Notes from the Legal Hotline: April 2023

March 31, 2023

- By The MAR Legal Team

Q. What steps can a brokerage take to ensure compliance with all Fair Housing laws?

A. With April being Fair Housing month, it’s a good time to review office policies and procedures to ensure compliance with all applicable Fair Housing laws. Compliance with fair housing is not only a legal requirement under both federal and state laws, but it is also an ethical obligation under the REALTOR® Code of Ethics to not engage in discriminatory practices.

The first line of defense against violating fair housing is knowledge of what each of the protected classes are and what they mean. The following are the protected classes in In Massachusetts:

Race, National Origin, Gender Identity, Disability, Genetic Information, Veteran or Active Military Status, Familial Status (children), Color, Gender, Sexual Orientation, Ancestry, Marital Status, Age and Source of Income.

Discrimination can occur in any type of transaction and liability may be imposed regardless of intent. The cornerstone to avoiding Fair Housing liability is to treat every customer and client the same, regardless of their personal characteristics. Brokerage policies should be developed to eliminate differential treatment when dealing with clients and customers. Uniformity in the information that is made available to or requested from clients and customers is key.

Developing checklists that each agent in the office is required to use when meeting with prospective clients is an easy way to keep agents on track. What does the office require in order to schedule a showing? What about for a listing appointment? If you ask for a preapproval letter or proof of funds from one prospective buyer, that should be

requested of all. If you ask one person for a copy of their identification, you had better be asking that each time you meet a new prospect. If you only meet new clients at the office or other public areas, steer clear of making exceptions. Avoid asking questions that could lead to a fair housing violation. Instead of asking “Where are you from?” ask “Where are you interested in looking at houses?” Keep the questions to the transaction – budget, timeline, desired locations, number of bedrooms and bathrooms, acreage, etc.

Real estate advertisements should use inclusive language and images and be designed to describe the characteristics of the property, not the characteristics of a targeted buyer. Consider having all advertisements reviewed by someone else in the office before being published. A second set of eyes may catch something that could be problematic. It is also good practice to include the fair housing logo on advertisements.

Having brokerage policies is important, but it is equally important to regularly train your team on these policies and fair housing compliance. Your fair housing policy should also include what corrective action will occur within the brokerage for any violations. Work with your attorney to develop a compliance policy that is enforceable.

Q. What does “time is of the essence” mean?

A. Many real estate contracts, including those developed by MAR, include “time is of the essence” causes, but questions often arise as to what the significance of this phrase is. A typical real estate contract includes dates by which one or both parties are required compete a specific act, such as satisfying a contingency or providing notice. To make these dates enforceable as deadlines in a contract, “time is of the essence” should be used. This eliminates any flexibility in the dates in the contract without a mutual agreement of the parties. If a critical date passes in a contract that includes “time is of the essence,” a contingency may be deemed waived, or the party failing to perform an action by the agreed-upon date may be in breach of the contract.

While “time is of the essence” clauses protect both sellers and buyers from delays in a real estate transaction that could cause significant negative consequences, the parties still retain the ability to mutually modify those dates. REALTORS® should continue to work closely with their clients to ensure deadlines are met and seek extensions when necessary to protect the client’s interests. Any agreed upon extensions should be in writing and signed by all parties to avoid any confusion.


Written by: Justin Davidson, General Counsel; Catherine Taylor, Associate Counsel; Jonathan Schreiber, Legislative & Regulatory Counsel; and Kate Berard, Associate Counsel.

Services provided through the Massachusetts Association of REALTORS® is intended for informational purposes and does not constitute legal advice, nor does it establish an attorney- client relationship. The Massachusetts Association of REALTORS®, by providing this service, assumes no actual or implied responsibility for any improper use of responses to questions throughthisservice. TheMassachusettsAssociationofREALTORS®willnotbelegallyresponsible for any potential misrepresentations or errors made by providing this service. For more information regarding these topics authorized callers should contact the MAR legal hotline at 800-370-5342 or e-mail at