The opinion permits Dual Agency or Dual Agency with Designated Sales Agents if the seller has agreed to Advanced Informed Consent to Dual Agency and/or Advanced Informed Consent to Dual Agency with Designated Sales Agents by indicating the same and signing the agency disclosure form.
68% of Americans believe the federal government should do more to expand affordable housing and rental options, and 58% will consider a candidate’s housing plan when voting in the presidential election.
The Northeast PHSI waned 1.4% from last month to 64.6, an increase of 2.4% from July 2023.
The opinion permits Dual Agency or Dual Agency with Designated Sales Agents if the seller has agreed to Advanced Informed Consent to Dual Agency and/or Advanced Informed Consent to Dual Agency with Designated Sales Agents by indicating the same and signing the agency disclosure form.
Editor’s Note: Earlier today, the New York State Association of Realtors emailed its members a Legal Update in regards to an opinion rendered by the New York State Department of State that addressed a request from NYSAR on the legality of Dual Agency and Dual Agency with Designated Sales Agents in certain scenarios such as at an open house.
The following is the complete text of NYSAR’s Legal Update:
Dear NYSAR member,
On Aug. 27, 2024, the Department of State responded to NYSAR’s request for a legal opinion addressing the legality of Dual Agency and Dual Agency with Designated Sales Agents in certain scenarios such as at an open house. The opinion was requested by NYSAR because the wording of DOS Legal Memorandum LI12 “Be Wary of Dual Agency” and the absence of any other opinion or guidance about the various ways in which Dual or Designated Agency may occur was confusing to our members.
DOS Legal Memorandum LI12 “Be Wary of Dual Agency” discussed how dual agency may occur. It should be noted that Legal Memorandum LI12 was published prior to Dual Agent with Designated Sales Agent being added to the agency disclosure law in 2007 and Advanced Informed Consent to Dual Agency and Advanced Informed Consent to Dual Agency with Designated Sales Agents being added to the agency disclosure law in 2011. Legal Memorandum LI12 stated that dual agency occurs when “A real estate broker employs two salespeople, one who works for the buyer as a buyer's agent and the other who works for the seller as a seller's agent. The real estate broker and his salespeople are ‘one and the same’ entity when analyzing whether dual agency exists. As soon as the buyer's agent introduces the buyer to property in which the seller is represented by the seller's agent, dual agency arises."
LI12 did not provide an opinion as to whether Dual Agency or Dual Agency with Designated Sales Agents could occur if an unrepresented buyer communicated with the listing agent or another licensee associated with the listing broker about a property currently listed by the brokerage. This communication could occur with an associated licensee of the listing broker at an open house or through telephone, email etc. NYSAR advocated for Dual Agency or Dual Agency with Designated Sales Agents to be permissible in such scenarios. The new DOS opinion clarifies how Dual Agency or Dual Agency with Designated Sales Agents can occur in such a scenario.
NYSAR requested an opinion from the DOS to clarify other ways in which a Dual Agency or Dual Agency with Designated Sales Agents may be created with an unrepresented buyer that shows interest in a property listed by the brokerage. In the request, NYSAR specifically cites LI12 and the limited guidance it provided: “The example in LI12 indicates that the buyer agency relationship must have existed prior to the buyer showing interest in the property listed by the same broker in order for dual agency to arise. LI12 does not address other scenarios where dual agency may arise, such as at an open house or if an unrepresented buyer contacts a licensee of the listing brokerage to view the property listed by that broker. Furthermore, LI12 was published prior to advanced informed consent to dual agency and advanced informed consent to dual agency with designated sales agents and does not take that into consideration."
In the opinion, DOS expanded on the scenarios under which Dual Agency or Dual Agency with Designated Sales Agents may be created with an unrepresented buyer. The opinion permits Dual Agency or Dual Agency with Designated Sales Agents if the seller has agreed to Advanced Informed Consent to Dual Agency and/or Advanced Informed Consent to Dual Agency with Designated Sales Agents by indicating the same and signing the agency disclosure form. Furthermore, the seller must fully understand (informed consent) that the listing agent or any licensee associated with the listing brokerage, while said licensee is acting as a seller’s agent, can solicit an unrepresented buyer to enter into a buyer’s agency relationship and then immediately enter into either Advanced Informed Consent to Dual Agency or Advanced Informed Consent to Dual Agency with Designated Sales Agents.
Pursuant to the opinion and following the requirement for informed consent set forth above, the following scenarios have been deemed permissible by the DOS:
The DOS also included some additional language to further clarify the responsibilities of a licensee as it applies to the law that authorized Advanced Informed Consent to Dual Agency and Advanced Informed Consent to Designated Agents:
Two disadvantages of advanced consent to dual agency, however, are the likely increase of disciplinary complaints against licensees and a less informed public. In the event that an agency relationship changes from the broker representing one party, to representing both, the consumers may not know who the broker is actually representing. The bill is clear that advance consent to dual agency must be “informed.” As such, 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.
The opinion further states:
The above concerns remain relevant to your inquiry to the extent that it relates to what information the licensee relays to the parties involved and whether when providing such information, the agent acted in good faith to obtain such consent. See generally, Restatement (Third) Of Agency § 8.06 (2006)1. The issue in determining whether there are grounds to commence disciplinary action, depends on what the licensee, already in an advanced consent dual agency relationship, discloses to the second party (i.e., the unrepresented party), to obtain consent for mutual representation and divided loyalties. For example, but by no means exhaustive, if the listing agent suggests or implies that by establishing a “buyer’s” advanced dual agency it will provide an advantage over an unrepresented party because the agent can disclose confidential information in a dual agency (or does disclose confidential information to secure the dual agency consent), the same is likely a breach of the aforesaid obligations. Accordingly, whether the situations you have described are lawful requires a searching of the individual facts and circumstances of the agency formation and must be determined on a case-by-case basis.
It is important, however, to observe that while it might be permissible, if not properly formulated a licensee could be disciplined by the Department and/or be required to forfeit the right to a commission. See generally, P. Zaccaro, Co. v DHA Capital, LLC, 70 N.Y.S.3d 458, 460, 2018 N.Y. Slip Op. 00458, 2018 WL 542243 (N.Y.A.D. 1 Dept., Jan. 25, 2018)(“Where, as here, the duty of undivided loyalty is breached, plaintiff broker forfeits its right to a commission, regardless of whether damages were incurred.”)(internal citations omitted).
In response to the DOS opinion, NYSAR has amended the “Advanced Informed Consent to Dual Agency” and the “Advanced Informed Consent to Dual Agency with Designated Sales Agents” disclosure forms that are available here: https://www.nysar.com/legal/forms
The forms help licensees explain what dual and designated agency are as well as what a licensee is permitted and prohibited from doing when acting as the same. The amendments include a clear and conspicuous disclosure to the seller that the listing agent or any licensee associated with the listing broker may solicit an unrepresented buyer that has shown interest in a property listed by the brokerage and act as a buyer’s agent for that buyer and then immediately enter into a Dual Agent or Dual Agent with Designated Sales Agent relationship. Although the NYSAR disclosures contain such language, licensees should still explain how dual or designated agency may arise. The mere signing of the agency disclosure form or the NYSAR “Advanced Informed Consent to Dual Agency” or the “Advanced Informed Consent to Dual Agency with Designated Sales Agents” does not rise to the level of “informed consent”. In other words, the consumer must clearly understand under what scenarios licensees of the listing broker may act as a dual or designated agent.
In filling out the New York State Agency Disclosure Form for Buyer and Seller with a buyer in one of the above two scenarios, the licensee should first have the buyer acknowledge buyer’s agency. The form should be checked off on the right side of the top of the form in the brackets stating “Buyer as a” and “Buyer’s agent.” The buyer can then check off “Advance Informed Consent Dual Agency” and/or “Advance Informed Consent to Dual Agency with Designated Sales Agents.” If “Advance Informed Consent to Dual Agency with Designated Sales Agents” is checked off, the names of the designated agents should be written in the paragraph that is above the acknowledgement and signature portion at the bottom of the form.
NYSAR members with questions may contact NYSAR’s Legal Hotline. The Legal Hotline is available Monday-Friday, 9:00am-4:00pm at 518-436-9727.
68% of Americans believe the federal government should do more to expand affordable housing and rental options, and 58% will consider a candidate’s housing plan when voting in the presidential election.
The Northeast PHSI waned 1.4% from last month to 64.6, an increase of 2.4% from July 2023.
The fair housing complaint stems from a WRO investigation and subsequent complaint filed with DHR in 2021.
Lowe’s and Sam’s Club are situated within the larger Hudson Valley Plaza, a 673,000-square-foot regional power center, anchored by complementary retailers such as Walmart and PetSmart, among others.
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