Updates & Facts on Broker Commissions

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UPDATE

  • As you are aware, Tuesday's Guidance from the New York Department of State argues that a landlord’s agent cannot be compensated by a prospective tenant.
  • The media headlines on this Guidance have been misleading and do not accurately reflect the law or its narrow focus. 
  • REBNY is aggressively pushing back to ensure the correct message is shared with New Yorkers. 
  • We know how unsettling this news is to many of you and your businesses. We are advocating on your behalf. 


KNOW THE FACTS

WHAT IS PERMITTED:

  • A landlord’s agent can still collect a brokerage commission from a landlord.
  • A tenant’s agent can collect a brokerage commission from a tenant.
    • The agent is also able to collect an application fee exceeding $20 when representing a tenant as noted by DOS’ previous Guidance.


WHAT IS NOT PERMITTED:

  • The Guidance is not intended to apply retroactively.
  • The current DOS Guidance states that a landlord’s agent cannot collect a brokerage commission from the tenant.
  • The DOS suggests that this Guidance takes effect immediately.
    • To this end, a real estate broker that is the agent of the landlord (pursuant to this Guidance) should not collect a brokerage fee from the tenant until further clarity is provided.


ACTIONS REBNY IS TAKING

REBNY is: 

  • Exploring legal actions to challenge the DOS Guidance
  • Joining forces with other real estate associations statewide 
  • Keeping all members updated via email and social media
  • Asking members to take action


ACTIONS YOU CAN TAKE

The Department of State should hear directly from agents whose livelihoods will be severely impacted by this troubling Guidance of the law. Please sign your name and let your voice be heard!

  • Send an email to the Department of State at licensing@dos.ny.gov. You can use the below template and incorporate your own words. 

Department of State,

I am writing to express to the Department of State concerns regarding the most recent Guidance on broker commissions. I respectfully urge DOS to reverse its Guidance of the recent rent laws, especially given the dramatic impacts it will have on agents, owners, and renters throughout the state.  

  • Call the DOS at 518-474-4429. After selecting language preference, press 4 to speak to a representative. Talking points:

This Guidance demonstrates a fundamental misunderstanding as to how the rental real estate market currently operates — a market that works for the benefit of consumers. 

Real estate licensees are no longer going to represent landlords if they are not getting paid for their work. The way the Guidance is drafted creates an incentive for agents to only represent tenants.

Tenants and landlords may choose not to use an agent. That is a bad thing since a real estate licensee is generally the most knowledgeable party about rentals (particularly in small transactions).

This Guidance will result in higher rents for free market leases since landlords will put the cost of commissions into rent increases. Not only will rents be higher, but it will be compounded in subsequent years of lease terms (where broker fees are paid only once).

This hurts tenants who often negotiate these fees. Landlords will now immediately treat it as a passthrough now that this negotiating point has been removed. 

  • Post on Twitter & Facebook with the following message:
    "As a real estate professional who cares about NYC, I oppose @NYSDOS's Guidance on rental broker fees. If enacted, it would negatively impact consumers, residential brokers and tenants. I respectfully urge DOS to reverse course."


Your participation is crucial. If you have any questions, please contact governmentaffairs@rebny.com.