New York State Agency Disclosure Form for Buyer and Seller Explained

New York State law requires real estate agents to have clients and customers sign a form stating that they understand whom the agent represents and to whom the agent will give "undivided loyalty," as soon as they enter into a relationship. The disclosure law is designed to clarify the roles of buyer and seller agents, in order to, as the form itself states, "help you make informed choices about your relationship with the real estate broker and its sales associates."

A seller's agent is an agent who is engaged by a seller to represent the seller's interest. The seller's agent does this by securing a buyer for the seller's property at a price an 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 agreement between the agent and the seller. In dealings with the buyer, a seller's agent should: (a) exercise reasonable skill and care in the performance 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 a property, except as otherwise provided by law,

A buyer's agent is an agent who is engaged by a buyer to represent a buyer's interests. The buyer's agent does this by negotiating the purchase of a property at a price and 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 provisions set forth in an agreement between the agent and the buyer. In dealings with the seller, a buyer's agent should: (a) exercise reasonable skill and care in the performance 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 buyer's ability and/or willingness to perform a contract to acquire seller's property that is not inconsistent with the agent's fiduciary duties to the buyer.  

A broker's agent is an agent that cooperates or is engaged by a listing agent or 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 listing agent's seller or the buyer agent's buyer.

The broker's agent does not have direct 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 an seller, therefore, do not have vicarious liability for the acts of the broker's agent. The listing agent or buyer's agent does 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.   

 A real estate broker may represent both the buyer and 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 the agreement between the sent, 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 relationship before agreeing to such representation. A seller or buyer may provide advanced informed consent to dual agency by indicating the same on this form. 

If the buyer and 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 seller in writing, the designated sale agent for the buyer will function as the buyer's agent representing the interests of and advocating on behalf of the buyer and the designated sale 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 sale 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 undived loyalty. A buyer or seller should carefully consider the possible consequences of a dual agency relationship with designated sale agents before agreeing to such representation. A seller or buyer may provide advanced informed consent to dual agency with designated sales agents by indicating the same on this form.

In New York State the broker is the agency not the agent. Therefore, when an agent at the same brokerage that is a listing agent representing the seller and another agent at the same brokerage representing the buyer as a buyer's agent under the New York Department of State agency law that transaction will be a dual agent with designated sale agents. A buyer who attends an open house or contacts the listing agent directly and had no former dealings with the agent is a direct customer of the seller's agent. The seller's agent does not represent the buyer but treats the buyer fairly and honestly. Dual agency occurs when a buyer's agent is already working with a buyer's agent being shown exclusive properties listed by other brokers and has a relationship with an agent who can become a dual agent if the buyer decides to purchase the agent's exclusive listing. Both buyer and seller must agree to dual agency.

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