Q: I just found out my buyer client bought a house with another agent. What options do I have?
A: What recourse is available in these situations depends on the type of relationship between the agent and the buyer. If the buyer and agent entered into an exclusive representation agreement, and a property was purchased during the term of that agreement, or any extension thereof, a commission may be owed. The MAR Exclusive Buyer Agency Agreement states, in relevant part:
The parties agree that compensation equal to ___ (insert percent of purchase price or another amount) shall be due BROKER upon successful completion of this Agreement or in the event that, within ___ days following the term of this Agreement, BUYER or any person acting for or with BUYER purchases, leases or otherwise acquires an interest in the real property after becoming aware of the availability of the real property or receiving information about the real property during said term.
This language allows the first agent/broker to seek compensation from a buyer who purchases real property during the term of the agreement, regardless of whether the buyer uses the services of another brokerage.
If there was not an exclusive representation agreement with the buyer, the first agent may only be entitled to compensation if they can demonstrate that they were the procuring cause and, thus, entitled to the compensation offered through the MLS if the property was listed with the service.
As a REALTOR® speaking with a prospective client, it is imperative to verify with the prospective client that they are not subject to an exclusive representation agreement. Failure to inquire as to the existence of a valid exclusive representation agreement may subject a REALTOR® to an ethics complaint under Article 16.
Prior to engaging in any activity to seek a fee from a client in this situation, the agent should first speak with their broker to determine what, if any, action the broker wishes to take. As any fee is due to the broker, not the individual agent, an agent may not unilaterally initiate a claim against a buyer or other agent to collect a commission.
Q: Who is responsible for snow removal at a property?
A: As a general rule, the owner of the property is responsible for snow removal. Massachusetts requires property owners to use reasonable care for the protection of visitors. This duty also applies to landlords, who are responsible for snow removal at their rental properties. Landlords must maintain all entrances and exits in a safe, operable condition at all times. This duty of care mandates the removal of snow and ice from areas of the property such as driveways, walkways, steps, fire escapes, and doorways.
In certain situations, the property owner may transfer this responsibility to a third party, such as the tenant or a snow removal company. The obligation for snow removal may only be placed upon a tenant if the tenant has an independent means of egress not shared with other tenants, and the requirement is contained in a written lease agreement. In these cases, there should be a clearly written agreement covering expectations, expenses, liability, etc. If using a snow removal company, the property owner should verify that the company is properly insured. REALTORS® should not take on the responsibility of snow removal on behalf of their clients because they may be exposing themselves and their clients to liability. Failure to properly clear snow and ice places a homeowner at risk of liability for visitors’ injuries.
REALTORS® should advise their clients to (1) review insurance policies to be sure that there is adequate coverage; (2) determine whether contractors or others hired to remove snow and ice have insurance; and (3) be vigilant when there is newly fallen snow, melting or freezing. If complete clearing is not possible, warning signs may be appropriate. Clients that have specific questions regarding their duty to clear snow and ice should consult their attorney.
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Written by: Justin Davidson, General Counsel; Catherine Taylor, Associate Counsel; and Jonathan Schreiber, Legislative & Regulatory 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 through this service. The Massachusetts Association of REALTORS® will not be legally responsible 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 legalhotline@marealtor.com.