Notes From the Legal Hotline: June 2024

May 31, 2024

- By The MAR Legal Team

Q: Can a landlord refuse emergency or temporary housing assistance payments? Can a landlord deny those tenants because the housing program requires a vacant unit for inspection, and this costs the landlord money? Can a landlord refuse reasonable rent suggested by a housing authority?

A: Housing providers and real estate professionals must comply with Fair Housing Laws. In Massachusetts, it is an unlawful violation of Fair Housing Laws to screen tenants, or deny tenants, based on their source of income. This includes a prohibition on denying payments from emergency or temporary sources such as RAFT or voucher programs such as MRVP. 

Many rental assistance programs require inspections of the property prior to signing of the lease agreement. In some instances, these programs require the units to be vacant or require the housing provider to do some repairs. While this may result in the housing provider incurring additional costs, a tenant cannot be denied because of a requirement of the program. In DiLiddo v. Oxford St. Realty, 450 Mass. 66 (2007), the Supreme Judicial Court ruled that a landlord’s refusal to rent to a tenant who was a participant in the Alternative Housing Voucher Program (AHVP) based on objections to the termination provisions of the standard AHVP lease violated Massachusetts Fair Housing Laws (G.L c. 151B, s. 4(10)). The Court noted that the 1990 legislative amendment to the statute made it unlawful to discriminate against a person either because of any requirement of a subsidy program or because the person was a participant of a subsidy program. Therefore, an objection that adhering to program requirements will cost time and money, is not an adequate defense to violating Fair Housing laws.  

However, this does not mean that if a landlord receives an application from a tenant that cannot pay the listed rental price, or the Housing Authority offers a lower “reasonable rent” that the landlord must accept a lower rental amount. Certainly, if a lower rent is suggested, a landlord can share comps and is encouraged to negotiate in good faith, but they are not required to take the lower amount.  

Massachusetts has a resource guide to assist landlords and licensees in navigating voucher programs that may be accessed here 

Q: Should Brokers withhold sharing of the fully signed purchase contract until they receive the deposit from the Buyer?

A: Best practice is to share a fully signed agreement with the parties thereto once it is fully executed. Article 9 of the Code of Ethics, states, in part: “A copy of each agreement shall be furnished to each party to such agreements upon their signing or initialing.” 

The question usually arises as to whether the payment of the deposit indicated on the contract should be delivered with the buyer’s signature or after the seller’s signature. This question can usually be answered by the plain language of the Contract to Purchase or Purchase and Sales Agreement. If the deposit is to be delivered “herewith” it should be included with the Buyer’s signature. If the deposit is to be delivered “forthwith” it should be delivered without delay, and in practice, it is often mailed, wired, or physically delivered upon receipt of a fully executed contract pursuant to the term in MAR’s Contract to Purchase (form 501).  

Additionally, MAR’s standard form Purchase and Sales Agreement (form 503) states that the deposit is provided “with this Agreement”. When read in conjunction with the language in the Contract to Purchase that states “an additional deposit upon executing the Purchase and Sale Agreement” the Buyer should deliver the deposit with their signature. However, the parties should look at the delivery of this contractual deposit and signatures of all parties as  simultaneous action. The parties have agreed to the terms of the Purchase and Sales Agreement, including the deposit amounts reflected, and those terms of the Agreement become effective upon signature by the parties.  

Q: If I am representing a buyer, do I still have to provide three referrals for home inspectors? 

A: Massachusetts law (M.G.L. Ch. 112 s. 87YY½) prohibits real estate brokers and salespersons from directly recommending a specific home inspection company or home inspector but may, upon request, provide a complete list of licensed home inspectors prepared by the board. This prohibition does not apply if there is a written contractual agreement or a written agency disclosure between the buyer and the real estate broker specifying that the real estate broker is acting exclusively for the buyer as a buyer’s broker. 

 If you are acting as an exclusive buyer’s broker, best practice is to recommend more than one home inspector or company so that the buyer can make the choice. Additionally, this section requires that a real estate licensee at the time of the signing of the first written contract to purchase, distribute a brochure, published by the office of consumer affairs and business regulations educating consumers about the home inspection process. The brochure may be accessed here. 

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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