by JUSTIN DAVIDSON, ESQ., Government Affairs Director & MAR General Counsel,
CATHERINE TAYLOR, ESQ., Associate Counsel &
JONATHAN SCHREIBER, ESQ., Staff Attorney
Q: Can I put surveillance cameras in my property to make sure the tenants in my vacation rental are following the rules?
A: No, while it is certainly understandable that you would want to make sure the provisions of the lease agreement are being followed, placing surveillance cameras in your property may subject you to both criminal and civil liability. Massachusetts General Laws Chapter 214, Section 1B protects a person’s “right against unreasonable, substantial, or serious interference with his privacy.” Although you, as the landlord, own the property, the people who rent it—whether for a week or a year—are using it as their home and are entitled to their privacy while there.
Q: I’ve heard people talking about websites needing to be accessible for people with disabilities what does this mean?
A. Title III of the Americans with Disabilities Act (ADA) requires that every owner, lessor, or operator of a “place of public accommodation” provide equal access to users who meet ADA standards for disability. The U.S. Department of Justice has repeatedly held that while the ADA does not specifically address the question of web accessibility, its language is still broad enough to include websites as part of your business operations. The legal consensus is that if Title II or Title III apply to your organization, then they also apply to your website. Although the ADA does not specifically mention websites or outline standards for making websites compliant, recommendations cited in the Web Content Accessibility Guidelines (WCAG) 2.0 are often used for guidance on the subject of website accessibility. There has been an uptick in the last several years in federal lawsuits filed against businesses alleging that their website violates the ADA by being insufficiently accessible to people with disabilities. To limit potential liability MAR recommends that Realtors® follow these standards: Provide audio descriptions for photographs and videos; Ensure all users are able to navigate the website (i.e. keyboard only commands); Ensure compatibility with leading screen reading programs; Allow for text scaling up to 200% without distortion or layout problems.
Q: The Property Transfer Lead Paint Notification says that it must be provided prior to the signing of a purchase and sale agreement, but the buyer agent is demanding it prior to the offer – which one of us is correct?
A: While the instructions on the Property Transfer Lead Paint Notification can be confusing, if you are using a Contract to Purchase, which is a binding offer, then the Property Transfer Lead Paint Notification must be given prior to acceptance of that offer. Conversely, if you practice in an area where parties to a home sale use a non-binding offer and only become bound upon entering into a purchase and sale agreement, the Property Transfer Lead Paint Notification must be provided prior to entering into the purchase and sale agreement. Keep in mind, the purpose of this Notification is to ensure that purchasers of real property are aware of the risks of lead poisoning and notified of potential hazards in the home they are considering prior to entering into a binding contract to purchase that property.
Q: Is a bumper sticker displaying only a team name permissible?
A: No. Any advertisement that does not clearly identify the broker is both a violation of Massachusetts Regulations and the Realtor® Code of Ethics. Advertisements can include everything from billboards to pens to business cards to your email signature, and everything in between. It is important to remember, not only in advertising, but also in the way you conduct your business, that teams are May/June 201913also in the way you conduct your business, that teams are not brokerages and should not be held out as such to the public.254 CMR 3.00(9) clearly states that Salespersons are prohibited from advertising under their own name and all advertisements must include the name of the real estate broker. Failure to comply with this provision may resulting disciplinary action, including suspension or revocation of licensure. Article 12 of the Code of Ethics governs all Realtor advertisements. The Code of Ethics goes a step beyond Massachusetts Regulations by dictating, in Standard of Practice 12-5, that the name of the Realtor®’s firm must be displayed in a reasonable and readily apparent manner. However, there is an important distinction to be made between what is permissible under the Code of Ethics and what is allowed under Massachusetts Regulations. The Code of Ethics allows the required advertising disclosures to be made via a link, or the “one-click” rule as some refer to it. At this time, it remains unclear whether the Board would deem this “one click” permissible. As a result, it is not advisable to rely on linking to your advertising disclosure.
Q: I have been having trouble renewing my license with the new online system, where can I get help?
A: The Division of Professional Licensure has transitioned all license renewals to the online platform ePlace. In order to successfully renew your license through the online platform, you must first link your account and license number. All licensees will have an authorization code that was mailed to your address on file. If you continue having trouble renewing your license, you may call the Board at(617) 727-3074.Q: A colleague in another state recently told me that they received a letter from the EPA stating that the EPA would be performing a Lead-based Paint Disclosure Rule recordkeeping inspection. What information would they be looking for? A: Any type of regulatory inspection can be nerve-wracking, but if you have been diligent in your recordkeeping, you should not have a problem. Prior to an inspection, the EPA Compliance Officer assigned to your inspection will likely provide you with a list of documents that you will need to produce for their review. These documents may include:Copies of purchase contracts for homes sold in the last year that were built pre-1978;The Property Transfer Lead Paint Notification form provided to the purchaser in each transaction involving a pre-1978 home;A list of agents affiliated with the company; and A list of all pre-1978 properties sold in the last three (3) years. Penalties for non-compliance with the lead paint disclosure laws, and failure to properly maintain the required documents for at least three (3) years may lead to significant civil penalties and potential criminal liability for willful violations.
Q: A salesperson affiliated with my brokerage wants me to pay their commissions to an LLC they established – can I do that?
A: No, a salesperson is unable to receive commission payments through an LLC, or other corporate entity, unless a broker is willing to serve as a representative of that entity. In order to share any real estate commissions or fees with a corporate entity (i.e. partnerships, limited liability corporation's corporations, etc.), the entity itself must be licensed as a broker pursuant to Massachusetts General Laws Chapter112, Section 87UU and 254 CMR 2.00(11). A license will only be issued to a corporation if the corporation designates a representative to obtain the license and that representative already holds a broker’s license as an individual. Further, the statute expressly prohibits the issuance of a salesperson’s license to a corporation. Fees and commissions earned from a real estate transaction may only be paid to a licensed salesperson or broker, as such, any payments to an unlicensed entity are impermissible.
The information and 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 at800-370-5342 or e-mail firstname.lastname@example.org.