Subagency Versus a Broker's Agent in New York

A broker's agent is a different statutory role. This outside agent assists a listing agent, buyer's agent or tenant's agent, has no direct relationship with the ultimate seller, buyer, landlord or tenant, and takes direction from the engaging agent.

The difference at a glance

The fastest exam method is to ask whether the outside broker became an agent of the principal or instead became an agent assisting another agent.

Official source map

The New York State Department of State's 77-hour salesperson curriculum expressly requires study of subagency, the relationship between a principal and subagent, obligations to seller and buyer, whether brokerage can occur without subagency, and the broker's-agent role.

Real Property Law section 443 mentions seller and landlord subagents within its seller's-agent and landlord's-agent definitions. The statute separately defines a broker's agent and states the role's direction, direct-relationship and vicarious-liability consequences.

Section 443 does not provide a full statutory definition of subagency. Common-law agency therefore supplies important parts of that analysis. The statute expressly says it does not limit or alter common-law agency in residential transactions.

These sources were checked on August 27, 2026. Pending proposals were not treated as enacted law.

Start with the agency chain

Agency begins when a principal authorizes an agent to act on the principal's behalf and subject to the principal's control. A subagent adds another level:

1. The principal authorizes the original agent.
2. The original agent has authority to appoint or engage a subagent.
3. The subagent acts for the same principal within the delegated scope.

The original agent cannot create unlimited authority by merely calling another broker a subagent. Appointment must fit the authority granted by the principal and the actual arrangement.

In a traditional seller-subagency example, the seller authorizes the listing broker to appoint cooperating subagents. An outside broker accepts that role and works to find a buyer for the seller. The seller is the principal of both the listing agent and the subagent. The buyer is not the subagent's client.

What a subagent owes the principal

Because the subagent acts for the principal, the subagent owes fiduciary duties within the subagency. In the seller example, those duties run to the seller, not the buyer who happens to work with or arrive through the subagent.

The duties include:

• reasonable care
• undivided loyalty
• confidentiality
• full disclosure
• obedience to lawful instructions within authority
• accounting for entrusted money or property

The subagent should protect the seller's confidential negotiation information, communicate material information to the seller's agency chain and avoid acting against the seller's interests.

The buyer still receives honest, fair and good-faith dealing, reasonable skill and care and the disclosures required by law. “Not my client” never means permission to mislead.

Why subagency creates risk for an unrepresented buyer

A buyer may spend considerable time with a cooperating broker and assume that broker is protecting the buyer. Under seller subagency, that assumption is wrong. The broker represents the seller.

Suppose a buyer tells the subagent:

• the maximum price the buyer can pay
• that the buyer must move immediately
• that the buyer would waive a preferred term
• that the buyer will increase the offer if necessary

The buyer should not expect the seller's subagent to protect that information as the buyer's fiduciary. The subagent's loyalty and disclosure duties run to the seller, subject to law and the actual facts.

Accurate agency disclosure is therefore essential. A licensee should identify the role before inviting a consumer to share private negotiating information.

Subagency is not required for cooperation

Brokerages can cooperate without subagency. An outside broker may represent the buyer, act as a broker's agent or perform another lawfully disclosed role.

The Department curriculum specifically asks whether brokerage can be conducted without subagency. The answer is yes. Modern transactions often involve a seller's agent on one side and a buyer's agent on the other.

Avoid inferring subagency from any single fact such as:

• access to a listing
• membership in a multiple listing service
• showing another broker's listing
• communicating with the listing agent
• an offer of compensation
• receiving transaction information

The agency relationship depends on authorization, agreement, disclosure and conduct. Payment and cooperation are relevant facts, but neither alone identifies the principal.

What is a broker's agent?

Real Property Law section 443 gives “broker's agent” a specialized meaning. The broker's agent:

• cooperates with or is engaged by a listing agent, buyer's agent or tenant's agent
• works for a different firm from that engaging agent
• assists the engaging agent in locating property, a buyer or a tenant for the engaging agent's client
• has no direct relationship with the ultimate seller, buyer, landlord or tenant
• takes direction and instruction from the engaging agent

The apostrophe matters. “Broker's agent” means an agent of another broker or agent in this statutory structure. It is not a casual label for every salesperson who works at a brokerage.

A broker's agent can assist either side

Students sometimes assume a broker's agent always helps the listing side. Section 443 is broader.

Listing-side broker's agent

A listing agent may engage an outside broker's agent to help locate a buyer for a seller or a tenant for a landlord. The broker's agent assists the listing agent rather than forming a direct relationship with the seller or landlord.

Buyer-side broker's agent

A buyer's agent may engage an outside broker's agent to help locate property for the buyer. The outside agent assists the buyer's agent and does not form a direct relationship with the buyer.

Tenant-side broker's agent

A tenant's agent may engage an outside broker's agent to help locate a rental for the tenant. The tenant's agent gives the direction, not the tenant directly.

In each version, trace the relationship to the agent who engaged the broker's agent.

Direction is the clearest broker's-agent clue

Section 443 expressly says the ultimate seller, buyer, landlord or tenant cannot provide instructions or direction directly to the broker's agent. The listing agent, buyer's agent or tenant's agent provides that direction.

Example: A buyer's agent engages a broker's agent from another firm to search a specialized property market. The buyer wants to change the search area. The buyer communicates the change through the buyer's agent, which then directs the broker's agent.

If an exam fact says the ultimate client directly controls the outside agent, examine whether the stated broker's-agent label matches the actual relationship. Legal relationships follow substance, not a convenient label.

Liability follows the direction structure

Section 443 pairs direction with vicarious liability. Because the ultimate party has no direct relationship and cannot instruct the broker's agent, the statute says that seller, buyer, landlord or tenant does not have vicarious liability for the broker's agent's acts.

The engaging listing, buyer's or tenant's agent gives direction and instruction. Section 443 therefore assigns that engaging agent the liability described in the broker's-agent provision.

This is not a rule that excuses the broker's agent from responsibility for the broker's agent's own conduct. It identifies who has the additional statutory vicarious liability within this relationship.

Subagency follows a different agency chain. Because the subagent acts for the principal, general agency principles and the actual authority matter. Do not import section 443's broker's-agent allocation into a subagency question.

Seller's agent includes more than the listing broker

Section 443 defines a seller's agent to include:

• the listing agent acting alone
• an agent cooperating with the listing agent
• a seller's subagent
• a broker's agent acting to find or obtain a buyer for residential real property

The landlord's-agent definition contains a parallel list for finding or obtaining a tenant.

This broad category tells the reader which side is being served. It does not erase the structural difference between a subagent and broker's agent. One has an agency relationship with the principal. The other has no direct relationship with the ultimate client and is directed by the engaging agent.

Agency disclosure must describe the actual role

For covered residential transactions, section 443 requires the statutory agency disclosure at specified times. The form includes checkboxes for a seller's agent, buyer's agent, broker's agent, dual agent and dual agent with designated sales agents.

A seller's subagent functions within seller agency, so the consumer-facing role is seller's agent. A broker's agent is identified as such and the form also indicates whether the brokerage acts in the seller's or buyer's interest. The landlord-tenant form follows the same pattern.

The form must match reality. In a Department administrative decision involving an incorrect disclosure, the tribunal treated a form that misidentified the agency role as a section 443 violation and evidence of untrustworthiness.

The disclosure form states that it is not a contract. It explains the relationship and records receipt. The underlying appointment, authority and conduct establish the role.

Compensation does not settle the question

A commission arrangement may explain why firms cooperate, but it does not by itself create subagency or a broker's-agent relationship.

Use two separate questions:

1. Who pays or shares compensation under the lawful arrangement?
2. Whom does each brokerage represent or assist under the agency arrangement?

Title 19 NYCRR section 175.7 requires a broker to make clear for which party the broker is acting. It also limits compensation from more than one party without the broker client's full knowledge and consent. That rule does not replace accurate agency analysis.

Subagent versus salesperson

“Subagent” and “salesperson” describe different things.

• Subagent describes a position in an agency chain.
• Salesperson describes a New York license status and association with a broker.

A salesperson is an agent of the associated broker in conducting brokerage business. That internal relationship does not automatically make every salesperson a subagent of the brokerage's client in the distinct interbroker sense tested here.

Likewise, a broker's agent under section 443 is an agent from a different firm. It is not the salesperson who happens to work for the engaging listing or buyer broker.

Nine worked scenarios

Scenario 1: seller authorizes subagents

A seller's listing agreement authorizes the listing broker to appoint subagents. An outside broker accepts that role and produces a buyer.

The outside broker is part of the seller's agency chain and owes fiduciary duties to the seller.

Scenario 2: buyer reveals a maximum to seller's subagent

An unrepresented buyer tells the seller's subagent the highest price the buyer can pay.

The buyer should not expect buyer-agent confidentiality. The subagent represents the seller, subject to the law and actual authority.

Scenario 3: separate buyer agency

An outside broker has a buyer-representation agreement and presents the buyer's offer to the listing broker.

The outside broker is the buyer's agent, not the seller's subagent merely because the brokers cooperate.

Scenario 4: listing agent engages outside help

A listing agent engages a broker from another firm to help locate a buyer without creating a direct relationship between that broker and the seller.

Under the section 443 structure, the outside broker may be a broker's agent of the listing agent.

Scenario 5: buyer's agent engages specialized broker

A buyer's agent engages an outside broker to search a specialized market. The outside broker has no direct relationship with the buyer.

The outside broker is a broker's agent assisting the buyer's agent, not a seller's subagent.

Scenario 6: client gives direct instructions

A tenant directly orders the broker's agent to change the search and negotiation strategy.

That conflicts with section 443's structure. The tenant's agent, which engaged the broker's agent, supplies the direction.

Scenario 7: payment offered through the listing side

The listing brokerage offers compensation connected with a cooperative sale.

That fact alone does not establish seller subagency. Determine the actual authorization and disclosed relationship.

Scenario 8: form identifies the wrong role

A buyer's agent checks “seller's agent” on the disclosure form even though the brokerage represents the buyer.

The form does not match the relationship. It should accurately disclose whom the brokerage represents.

Scenario 9: broker's agent commits misconduct

A broker's agent acts wrongfully while following the engaging buyer's agent's direction.

The broker's agent remains responsible for personal conduct. Section 443 also places the described vicarious liability on the engaging buyer's agent, not on the ultimate buyer.

A five-step exam method

1. Identify the ultimate principal and original agent.
2. Identify who engaged or appointed the outside broker.
3. Ask whether the outside broker has a direct agency relationship with the principal.
4. Identify who gives instructions and owes fiduciary duties to whom.
5. Apply the correct direction and liability rule before considering compensation.

If the outside broker represents the original principal, think subagent. If the outside broker assists and takes instructions from another agent with no direct client relationship, think broker's agent.

Common misconceptions

“Every cooperating broker is a subagent”

False. The broker may represent the buyer, serve as a broker's agent or hold another lawfully disclosed role.

“A broker's agent is the listing broker's salesperson”

False. Section 443 requires the broker's agent to be from a different firm than the engaging agent.

“The client directly controls a broker's agent”

False. The statute says the engaging listing, buyer's or tenant's agent gives instructions.

“The broker's agent represents nobody”

Misleading. The broker's agent has no direct relationship with the ultimate client, but assists the engaging agent for that agent's client.

“MLS access creates subagency”

False. Access or cooperation alone does not establish the required agency authority and relationship.

“Compensation decides representation”

False. Payment and agency are separate questions.

“Subagents owe duties to the buyer who found them”

Not in seller subagency. The fiduciary duties run to the seller principal, while the buyer receives customer-facing duties.

Frequently asked questions

What is a real estate subagent in New York?

A subagent is appointed through an authorized agent to act for that agent's principal. In seller subagency, the subagent represents and owes fiduciary duties to the seller.

What is a broker's agent under New York law?

It is an outside agent that cooperates with or is engaged by a listing, buyer's or tenant's agent, takes direction from that engaging agent and has no direct relationship with the ultimate client.

What is the main difference between a subagent and broker's agent?

The subagent is an agent of the principal. The broker's agent is an agent assisting another agent and has no direct relationship with the ultimate principal.

Who gives instructions to a broker's agent?

The listing agent, buyer's agent or tenant's agent that engaged the broker's agent gives direction and instruction.

Is the seller liable for a broker's agent?

Section 443 says the ultimate seller, buyer, landlord or tenant does not have vicarious liability for the broker's agent's acts. The engaging agent has the liability described by the statute.

Does showing an MLS listing make a broker the seller's subagent?

No. Showing, access or cooperation alone does not determine agency. Review the authorization, agreement, disclosure and conduct.

Can brokerage occur without subagency?

Yes. The outside broker can represent the buyer or tenant, serve as a broker's agent or operate under another lawful relationship.

Does a subagent owe confidentiality to the seller?

Yes. A seller's subagent owes fiduciary duties to the seller, including protection of confidential seller information within the agency.

What to study next

Review the four principal agency roles, then study dual agency and informed consent. Use the Law of Agency study guide for complete lessons and practice.

Sources and verification notes

This article was checked on August 27, 2026. Agency depends on actual authorization, agreements, disclosure and conduct. Historical cases involving older listing or MLS practices should not be read as proof that current cooperation automatically creates subagency.

1. New York State Department of State, 77-Hour Real Estate Salesperson Curriculum. Subagency, principal relationships, obligations, broker's agents and disclosure objectives.
2. New York Real Property Law section 443. Seller and landlord subagent references, broker's-agent definition, direction, liability and residential agency disclosure.
3. New York State Department of State, Real Estate License Law, March 2026. Current Article 12-A and section 175.7 role-disclosure and compensation rules.
4. Rallis v Brannigan, 2008 NY Slip Op 30164(U). New York trial-court discussion of seller subagency, fiduciary duties and an older multiple-listing arrangement.
5. Department of State v Iaboni. Administrative decision explaining that the statutory disclosure must accurately describe the agency relationship.
6. SL 4000 Connecticut LLC v CBRE, Inc., 2026 NY Slip Op 01622. Current New York appellate discussion of authorized appointment and duties in a subagency relationship governed in part by another jurisdiction's law.

This article provides general educational information. It is not legal advice.