property Consultants must additionally comply with Real Property Law section 265-B, the text of which can be found by clicking here

During each of our continuing education courses to real estate agents on foreclosure, whether its Foreclosure and the Economy: the Short Sale Course; or Foreclosure Filibusters we always stress the importance of these laws and regulations. Unfortunately, we always also get responses from agents that we are being ridiculous. This is very serious and far from ridiculous.

Real estate agents should also be mindful that the FTC's watchful eye is not restricted to mortgage modifications. As stated in our course, To be Green or Not to be Green: That is the Question, the Green Guides are available by the FTC and demonstrate the need to be candid and avoid deception in advertising Green Housing & Buildings. To read the Green Guides, click here

As Lieb School always states: You are a real estate Professional; knowing these laws makes you a value-add to your clients and customers. Now go study. 

Friday, July 06, 2012

Does a real estate brokerage firm's due diligence reports entitle them to a commission when they are not the procuring cause?

A brokerage commission is generally due when a real estate broker procures a ready, willing and able purchaser for a transaction. Nonetheless, it is often the case that real estate brokerages work very hard to procure a purchaser just to have their work-product utilized by a competitor to procure the purchaser and earn the commission. This is the situation that the NYS Court of Appeals recently faced when deciding Malone v. Ralph Rieder, which can be read here.

The issue presented to the Court was if the procuring brokerage was unjustly enriched at the expense of the due diligence brokerage and hence, did the procuring brokerage owe the due diligence brokerage a portion of their commissions? 

The Court answered the question with a striking NO. The rationale says the Court is that there was no business relationship or connection between the 2 brokerage companies. Therefore, the relationship between the 2 brokerage companies was too attenuated to justify the claim and the case was dismissed. 

The lesson here is that one needn't be concerned about the acts of unknown parties and one can protect oneself by acting as a good-faith purchaser for value. To illustrate, here, the defendant purchased the due diligence reports from the seller and therefore was an innocent party and consequently not liable for unjust enrichment to the due diligence brokerage.

Real estate brokers should take comfort in the Court's decision because they needn't probe the underlying relationships between the businesses with whom they contract and other entities tangentially involved but with whom they have no direct connection.

The Court did state however that the claims against the first procured purchaser who did not proceed with the transaction and the seller remain pending - so this remains as the best route for the due diligence brokerage to obtain recourse for its loss. 

Friday, June 15, 2012

No one signed the contract, can I still earn a commission?


Last evening at our real estate continuing education course, Conflicts of Interest, we discuss the anxiety that  real estate agents face because an attorney is handed the keys to their commission and must act for them to earn a commission. 

The question then becomes is this a true fact in the first place. Meaning, can a broker earn a commission regardless of what happens when the file shifts to an attorney?

The answer is Yes, but the agent must have evidence that they procured a purchaser on the terms set forth by the seller. Also, this rule is only applicable if the listing agreement does not provide that commission is only due upon contract or closing. Yet, don't fret because most listing agreements utilized in NY permit a commission to be earned when an agent procures a purchaser on the seller's terms. 

As the Court of Appeals has stated:

“The duty of the broker consisted in bringing the minds of the vendor and vendee to an agreement. He could do no more. He had no power to execute a contract, to pay the money for the one side, to convey the land on the part of the other, or to compel performance of either of these duties.”

Wednesday, May 09, 2012

Unauthorized Practice of Brokerage

Its often said that real estate agents are engaging in the unauthorized practice of law, but what about CPAs, Financial Planners, Property Managers and the like engaging in the unauthorized practice of real estate brokerage. Better yet, what is real estate brokerage in the first place?

Lets start with the Department of State's take on the matter. On their website, the Department of State has a FAQ section for Real Estate Salespersons that reads as follows:


If I am a real estate management company, do I need a real estate broker's license?
That depends on what services you provide. If you collect rent or place tenants in vacant spaces on behalf of your landlord client, the answer is yes. If, on the other hand, your services are strictly maintenance, the answer is no. you are not acting as a fiduciary (not handling another person's money).

So, does this provide the answer? Some may think yes, but when you dig a little deeper you should think about the words utilized in the answer as they actually present more questions than just simple answers. The key word that comes to attention is the term "tenants". After all what is a tenant and what isn't?


To illustrate with some questions:

  • Is the NYC Park Commission granting a private corporation the right to operate an enterprise on a percentage rental basis for 20 years a tenancy? 
  • What about a business broker affecting a lease of an operating hotel premises?
  • How about renting a cooperative unit on an hourly basis?
Are these tenancies?

To learn the answer to these illustrations and more, click here and read a decision by the State of New York, Department of State, Office of Administrative Hearings. This is the best guidance available on this topic. 

It appears that the test is if a transaction concerns "an estate or interest in real property" it requires a brokerage license where providing accommodations to transient guests does not require such a license. 

Now, it is suggested to check your local Town or Village Code, which often has a definition of transient to see if the specific activity you are engaging in is transient or "an estate or interest in real property". Moreover, you will not want to rest on that definition and instead do further research if the interest provided is a license (not brokerage) or a tenancy (brokerage). Yet, the easiest solution for property owners is to hire a licensed broker when dealing with real estate negotiations, sales or leases. This way it is unnecessary to analyze whether the activity in question is viable or instead constitutes the unauthorized practice of real estate brokerage. 

Tuesday, April 17, 2012

Lis Pendens for a Brokerage Commission? Not So Fast


A recent article in the Nassau Lawyer argued for the use of the lis pendens to enforce a broker’s right to a commission on the sale of real property.  Before we get our hopes up and start filing notices of pendency on every unpaid commission, let’s take a closer look at the law on this issue.

The lis pendens is a document recorded with the county clerk which warns potential purchasers of real property that litigation is pending which may affect title.  The lis pendens creates constructive notice of the pending lawsuit and renders the property unmarketable.  While this might sound like a great way to enforce your rights to a commission, the lis pendens is available only for actions that affect title, possession, use or enjoyment of real property.  A claim for money due under a contract meets none of these requirements, and it has been consistently held that the lis pendens is not an appropriate remedy. 

One court expressed its utter exasperation that brokers who hold themselves out as real estate professionals could be so ignorant of this “basic tenet of real estate law.” In the Second Department, which includes all of Long Island, it is well settled that this remedy does not apply to brokerage commissions.  See Homespring, LLC v. Lee, 2008 NY Slip Op 7618.

So what is the proper way to enforce your right to a commission?  In residential transactions, the proper remedy is Real Property Law 294-b, which gives a broker the right to record an affidavit of entitlement to a commission with the county clerk who will hold the amount of the commission until the broker’s rights can be determined by a court.  For non-residential transactions, a narrow exception exists which creates a lien when the commission derives from the broker’s negotiation of a lease longer than three years.  Lien Law § 2 (4), 3.

Monday, August 15, 2011

How to get my commission?

So you find a purchaser who is ready, willing & able, but the seller (your client) nonetheless refuses to pay. What do you do?

You look to your listing agreement and see what rights you have.

Regardless of the listing agreement, 2 rights you never have are that:
1) You can't file a Lis Pendens
2) You can't serve a motion for summary judgment in lieu of complaint (CPLR 3213) & must litigate the matter with a Summons and Complaint.

You may have to arbitrate pursuant to your listing agreement and you certainly should be mindful of Real Property Law 294-b, which permits you to file an affidavit of entitlement with the County Clerk and demand that your client deposits your claimed commission in the Clerk's office. Moreover, your client's failure to so deposit your commission will entitle you to costs and attorneys' fees in your subsequent litigation with the client.

Yet, no matter what you do, unfortunately, the Courts have uniformly stated that a real estate commission isn't entitled to a lien on real property pre-judgment. Maybe, its time to increase that lobbying.
Its time to get paid.

Monday, July 25, 2011

Brokerage / Attorney Fee Sharing

Pursuant to Formal Opinion 845 of the New York State Bar Association, while an attorney can act as a real estate broker and gain a commission in a transaction, that attorney cannot share his / her fee with a referring attorney who represents a party to the real estate transaction and suggested that the party utilize the broker.

The rationale for this rule is that the referral fee would work a conflict of interest for the attorney working on the transaction where he / she would be motivated personally to have the deal close to get a commission instead of blocking a deal if such action was in their client's best interest.

The opinion does have an exception though. The exception is that if the attorney's clients gives informed consent to the referral fee and the attorney transfers the referral fee to the client such an action would be acceptable.

Therefore, the takeaway is an attorney cannot benefit financially in any way from referring a broker in a deal in which the attorney is working in a transactional representative capacity. Instead, the attorney must have unabridged motivation to guard the real estate client's best interest.

Monday, August 02, 2010

Hey Brokers - Here is how to get your disputed real estate commission

Lets start with some facts:
  1. A duly licensed real estate broker earns a commission when he or she produces a person who was ready, able and willing to purchase or lease all or any part of a parcel of real property or any interest in a cooperative apartment pursuant to a written or oral contract of brokerage employment.
  2. Failure to pay a commission gives rise to a cause of action for breach of contract
  3. Breach of contract is not an action that seeks a judgment which would affect the title to, or possession, use or enjoyment of, real property as required as a basis for filing a notice of pendency pursuant to CPLR 6501
  4. Wrongfully filing a Notice of Pendency is a tort whether it be called slander of title; tortious interference with the right of contract; or abuse of process - so don't do it!!!
  5. No lien can generally attach pursuant to a breach of contract for a real estate commission, except in certain situations as defined under the lien law (this does not include a standard residential real estate transaction)
To get your commission you must follow Real Property Law 29-b, which states:

§ 294-b. Recording brokers affidavit of entitlement to commission for completed brokerage services


1. A duly licensed real estate broker who asserts that he or she has produced a person who was ready, able and willing to purchase or lease all or any part of a parcel of real property or any interest in a cooperative apartment pursuant to a written or oral contract of brokerage employment between the owner of said parcel of real property or interest in a cooperative apartment and such broker, and who asserts that such person or a party acting on his or her behalf subsequently contracted to purchase or lease, or did purchase or lease such real property or any part thereof, or any interest in a cooperative apartment and who asserts that he or she is entitled to a commission pursuant to such written or oral contract, may file an affidavit of entitlement to commission for completed brokerage services in the office of the recording officer of any county in which any of the real property is situated.

2. Such affidavit shall include: (i) the name and license number of the broker claiming the commission; (ii) the name of the seller or person responsible for commission; (iii) the name of the person authorizing the sale on behalf of the seller, if any, and the date of such authorization; (iv) a copy of the written agreement, if any; (v) a description of the real property or interest in the cooperative apartment involved; (vi) the amount of commission claimed; (vii) a description of the brokerage services performed; and (viii) the dates thereof. Recording such affidavit shall not invalidate any transfer of real property or lease thereof. Such affidavit shall not be deemed to create a lien and shall be discharged one year after filing.

3. Upon receipt by the county clerk of a broker's affidavit of entitlement to commission for completed brokerage services for the purpose of recording, entering and indexing, the clerk shall record such affidavit in the lien docket and shall note thereon that such notice does not constitute a lien nor shall it invalidate any transfer or lease. In payment for said services the county clerk shall be entitled to receive a fee equivalent to that received for recording a deed and pages thereof.

4.
(a) Within five business days after filing the affidavit of entitlement, the broker shall serve a copy of such affidavit, along with the fee required pursuant to paragraph (c) of subdivision five of this section, upon the seller by registered or certified mail, return receipt requested or by personal delivery, to the address set forth in the written contract of brokerage employment. If the delivery of the deed or delivery of the stock certificate and/or proprietary lease will occur in five business days or less from the filing of the affidavit of entitlement, then the broker shall personally deliver a copy of the affidavit of entitlement to the seller. Where there is more than one seller, service upon one seller shall be deemed sufficient to meet the requirements of this paragraph. Failure to serve the affidavit of entitlement upon the seller pursuant to this paragraph shall cause a forfeiture of the broker's rights under subdivision five of this section. In the event the seller fails to deposit any monies pursuant to paragraph (a) of subdivision five of this section, the seller shall immediately return the fee provided by the broker.

(b) If the seller is represented by an attorney and has provided the attorney's contact information to the broker prior to the filing of the affidavit of entitlement, the broker shall provide a copy of the affidavit of entitlement to the seller's attorney via mail, facsimile, e-mail, personal delivery or any other agreed upon method within five business days of the filing of the affidavit of entitlement. Failure to deliver a copy of the affidavit of entitlement to the seller's attorney pursuant to this paragraph shall not cause a forfeiture of the brokers rights under subdivision five of this section.

5.
(a) Whenever an affidavit of entitlement by a duly licensed real estate broker, which includes a written contract of brokerage employment containing the notices set forth in paragraph (j) of this subdivision, has been recorded pursuant to this section prior to the delivery of a deed in connection with a sale of all or any part of a parcel of real property, or delivery of the stock certificate and/or proprietary lease in connection with the sale of a cooperative apartment, and the broker does not receive the compensation called for under the terms of such written contract at or prior to the delivery of the deed or delivery of the stock certificate and/or proprietary lease, the lesser of the net proceeds of the sale or the amount of the unpaid portion of the compensation agreed to in such written contract shall be deposited by the seller, at the time of delivery of the deed or delivery of the stock certificate and/or proprietary lease, with the recording officer in whose office such affidavit of entitlement had been recorded.

(b) In the event multiple affidavits of entitlement are filed in connection with a sale of real property or any interest in a cooperative apartment pursuant to this section, the seller shall be obligated to deposit an amount equal to the lesser of the net proceeds of the sale or the greatest amount of the unpaid portion of the compensation agreed to in the written contracts of brokerage employment attached to the multiple affidavits of entitlement.

(c) Upon deposit of any monies pursuant to paragraph (a) of this subdivision, the recording officers shall be entitled to receive a fee of twenty-five dollars, which shall be paid by the real estate broker. The real estate broker shall make the twenty-five dollar fee payable to the recording officer in such form of payment that is accepted by the recording officer.

(d) The monies deposited with the recording officer pursuant to this subdivision shall be held pursuant to subdivision (b) of section twenty-six hundred one of the civil practice law and rules until the rights of the seller and broker to such monies have been determined by order of a court of competent jurisdiction as provided in this paragraph. All deposits of money pursuant to this subdivision shall be deemed paid into court and shall be subject to the provisions of article twenty-six of the civil practice law and rules, except as otherwise provided in this subdivision. An order for the payment of such monies to the broker or seller may be made in any action or proceeding determining or declaring the entitlement, if any, of the broker to compensation under the written contract of brokerage employment recorded with the affidavit of entitlement or as otherwise provided in rule twenty-six hundred six of the civil practice law and rules or, whether or not an action or proceeding has been commenced, may be based upon a stipulation signed by the seller and the broker. Any application for an order pursuant to this paragraph made by the broker or the seller shall be on motion with notice to the other party, except that an application based upon a stipulation signed by the seller and the broker may be submitted without notice if the stipulation so provides.

(e) If neither the broker nor the seller commences an action or proceeding described in paragraph (d) of this subdivision within sixty days from the day of deposit of monies pursuant to paragraph (a) of this subdivision, which time limit shall not be extended, the seller, upon petition, shall be entitled to an order directing the payment to the seller of such monies out of court, including any accrued interest thereon, less any fees to which any public officer may be entitled pursuant to law, but such an order shall not be deemed to determine the broker's claim for a commission.

(f) Notwithstanding any other provision of law to the contrary, upon the seller making the deposit required by paragraph (a) of this subdivision, any action or proceeding based upon the contractual obligation to pay a commission under the contract of brokerage of employment shall be commenced by the broker within six months of the deposit of the monies pursuant to paragraph (a) of this subdivision.

(g) The obligation to deposit monies pursuant to this subdivision or the seller's failure to do so shall not constitute or be deemed to create a lien or encumbrance against any real property. Any violation of this subdivision shall not invalidate any transfer of real property.

(h) In any action or proceeding commenced pursuant to this subdivision when the seller has not made the deposit required by this subdivision, and it is determined by a court that the broker is entitled to compensation pursuant to the written contract of brokerage employment, the broker shall be awarded costs, including the fee paid pursuant to paragraph (c) of this subdivision, and reasonable attorneys' fees.

(i) Nothing in this subdivision shall be construed to prohibit a broker from waiving a seller's obligation to deposit money under this subdivision, provided such waiver is set forth in an instrument signed by or on behalf of the broker. Such instrument may be a written contract of brokerage employment or any other instrument.

(j) The provisions of this subdivision shall only apply when the written contract of brokerage employment contains the following statement to the seller in clear and conspicuous bold face type:

"At the time of closing, you may be required to deposit the broker's commission with the county clerk in the event that you do not pay the broker his or her commission as set forth herein. Your obligation to deposit the broker's commission with the county clerk may be waived by the broker."

(k) The provisions of this subdivision shall only apply to real property improved by a one to four family dwelling and to individual condominium units and individual cooperative apartments where the one to four family dwelling, condominium unit or cooperative apartment is used or occupied, or intended to be used or occupied, wholly or partly, as the home or residence of one or more persons.