(a)(1) No broker or salesperson shall induce or attempt to induce an owner to sell or lease any residential property or to list same for sale or lease by making any representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, national origin, age, sex, sexual orientation, disability, gender identity, military status, familial status or any other protected category under any Federal, State or local law applicable to the activities of real estate licensees in New York State.

(2)(i) No licensed real estate broker or salesperson shall solicit the sale, lease, or the listing for sale or lease of residential property after such licensee has received written notice from an owner thereof that such owner or owners do not desire to sell, lease, or list such property.

(ii) Notice provided under the provisions of this subdivision to a real estate broker shall constitute notice to all associate brokers and salespersons who are employed by the real estate broker.

(3)(i) No licensed real estate broker or salesperson shall solicit the sale, lease, or the listing for sale or lease of residential property from an owner of residential property located in a designated cease-and-desist zone if such owner has filed a cease-and-desist notice with the Department of State indicating that such owner or owners do not desire to sell, lease, or list their residential property and do not desire to be solicited to sell, lease, or list their residential property.

(ii) The following geographic areas are designated as cease-and-desist zones, and, unless sooner redesignated, the designation for the following cease-and-desist zones shall expire on the following dates:

Within the County of Bronx as follows:

The sections of the area of land in the County of Bronx, City of New York, within the neighborhood commonly referred to as Country Club, and more specifically bounded by and described as follows:

All the land west of the Eastchester Bay south of Griswold Avenue to Bruckner Expressway; thence southerly along the Bruckner Expressway/Throgs Neck Expressway to Layton Avenue; then easterly to the Eastchester Bay.

Within the County of Queens as follows:

The sections of the area of land in the County of Queens, City of New York, within the neighborhood commonly referred to as College Point, and more specifically bounded by and described as follows:

Beginning at the intersection of interstate 678 and the East River; thence southerly along interstate 678 to the intersection of interstate 678 and 14th Avenue; thence westerly along 14th Avenue to College Point Boulevard; thence southerly along College Point Boulevard to 28th Avenue; thence westerly to Flushing Bay; thence northeasterly along Flushing Bay and the East River to the point of the beginning.

The sections of the area of land in the County of Queens, City of New York, within the neighborhoods commonly referred to as: Bay Side, Bay Terrace and Murray Hill, and more specifically bounded by and described as follows:

Beginning at the intersection of the Cross Island Parkway and 149th Street; thence southerly along 149th Street to 46th Avenue; thence easterly along 46th Avenue and continuing along Hollis Court Boulevard to interstate 495; thence easterly along interstate 495 to the Cross Island Parkway; thence northerly along the Cross Island Parkway to the point of the beginning.]

Within the County of Rockland as follows:

The area of land situated in the County of Rockland that currently comprises the Incorporated Village of Chestnut Ridge in its entirety. The Village of Chestnut Ridge is more specifically located within the Town of Ramapo, north of the State of New Jersey and the Town of Orangetown; east of the Village of Airmont; south of the Village of Spring Valley; and west of the Towns of Clarkstown and Orangetown.

Within the County of Kings as follows:

Beginning at the Queens border of Brooklyn to the east and the intersection of Jamaica Avenue to the north; thence westerly along Jamaica Avenue to Pennsylvania Avenue; thence southerly along Pennsylvania Avenue to Sutter Avenue; thence westerly on Sutter Avenue to Van Sinderen Avenue to the west; thence southerly along Van Sinderen Avenue to Linden Boulevard to the south; thence easterly along Linden Boulevard to the Queens border; thence northerly along the border to the point of the beginning on Jamaica Avenue.

(iii) The names and addresses of owners who have filed a cease-and-desist notice with the Department of State shall be compiled according to the street address for each cease-and-desist zone. Following the first compilation of a list, the list shall be revised and updated annually on or before December 31st. Individual lists shall be identified by geographic area and year.

(iv) A copy of each cease-and-desist list shall be available for inspection at the following offices of the Department of State:

Department of State Division of Licensing Services 99 Washington Avenue Albany, New York 12231-0001

Department of State Division of Licensing Services State Office Building Annex 164 Hawley Street Binghamton, New York 13901-4053

Department of State Division of Licensing Services 65 Court Street Buffalo, New York 14202-3471

Department of State Division of Licensing Services Hughes State Office Building Syracuse, New York 13202-1428

Department of State Division of Licensing Services State Office Building Veterans Memorial Highway Hauppauge, New York 11788-5501

Department of State Division of Licensing Services 123 William Street New York, New York 10038-3804

(v) The cost of each list compiled pursuant to this subdivision shall be $10 and shall be available upon written request to the following address:

Department of State Division of Licensing Services 123 William Street New York, New York 10038-3804

(vi) The original cease-and-desist notice shall be filed with the Department of State’s Division of Licensing Services at 123 William Street, New York, New York 10038-3804, and shall be available for public inspection and copying upon written request and appointment.

(vii) For the purposes of Real Property Law, section 441-c, it shall not be a demonstration of untrustworthiness or incompetence for a licensee to solicit an owner who had filed a cease-and-desist notice with the Department of State if the owner’s name and address do not appear on the current cease-and-desist list compiled by the Department of State pursuant to subparagraph (iii) of this paragraph.

(4)(i) For the purposes of this subdivision, solicitation shall mean an attempt to purchase or rent or an attempt to obtain a listing of property for sale, for rent or for purchase. Solicitation shall include but not be limited to use of the telephone, mails, delivery services, personal contact or otherwise causing any solicitation, oral or written, direct or by agent:

(a) to be delivered or presented to the owner or anyone else at the owner’s home address;

(b) to be left for the owner or anyone else at the owner’s home address; or

(c) to be placed on any vehicle, structure or object located on the owner’s premises.

(ii) Solicitation shall not include classified advertising in regularly printed periodicals that are not primarily real estate related; advertisements placed in public view if they are not otherwise in violation of this subdivision; or radio and television advertisements.

(5) For the purposes of this subdivision, residential property shall mean one-, two- or three-family houses, including a cooperative apartment or condominium.

(b) No real estate broker or salesperson shall engage in an unlawful discriminatory practice, as proscribed by any Federal, State or local law applicable to the activities of real estate licensees in New York State. A finding by any Federal, State or local agency or court of competent jurisdiction that a real estate broker or salesperson has engaged in unlawful discriminatory practice in the performance of licensed real estate activities shall be presumptive evidence of untrustworthiness and will subject such licensee to discipline, including a proceeding for revocation. Nothing herein shall limit or restrict the department from otherwise exercising its authority pursuant to section 441-c of the Real Property Law.

1. Statutory authority:

Section 442-h(3)(a) of the New York Real Property Law (“NY RPL”) provides that the Secretary of State (the “Secretary”) may adopt a rule establishing a cease-and-desist zone if the Secretary determines that some homeowners within a defined area are subject to intense and repeated solicitations by real estate brokers, salespersons, or other persons regularly engaged in the trade or business of buying and selling real estate. Upon the establishment of such a zone, the law provides that any homeowner located within the zone may file with the Secretary a statement of desire not to be solicited and may request that the homeowner’s property be included on a list commonly referred to within the real estate industry as a “cease-and-desist list”. Thereafter, the Secretary shall publish a list of names and addresses of the persons who have filed the statement. Once the list is published, brokers, salespersons, and other persons regularly engaged in the trade or business of buying and selling real estate are prohibited from soliciting persons on that list.

Chapter 581 of the Laws of 2021 directed the Secretary to “conduct a public hearing and reasonable investigation of intense and repeated solicitation of owners of residential real property in the county of Kings….” That law further provided: “[if] the secretary of state finds that owners of residential real property within the county of Kings, or any defined geographic area therein are subject to intense and repeated solicitations by real estate brokers and salespersons to place their property for sale with such real estate brokers or salespersons, or otherwise to sell their property, the secretary of state shall adopt a rule in accordance with subdivision 3 of section 442–h of the real property law establishing a cease and desist zone for the county of Kings, or any defined geographic areas therein subjected to such intense and repeated solicitations.”

2. Legislative objectives:

Section 442-h was enacted to protect homeowners within specific areas from intense and repeated solicitations, which were often accompanied by implications that property values will be decreasing due to changes taking place within the community. These changes were often attributed to persons of different ethnic, social, or religious backgrounds moving into specific neighborhoods in greater numbers. In a case upholding the law against a challenge brought against the creation of a cease-and-desist list, the Second Circuit Court of Appeals further explained that the objectives advanced by such lists also include protecting the privacy of homeowners. Anderson v. Treadwell, 294 F.3d 453 (2d Cir. 2002). In Anderson, the court held, inter alia, that “[t]he homeowners’ privacy interest is ‘substantial’ within the meaning of Central Hudson. The Supreme Court has declared that protecting the ‘well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.’ …. The Court has observed that ‘[e]ven solicitation that is neither fraudulent nor deceptive may be pressed with such frequency or vehemence as to intimidate, vex, or harass the recipient....[P]rotection of the public from these aspects of solicitation is a legitimate and important state interest.’. As the District Court noted, the Secretary asserts such a situation here, stating that many homeowners feel ‘harassed, overwhelmed, threatened, and offended by the extensive telephonic, mail, flyers, and personal direct solicitation they receive.’ Accordingly, the interest in protecting homeowners from such harassing solicitations is a substantial state interest.” Anderson, 461–62 (internal quotation marks omitted). Therefore, cease-and-desist lists are also intended to protect homeowners from unwanted solicitations which are intense and repeated so as to offend the well-being, tranquility, and privacy of the home.

When enacting Chapter 581 of the Laws of 2021, the Legislature specifically declared that in “many neighborhoods in Kings County, long-time homeowners have been the subject of increasingly aggressive real estate solicitation, especially in neighborhoods experiencing rapid gentrification.” Moreover, the Legislature found that “due to intense and repeated solicitation of owners of residential real property by real estate brokers, real estate salespersons, and other persons regularly engaged in the trade or business of buying and selling real estate, the rapid establishment of a cease and desist zone is necessary in Kings County.” Chapter 581 of the Laws of 2021.

After holding 2 public hearings within Kings County and receiving substantial evidence from many homeowners, over the course of many months, the Secretary has determined that homeowners within the zone proposed by this rulemaking are subject to the types of solicitations that the cease-and-desist lists are intended to guard against. Accordingly, this rule advances the legislative intent and strengthens the policies sought by enactment of Section 442-h and Chapter 581 of the Laws of 2021.

3. Needs and benefits:

As noted above, Chapter 581 of the Laws of 2021 mandated that the Department hold at least 1 public hearing and investigate whether homeowners in Brooklyn have been subjected to intense and repeated solicitations. On January 11, 2022, via a virtual meeting, and on June 9, 2022, at an in-person meeting at Brooklyn Borough Hall, the Department held public hearings to investigate this issue. These meetings were designed to explore whether some members of the public in the community have been subjected to intense and repeated solicitation by real estate professionals or others regularly engaged in the buying and selling of real estate. Many homeowners, community leaders, and elected officials urged the Secretary to establish a cease-and-desist list due to the amount and the intensity of the solicitations received, and the harassment felt by the homeowners as a result. Prior to the public hearing, and continuing for several months thereafter, the Department gathered significant numbers of mailed solicitations from residents. In addition, the Department created an online survey to explore this issue and received over 1,500 responses in total. Within the defined area proposed by the rule, the Department received 289 responses indicating that homeowners within the proposed zone are subject to intense and repeated solicitations.

Many homeowners and even real estate professionals provided personal observations at the hearings supporting this rule by confirming or describing the aggressiveness of the solicitations within Brooklyn. On January 11, 2022, the incoming President of the Brooklyn Board of Realtors acknowledged there is an aggressive “project” to solicit homeowners within Brooklyn and stated that she has seen what homeowners had complained of (i.e., aggressive and repeated solicitations) but noted that such tactics were being advanced by developers. Confirmation by real estate professionals that there are some aggressive campaigns to solicit homeowners supports, even if by non-licensees, the need for the proposed rule.

Additionally, through the public hearings, the Department received many personal observations of the nature of the aggressive tactics used to solicit homes. In one instance, a homeowner provided a personal story of being repeatedly “harassed” and shared how her elderly mother received phone calls soliciting the sale of her home while she was dying. Others offered examples of solicitations that resembled party invitations or mailings from friends that turned out to be deceptive solicitations.

This proposal therefore fulfills the legislative objective of protecting homeowners from unwanted, repeated and intense solicitations, and is reasonably tailored to fit within the particular area where a need for a cease-and-desist list has been demonstrated. Accordingly, this rule will provide those homeowners who do not wish to be solicited with an effective and practical means of so notifying real estate professionals.

The rulemaking is also necessary to remove reference to cease and desist zones which have already expired and no longer enforceable.

4. Costs:

A. Costs to regulated parties:

Parties affected by this rule include licensed real estate brokers and salespeople, as well as other persons regularly engaged in the trade or business of buying and selling real estate. The Department will make available cease-and-desist lists on its website, at no cost. The Department will also offer “cease-and-desist lists” for $10.00 per paper copy, in accordance with NY RPL § 442-h and 19 NYCRR § 175.17. The Department expects that most professionals will obtain the cease-and-desist lists from the Department’s website at no cost.

If a professional uses the telephone, delivery services or personal contact to solicit residential listings, there may be additional time spent checking the cease-and-desist list to avoid contact with any person who may be on the list. There is, of course, a cost associated with that expenditure of the time taken to check the list. On the other hand, there may be some savings resulting from the elimination of unproductive calls or deliveries. Whether there is a net cost or savings will depend on the circumstances and practices of each business.

There are currently several other zones throughout the State, including Brooklyn, and the Department has not received any information suggesting that compliance with the other zones has been cost prohibitive for any parties.

B. Costs to the Department of State:

The costs for printing and mailing are unknown, in part because it is unknown how many prints are required; it is expected that most business will obtain the cease-and-desist lists from the Department’s website. For those few who want to purchase a paper copy, the Department will likely print a copy, on a per order basis, on existing equipment and using existing resources. Based on prior zones, the Department does not believe that this rule will be cost prohibitive for the Department.

5. Local government mandates:

The rule does not impose any program, service, duty or responsibility upon any county, city, town, village, school district or other special district.

6. Paperwork:

Homeowners who do not want to be solicited will have to file an owner’s statement with the Department. The owner’s statement will indicate the owner’s desire not to be solicited and will set forth the owner’s name and the address of the property located within the cease-and-desist zone. The Department will provide homeowners with a standard form, although use of the form is not mandatory. Owner’s statement forms will be provided to community leaders for distribution to their constituents. In addition, owner’s statement forms will be available from the Department on request. Owners will also be able to fill out a statement electronically on the Department’s website.

Following the effective date of this proposed rule and the 90-day period that follows, the Department will prepare a cease-and-desist list containing the names and addresses of all of the homeowners who have filed an owner’s statement. The list will be available, at no cost, on the Department’s website. Paper copies of the list will also be sold to the public, including real estate professionals; the price will be $10 per copy. Besides the processing of any such requests for paper copies of cease-and-desist lists, which must be submitted by mail, there are no paperwork requirements as a result of this rule.

7. Duplication:

This rule does not duplicate, overlap or conflict with any other state or federal requirement.

8. Alternatives:

The Department did not identify any alternative that would provide relief for homeowners, comply with Chapter 581 of the Laws of 2021 and, at the same time, be less restrictive and less burdensome on the solicitation activities. Consideration was given to expanding the proposed zone to neighboring community boards or all of Kings County, but the Department determined that the record was not developed sufficiently to support such increased zones. For example, many community boards within Brooklyn reported, for the entire board, fewer than 20 complaints from homeowners of unwanted, intense, or repeated solicitations. It is noted, that while NY RPL Section 442-h permits the Department to investigate this issue further and perhaps create a new zone or expand the current proposed zone in the future, such an option does not appear to be a reasonable alternative at this time.

9. Federal standards:

There are no applicable Federal standards directly relating to this rulemaking.

10. Compliance schedule:

The Department expects that a final rule will become effective on July 1, 2023; and a cure period will be in place for 90 days after such effective date. These timeframes will allow sufficient time for homeowners to file their owner’s statements with the Department, and for others impacted by the rule to comply with its terms. Accordingly, enforcement for possible violations of the rule would not commence until at least September 29, 2023. This schedule is consistent with similar zones previously established by the Secretary.

1. Effect of rule:

This rule would create a cease and desist zone to permit homeowners within a designated area of Kings County (i.e., Brooklyn, NY) to file an Owner’s Statement with the Department of State indicating that they do not wish to be solicited to sell or list their property for sale. Real estate licensees, and those regularly engaged in the business of buying or selling property, would then be prohibited from soliciting a property listing from those residents. The cease and desist zone would be limited to homeowners within a portion of Community Board 17 which is situated within Kings County.

This rule will apply to all real estate licensees and those regularly engaged in the business of buying or selling property but would primarily affect approximately 10,000 real estate license holders with offices located in Kings County. Many of these licensees are small businesses or are associated with small businesses. Real estate brokers and salespersons will remain free, however, to solicit listings from those residents in the defined zone who have not filed Owner’s Statements with the Department of State, and to otherwise participate in regulated transactions within the zone. Considering the past creation of other cease and desist zones, including the existing zone within Kings County, the Department does not anticipate that the solicitation limitations will place an undue financial burden or impose a hardship on real estate brokers, salespersons, or persons engaged in the business of buying or selling real estate.

The rule does not apply to local governments.

The rule also removes references to cease and desist zones which are now expired and no longer enforceable.

2. Compliance requirements:

The Department of State publishes and makes available a list of residents within a cease and desist zone who have notified the Department that they do not wish to be solicited by real estate professionals. These cease and desist lists are made available to any member of the public and are available electronically at no cost. To comply with the rule, these businesses need only refer to the list prior to soliciting listings from homeowners within the defined cease and desist zone.

3. Professional services:

Small businesses will not need professional services in order to comply with this rule.

4. Compliance costs:

Small businesses will not incur any significant compliance costs associated with this rule. The Department publishes cease and desist lists on its website at no cost. Businesses who desire a hard copy of the lists may notify the Department and receive a copy of the lists by mail for a cost of $10.00.

5. Economic and technological feasibility:

The Department has determined that it will be economically and technologically feasible for small businesses to comply with this rule. Cease and desist lists have been created in past years, including a current zone within Kings County, and the Department finds no reason to believe the businesses will not be able to comply with these requirements again.

6. Minimizing adverse impact:

The Department did not identify any alternative that would provide relief for homeowners, comply with Chapter 581 of the Laws of 2021, and, at the same time, be less restrictive and less burdensome on the solicitation activities. Consideration was given to expanding the proposed zone to neighboring community boards or all of Kings County, but the Department determined that the record was not developed sufficiently to support such increased zones. For example, many community boards within Brooklyn reported, for the entire board, fewer than 20 complaints from homeowners of unwanted, intense, or repeated solicitations. It is noted, that while NY RPL Section 442-h permits the Department to investigate this issue further and perhaps create a new zone or expand the proposed zone in the future, such an option does not appear to be a reasonable alternative at this time.

7. Small business participation:

Prior to proposing this rule, the Department held two public hearings that included speakers on behalf of small business interests. In addition, the Department has received and considered a statement submitted by the New York State Association of REALTORS®, Inc., a professional organization representing many small businesses and licensed professionals.

Additionally, the Department continued to allow for small business participation after its public hearings by keeping the regulatory record open. Finally, publication of the rule in the State Register will also provide additional notice to interested parties; additional comments will be received and considered by the Department during the official comment period for this proposed rule.

8. Compliance schedule:

The proposed cease and desist zone is expected to become effective on July 1, 2023 but the Department is also providing a cure period for those impacted by the rule to comply. This time will also be used to allow homeowners sufficient time to file their owner’s statements with the Department, and for the Department to publish the list of homeowners who do not wish to be solicited.

9. Cure period:

The Department is providing a cure period of 90 days following the adoption and effective date of the final rule in order to permit those impacted by the rule to obtain any lists published by the Department and to adjust their business practices accordingly. After such 90-day cure period, any business or individual subject to this rule who solicits a homeowner that has filed a statement with the Department will be subject to appropriate action pursuant to Article 12-A of the New York Real Property Law and the regulations promulgated thereunder.

1. Effect of rule:

This rule does not apply to rural areas, rather it applies only to a defined geographic area within Kings County (i.e., Brooklyn, NY).

2. Compliance requirements:

This rule, which applies only in a defined area within Kings County, does not impose any reporting or recordkeeping requirements on businesses located within rural areas.

3. Professional services:

Professional services are not needed to comply with this rule.

4. Compliance costs:

The rule does not impose any costs on rural areas.

5. Minimizing adverse impact:

Insofar as the rule does not impose any costs on rural areas, no alternatives to minimize adverse impacts on rural areas were considered by the Department of State.

6. Rural area participation:

Insofar as the rule does not apply in rural areas, rural area participation was not actively solicited by the Department of State.

As is evident by the nature of this rulemaking, this proposal will not have a substantial adverse impact on jobs and employment opportunities. The rule prohibits real estate professionals from soliciting real estate listings from residents of a defined geographic zone who have notified the Department of State that they do not wish to be solicited. Real estate professionals will remain free to solicit other residents within the defined zone and engage in real estate transactions within and outside of the defined geographic area. Similar rules have been promulgated in the past without adversely impacting job opportunities. A zone already exists within Brooklyn and the Department has received no evidence that the same has had any adverse impacts on jobs. Accordingly, for the reasons expressed above, this rule will not adversely impact jobs and employment opportunities.