Steve Ryan, Esq., MAR General Counsel, addresses questions and issues raised on the Legal Hotline, available to designated REALTORS weekdays from 9 a.m. to 1 p.m. at (800) 370-5342.
Home Inspector Law Violations
Q. An attorney for a customer I have been working with said that I violated the law by not giving his client some state-mandated informational pamphlet regarding home inspectors when I wrote up their offer. Is she right? If she is, what is this form and does my failure to give it to the buyer make the contract they signed with the seller void?
The attorney is correct about the law requiring you to provide all buyers with the state-mandated “Facts for Consumers” home inspector information. As part of the Home Inspector license law which was enacted in 1999, all real estate agents are now required to provide a copy of a state mandated document entitled “Facts For Consumers about Home Inspectors” fact sheet when taking an offer from any consumer. If you need a copy of this document you may get one by going to marealtor.com and clicking on the “Home Inspectors facts for consumers”.
It is important to remember that neither the home inspector license law nor the fact sheet which you must now provide require that a seller allow a buyer to conduct a home inspection.
Nor do they create an automatic contingency in any agreement for the sale of a home to allow a buyer to withdraw or renegotiate the agreement based upon the results of a home inspection.
Both of these rights exist only if the parties make them terms in their offer or P&S agreements.
The fact sheet is simply designed to provide buyers with information about the home inspection process.
Lastly, the fact that a buyer did not receive the required “Facts for Consumers” pamphlet from you when you wrote up the offer does not make the agreement with the seller void.
It may, however, be the basis of a complaint by the buyer
against you at the state’s Board of Registration.
Apartment Fee Dilemma
Q. I rented an apartment last year for a landlord I have worked with for many years. With the landlord’s permission, I charged the tenant my usual application fee and rental fees. For a number of different reasons, the tenant and the landlord had a falling out and they are suing each other. Now the tenant is threatening to sue me as well because she claims I violated the law by not giving her a document called a “fee disclosure form”. She said I had no right to charge any application or rental fee because she did not get this disclosure document from me at our first meeting. I have never heard of such a disclosure form. Is she correct?
A. Yes. Massachusetts regulation 254 CMR 7.00 states that licensees must, at the first personal meeting, give a written notice to prospective tenants regarding whether any fees-such as application or rental fees-will be charged to a tenant. The notice must tell the tenant when such fees would be due and whether any portion of the fee is refundable if a tenancy is not created. The notice must contain the license number and signature of the agent and the date it was given. The consumer must sign the notice and the broker is required to keep a copy of it for three years. The regulation goes on to state that licensees are precluded from charging such fees unless this notice has been given.
If you did not provide such a fee disclosure notice to the tenant they may well have the right to a return of both the application and rental fees. To obtain a sample fee disclosure form and instructions on how comply with this regulation go to marealtor.com and click on “sample apartment fee disclosure form and instructions”.