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25. Handling of Simultaneous and Dependent Transactions

21 DOS 92 Matter of DOS v. ERA McGill Real Estate -dual agency without full disclosure and informed consent. Also dual agency in mortgage brokerage services to buyer. Improper purchase by sales associate, without identifying licensee status and affiliation with listing broker

6 DOS 93 Matter of Cornell Associates Realty -failure to make clear (19 NYCRR §175.7) in simultaneous/dependent transactions

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

103 DOS 95 Matter of DOS v. Lana - fiduciary duty; vicarious liability; dual agency; breach of fiduciary duty where seller's agent advised buyer can purchase property for less than asking price; broker not liable without actual knowledge of misconduct or after notice retains proceeds therefrom; mutually dependent transaction did not arise creating improper double agency; amend pleadings to conform to proof; two month suspension

160 DOS 96, Matter of DOS v. Werner - dual agency; vicarious liability; dependent transactions; unauthorized practice of law; violation of Reg. 175.24 by minor variations in language is de minimus; failure to provide RPL §443 disclosure to seller before entering into listing agreement demonstrates incompetency; representation of buyer and seller in separate but interrelated transactions consists of dual agency and requires informed consent of the parties after full and fair disclosure; licensee did not engage in unauthorized practice of law where contract used did not contain an attorney’s approval clause and was not recommended by a joint bar/Realtors committee where contract was completed by licensee at instruction of buyer’s attorney, licensee instructed seller to consult their attorney and final contract was the product of negotiations between the parties’ attorneys; failure to advise principal when entering into agency agreement of office policy not to co-broker properties for the first 30 days of the listing was a breach of agent’s fiduciary duties; commissions are unearned where agent breaches its fiduciary duties to principal; broker admonished to use exact language of Reg. 175.24 and to use sales contracts containing an attorney’s approval clause; broker fined $2,000.00 and required to disgorge commissions of $7,100.00 plus interest; two salespersons each find $1,000.00

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The third quarter 2018 edition of NYSAR’s Legal Lines is now available online at NYSAR.com. This edition covers what a broker's agent actually is, the legal issues related to social media use, conditional approval for financing is not a mortgage commitment and more. Learn more

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