Notes From the Legal Hotline: June 2022

June 2, 2022

- By The MAR Legal Team

Q: What do REALTORS® need to know to avoid antitrust liability?

A: The best way to avoid antitrust liability is to ensure that all business decisions are made independently within the brokerage. The potential for antitrust liability arises any time two or more competitors discuss their business practices. REALTORS® must always be alert to discussions that focus on commission rates, pricing structures, listing policies, or marketing practices of other brokerages. If a discussion becomes troubling, immediately suggest a change of topic, or remove oneself from the conversation. Within the real estate arena, we most often hear of antitrust issues arising from price fixing and group boycotts.

Price fixing may be as obvious as two or more competitors blatantly agreeing to charge consumers the same commission on real estate transactions or agreeing to the same cooperating commission splits. Price fixing can also arise in more subtle ways, such as suggesting to consumers that there is a “standard fee” or that “everybody charges the same amount.”

A boycott results when two or more competitors refuse to do business with another competitor or are only willing to cooperate with that competitor on less favorable terms. These actions may cause the competitor to change their business practices (which could also lead to price fixing) or even force them out of business.

REALTORS® must also be cautious in placing advertisements that may result in antitrust violations. Advertisements that directly compare or criticize a competing business model may not only implicate antitrust laws but may also lead to a Code of Ethics violation. Article 15 prohibits REALTORS® from making false or misleading statements about other real estate professionals or their business practices.

Liability for antitrust violations can be significant with the potential for both monetary damages as well as criminal sanctions.

Q: There is an encroachment on the property I am selling – what is the best way to proceed?

A: If you are aware of the encroachment prior to listing the property, it may be beneficial for the seller to attempt to resolve the encroachment prior to listing the property for sale. An encroachment may be as simple as a bush or tree planted over the property line to something as significant as a portion of a structure (such as a garage) crossing onto neighboring property. It is not uncommon for sheds, fences, and driveways to be improperly placed, thus causing an encroachment. If resolution prior to listing the property is not possible, the encroachment will need to be disclosed to prospective buyers prior to entering into a contract to purchase. An encroachment could impact a sale, so the best course of action is to resolve it prior to the time set for closing.

Attempting to negotiate a resolution with the encroaching neighbor may be the most time and cost-effective strategy. If negotiation is unsuccessful, bringing an action in court may be necessary. The process of litigating the issue will likely take much longer and comes with a price tag.

Depending on the nature of the encroachment, a resolution, either through agreement or court order, could result in the encroachment being moved (such as with a shed or a fence), the granting of an easement over a portion of the property to allow for the neighbor’s use (such as a driveway), or a portion of the land being sold to the neighbor with the encroachment. Based on the resolution, there may be necessary paperwork to file with the Registry of Deeds.

The best way to determine the extent of an encroachment is to have the property surveyed by a professional and to work with an experience real estate attorney.


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