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Bay State REALTOR® November-December 2008
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| President's Message: We're Rich with Resources |
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By Susan M. Renfrew
As professional Realtors® working diligently in the trenches everyday, we frequently evaluate our businesses, considering what resources we have available to help us in our day to day work. We’ve had a challenging year but many of us can say we’re busy and our hard work is paying off. As you assess this past year, and begin to plan the next one, I’m asking you to take a moment to appreciate how much we all benefit from belonging to this organization.
One of our greatest assets is Realtor® membership, and each year around this time many of us renew our dues at our local association. We understand that the dues to our local associations fuel the valuable programs and services delivered by the local association. But it is the combined resources and efforts of all three levels of the association that provide us the support we need to conduct business more easily and more successfully.
We join the Realtor® organization for a few major reasons. This organization upholds a strict Code of Ethics that we can all practice and promote everyday as a reason we stand head and shoulders above non-Realtors®. The Association also provides us with legislative and regulatory support on every level, in our individual communities, as well as on a statewide and national level, protecting private property rights and enhancing real estate practices. The benefits that this alone contributes to our industry, and our ability to work in this field successfully, are worth more than I could even begin to estimate. And as Realtors® we are also offered timely and interesting professional development avenues that help us gain momentum on our competition by providing us with countless opportunities to learn more so that we can serve our customers and clients better.
I’ve touched upon some major reasons why being a part of this organization is our best resource. This column is not long enough to be able to expound on all the Realtor® organization and specifically the Massachusetts Association of Realtors® has to offer, but the inserts that came with this issue, along with this issue’s special section on page xx provides more of an insight to the host of products and services the Association provides us as members.
The resources of this Associaion include the many volunteers who support this organization and enthusiastically serve the entire membership and the real estate community across the state. Just take a look at all those who were recognized this year as Realtors® of the Year, MHS Distinguished Service Award winner, Good Neighbor and Educator of the Year (details on page xx). They’ve earned those honors because of tireless efforts on behalf of a profession and organization in which they believe and value.
I want to thank those volunteers who worked with me over the past year during my presidency. So many volunteers put in countless hours to address current issues, solve problems and bring new programs to you that will help you be more successful. On behalf of all of us, it has been our pleasure to serve you and this organization. |
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Realtor® Association Value: Your Best Business Resource |
The Realtor® organization is your best business resource to stay competitive, informed and protected.
To industry colleagues and consumers, your Realtor® membership reflects a strong commitment to professionalism and a personal investment in real estate as a career pursuit - and proof of that is apparent. Realtor® members in Massachusetts represent approximately one-third of the licensees yet are responsible for over 80% of the real estate sales made in the Commonwealth. There’s value in Association membership.
As a member of the MAR, you have access to numerous resources through educational and professional development; legal and legislative support; news and information outreach; and business services only available to members.
This special section highlights some of the programs and services MAR offers members. Much more on the services and informational sources available to you as a Realtor® are on maRealtor.com – Your Best Business Resource.
Professional Development
Professional development enhances your career, establishes a higher professional reputation and increases your level of success. Realtors® have the opportunity to receive comprehensive training in specialty areas of practice through professional designation programs; and take part in numerous other programs offered throughout the state each year presented by experience and often national speakers, trainers and educators -- all to enhance your professional development in the real estate industry..
As an exclusive service to our members, the MAR also maintains a Clearinghouse of classes being offered around the state that qualify for state-approved continuing education credits.
• Designation/Certification Programs
Realtors® who hold a professional real estate designations and certifications have instant credibility with buyers and sellers, and studies show they typically earn a higher income than those agents who have not completed a designation program. Among the professional designation courses MAR frequently sponsors are: Loss Mitigation Certification (LMC); Graduate, Realtors® Institute (GRI); Certified Residential Specialist (CRS); Certified Residential Brokerage Manager (CRB); Certified Buyer Representative (CBR); Certified International Property Specialist (CIPS) and Seniors Real Estate Specialist (SRES).
•Broker-Owner Forums
The quarterly seminar series offers office principals and managers the opportunity to participate in forums on a host of management issues, office administration and policy, risk management, and personal and corporate financial planning.
• MAR Conference & Tradeshow
The annual 2-day conference features national speakers and educators offering an extensive education curriculum, continuing education classes, several networking activities and the state’s largest industry trade show.
• Councils
Realtors® have access to specialized training and networking by becoming members of the state chapter of one of several councils: the Council of Residential Specialists (CRS), the MAR International Council and the Women’s Council of Realtors® (WCR).
Real Estate Industry Advocacy
As a Realtor® your livelihood depends on the ability of your clients and customers to buy and sell real property. When that ability is delayed or unfairly penalized by either legislation or regulation, MAR is there. The Association works to keep you informed on the issues and acts on your behalf and the benefit of the Massachusetts real estate industry and private property rights.
Many tools and programs are in place to successfully advocate on the membership’s behalf. These include:
• Lobbying
Through the use of paid lobbyists, MAR staff and member events such as Realtor® Day on Beacon Hill, the Realtor® voice is present at the State House to advocate for and against relevant laws and regulations.
• Legislation
MAR introduces legislation and regularly testifies before legislative committees relative to issues and regulations which impact the membership and property owners.
• Local Government Affairs
Not every regulation that has the potential to impede the buying and selling of real estate is at the state level. MAR has dedicated staff works with local associations for grassroots member mobilization on local, state and national issues advocacy.
• RPAC
This grassroots political network raises campaign contributions for pro-Realtor® candidates, mobilizes Realtor® voters on critical legislative and regulatory issues affecting the real estate industry.
• Quality of Life
Realtors® recognize the need to sustain and enhance the quality of life enjoyed by Mass. citizens while protecting individual property rights. To do this, MAR established the "Quality of Life" campaign to create a blueprint for public outreach to encourage adoption of policies such as Smart Growth.
• Legislative Action Center
Located on maRealtor.com, members may respond to calls to action, receive up-to-date information on issues, and access contact information for local, state, and federal elected officials.
• Private Property Protection Fund
This fund supports the Realtor® organization’s efforts to promote or oppose issues at the local level affecting the rights of Massachusetts property owners.
Communications
Is there a difference between a licensee and a Realtor®? Do homeowners generally do better selling their home on their own? As a member of MAR you certainly know the answers to these questions, but does the public you serve?
As the “Voice for Real Estate™ in Massachusetts” MAR is fully engaged in communicating the value and professionalism Realtors® bring to the industry, the transaction and their communities. In addition, MAR uses various communications methods to keep you updated on Association and industry news, latest market statistics, and more.
• Media Relations
Through arranged Realtor® interviews and editorial, MAR promotes Realtors® as a real estate resource and strong voice on public issues.
• Real Estate Data Central
MAR issues monthly market reports and analyses providing a reliable source of real estate data for members and the media.
• Consumer Awareness
MAR uses advertising to present the Realtor® message across a range of media including print, Internet, and television.
• MARealtor.com
The MAR website houses a wealth of information and provides both members and consumers with a comprehensive resource on various real estate topics including: “Find a Realtor®;” “Why Use a Realtor®;” “Why It’s a Good Time to Buy (or Sell);” Legal Resources; Housing and Research Data; and many others.
•Bay State REALTOR® and BayStateRealtor.com
The bi-monthly print publication, mailed to every member, and website both offer in-depth analyses on the latest market news and trends, public policy decisions and sales and marketing techniques to provide you with the tools you need in your daily practices.
•E-Communications
MAR produces several email newsletters to provide members with Association and industry news, and information on educational opportunities and member benefits.
•Social Media
MAR provides members interactive news and information tools through webinars, the MAR Report (the official podcast of MAR) and through social networking groups on Facebook and LinkedIn.
Business Services
The Association is dedicated to providing members with programs and services that will help them achieve success in their real estate business practices. Through legal and technological assistance and access to dozens of products and services at member discounts, you have the edge you need to stay sharp for your customers and clients.
• Legal Hotline
The MAR Legal Hotline, hosted by association staff attorneys, offers Designated Realtors®, office principals, branch managers, and other qualified members assistance in real estate law and related regulatory and ethical matters. Access is provided via a toll-free phone line (800-370-5342), which operates weekdays, from 9 a.m. to 1 p.m.
• Technology Helpline
The MAR Tech Helpline offers access to a staff of trained technology counselors to help resolve problems with computer software, hardware, and Internet connection issues. The free service operates weekdays from 9 a.m. to 5 p.m. via a toll-free phone line (886-232-1837).
• Dispute Resolution Services
You can avoid costly lawsuits by utilizing mediation and arbitration services available for property transaction disputes among practitioners.
• MassForms™
MAR has made available more than four dozen real estate contracts and forms commonly used by real estate brokers to complete residential and land transactions in Massachusetts. Available in both electronic and hard-copy format at substantial savings to members, each standard form is reviewed annually, making them among the most current and legally sound documents in the industry.
• Member Benefits and Discounts Program
Members have unique access to a over two dozen vendors that have partnered with MAR to provide special discounts and group rates on products and services including health insurance, business equipment, vacation packages and much more, for use in your office or home.
• Product Mall
The Association’s online product mall offers special pricing for Realtors® on a variety of business manuals, training tapes, and study guides, as well as industry-related business tools and accessories, personal marketing materials, closing gift items, and Realtor® apparel.
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| Why Join An Association? |
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By Richard G. Ensman, Jr.
Why bother to join a trade or professional association? Here are ten good reasons for becoming involved.
1. Advocacy An association represents your interests before the business community and government. And if your business or industry faces major threats, your association is right there fighting for you.
2. Benefits Many associations offer a variety of tangible benefits to members and their employees: purchasing discounts, group health and life insurance, retirement plans, and more.
3. Convenience When you're facing a problem, isn't it great to be able to shop for a variety of solutions under one roof? An association is a "one-stop" center for advice, contacts, inspiration and suggestions on a wide range of topics.
4. Data Want to know the current size of your market? Understand the most recent buying trends? Get a handle on your competition from other industries? Chances are your association can furnish you with up-to-date data on these issues.
5. Economy Don't reinvent the wheel when it comes time to save money, consolidate an operation, or enhance efficiency. Tell your association what you're trying to do -- and your association can tell you how your peers have already done it!
6. Journals Associations are known for their expert publications: journals chock-full of news, trend information, research and commentary, all available at your fingertips.
7. Know-How Got a problem? Need technical advice? Help with a thorny accounting issue? Your association is as near as the telephone. And if you need more detailed information, your association can put you in touch with one or more individuals who have the "know-how" you need.
8. Leadership Your business or trade needs leaders -- people who can actively mobilize you and your peers toward industry-wide action, and who can chart your industry's future. An association produces voluntary leadership that can make a difference.
9. Networking "Networking" is today's buzz word. Association events, meetings, member directories and information exchanges make networking a reality for you and your peers.
10. Seminars One of the greatest pleasures of association membership is participation in annual or bi-annual seminars -- thought-provoking educational sessions led by successful peers as well as regionally- and nationally-recognized business experts.
Richard G. Ensman, Jr. is a syndicated freelance writer based in Rochester, NY.
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| Awards of Excellence |
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The 2008 Realtor® of the Year Is…Waltham Broker Mel Martocchia
Amleto “Mel” Martocchia, broker/owner of Martocchia & Company, Inc. in Waltham, was selected as Massachusetts Realtor® of the Year for 2008. Martocchia was presented the award at MAR Professional Awards Reception, which was held in conjunction with the Association’s 2008 Conference and Tradeshow at the DCU Center in Worcester.
The state’s Realtor® of the Year is selected annually from among the nominees of the 16 local associations of Realtor® and more than 21,000 Realtors® in Massachusetts. Judging for the award is based on service to the local community, business accomplishments, and service to the Realtor® organization on the local, state and national levels.
Martocchia, who was also chosen as Realtor® of the Year for the Greater Boston Association of Realtors® (GBAR), has held several positions at the state level. He is currently the MAR Greater Boston Region Vice President, a member of the MAR Board of Directors, the Executive Committee, and the Government Affairs Committee. From 2004 – 2007 he was a member of the MAR Business Development Committee, which included a stint as chairman in 2006. He contributes to the Massachusetts Realtor® Political Action Committee along with being a regular participant in MAR Legislative Day on Beacon Hill.
At the local Association level, Martocchia is currently serving as Vice President of GBAR, is a member of the Board of Directors, Executive Committee, and Forms Task Force. He has been a member of the Business Development Committee and the Nominating Committee. In addition, Martocchia serves as the Association’s fund-raising chairperson for RPAC (Realtor® Political Action Committee) and the Greater Boston Real Estate Board Political Action Committee. Martocchia also frequently serves as a spokesperson for the Association and the industry with the local media.
A resident of Watertown, Martocchia is currently the Vice-Chairman of the Watertown Historic District Commission and 2007 was a participant in the Watertown Pleasant Street Corridor re-zoning study working group. Martocchia is also active at public hearings on local housing and land use issues in Watertown and Waltham.
A Realtor® since 1985, Martocchia has earned the Certified Real Estate Brokerage Manager (CRB); Certified Buyer Representative (CBR); Certified Residential Specialist (CRS) professional designations; and is a graduate of the Realtor® Institute (GRI).
Greenfield Broker Receives MHS Distinguished Service Award
Corinne A. Fitzgerald, broker/owner of Fitzgerald Real Estate in Greenfield, has been named recipient of the MAR Milton H. Shaw Distinguished Service Award for 2008
First presented in 1984, the Milton H. Shaw Distinguished Service Award is presented annually to one Realtor? member or staff executive who has demonstrated outstanding leadership abilities and volunteered countless hours of personal time to serve on state association committees and participate in MAR activities.
A Realtor® since 1986, Fitzgerald is currently MAR Regional Vice President for Western Massachusetts and a member of the Executive Committee. A member of MAR Board of Directors since 1996, Fitzgerald has also recently served on the Professional Standards Committee and as the Chair of the Business Development Committee. In addition, Fitzgerald has served as MAR Focus Area Vice President overseeing technology, electronic forms software, and business development in 2005 and 2006.
Fitzgerald has also been very active at the local level. In 2000, she was President of the Franklin-Hampshire County Association of Realtors® and in 2001 was named Realtor® of the Year. She also served as the Association’s Treasurer in 1998, Secretary in 1996, and was a board member from 1995-2002. She is currently a member of the Board of Directors for the Realtor® Association of Pioneer Valley (which merged with the Franklin-Hampshire County Association of Realtors® in 2002). Additionally, she was 2004 chairperson of the North Central Mass. Association of Realtors® Technology Committee and has been a member of the Women’s Council of Realtors® since 1999.
On a national level, Fitzgerald served on the National Association of Realtors® Housing Needs Committee in 2004.
Professionally, Fitzgerald has earned her Certified Buyer Representative (CBR), Certified Residential Specialist (CRS), Graduate, Realtor® Institute (GRI) and Leadership Training Graduate (LTG) professional designations. She is also a Certified Home Marketing Specialist (CHMS), a certified home stager, and she recently earned her Loss Mitigation Certification.
Lancaster Realtor® Names Real Estate Educator of the Year
Gary Bourque of Lancaster, a state-certified real estate training instructor and broker/owner of Central Mass. Appraisals, Inc. and Bourque Realty, Inc. in Leominster, has been named the recipient of the 2008 Massachusetts Real Estate Educator of the Year Award.
Established in 2003 and presented annually, the Massachusetts Real Estate Educator of the Year award recognizes REALTORS® for their voluntary contributions and participation in activities that promote the professional development and career advancement of fellow real estate practitioners.
A REALTOR® since 1987, Bourque is a certified and licensed continuing education instructor by the Massachusetts Division of Licensure for Real Estate Sales Persons and Brokers. He is an instructor for the Graduate REALTOR® Institute and teaches continuing education classes at several local REALTOR® Boards.
Bourque also has significant experience in course and curricula development through his involvement as member of the Professional Standards Committee and the Education and Events Committee on the state level.
On the local level, Bourque was Educator of the Year in both 2005 and 2006 for the North Central Massachusetts Association of REALTORS® (NCMAR). He has been a member of the NCMAR Real Estate School and Education Committee for 10 years and served as chairman for eight. He has also developed several appraisal courses for NCMAR that are also used for continuing education credit in both New Hampshire and Maine.
In addition to being the broker/owner of Bourque Realty, Inc. and Central Mass Appraisals, Inc., Bourque is an associate-member of the Appraisal Institute, is a certified member of the Massachusetts Board of Real Estate Appraisers, and the National Association of Real Estate Appraisers, where he earned the CREA designation. He is a past president of the Montachusett Executive Association and a member of the North Central Massachusetts Chamber of Commerce.
Harwich Port Realtor® Receives Good Neighbor Award
Martha Knapp of Kinlin Grover GMAC Real Estate in Harwich Port, was named MAR 2008 Good Neighbor Award winner. The Good Neighbor Award recognizes real estate professionals for their community activism.
Established in 2004 and presented annually, the MAR Good Neighbor Award recognizes REALTORS® who have demonstrated an extraordinary commitment to community service through volunteerism and civic and charitable contributions that improve the lives of local residents and make their community a better place to live.
The award recipient receives a commemorative trophy and a $1,500 grant from the MAR in the name of their designated charity.
Martha Knapp established Angel’s Hope after losing her 3-year-old son Michael to cancer in 1995. The organization provides assistance and support to families dealing with childhood cancer. Since its establishment in 2001, Angel’s Hope has assisted over 700 families throughout New England by providing financial and emotional support, and by facilitating access to additional resources.
Angel’s Hope volunteers offer day-to-day assistance with running errands, providing meals, and offering practical advice and words of encouragement. Knapp has donated nearly 2,000 hours of her time over the past year and half organizing events, coordinating resources, development marketing strategies and networking with other organizations. Additionally, she has recruited over 400 volunteer hours, and raised over $50,000 to support the ongoing efforts of Angel’s Hope.
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| Legal Hotline: Terminating Agreements, Advertising and Sold Sign Postings |
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By Stephen J. Ryan, Esq.
MAR General Counsel
Here are a few recent questions posed on the MAR Legal Hotline, which should provide some direction on how to deal with complex real estate issues.
Advertising Dilemma
Q. I have recently seen a number of homes for sale posted on some well-known community websites. I know that at least one of these homes is currently listed with a real estate firm but the posting makes no reference to the firm. The email address listed in the ad belongs to an agent at another firm in town. Doesn’t the law require that the firm’s name be in the advertisement?
A. Yes. Whether the property is being promoted in the newspaper or on the Internet, state regulation requires that the name of the brokerage firm must appear in the advertisement. State regulation 254 CMR 3.00(9)(a) is as follows:
(9) Advertising. A broker shall not advertise in any way that is false or misleading.
(a) Broker Identification. No broker may advertise real property to purchase, sell, rent, mortgage or exchange through classified advertisement or otherwise unless he/she affirmatively discloses that he/she is a real estate broker. No broker shall insert advertisements in any advertising publication or other means where only a post office box number, telephone, facsimile, electronic mail number or street address appears. All advertisements shall include the name of the real estate broker.
Sold Signs
Q. A listing of mine closed last week and, pursuant to the request of the new owner, I removed my sign. I drove by the home the other day and saw the co-broker’s “sold” sign in the front yard. Isn’t that false advertising?
A. No. As the cooperating broker, she may place her “sold” sign in the yard after the closing with the permission of the new owner. Standard of Practice 12-7 of the REALTOR® Code of Ethics states the following:
Only REALTORS® who participated in the transaction as the listing broker or cooperating broker (selling broker) may claim to have “sold” the property. Prior to closing, a cooperating broker may post a “sold” sign only with the consent of the listing broker. (Amended 1/96)
Seller’s Termination of Listing Agreement
Q. I am a listing broker with an exclusive right to sell agreement that expires in two months. The seller is telling me that they want to terminate the agreement effective this week. Do I have the right to refuse to release them from their listing agreement? What options do I have in this situation?
A. Your rights and obligations, as well as those of the seller, should be clearly spelled out in the listing agreement that you have both signed. If there is no express provision in the agreement that allows the seller (or you) to unilaterally terminate the contract without the approval of the other party then neither party should assume that such a right exists. For example, if your agreement states “either the seller or broker may terminate this agreement at any time for any reason with no further obligations to the other party after such termination” then the seller probably would have the right to end the listing agreement. Absent that type of clear option to terminate, neither party should presume that they can walk away from the agreement any time they choose.
Perhaps the most important issue to be addressed is determining why the seller no longer wants to continue with the agreement. If their circumstances have changed due to a job loss or family issue and they simply do not believe they can go forward with any sale of their home, they need not terminate their agreement with you. Instead you can mutually agree to suspend the marketing of the property for a specified period of time. This agreement should be in writing and should make clear that you will not continue to advertise or show the property but that all other contractual obligations established by the listing agreement- including your right to compensation if a sale occurs during the originally specified listing period-remain in effect. If they are genuine in their assertion that they believe they are simply unable to sell their home at this time then they should have no problem with this type of agreement. This should also protect your office if a transaction to a buyer is introduced to the property during your listing period and protection period thereafter, if any. |
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| Legal Realtor®: Don't Fall into a Chapter 93A Trap |
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(Part 2 of 2)
By Robert S. Kutner, Esq.
In my last column I described the duties imposed on real estate agents by the Massachusetts Consumer Protection Act, Chapter 93A. Those duties require agents to disclose all facts about known defects in a property, even if the buyer or tenant does not ask. This article will focus on procedural pitfalls under Chapter 93A and ways an agent can reduce risk.
Demand Letter Procedure And Multiple Damages
If a consumer chooses to assert a claim for unfair or deceptive practices in violation of Chapter 93A, the consumer must send a demand letter at least 30 days prior to filing suit. The business receiving the letter may make an offer of settlement within that 30 day period. Should the business be found liable, the judge will limit the consumer’s recovery to the rejected settlement offer if the judge finds that the offer was reasonable. There will be no recovery of double or treble damages or attorneys’ fees incurred after the date a reasonable offer of settlement was rejected, even if the underlying misconduct was intentional.
Agents who receive demand letters are tempted to ignore them, hoping that the claim will go away, or because they do not want to dignify the claim with a response. THERE IS A SERIOUS RISK IN IGNORING A DEMAND LETTER! If an agent fails to respond and the judge rules that the agent’s failure to respond was in bad faith and with reason of knowing that his underlying conduct violated Chapter 93A, the judge can impose double or treble damages merely due to the failure to respond.
While double or treble damage awards in Chapter 93A cases are not common, where they are awarded, they may be recovered against more than one defendant. In a 1983 decision, International Fidelity Insurance Company v. Wilson, the Massachusetts Supreme Judicial Court ruled that if punitive damages are awarded against more than one defendant, each defendant must pay the punitive award, even if another defendant has already paid punitive damages. The result multiplies the potential recovery to more than treble and increases the incentive to sue. By contrast, there can be only one recovery of compensatory (actual) damages by a consumer.
Risk Reduction Suggestions
To reduce the risk of claims to have violated Chapter 93A, it is recommended that Realtors® establish specific procedures and use particular forms.
1) Use a Seller Disclosure Form
As listing agent, ask the seller to complete a detailed disclosure form about the property and its condition. Although there is no law that requires a seller to complete the form, experience has shown that written disclosures reduce the risk of claims. Use a form that asks the seller for information about such matters as the condition of the structure, water penetration, zoning violations etc. A number of such forms are available, including one from the MAR called the Sellers Statement of Property Condition, formerly the Sellers Description of Property. While Chapter 93A does not require that a real estate agent inspect a property to discover potential problems for the buyer, it is recommended that the listing agent tour the premises and ask the seller to describe any necessary repairs or other problems of which the seller is aware so disclosure can be made.
Ask the seller to sign a property information sheet. Include language on the form to the effect that: “Owner represents that to the best of his knowledge the plumbing, waste disposal, heating, wiring systems and appliances except ______ are in good working order; that the building is structurally sound; that the roof does not leak; and, that there is no water seepage in the garage/basement. Owner agrees to indemnify, defend and hold the brokers harmless for any claim regarding information set forth above.”
Language of this type is included in the Sellers Statement of Property Condition. If the Owner is reluctant to sign, explain that buyers are often willing to accept problems when disclosures are made. It is the surprises that cause lawsuits. A typical lawsuit from a buyer will name the seller as a defendant as well as the real estate agent. If the seller is still reluctant, consider declining the listing.
2) Add Disclaimer to MLS
Where information is supplied to MLS, include a conspicuous disclaimer that: “All information is supplied by owner; broker has not verified same. It is recommended that buyer independently verify all information.”
3) Avoid Adjectives That May Be Misconstrued When Describing Property
When listing or showing a property, avoid adjectives that can be interpreted as a personal guarantee or statement of quality. For example, you risk being brought into a lawsuit if you state that the property is “pristine” or the neighborhood is “quiet” only to have the buyer discover a problem after the purchase. Do not make any statement about which you have no knowledge. If you are passing on information from the seller or the town in which the property is located, it adds protection to advise the buyer that you have not personally verified the information. When the buyer asks a question, get a written response from a reliable source before answering or if the question relates to a matter where documents may exist at town hall, bring the buyer to the appropriate department for an answer. If the buyer requests to speak to the seller and the seller is agreeable, arrange for the meeting. This will reduce the likelihood that the buyer will claim to have relied on the real estate agent.
4) Encourage Home Inspections
Include a right to inspect clause in your Offers to Purchase and Purchase And Sale Agreements. If a professional inspector does not discover a problem, there is a strong argument that a real estate agent should not have. Current law requires that every home inspector carry $250,000 of liability insurance.
5) Encourage The Buyer To Consult With A Lawyer Or Other Professional
Advise buyers to hire an attorney with regard to questions about zoning or uses of a property. This will reduce the risk of them claiming to have relied on the agent. If there is a question about an environmental problem such as mold or soil conditions, refer the buyer to an appropriate professional.
6) Review Escrow Clauses
When a broker acts as escrow agent, include a provision that authorizes the broker to continue to hold funds in the event of a dispute between the buyer and seller concerning who should be paid the funds if the transaction is not closed. A statute that MAR was successful in having enacted, Chapter 184, Section 17A, prevents escrow agents from being named in lawsuits where the underlying agreement contains this language.
7) Communicate
If any problem arises after the sale, keep lines of communication open. Try to resolve the situation amicably. Do not ignore claim letters. If you do, you risk liability for treble the buyer’s actual damages.
8) Get Insurance
Finally, errors and omissions insurance policies are a wise investment. These policies protect against professional negligence. Add riders to cover claims for discrimination, license law complaints or pollution-related claims. E&O policies provide coverage for claims of negligence, fraud and violation of Chapter 93A, but will generally not pay claims if intentional misconduct is proven. E&O policies also exclude coverage for bodily injury claims, such as physical harm from ingesting lead paint or from breathing mold.
Find out more on MAR’s Sellers Statement of Property Condition form at the Products Mall. |
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License Law: Continuing Education Audits |
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By Joseph Autilio
Executive Director, Board of Registration
Below the Massachusetts Board of Registration of Real Estate Brokers and Salesperson answers a query by an agent in the field regarding real estate licensing laws on brokerage in Massachusetts
Board’s Auditing Process
Q. Does the Real Estate Board check to see if I have done my continuing education?
A. Yes the Real Estate Board conducts random audits of licensed real estate agents individually and also randomly audits the licensees in selected real estate firms. The Board conducts audits when it learns or uncovers information suggesting that a licensee may not have completed the requisite education.
As you should know the Board asks licensees whether they have completed continuing education on their license renewal application. The answer to this question, like the answers to other questions on the application, is made under the pains and penalties of perjury. Relevant Board regulations require that the Board approved education providers maintain records on licensees’ continuing education. These records must be made available to the Board at the Board’s request.
In situations where the Board uncovers deception by licensees concerning continuing education it opens a formal complaint against such licensees who will then be notified of the allegations made by the Board concerning the failure to satisfy the continuing education requirement and falsification of the license renewal application. In most cases the Board will impose disciplinary action against the licensee through a consent agreement between the licensee and the Board along with a requirement that continuing education be completed and verified. In some cases a formal hearing will ensue and where licensing law violations are established disciplinary action will be imposed. This can include both license suspension and, in the most egregious cases, revocation.
The Board does and will continue to enforce the continuing education requirement so licensees should take that requirement very seriously and complete the requisite twelve hour continuing education requirement every two years if they intend to renew their license as active.
Education Providers Reporting Process
Q. Do the Board approved education providers play a role in the audit?
A. Yes the Board approved continuing education providers play a very important role in the auditing of continuing education. They are required by regulation to, among other things, maintain records on licensees showing who took what subject matter areas of the curriculum (often referred to as courses in the marketplace), when they took such subjects and if they completed them. They are also required by regulation to provide such information to the Board at its request.
The Board has, however, noticed that sometimes the education providers are using different subject matter descriptions and different numbers of the subject matter areas in its continuing education curriculum when communicating with the Board and licensees. Doing so lengthens the auditing process and causes unnecessary confusion so is therefore an undesirable process. |
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