State Codes and Statutes

Statutes > New-york > Rpp > Article-9 > 294-b

§  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  attorneypursuant  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 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  entitledpursuant  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.

State Codes and Statutes

Statutes > New-york > Rpp > Article-9 > 294-b

§  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  attorneypursuant  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 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  entitledpursuant  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.

State Codes and Statutes

State Codes and Statutes

Statutes > New-york > Rpp > Article-9 > 294-b

§  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  attorneypursuant  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 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  entitledpursuant  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.