N.Y. Real Property Law Section 294-B
Recording brokers affidavit of entitlement to commission for completed brokerage services


1.

A duly licensed real estate broker who asserts that he or she has produced a person who was ready, able and willing to purchase or lease all or any part of a parcel of real property or any interest in a cooperative apartment pursuant to a written or oral contract of brokerage employment between the owner of said parcel of real property or interest in a cooperative apartment and such broker, and who asserts that such person or a party acting on his or her behalf subsequently contracted to purchase or lease, or did purchase or lease such real property or any part thereof, or any interest in a cooperative apartment and who asserts that he or she is entitled to a commission pursuant to such written or oral contract, may file an affidavit of entitlement to commission for completed brokerage services in the office of the recording officer of any county in which any of the real property is situated.

2.

Such affidavit shall include:

(i)

the name and license number of the broker claiming the commission;

(ii)

the name of the seller or person responsible for commission;

(iii)

the name of the person authorizing the sale on behalf of the seller, if any, and the date of such authorization;

(iv)

a copy of the written agreement, if any;

(v)

a description of the real property or interest in the cooperative apartment involved;

(vi)

the amount of commission claimed;

(vii)

a description of the brokerage services performed; and

(viii)

the dates thereof. Recording such affidavit shall not invalidate any transfer of real property or lease thereof. Such affidavit shall not be deemed to create a lien and shall be discharged one year after filing.

3.

Upon receipt by the county clerk of a broker’s affidavit of entitlement to commission for completed brokerage services for the purpose of recording, entering and indexing, the clerk shall record such affidavit in the lien docket and shall note thereon that such notice does not constitute a lien nor shall it invalidate any transfer or lease. In payment for said services the county clerk shall be entitled to receive a fee equivalent to that received for recording a deed and pages thereof.

4.

(a) Within five business days after filing the affidavit of entitlement, the broker shall serve a copy of such affidavit, along with the fee required pursuant to paragraph (c) of subdivision five of this section, upon the seller by registered or certified mail, return receipt requested or by personal delivery, to the address set forth in the written contract of brokerage employment. If the delivery of the deed or delivery of the stock certificate and/or proprietary lease will occur in five business days or less from the filing of the affidavit of entitlement, then the broker shall personally deliver a copy of the affidavit of entitlement to the seller. Where there is more than one seller, service upon one seller shall be deemed sufficient to meet the requirements of this paragraph. Failure to serve the affidavit of entitlement upon the seller pursuant to this paragraph shall cause a forfeiture of the broker’s rights under subdivision five of this section. In the event the seller fails to deposit any monies pursuant to paragraph (a) of subdivision five of this section, the seller shall immediately return the fee provided by the broker. (b) If the seller is represented by an attorney and has provided the attorney’s contact information to the broker prior to the filing of the affidavit of entitlement, the broker shall provide a copy of the affidavit of entitlement to the seller’s attorney via mail, facsimile, e-mail, personal delivery or any other agreed upon method within five business days of the filing of the affidavit of entitlement. Failure to deliver a copy of the affidavit of entitlement to the seller’s attorney pursuant to this paragraph shall not cause a forfeiture of the brokers rights under subdivision five of this section.

5.

(a) Whenever an affidavit of entitlement by a duly licensed real estate broker, which includes a written contract of brokerage employment containing the notices set forth in paragraph (j) of this subdivision, has been recorded pursuant to this section prior to the delivery of a deed in connection with a sale of all or any part of a parcel of real property, or delivery of the stock certificate and/or proprietary lease in connection with the sale of a cooperative apartment, and the broker does not receive the compensation called for under the terms of such written contract at or prior to the delivery of the deed or delivery of the stock certificate and/or proprietary lease, the lesser of the net proceeds of the sale or the amount of the unpaid portion of the compensation agreed to in such written contract shall be deposited by the seller, at the time of delivery of the deed or delivery of the stock certificate and/or proprietary lease, with the recording officer in whose office such affidavit of entitlement had been recorded. (b) In the event multiple affidavits of entitlement are filed in connection with a sale of real property or any interest in a cooperative apartment pursuant to this section, the seller shall be obligated to deposit an amount equal to the lesser of the net proceeds of the sale or the greatest amount of the unpaid portion of the compensation agreed to in the written contracts of brokerage employment attached to the multiple affidavits of entitlement. (c) Upon deposit of any monies pursuant to paragraph (a) of this subdivision, the recording officers shall be entitled to receive a fee of twenty-five dollars, which shall be paid by the real estate broker. The real estate broker shall make the twenty-five dollar fee payable to the recording officer in such form of payment that is accepted by the recording officer. (d) The monies deposited with the recording officer pursuant to this subdivision shall be held pursuant to subdivision (b) of Civil Practice Law & Rules Law § 2601 (Payment of money or securities into court)section twenty-six hundred one of the civil practice law and rules until the rights of the seller and broker to such monies have been determined by order of a court of competent jurisdiction as provided in this paragraph. All deposits of money pursuant to this subdivision shall be deemed paid into court and shall be subject to the provisions of article twenty-six of the civil practice law and rules, except as otherwise provided in this subdivision. An order for the payment of such monies to the broker or seller may be made in any action or proceeding determining or declaring the entitlement, if any, of the broker to compensation under the written contract of brokerage employment recorded with the affidavit of entitlement or as otherwise provided in rule twenty-six hundred six of the civil practice law and rules or, whether or not an action or proceeding has been commenced, may be based upon a stipulation signed by the seller and the broker. Any application for an order pursuant to this paragraph made by the broker or the seller shall be on motion with notice to the other party, except that an application based upon a stipulation signed by the seller and the broker may be submitted without notice if the stipulation so provides. (e) If neither the broker nor the seller commences an action or proceeding described in paragraph (d) of this subdivision within sixty days from the day of deposit of monies pursuant to paragraph (a) of this subdivision, which time limit shall not be extended, the seller, upon petition, shall be entitled to an order directing the payment to the seller of such monies out of court, including any accrued interest thereon, less any fees to which any public officer may be entitled pursuant to law, but such an order shall not be deemed to determine the broker’s claim for a commission. (f) Notwithstanding any other provision of law to the contrary, upon the seller making the deposit required by paragraph (a) of this subdivision, any action or proceeding based upon the contractual obligation to pay a commission under the contract of brokerage of employment shall be commenced by the broker within six months of the deposit of the monies pursuant to paragraph (a) of this subdivision. (g) The obligation to deposit monies pursuant to this subdivision or the seller’s failure to do so shall not constitute or be deemed to create a lien or encumbrance against any real property. Any violation of this subdivision shall not invalidate any transfer of real property. (h) In any action or proceeding commenced pursuant to this subdivision when the seller has not made the deposit required by this subdivision, and it is determined by a court that the broker is entitled to compensation pursuant to the written contract of brokerage employment, the broker shall be awarded costs, including the fee paid pursuant to paragraph (c) of this subdivision, and reasonable attorneys’ fees.

(i)

Nothing in this subdivision shall be construed to prohibit a broker from waiving a seller’s obligation to deposit money under this subdivision, provided such waiver is set forth in an instrument signed by or on behalf of the broker. Such instrument may be a written contract of brokerage employment or any other instrument. (j) The provisions of this subdivision shall only apply when the written contract of brokerage employment contains the following statement to the seller in clear and conspicuous bold face type: “At the time of closing, you may be required to deposit the broker’s commission with the county clerk in the event that you do not pay the broker his or her commission as set forth herein. Your obligation to deposit the broker’s commission with the county clerk may be waived by the broker.” (k) The provisions of this subdivision shall only apply to real property improved by a one to four family dwelling and to individual condominium units and individual cooperative apartments where the one to four family dwelling, condominium unit or cooperative apartment is used or occupied, or intended to be used or occupied, wholly or partly, as the home or residence of one or more persons.

Source: Section 294-B — Recording brokers affidavit of entitlement to commission for completed brokerage services, https://www.­nysenate.­gov/legislation/laws/RPP/294-B (updated Sep. 22, 2014; accessed Oct. 26, 2024).

290
Definitions
291
Recording of conveyances
291‑A
Recording conveyances of land in towns in Chautauqua county
291‑B
Recording conveyances of land in towns in Cattaraugus county
291‑C
Recording memoranda of leases
291‑CC
Recording modifications of leases
291‑D
Recording of master forms of mortgage covenants and clauses
291‑E
Exceptions, reservations and recitals referring to unrecorded conveyances and contracts for sale of real property
291‑F
Rights where recorded mortgage restricts landlord’s action in respect to leases
291‑G
Recording insurance information
291‑H
Recording of liens by the state
291‑I
Validity of electronic recording
291‑J
Recording of declarations by the New York state energy research and development authority
292
By whom conveyance must be acknowledged or proved
292‑A
Conveyances by certain corporations executed and acknowledged by attorneys in fact entitled to recordation
293
Recording of conveyances heretofore acknowledged or proved
294
Recording executory contracts and powers of attorney
294‑A
Recording assignments of rent
294‑B
Recording brokers affidavit of entitlement to commission for completed brokerage services
295
Recording of letters patent
296
Recording copies of instruments which are in secretary of state’s office
297
Certified copies may be recorded
297‑A
Recording of certified copies of bankruptcy papers
297‑B
Recording of certified copies of judgments affecting real property
298
Acknowledgments and proofs within the state
299
Acknowledgments and proofs without the state, but within the United States or any territory, possession, or dependency thereof
299‑A
Acknowledgment to conform to law of New York or of place where taken
300
Acknowledgments and proofs by persons in or with the armed forces of the United States
301
Acknowledgments and proofs in foreign countries
301‑A
Acknowledgment to conform to law of New York or of foreign country
302
Acknowledgments and proofs by married women
303
Requisites of acknowledgments
304
Proof by subscribing witness
305
Compelling witnesses to testify
306
Certificate of acknowledgment or proof
307
When certificate to state time and place
308
When certificate must be under seal
309
Acknowledgment by corporation and form of certificate
309‑A
Uniform forms of certificates of acknowledgment or proof within this state
309‑B
Uniform forms of certificates of acknowledgement or proof without this state
310
Authentication of acknowledgments and proofs made within the state
311
Authentication of acknowledgments and proofs made without the state
312
Contents of certificate of authentication
313
Notary public
313‑A
Deputies
314
Recording of conveyances acknowledged or proved without the state, when parties and certifying officer are dead
314‑A
Proof when witnesses are dead
315
Recording books
316
Indexes
316‑A
Indexing and reindexing conveyances, mortgages and other instruments
316‑B
Inactive hazardous waste disposal site registry index
317
Order of recording
318
Certificate to be recorded
319
Time of recording
320
Certain deeds deemed mortgages
321
Recording discharge of mortgage
321‑A
Recording discharge of rent assignment
324
Effect of recording assignment of mortgage
325
Recording of conveyances made by treasurer of Connecticut
326
Revocation to be recorded
327
Penalty for using long forms of covenants
328
Certain acts not affected
329
Actions to have certain instruments canceled of record
329‑A
Lapse of oil and gas interest within Allegany state park
330
Officers guilty of malfeasance liable for damages
331
Laws and decrees of foreign countries appointing agents and attorneys and recording of the same
332
The record of certain conveyances validated
332‑A
Validation of the record, execution and proof or acknowledgment of certain other instruments
332‑B
The record of certain other conveyances validated
333
When conveyances of real property not to be recorded
333‑A
Same
333‑B
Recording of maps or plot plans
333‑C
Lands in agricultural districts
334
Maps to be filed
334‑A
Filing of subdivision maps in Nassau county
335
Filing of maps and abandonment of subdivisions in Suffolk county
335‑A
Easements of necessity
335‑B
Recording of solar energy easements
336
Effect of recording demands or requirements of noncitizen property custodian

Accessed:
Oct. 26, 2024

Last modified:
Sep. 22, 2014

§ 294-B’s source at nysenate​.gov

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