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June 8, 2015

The Increasing Focus On Consumer Protection In Real Estate: Who Does The Broker Represent?

John A. Viterittiby John A. Viteritti
in Real Estate
Home Real Estate

Article 12-A, Section 443 of New York’s Real Estate License Law describes a fundamental responsibility of real estate agents to the public. Although the law went into effect in 1991, it continues to perplex real estate professionals who strive to be in compliance. According to Michael Kelly, Director of Government Affairs for the New York State Association of Realtors, “If you ask NYSAR’s staff attorneys to identify the most misunderstood and confusing part of real estate law, the answer would unequivocally be agency representation.” In an attempt to address the subject, Anthony Gatto, Esq., NYSAR’s Director of Legal Services informed me that NYSAR has made the following recommendation to the Department of State: “NYSAR respectfully suggests requiring for every licensee that needs to take continuing education, one hour of agency every two years. New licensees will be required to take two hours of agency during their initial two year license term.” (Author’s Note: The license law education requirements for salesperson and broker licensing include agency disclosure. The NYSAR proposal applies to continuing education.)

So why is compliance with this section of the license law so critical? Well, first let me say that the Department of State may fine, revoke or suspend the license of a real estate agent who has not complied with the law. In addition, courts have refused to allow a broker to receive a commission if they cannot demonstrate compliance with the law. Section 443 applies to properties of fewer than five units for sale or rent, and condominiums and cooperative housing regardless of the number of units. For all other types of properties, section 175.7 of the License Law requires a real estate agent to make it clear to the consumer which party the agent is representing. The concerns of the DOS, the legislature and the courts as well as NYSAR, have nothing to do with who pays the commission, as many real estate agents and most consumers believe. It has to do with the real estate agent’s responsibilities to the parties to the transaction. If the broker is representing the seller, the broker has a fiduciary responsibility to the seller. The broker has to place the interests of the seller above those of the buyer as well as the broker, except as otherwise required by law. For example, the broker may not follow instructions of the seller that would violate Fair Housing Laws. The broker has the duty of fair and honest dealing towards the buyer, which does not include disclosing confidential information about the buyer that could affect the seller’s opportunity to get the best price for the property; for instance, telling the buyer that they are anxious to sell. If the broker is representing the buyer, then the real estate agent’s fiduciary responsibilities are to the buyer.

The law requires that the capacity in which the agent will be operating be disclosed and explained to the consumer, and that they provide their informed, written, consent. I would emphasize the word, “informed.” So if you as a prospective seller, buyer, landlord or tenant are not presented with an agency disclosure form at the point of “first substantive contact” with the agent, ask why? The agent should not encourage you to sign the form without fully explaining it to you and receiving your written consent. There are many possible scenarios that the law is structured to address. For example, what if the wishes of the seller or buyer or the circumstances require that both be represented by the broker rather than act in the sole interests of one party (Single Agency?) The law defines this as Dual Agency, requiring knowledge and written consent of both parties. There are also circumstances whereby a broker could designate one agent to represent the seller and another to represent the buyer. This is known as Dual Agency with Designated agents. This usually applies to “in-house” listings.” Another aspect of the law applies to broker’s agents. In my experience with realtors and the public, this is often the most misunderstood aspect of agency disclosure. The intent is to provide the principal, seller or buyer, with all of the benefits to be derived from engaging one broker as their exclusive agent, while requiring cooperation with all other agents without the potential vicarious liability for the actions of those other agents.

The laws of agency also apply to landlord tenant situations. If the law seems complex and confusing, as was pointed out by Mr. Kelly of NYSAR, they are, but that doesn’t excuse non-compliance.

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Small Hamptons Garden To Open Its Gates To The Public This Summer

Small Hamptons Garden To Open Its Gates To The Public This Summer

  • Dust off your favorite witch’s hat and opt for a paddleboard instead of a broom for Paddle Diva & Wych’s Bloom’s inaugural Witches Paddle on Wednesday, October 29, from 4–6 p.m. at Paddle Diva (10 Boat Yard Rd., East Hampton, NY). A portion of the proceeds will go to the Surfrider Foundation’s Eastern Long Island Chapter and its efforts to protect the world’s oceans, waves, and beaches through dedicated activism. ⁠
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We’ve all seen Witches Paddles grace our social media feeds, and now you can partake in the spooky fun! This tradition combines Halloween vibes with the healing power of nature as you glide and take in the beautiful Three Mile Harbor views.⁠
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Gina Bradley excitedly shared, “I am thrilled to be hosting this at Paddle Diva’s permanent location inside Swan’s Marina (formerly Vanderveer’s). This kind of paddle has been on my mind for many years, as I’ve seen them in all parts of the world, and it looks so cool seeing all the witches gracefully gliding along the water. This is particularly exciting because we’ve joined forces with Wych’s Bloom, a local herbal apothecary brand, and Surfrider to raise money and awareness for ocean and clean bay initiatives that are crucial for our waters on the East End of Long Island.”⁠
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“As an herbalist, Samhain, or Halloween, offers a special occasion for me to celebrate the healers who came before us to teach the wisdom of the plants in our region. I had seen people gathering for Witches Paddles all over the country, and as a surfer, I connected instantly with these events. When I texted Gina the idea, she was immediately in. That’s what I love about the women on the East End—they’re always up for an adventure,” shared Wych’s Bloom owner and Surfrider Foundation board member Christina Winters.⁠
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Join us in taking part in this one-of-a-kind event! Craft a witch’s outfit and set sail at the inaugural Witches Paddle for a great cause.⁠
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@paddlediva @wychs_bloom⁠
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#witch #witchespaddle #paddlediva #hamptons #halloween #easthampton⁠
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  • Check out the top Hamptons events this weekend!⁠
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🍎 Wölffer’s Cider Fest⁠
📅 Sat, Oct 25 | ⏰ 2–5PM⁠
📍 The Wine Stand, Sagaponack⁠
Sip cider, enjoy live music, games, and lobster rolls!⁠
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🍦 Buddhaberry’s Spooktacular Costume Party⁠
📅 Sat, Oct 25 | ⏰ 2–4PM⁠
📍 Buddhaberry, Southampton⁠
Bingo, trivia & costume prizes galore!⁠
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👻 Haunted Village⁠
📅 Sat, Oct 25 | ⏰ 11AM–4PM⁠
📍 Southampton History Museum⁠
Ghost stories, pumpkin carving & trick-or-treating!⁠
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🧙‍♀️ CMEE’s Halloween Bash⁠
📅 Fri, Oct 24 | ⏰ 4–6PM⁠
📍 CMEE, Bridgehampton⁠
Spooky crafts, games & costume contest!⁠
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🎬 The Horror Show at Sunset Theater⁠
📅 Oct 24–30⁠
📍 Westhampton Beach⁠
7 nights of scary movies 🍿⁠
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🎧 Halloween Silent Disco Dance Party⁠
📅 Sat, Oct 25 | ⏰ 7–10PM⁠
📍 Guild Hall, East Hampton⁠
3 channels, endless grooves—disco, funk & more!⁠
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🐾 Canines in Costume at LongHouse Reserve⁠
📅 Sat, Oct 25 | ⏰ 10:30AM–12:30PM⁠
📍 East Hampton⁠
Dress up your pup + enjoy treats & fun!⁠
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🎃 Bridgehampton Halloween Parade⁠
📅 Sat, Oct 25 | ⏰ 10–11AM⁠
📍 Hampton Library, Bridgehampton⁠
Trick-or-treat parade down Main Street!⁠
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🎸 The Cherry Bombs at The Stephen Talkhouse⁠
📅 Fri, Oct 24 | ⏰ 8PM⁠
📍 Amagansett⁠
Rock out all night! 🤘⁠
⁠
🌲 Enchanted Forest Trail⁠
📅 Oct 25–26 | ⏰ 12–1:30PM⁠
📍 Quogue Wildlife Refuge⁠
Costume walk + crafts + games!⁠
⁠
🥁 Annual Ragamuffin Parade⁠
📅 Sun, Oct 26 | ⏰ 1PM⁠
📍 Sag Harbor⁠
Parade fun for all ages + pets!⁠
⁠
🐶 Little Lucy’s Annual Pet Parade⁠
📅 Sat, Oct 25 | ⏰ 1–4PM⁠
📍 Agawam Park, Southampton⁠
Prizes, live music & celebrity judges!⁠
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🕸️ Solé East’s Halloween Party⁠
📅 Sat, Oct 25 | ⏰ 8PM⁠
📍 Montauk⁠
Win a free weekend stay for best costume!⁠
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🍁 Centro’s Fall Festival⁠
📅 Sun, Oct 26 | ⏰ 12–5PM⁠
📍 Hampton Bays⁠
Pumpkin decorating, drinks & local vendors!⁠
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🔗 Click link in bio for more events at Hamptons.com⁠
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#hamptons #halloween #pumpkins #scarymovies #southampton #sagharbor #easthampton #costumes
  • East Hampton’s streets came alive with wagging tails and smiling faces for ARF’s 32nd Annual Stroll to the Sea Dog Walk. Families, friends, and their dogs gathered at the historic Mulford Farm, where the morning kicked off with vendors, photo ops, custom merchandise, contests, and prizes.

@arfhamptons 

#arf #hamptons #community #mainbeach #adoptdontshop❤️
  • Last Saturday, Wölffer held its annual harvest party at its scenic vineyard in Sagaponack. The annual fest brought together friends, families, and wine lovers to toast the season and harvest behind every bottle of Wölffer wine.⁠
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📸: Cameron Burton⁠
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Check out the full gallery at Hamptons.com (Link in Bio)⁠
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#wolffer #hamptons #wolfferwine #harvestparty
  • From Hollywood red carpets to Milan exhibits and Hamptons fashion shoots, Filbert Kung has photographed the world—but it’s his quiet, unguarded, and attentive nature that reveals the artist behind the lens.⁠ @filbert_kung 
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I met Filbert Diego Kung at a Grey/Ven fashion event in Amagansett last summer. He’s one of those rare photographers who instantly puts you at ease—calm, composed, and naturally good at making anyone feel like they belong in front of his lens. Had I known then just how in-demand Filbert is in the fashion and photography world, I probably wouldn’t have asked him to snap a few shots of me goofing off on the red carpet. But maybe that makes me a model? Either way, it was my first glimpse of how effortlessly he captures people as they are. In my case, goofy-but-make-it-chic.⁠
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Since then, I’ve seen him popping up around the Hamptons, often between flights to LA, Miami, or wherever the next big editorial or campaign takes him. Originally from the Philippines, Filbert has spent over fifteen years building a career that bridges Hollywood red carpets, high-fashion editorials, and fine art portraiture. ⁠
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Read the interview at Hamptons.com (Link in Bio)⁠
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⁠#photographer #photography #hamptons
  • From fall festivals to concerts, a lot is happening in the Hamptons this weekend! ⁠
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Check out the top Hamptons events this weekend!⁠
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🎃 Fall Festival at Good Ground Park⁠
📍 Hampton Bays | 🗓️ Fri, Oct 17 | 🕓 4–6PM⁠
Bring your pre-carved pumpkin & compete for prizes! Games, food truck, costume parade & more!⁠
👉 Link in bio⁠
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🍷 Wölffer’s Candlelight Fridays⁠
📍 Sagaponack | 🗓️ Fri, Oct 17 | 🕓 4–7PM⁠
Live music, seasonal pairings & cozy vibes 🍁⁠
👉 Link in bio⁠
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🖼️ Like No One: Michael McDowell Exhibition⁠
📍 East Hampton | 🗓️ Oct 17–19⁠
🎉 Opening reception: Sat, Oct 18 | 4–8PM⁠
Fine art lovers, don’t miss this!⁠
👉 Link in bio⁠
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📚 BookHampton: Caroline Sutton in Conversation⁠
📍 East Hampton | 🗓️ Sat, Oct 18 | 🕕 6PM⁠
Nature meets literature in this insightful author talk.⁠
👉 Link in bio⁠
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👟 Shelter Island Fall 5K Run/Walk⁠
📍 Shelter Island | 🗓️ Sat, Oct 18 | 🕚 11AM–2PM⁠
Run/walk for a cause—supporting Breast Cancer Awareness 💗⁠
👉 Link in bio⁠
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🏛️ 32nd Annual Landmarks Luncheon⁠
📍 Maidstone Club | 🗓️ Sat, Oct 18 | 🕦 11:30AM–2:30PM⁠
Hosted by LVIS, spotlighting the history of East Hampton’s Freetown.⁠
👉 Link in bio⁠
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🍂 Amber Waves’ Oktoberfeast⁠
📍 Amagansett | 🗓️ Sat, Oct 18 | 🕑 2–5PM⁠
Seasonal dishes, live music, dancing & games 🎶⁠
👉 Link in bio⁠
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🎻 BCM Autumn: Brooklyn Rider⁠
📍 Bridgehampton | 🗓️ Sat, Oct 18 | 🕔 5–6:30PM⁠
A powerful string quartet performance you won’t want to miss.⁠
👉 Link in bio⁠
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🍷 Cab Franc Forward Winemaker’s Dinner⁠
📍 Shelter Island | 🗓️ Sun, Oct 19 | 🕔 5PM⁠
Multi-course dinner + Cab Franc pairings = 🍽️🍇 perfection⁠
👉 Link in bio⁠
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✨ So much happening this weekend — which event are you heading to first?⁠
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#hamptons #fall #fallfestival #shelterisland #5k #wine #winedinner #amberwaves #wolffer
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