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4. Advertising

27 DOS 92 Matter of DOS v. Rabizadeh - broker advertised apartment with finished rentable basement, but certificate of occupancy does not allow renting a basement. Advertisement has effect of encouraging violation of local zoning and occupancy laws. Broker deemed untrustworthy - sanction $1,000 fine or alternative 2-month suspension

29 DOS 92 Matter of DOS v. Lien Chin Chang - a broker charged with advertising or offering for sale or rental of premises for which no certificate of occupancy has been issued, but DOS fails to offer evidence with regard to certificate of occupancy. Complaint dismissed for failure of proof

Case No. 222 Matter of DOS v. Lewis, Consent Order - "no contest" of allegations of offer to rent and obtain tenant for an apartment inconsistent with certificate of occupancy and contrary to local zoning laws. Penalty: $250 fine, refund of commission $225, and payment for transcript of proceedings ($80)

103 DOS 92 Matter of DOS v. Clark - advertising of furnished basement, when certificate of occupancy allowed cellar (not usable as living space) - $500 fine or 1-month suspension - reversal and annulled by Supreme Court

123 DOS 92 Matter of DOS v. Lopez - rental of apartments that were unavailable or illegal. Revocation

128 DOS 92 Matter of Contempo - advertising of two-family house with 3-room walk-in basement. DOS fails to prove kitchen and bath in basement was illegal (c/o is ambiguous and building plans for this 1962 house missing from City Dept of Bldgs.)

151 DOS 92 Matter of Target Realty - advertisement of 3-family house - DOS fails to link ad to a specific listing

155 DOS 92 Matter of Estates Town & Country - advertisement omitted statement that advertiser is broker and didn't give broker's name and phone number (19 NYCRR §175.25[a]) - broker liable for ad agency error

157 DOS 92 Matter of Sutton - advertising postcards identified salesperson as "broker," package forwarded unopened to third party to mail; failure to properly supervise

Opinion Letter 92-47 (Kevin D. Griffin) re: salesperson advertisements - (i) advertisements must either indicate the name and telephone number of the broker (citing 19 NYCRR §175.25[a] as interpreted by Opinion Letter 91-33 [Spirn]); or (ii) advertisement may include a salesperson's residence phone number if it discloses his salesperson status and includes the notation that it is a residence number used "for appointment only," as well as either contains the licensed name of the broker or indicates that the advertiser is a broker and contains the office telephone number of the broker

Opinion Letter 93-4 (Francine Heinlein) - advertisement of "homeowners warranty plan" to be provided "at no cost" may be misleading if it is only a "service contract" for certain systems, not a "full warranty"

49 DOS 93 Matter of DOS v. Scelfo's Captree Realty - failure of proof of misleading advertising - must show ads improperly characterize properties for which C/O issued and the ad misrepresented number of occupancies allowed by law

52 DOS 93 Matter of DOS v. Century 21 Sunny Gardens - failure of proof of misleading advertising

90 DOS 93 Matter of Davis - broker require to use exact license name on signs; improper use of unlicensed trade name; prior violation; $500 fine or 1-month suspension

94 DOS 93 Matter of Parenti - incompetency in renting apartment in illegal two-family house without checking certificate of occupancy; unreasonable to rely on owner's claim of two-family status without making reasonable inquiry; restitution of rental commission

105 DOS 93 Matter of DOS v. Jacob - inadequate "EXPLANATION" violates 175.24(b); insufficient evidence of failure to give list of MLS members 175.24(c)(1); dismissal of charge of false advertising where broker substantially performed obligations and owner did not give reasonable opportunity to cure alleged defaults and suffered no damage; inadequate evidence of failure to supervise (175.21[a]); post-hearing submission not considered as no request for leave was made during the hearing

121 DOS 93 Matter of DOS v. Jacob - DOS fails to prove licensee knew, or failed to take reasonable steps to obtain knowledge regarding the illegality of rentals under the zoning ordinance; where broker is aware that particular area is zoned one-family, must make reasonable inquiry as to what use is being made of other floors; commission is unearned where rental is in fact illegal; ALJ rejects as incredible the broker's self-serving testimony that DSS did not want the commission returned; 2 representative brokers each fined the amount of the unearned commission ($750) for failing to return; ALJ rejects SAPA 301[1] claim of failure to hold a hearing within a reasonable time due to lack of demonstration of prejudice and refuses to consider an affidavit submitted by the licensee's counsel, as leave was not sought at the hearing to submit a response to the affidavit DOS was given permission to submit

110 DOS 93 Matter of DOS v Century 21 Dallow Realty - individually licensed broker acting under name and supervision of sponsoring broker must get "associate broker" license (RPL §440-a) and is treated as salesperson (RPL §440[2]). Broker who allows him/her to work without associate broker license is liable (RPL §442-c) for unlicensed activity (RPL §440[2] and 440-a); claimed lack of knowledge of change in law or failure of DOS to advise thereof is ineffective; advertisements must give honest and accurate description of property (citing 1987 Opinion Letter [Sumber]); failure of proof that broker knew or should have known advertisement misrepresented lawful occupancy of property

141 DOS 93 Matter of DOS v. Pozzanghera - salesperson can't own voting stock or be officer of licensed corporation (175.22); separate escrow account required (175.1); unlicensed name; illegal to claim or retain commission for services while not properly licensed; failure to pay judgment; failure to file termination of associate card; representative broker liable for illegal ads; revocation of broker's license discontinues salesperson's association per RPL §441-d

CRC #413 Matter of DOS v. Jacabacci, Consent Order - payment of buyer's deposit to seller prior to agreement on terms of sale; failure to refund deposit in accordance with terms of binder; inadequate sales agreement; failure to provide RPL §443 disclosure notice; improper advertising of "possible mother/daughter" although permits for two-family use had not been obtained; $750 fine on sales associate

150 DOS 93 Matter of DOS v. Kirkman - charge of listing rental without authorization (175.10) dismissed; where relied upon (mis)representation of claimed manager and broker acting on a similar representation, had previously obtained tenants without incident

CRC #275 Matter of DOS v. Baker, Consent Order - misleading advertising; conversion of deposit monies; $2,500 fine and restitution of $20,000 under payment schedule enforced by confession of judgment

72 DOS 94 Matter of DOS v. Sampson - failure to prove that licensees neglected to provide RPL §443 disclosure note or the retention of a fee for renting an illegal apartment

100 DOS 94 Matter of DOS v. Hunt - DOS failed its burden of proof that advertising, which does not reveal the licensure status or fails to specifically identify resident telephone number, is improper; no proof of dishonest or misleading advertising (RPL §441-c) or violation of Regulation 175.25

130 DOS 95 Matter of DOS v. Hevey - Availing of broker's license; supervision of salesperson; unlicensed activities; commission rate; assignment of cause of action for commission; broker avails broker's license to salesperson where the office in which the salesperson conducted regulated real estate activity was either owned, maintained and operated by salesperson without the direct supervision of the broker or was operated under an arrangement, the purpose, intent or effect of which permitted the salesperson to conduct the business of a real estate broker for the salesperson's own benefit (§175.20); salesperson obtains all clients and real estate business on behalf of broker; salesperson must give honest and accurate representation of agency, status and associate standing in all advertising; commissions are not regulated by statute nor fixed by custom and usage, are freely negotiable but must be relevant to and represent charges for some legitimate service; broker and salesperson are barred from collecting commission in a transaction in which salesperson acted illegally as broker and broker availed his license; permissible for broker to assign rights to salesperson for purposes of bringing an action to recover a commission; broker and salesperson each fined $1,000.00

242 DOS 96, Matter of DOS v. Devaney - duty to public; fraud; amendment of pleadings to conform to proof; collateral estoppel; burden of proof; vicarious liability; consideration of prior pleading and disciplinary actions; publication of misleading advertisement violates fundamental duty to deal honestly with the public; DOS fails to meet its burden to amend the pleadings to conform to the proof to include charge of the unauthorized practice of law; tribunal may sua sponte amend the pleadings to conform to the proof where issue has been fully litigated and is closely related to the stated charges; licensee engaged in acts of fraud and in fraudulent practices by knowingly making false factual representations with the intent to deceive and resulting in reliance and acting thereon; adverse decision in ethics hearing at local board not given collateral estoppel where licensee requested and was denied adjournment to allow for legal representation; DOS has burden to prove by substantial evidence the truth of the allegations in the complaint; corporate broker is bound by the knowledge acquired and is responsible for the acts committed by its representative broker; prior plea of nolo contendere and payment of fine considered in determining imposition of penalty; corporate and representative brokers’ licenses suspended for a period of one year

645 DOS 04 DOS v. Pellegrino - advertising; forgery; proper business practices; salesperson received two commissions directly from person for whom she had arranged rental transactions; salesperson failed to follow her broker’s direction to have check returned and properly paid to broker; salesperson concealed one transaction from her broker; salesperson placed an advertisement for an apartment rental without the approval of her broker; salesperson forged tenant’s signature on agency disclosure form and notice to tenant; DOS fails to prove that salesperson wrongfully held herself out to be a real estate broker merely by the use of the term “Broker” in unauthorized advertisement as 19NYCRR 175.25 does not prohibit the placing of advertisements by salespersons; salesperson’s license revoked

521 DOS 05 DOS v. NY Empire Real Estate - unearned commissions; advertising; salesperson breaches his fiduciary duties when, without calling it to the attention of his client, he changed the terms of an advertising expense rider and again when he demanded payment of such expenses upon the expiration of the listing contract; salesperson violates Real Property Law §442–a by directly bringing an action against the seller after the expiration of the listing contract for advertising expenses as such is within the scope of the statute; as a condition of retaining his license, salesperson may be required to grant seller an unconditional release from unlawfully obtained judgment; salesperson fined $2,000.00 and ordered to provide proof of release of judgment

956 DOS 06 DOS v. Maneri- listing and advertising of home in violation of local zoning; failure to disclose ownership interest; fraudulent practice defined; breach of fiduciary duty, untrustworthiness and incompetence, revocation; Realtor (LIBOR) ethics decision not considered as no showing whether hearing is fair and provided due process

135 DOS 07 DOS v. Kaleck- broker misconduct, untimely request for adjournment (19 NYCRR §400.11); false advertising of Century 21 Franchisee; after injunction; misrepresentation; refused to release principal from listing agreement; failure to keep appointment and misstated that home off the market; suit for unearned commission; failure to cooperate in investigation; failure to pay judgment without proof of inability to do so; predatory conduct; revocation

1163 DOS 07 Matter of Posa- Broker; fraudulent advertisement; false statement on renewal; failure to reveal revocation of insurance license; false advertisement stating a NYS broker is associated with ads without broker consent; fraudulent inducement to make deposits; failure to refund deposits; failure to pay judgment; commingling funds; untrustworthy action as insurance broker; tends to establish unfitness; revocation and requirement to pay judgment if ever reapplies for real estate license

870 DOS 08 Matter of David – salesperson; advertising on Craig’s List without broker consent; dismissal, as was office policy to do so and no showing of requirement of prior knowledge of broker; misrepresentation of rent in advertisement; improper direct receipt by salesperson (RPL 442-a); failure to use escrow account (RPL 175.1); unlicensed name (RPL §441[1][a]); revocation; no reapplication unless refund $300 plus interest

1183 DOS 08 Matter of Taylor – broker; failure to identify ownership interest in listing (175.6); dishonest and misleading advertising (RPL 441-c); failure to provide property condition disclosure statement and advise of rights (RPL 462 and RPL 466); revocation and no reapply until refund $4,000 with interest

1293 DOS 08 Matter of Delly – unlicensed activity; insufficient evidence of collection of commission; improper advertising 175.25; fraud re: compliance with building code; fraudulent practices

1411 DOS 08 Matter of MetroWorld Realty – broker; improper internal advertisement as “real estate consultant;” failure to maintain sign RPL 441-a(3); improper advertising of listed with firm that is not listing broker (175.10); failure to supervise (175.21[a]), but absence due to medial reasons is mitigating factor; reprimand of broker; revoke license of associate broker

262 DOS 09 Matter of Galligan – broker; relative of seller; failure to disclose material defects; misleading advertising; agency disclosure; discouraged home inspection charge dismissed; failure to properly supervise; $2,000 fine and license had lapsed; $500 fine re: sales associate

264 DOS 09 Matter of Binder – dismissal of charge of unauthorized advertisement; apparent agency

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First quarter Legal Lines now available

The first quarter 2018 edition of NYSAR’s Legal Lines is now available online at NYSAR.com. This edition covers commission issues, a New York State Supreme Court ruling on unsigned letters not creating a contract, support animals and more. Learn more

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