N.Y. Real Property Law 442-H – Rules of the secretary of state
§ 442-h. Rules of the secretary of state. 1. The secretary of state, and not the state real estate board established under section four hundred forty-two-i of this article, shall adopt such rules and regulations as the secretary of state may determine are necessary for the administration and enforcement of this section.
Terms Used In N.Y. Real Property Law 442-H
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- real estate broker: means any person, firm, limited liability company or corporation, who, for another and for a fee, commission or other valuable consideration, lists for sale, sells, at auction or otherwise, exchanges, buys or rents, or offers or attempts to negotiate a sale, at auction or otherwise, exchange, purchase or rental of an estate or interest in real estate, or collects or offers or attempts to collect rent for the use of real estate, or negotiates or offers or attempts to negotiate, a loan secured or to be secured by a mortgage, other than a residential mortgage loan, as defined in § 590 of the banking law, or other incumbrance upon or transfer of real estate, or is engaged in the business of a tenant relocator, or who, notwithstanding any other provision of law, performs any of the above stated functions with respect to the resale of condominium property originally sold pursuant to the provisions of the general business law governing real estate syndication offerings. See N.Y. Real Property Law 440
- Real estate salesperson: means a person associated with a licensed real estate broker to list for sale, sell or offer for sale, at auction or otherwise, to buy or offer to buy or to negotiate the purchase or sale or exchange of real estate, or to negotiate a loan on real estate other than a mortgage loan as defined in § 590 of the banking law, or to lease or rent or offer to lease, rent or place for rent any real estate, or collects or offers or attempts to collect rent for the use of real estate for or in behalf of such real estate broker, or who, notwithstanding any other provision of law, performs any of the above stated functions with respect to the resale of a condominium property originally sold pursuant to the provisions of the general business law governing real estate syndication offerings. See N.Y. Real Property Law 440
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
2. (a) If, after a public hearing and a reasonable investigation, the secretary of state determines that the owners of residential real property within a defined geographic area are subject to intense and repeated solicitations by real estate brokers and salespersons or others to place their property for sale with such real estate brokers or salespersons, or otherwise to sell their property, and that such solicitations have caused owners to reasonably believe that property values may decrease because persons of different race, ethnic, social, or religious backgrounds are moving or are about to move into the neighborhood or geographic area, the secretary of state may adopt a rule, to be known as a nonsolicitation order, directing all real estate brokers, salespersons and other persons regularly engaged in the trade or business of buying and selling real estate to refrain from soliciting residential real estate listings or otherwise soliciting the sale of residential real estate within the subject area. Each area subject to such an order shall be bounded or otherwise specifically defined in the order. The nonsolicitation order shall be subject to such terms and conditions as the secretary of state may determine are, on balance, in the best interest of the public, including but not limited to the affected owners and licensees. A nonsolicitation order may prohibit any or all types of solicitation directed towards particular home-owners, including but not limited to letters, postcards, telephone calls, door-to-door calls, and handbills. Every nonsolicitation order shall contain a provision setting forth the day, month and year that the order shall become effective, as well as the day, month and year that the order shall expire. A nonsolicitation order shall not be effective for more than five years. However, a nonsolicitation order and the boundaries of the area where it applies may be re-adopted or amended from time to time in accordance with the procedures set forth herein.
(b) No real estate broker shall establish a new principal office or branch office within any geographic area which is the subject of a nonsolicitation order without prior approval from the secretary of state. The secretary of state may deny any application for the establishment or relocation of a principal office or branch office if approval of the application would cause the total number of principal and branch offices within the subject area to exceed the total number of principal and branch offices that were licensed within the area on the date the nonsolicitation order became effective.
3. (a) If the secretary of state determines that some owners of residential real property within a defined geographic area are subject to intense and repeated solicitation by real estate brokers and salespersons to place their property for sale with such real estate brokers or salespersons, or are subject to intense and repeated solicitation by other persons regularly engaged in the trade or business of buying and selling real estate to sell their real estate, the secretary of state may adopt a rule establishing a cease and desist zone, which zone shall be bounded or otherwise specifically defined in the rule. After the secretary of state has established a cease and desist zone, the owners of residential real property located within the zone may file an owner's statement with the secretary of state expressing their wish not to be solicited by real estate brokers, salespersons or other persons regularly engaged in the trade or business of buying and selling real estate. The form and content of the statement shall be prescribed by the secretary of state. After a cease and desist zone has been established by the secretary of state, no real estate broker, salesperson or other person regularly engaged in the trade or business of buying and selling real estate shall solicit a listing from any owner who has filed a statement with the secretary of state if such owner's name appears on the current cease and desist list prepared by the secretary of state. The prohibition on solicitation shall apply to direct forms of solicitation such as the use of the telephone, the mail, personal contact and other forms of direct solicitation as may be specified by the secretary of state.
(b) The secretary of state shall compile a cease and desist list for each zone established pursuant to paragraph (a) of this subdivision. In addition to such other information as the secretary of state may deem appropriate, each cease and desist list shall contain the name of each owner who has filed an owner's statement with the secretary, as well as the address of the property within the zone to which the owner's statement applies. The secretary of state shall send to each owner who has filed an owner's statement a written acknowledgement of the secretary of state's receipt thereof and a pamphlet explaining to the owner his or her rights in connection therewith and the procedures and time limits applicable to the filing of complaints for violations. The secretary of state shall allow an owner who files, or on behalf of whom is filed, a complaint or other report of a violation of a cease and desist rule ninety days in which to perfect a complaint by submitting such other or further information or documents as the secretary of state may require. The secretary of state shall print a list for each zone. Each list shall be revised and reprinted at least annually on or before December thirty-first and shall be made available to the public and to real estate brokers at a reasonable price to be set by the secretary of state and approved by the director of the division of the budget. Additions or deletions shall be made to each list only at the time the list is reprinted, and the secretary of state shall not issue amendments or addenda to any printed list.
(c) No rule establishing a cease and desist zone shall be effective for longer than five years. However, the secretary of state may re-adopt the rule to continue the cease and desist zone for additional periods not to exceed five years each. Whenever a rule establishing a cease and desist zone shall have expired or shall have been repealed, all owner's statements filed with the secretary of state pursuant to that rule shall also expire. However, an owner may file a new statement with the secretary of state if a new rule is adopted establishing a cease and desist zone containing the owner's property. Once the boundaries of a cease and desist zone have been established by rule of the secretary of state, the boundaries may not be changed except by repeal of the existing rule and adoption of a new rule establishing the new boundaries.
4. (a) Each real estate broker shall institute standardized operating procedures for the prerequisites prospective homebuyers must meet prior to receiving any services. Such standardized operating procedures shall include but not be limited to the following:
(i) whether prospective clients shall show identification;
(ii) whether an exclusive broker agreement is required;
(iii) whether pre-approval for a mortgage loan is required; and
(iv) any other such standardized operating procedures as the secretary of state shall determine by regulation and upon notice and public hearing.
(b) Real estate brokers shall date stamp, notarize and post such standardized operating procedures on any publicly available website and mobile device application they maintain, shall make a copy of such procedures available to the public upon request at their office locations, and shall maintain a file of such standardized operating procedures while the broker's license is active. Any website or mobile device application maintained by a team or a real estate salesperson should also have the brokers' policies posted or have a direct link from such website or mobile device application to the brokers' website or mobile device application. If any alterations are made to the standardized operating procedures subsequent to such posting, real estate brokers shall date stamp, notarize and post such new standard operating procedures on any publicly available website or mobile device application they maintain within thirty days, and archive such alterations. Any broker or salesperson operating under a brokerage license that fails to adhere to such operating procedures shall be subject to the penalties imposed by section four hundred forty-one-c of this article.
(c) Any time a real estate broker is required to renew their license they must affirm to the department of state that they are in compliance with the requirements of this subdivision related to standardized operating procedures.