30. Licensee Purchase of Listed Property

48 DOS 91 Matter of Barmonde - licensee/buyer cannot serve as seller's agent

10 DOS 92 Matter of DOS v. Donato - licensee/buyer cannot serve as seller's agent

5 DOS 93 Matter of Mansher - licensee/buyer who seeks to act as seller's agent must make full disclosure and secure informed consent (Restatement of Agency, §390, comment g)

1 DOS 94 Matter of ERA Faza Realty - DOS is not divested of jurisdiction by voluntary surrender of license or expiration of license if action occurred while licensed, while an applicant for a license, or while eligible to automatically renew per RPL §441(2); requirement of informed consent to dual agency; concealment, misrepresentation and failure in seeking to purchase for own account (2 transactions arranged - sale to licensee and resale at profit to customer, who was qualified for mortgage, but who seller was told had failed to qualify); disgorge profit and commission; fee not related to performance of legitimate service; representative broker must be corporate officer and is vicariously liable for wrongful act of associated salesperson under RPL §442-c; restitutionnot attributed to corporate broker where no proof that funds illegally obtained were collected by or in any way benefitted the corporation; DOS has no power to assess damages; representative broker not required to supervise another representative broker and not liable for misconduct of another representative broker who meets test of RPL §442-c; complaint dismissed as to other representative broker

CRC #304 Matter of DOS v. Gregory, Consent Order - dual agency; failure to resign agency when licensee purchase for own account; illegal commission; restitution and two-month suspension

CRC #377 Matter of DOS v. Bell, Consent Order - improper acting as principal and agent in same transaction; purchasing property listed with principal; retaining of unlawful commission; restitution $510; two-month suspension

2 DOS 95 Matter of Wittman - agency law forbids acting concurrently as agent and principal; broker must terminate agency relationship with seller before assuming role as buyer; same rules apply to salesperson; unlawful and unearned commission; restitution of $510

24 DOS 95 Matter of Seplow - disciplinary charge jurisdiction where licensee's renewal has been previously denied; proof of service of process; agency relationship and duties; fraud in sale of cooperative apartment, including false information about particular sale and willful non-disclosure of material information; failure to obey buyer's obvious intent to have deposit treated as funds to be held in escrow as payments to seller; conversion; rules applicable to supplemental pleadings - absent surprise or prejudice, motion to file and serve could be granted on day of hearing, but here respondent doesn't appear, so supplemental complaint dismissed without prejudice; DOS fails its burden of proof as to extortion and retention of unlawful commission and unauthorized practice of law; when respondent became optionee to purchase subject matter, agency relationship ceased to exist; fiduciary duty precludes respondent from acting simultaneously as agent and principal in a transaction; restitution of $35,000 deposit plus interest at legal rate for judgments

Opinion Letter August 30, 1995 (Michael Wallender) - Licensee purchase of listed property; real estate licensee/agent may purchase property of its seller/principal only upon fulfillment of the strict duty of disclosing all relevant facts fully and completely by the agent to his principal; disclosure must include the fact that the agent is acting on his own behalf. Agent has the burden of proof to establish fulfillment of disclosure obligations

Consent Order 96-0004, Matter of Bernstein - Failure to notify DOS of change of principal business address; failure to renew license after expiration; acting as real estate broker without license; failure by licensee to disclose to seller licensee’s interest as a principal in corporate buyer client; $2,000.00 fine

139 DOS 96, Matter of DOS v. Toppin - burden of proof; dual agency; disclosure of agency relationships; licensee’s purchase of property; DOS has the burden to prove, by substantial evidence, the allegations in the complaint; licensee advised seller that he was a real estate salesperson at first contact; knowledge by seller’s attorney, acting as seller’s agent, of licensee’s license status is imputed to seller; salesperson’s broker may act as agent of the seller in the same transaction where salesperson is purchasing property; agency is a consensual relationship, therefore, agent cannot be bound as an agent without its consent; complaint dismissed

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