Single agency: seller and landlord agency, buyer and tenant agency, and the broker's agent

Identify the side represented

Single agency means representing one side of a transaction. In New York, identify whose interests the agent advances before deciding who may give instructions or receive confidential advice. Real Property Law § 443 governs agency disclosure for its defined residential property, including one-to-four-family dwellings and condominium or cooperative apartments; unimproved land is excluded.

A seller's agent seeks a buyer on terms acceptable to the seller. The statutory definition includes a listing agent acting alone and an agent cooperating with the listing agent, acting as the seller's subagent, or acting as a broker's agent to obtain a buyer. A landlord's agent performs the corresponding role in obtaining a tenant. These roles are not limited to the person who signed the listing.

A buyer's agent contracts to locate residential property for a buyer, or finds a buyer for property, presents an offer, and negotiates on the buyer's behalf. A tenant's agent has the corresponding role in locating rental property or presenting an offer and negotiating for a tenant. Showing a property does not by itself establish which side an agent represents.

Duties follow the relationship

The directly represented client receives reasonable care, undivided loyalty, confidentiality, full disclosure, obedience, and accounting. A seller's agent does not represent the buyer; a landlord's agent does not represent the tenant. Nevertheless, the agent must deal honestly, fairly, and in good faith with the other side and exercise reasonable skill and care. New York's disclosure form also calls for seller's and landlord's agents to disclose known facts materially affecting property value or desirability, except as otherwise provided by law. Loyalty is not permission to conceal such facts. A buyer's agent owes the seller disclosure of known facts materially affecting the buyer's ability or willingness to perform, consistent with fiduciary duties to the buyer.

The broker's agent follows an indirect route

A broker's agent cooperates with or is engaged by a listing, buyer's, or tenant's agent from a different firm. The broker's agent assists that agent for the benefit of that agent's client but has no direct relationship with that client. Instructions run through the engaging agent. Under § 443, the client cannot direct the broker's agent and has no vicarious liability for that agent's acts; the directing agent has liability for them.

For example, a buyer hires Cedar Realty, which engages an outside broker's agent to assist. The buyer directs Cedar; Cedar directs the outside agent. Outside assistance does not turn the buyer's representation into seller representation.

Disclose the role

In New York, the listing agent provides the agency disclosure form before the listing agreement; a buyer's or tenant's agent provides it before the representation agreement. The applicable disclosure to the opposite side occurs at first substantive contact. A signed acknowledgment records receipt: the disclosure form is not a contract. One boundary matters: representation of both opposing parties is dual agency, which New York allows with informed written consent, and it cannot supply undivided loyalty to both.