Question 1: What Type Of Transaction Am I Working On?

  • Is it a residential or commercial transaction? (Is there a distinction between residential and commercial under NYS law; can you participate in a commercial transaction?)
  • If it is a residential transaction, is it a co-op, condominium, house or townhouse?
  • Do you explain the differences in each property?
  • For example, that co-ops can reject, that co-ops require a board package, that you should start the board package immediately; that you should put your team of professional together immediately.
  • For example, that condos have a waiver of right of first refusal (which may be held hostage); that condos may not be warrantable.
  • For example, that a house or townhouse is going to likely need an inspection, that the inspection is going to disclose certain issues depending on where it is located (termites, radon, underground storage tanks).​
  • If it is a commercial transaction, is it retail, industrial, office space, etc.?
  • Do I have NDAs and non-solicitation agreements?
  • Can I do these types of transactions; no prohibition in terms of licensing but there is reputational risk.
  • Is it a leasing transaction, purchase and sale transaction, subleasing transaction, sale of air rights, sale of a business, etc.?
  • See the Transaction-Specific Checklists
  • Based on the type of transaction, who is working with me? Who does the client need on the team?
  • See the Team Email Template.
  • What type of co-broking environment am I working in? Is it REBNY or another MLS?
  • See the Cooperation Agreement Form (if it is another MLS environment).
  • Is it a FSBO?
  • What are the customs, rules and laws of the location where the property is located?
  • For example, Section 8 and Occupation are protected categories under Fair Housing laws in New York City.
  • What “property” disclosures am I required to give?
  • Property Condition Disclosure, Lead Paint Disclosure, Bedbug Dislcosure, etc.

Question 2: Who Am I Representing?

  • Am I representing the purchaser, seller, tenant, landlord or subtenant?
  • What is the difference between REBNY and other MLS environments?
  • What “agency” disclosures am I required to give?
  • Agency Disclosure is required in all 1-4 family transactions.
  • New York State law requires agency disclosure on all transactions.
  • See the Agency Disclosure Form.
  • What are my fiduciary obligations to the party that I am representing?
  • Confidentiality, (Reasonable) Care, Loyalty, Obedience, Accounting, Disclosure.
  • What are my fiduciary obligations to the opposing party?
  • See the Agency Disclosure Form.
  • Can I enter into an exclusive relationship with a purchaser?
  • Buyers are fickle; need to protect that you are the “procuring cause”
  • Who do I represent in “open listings?”
  • Do I have to represent at least one party in a transaction?

Question 3: How Am I Getting Paid?

  • Who is paying me? Is it the (i) owner/landlord, (ii) purchaser/tenant or (iii) co-broker?
  • Can I be paid by multiple parties?
  • Is a real estate broker required to co-broker a transaction?
  • Do I need to have an agreement of compensation in writing?
  • See theCompensation Agreement Form.
  • Does compensation create an agency relationship?