Stephen 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.

UNCOOPERATIVE TENANT
Q. One of the tenants in a multifamily home listing of mine has been extremely uncooperative, never allowing me to show his apartment, which makes it very hard to market the property. What can I do?

A. Ask the owner of the building to address this situation as soon as practicable. You have no legal right to enter the apartment for showings unless the lease agreement stipulates that as a condition of the tenancy they shall allow reasonable access for showings or, in the alternative, the tenant voluntarily agrees to give you access.

The law states that during the period of a residential tenancy the tenant enjoys the exclusive use and possession of the unit.

Chapter 186 Section 15B of the Massachusetts General Laws explains as follows:

Section 15B. (1) (a) No lease relating to residential real property shall contain a provision that a lessor may, except to inspect the premises, to make repairs thereto or to show the same to a prospective tenant, purchaser, mortgagee or its agents, enter the premises before the termination date of such lease. A lessor may, however, enter such premises:
(i) in accordance with a court order;
(ii) if the premises appear to have been abandoned by the lessee; or
(iii) to inspect, within the last 30 days of the tenancy or after either party has given notice to the other of intention to terminate the tenancy, the premises for the purpose of determining the amount of damage, if any, to the premises which would be cause for deduction from any security deposit held by the lessor
pursuant to this section.

If the lease states that the property may be shown during the tenancy, the landlord can remind the tenant of the terms of the agreement and that failure to reasonably accommodate these showings will be viewed as a material breach of the lease possibly subjecting the tenant to eviction proceedings or injunctive relief in court to compel the tenant to comply.

If, however, they do not have a written lease agreement with a provision to allow showings, then neither you nor the landlord has the right to enter the premises for showings if the tenant says “no.” This is one of the key reasons why it is recommended that landlords always have a written lease agreement with a tenant, even when they are a tenant-at-will.

FAILED SEPTIC
Q. A home that I have listed is under agreement, and its septic system failed the Title 5 inspection. The buyer is demanding that the owner fix the system. My seller says she doesn’t have to upgrade the system and that she told the buyer (and me) that the house is being sold “as is.” Who is right?

A. The seller. Unless the seller, or you as the listing broker, has made some representation with regards to the condition of the septic system, there is nothing in state law or regulation that compels the seller to pay for
the upgrade.

Further, the law does NOT require that the system be upgraded prior to transfer. Title 5 simply states that the system must be upgraded within two years of the inspection that indicates failure or sooner if the local board of health determines that a faster upgrade is necessary for protecting public health.

Based upon the foregoing, the buyer may choose to withdraw based upon the inspection contingency in their contract with the buyer or determine whether they want to pay for the upgrade themselves. It is also possible that a lender may allow them to close prior to the upgrade while holding back a portion of the seller’s proceeds. This would also require acquiescence on the part of the seller.