Dual Agency Disclosure - A great resource

At our last class on Conflicts of Interest, there were many confusions about how to fill-out the NY Agency Disclosure form. Fortunately, the Buffalo Niagara Association of Realtors has a great publication with samples on its last page and the Long Island Education Board strenuously recommends that all agents review this publication before they continue in their practice. Click here to access the publication.

Also, LIEB draws your attention to a NYS Administrative Decision, 675 DOS 09, which states:

"The agency relationship disclosure form which the respondent provided to Mr. Alejandro and Mr. Sanchez was improperly completed. The respondent was acting as a dual agent and so indicated on the disclosure form. However, she also completed sections of the form on which she indicated she was acting as agent of the seller and as agent of the buyer. It does not appear, however, that this error in completing the form could have possibly misled either Mr. Alejandro or Mr. Sanchez into believing that the respondent was representing him alone. Thus, while her conduct was a violation of Real Property Law 443 and a demonstration of incompetency, it does not, by itself, warrant the imposition of a penalty greater than that to be imposed for  her other, much more serious, misconduct."


Clearly, to properly fill-out the Agency Disclosure form, a dual agent should only check Dual agent and not also indicate that they are acting as an agent of the seller or buyer.

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:

Barnard v. Monnot, 33 How.Prac. 440, *42 N.Y. 203,:

“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.”

Home prices expected to increase, but consumers desire to purchase decreases

An interesting report by the Chicago Tribune and available on Business Insider, click here to read, discusses this peculiarity and attributes this dichotomy to the current jobs data. Fannie Mae, who offers the underlying Monthly National Housing Survey, characterizes consumer sentiment as the "wait and see" attitude in their article, which is available here.

What should real estate agents learn from these articles?
Clearly, the answer is who their target audience is. Consumers in areas and industries with high job security appear to be the best target purchasers. So, the question becomes where to look. Yahoo finance has your answer in a report by US News and World Report on the "Exciting Jobs in the Fastest-Growing Industries", which you can locate by clicking here.

Its postulated that individuals in these industries should be targeted by buyers brokers. Good luck and go make a meeting of the minds and sell that property.

Foreclosure - Early Certification - Eliminating the Shadow Docket

This past week a proposal was made to change the process of foreclosure litigation in NYS. Lets learn about it now:

Currently, the process for a lender / servicer to foreclose a residential mortgage is as follows:

Currently:
Plaintiff's attorney will file the foreclosure action (summons and complaint), get an index number and serve process, but before the matter is assigned to a Judge or put into the mandatory Foreclosure Settlement Conferences where the parties are instructed to work towards a modification, the lender's / servicer's attorney will be required to swear to the truth of the documents submitted by way of an affidavit. Yet, many attorneys first learn at this stage that they have insufficient facts to permit them to swear to these facts and the matter stays in limbo without assignment to a Judge or access to the Foreclosure Settlement Conferences. As a result, many foreclosure actions exist, but are not moving forward towards resolution - this is called the Shadow Docket.

Amendment:
Recently, the Office of Court Administration has proposed the following amendment to the Civil Practice Law and Rules (CPLR) to eliminate this Shadow Docket & expedite the foreclosure process. Under the amendment, if adopted, the residential mortgage foreclosure process will become as follows:

Proposed Process:
A lender's / servicer's attorney will execute a certificate of merit coupled with their summons and complaint at the time that they first get an index number. This certificate of merit will certify that the attorney has reviewed the facts of the case and that, based on consultation with authorized representatives of the plaintiff and the attorney's review of pertinent documents, including the mortgage, security agreement and note or bond underlying the mortgage executed by the residential defendant and all instruments of assignment, if any, or any other instrument of indebtedness, there is a reasonable basis for the commencement of such action.

Analysis:
If approved, this amendment will result in the elimination of the shadow docket and greatly minimize foreclosure defense tactics by attorneys. The entire effect of the amendment is to place the certification requirement earlier in time as opposed to what currently happens - instead of during the action, the certification will occur as an incident of commencement. Yet, this is a good thing for homeowners because they will not be dragged into foreclosures until the lender / servicer has a reasonable basis to commence the action. Moreover, this will result in more homeowners having access to the Foreclosure Settlement Conferences early in the process avoiding the unnecessary accumulation of excess interest & penalties following default while they remain existing in the shadow dockets.

Lieb School and the Long Island Education Board support this proposed amendment.

Do I need permission to photograph a building or a home?

The answer is maybe and the law on the topic can be found at 17 USCA 120(a), which states: 

Pictorial representations permitted.--The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

So the question now becomes:

First if the building or the home is an architectural work? &

Second if the building or the home is located in or ordinarily visible from a public place? 

To address the first question, one must analyze the Architectural Works Copyright Protection Act (AWCPA).

To address the second question, one must analyze the facts on how & from where the Architectural work was photographed inclusive of the location and topography surrounding the structure.

With respect to the first question, the term architectural work is defined at 17 USCA 101 as "is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features."

Moreover, the AWCPA does not extend protection to architectural works constructed before 12/1/1990. So, these buildings or homes can be photographed, without authority from the owner / architect, regardless if the picture is taken from a public place.

In a nutshell, it is likely that one can take pictures of a building or a home from the street anytime without permission, but be wary about going behind hedges or gates to get your best angle. 

If you have a particular scenario that is unique, you should always consult an attorney and obtain tailored legal advice.

Happy Photographing!!!