Editor’s Note: The following is the full text of a Legal Update sent by email by the New York State Association of Realtors earlier today (July 9) to its membership.
Dear NYSAR member,
On Sept. 27, 2024, Governor Hochul signed into law an amendment to the Property Condition Disclosure Statement (PCDS) which added a new paragraph as part of question 36. The new paragraph states, “More information on ‘septic system operation and maintenance’ can be found on the NYS Department of Health website in the informational health pamphlet made available by the Department of Health pursuant to section 396-s of NYS general business law.” The newly amended PCDS must be used beginning July 1, 2025. A copy of the newly amended PCDS can be found here: https://dos.ny.gov/property-condition-disclosure-statement-eff-7125
Newly Amended PCDS
Section 466 of the Real Property Law (RPL) requires real estate licensees acting as an exclusive or non-exclusive listing agent to timely inform each seller represented by that agent of the seller’s obligations to fill out the PCDS. An agent representing a buyer of residential real property, or, if the buyer is not represented by an agent, the agent representing a seller of residential real property and dealing with a prospective buyer, shall have the duty to timely (in any event, before the buyer signs a binding contract of sale) inform such buyer of the buyer’s rights and obligations under the PCDS law. If an agent performs the aforementioned duties and obligations, the agent shall have no further duties and shall not be liable to any party for a violation of this article.
NYSAR is recommending that licensees provide a copy of the PCDS to the seller and inform the seller to discuss filling out the PCDS with their attorney. Licensees should not be assisting the seller in filling out the PCDS.
The date the listing was taken has no impact on whether the amended PCDS is required. As was true with prior PCDS amendments, the amended form may impact current listings taken prior to July 1, 2025. Below is a summary of such impact.
Section 462(1) of the Real Property Law (RPL) provides, in part, “Except as is provided in section four hundred sixty-three of this article, every seller of residential real property pursuant to a real estate purchase contract shall complete and sign a property condition disclosure statement as prescribed by subdivision two of this section and cause it, or a copy thereof, to be delivered to a buyer or buyer’s agent prior to the signing by the buyer of a binding contract of sale. A copy of the property condition disclosure statement containing the signatures of both seller and buyer shall be attached to the real estate purchase contract.”
If a contract of sale has already been fully executed with the signed PCDS then the seller met their obligation. If the seller provides the PCDS, at listing, but there is no “buyer” yet, such disclosure is not effective since it was not signed by the “buyer” as required under 462(1) and the newly amended form must be used. When the “buyer” signs the disclosure, it should conform to the law at the time it was given. Therefore, if a listing was taken prior to July 1, 2025, and the PCDS was provided by the seller but it was not signed by the buyer prior to July 1, 2025, the newly amended PCDS must be used instead. Likewise, if the listing was taken prior to July 1, 2025, the seller would need to fill out and provide to the buyer or buyer’s agent the newly amended PCDS prior to the signing of a binding contract of sale.
The following should answer any questions as to whether the amended PCDS would be required.
Amended PCDS Required
If the seller has already provided the PCDS to the buyer and the buyer has not signed the PCDS prior to July 1, 2025, the amended PCDS is required.
If the seller has not provided the PCDS and a binding contract of sale is entered into on or after July 1, 2025, the amended PCDS is required.
Amended PCDS Not Required
If the seller has already provided the PCDS to the buyer and the buyer signed prior to July 1, 2025, the amended PCDS is not required.
If the seller and buyer entered into a binding contract of sale prior to July 1, 2025, the amended form is not required.
For those licensees that want to utilize the newly amended PCDS prior to the July 1, 2025 effective date, such use would be permitted if the licensee discloses to the seller that they are not required to use the newly amended PCDS and by doing so they are providing additional disclosures about septic system operation and maintenance.
For those buyers inquiring about obtaining a copy of the “Septic system operation and maintenance” pamphlet, the Department of Health has provided the following link: https://www.health.ny.gov/publications/3208/.
NYSAR members with legal questions about their licensed activities can contact the NYSAR Legal Hotline Monday-Friday from 9:00am-4:00pm at 518-436-9727 or 518-43-NYSAR.
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