Notes From the Legal Hotline: May 2022

May 4, 2022

- By The MAR Legal Team

Q: If I have two buyer clients interested in submitting an offer on the same property, am I a dual agent?

A: No, dual agency occurs when one licensee represents both sides of the transaction. An agent may represent multiple buyers interested in the same property without entering into a dual agency relationship. Although license law does not require clients to consent or receive notice if this situation arises, the MAR Buyer Agency Agreement does include language that acknowledges that it is a possibility that the agent may represent multiple buyers submitting offers on the same property. Given the current market conditions, these situations are occurring more frequently, and it may be worthwhile having a conversation with a client at the onset of the relationship to address this possibility. It is important to note that a buyer agent representing multiple buyer clients offering on the same property is not relieved of any fiduciary duties owed to each individual client. In some instances, it may be worthwhile referring one buyer to another agent to avoid potential conflicts.

Q: Does my seller need a passing Title 5?

A: Under Massachusetts law a passing Title 5 is not required for title to transfer to a new owner. What the law does require is that a Title 5 inspection be performed within the two years prior to the transfer occurring. In limited circumstances, such as a transfer between certain family members or a refinance, an inspection is not required. Additionally, the law requires that a system with a failed Title 5 inspection be repaired or replaced within two years of the failed inspection. The owner may enter into an agreement with the Board of Health that requires the system to be brought into passing condition or connected to the public sewer within that time. This agreement is enforceable on any purchasers of the property, as well, and must be disclosed by the seller to prospective purchasers.

While the law does not require a passing Title 5 for title to transfer to a new owner, obtaining conventional financing with a failed inspection can be challenging. Buyers interested in purchasing a property with a failed Title 5 should be advised to speak with their lender and/or their attorney to determine what options may be available.


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

Services provided through the Massachusetts Association of REALTORS® are intended for informational purposes and do 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