Notes From the Legal Hotline: September 2023

September 7, 2023

- By The MAR Legal Team

Q: Is completing an MLS Status Change form sufficient to alter the terms of the Exclusive Right to Sell Listing Agreement? A: No, the Status Change Form is an MLS form and is not a contract. Any changes to the terms of the original listing agreement, such as marketing terms, listing price, or length of the agreement, should be addressed in an addendum to the listing agreement, and signed and dated by all parties. The MAR Forms Library contains a number of helpful addenda, including: Agreement to Suspend Marketing of Property (#696) and Extension of Time of Representation Agreement (#697). While the Status Change Form may be used to demonstrate a “meeting of the minds” between the listing agent and the seller(s), any modifications to a contract should always be clearly made in writing, signed, and dated by all the…

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Notes From the Legal Hotline: August 2023

August 1, 2023

- By The MAR Legal Team

Q: A prospective tenant has poor credit and offered to pay the full year’s rent up front – is that allowed? A: No, rentals for 100 days or more are governed by Massachusetts General Laws Ch. 186, Sec. 15b, which prohibits a landlord from collecting any funds in excess of: First month’s rent, Last month’s rent, Security deposit not to exceed first month’s rent, and The cost to change the lock and key. Regardless of whether the landlord requests funds in excess of these specifically enumerated amounts, or they are offered by the tenant, the collection of said funds would be a violation of the statute. Additionally, the collection of prepaid rent deprives the tenant of the ability to withhold rent which they may be legally entitled to do. Otherwise qualified tenants may offer to hold the funds in a…

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Notes From the Legal Hotline: July 2023

June 30, 2023

- By The MAR Legal Team

Q: A tenant provided the landlord with a document stating that their dog is a registered service animal. Is this legitimate? A: It is unlikely that this document will aid a tenant in obtaining a reasonable accommodation to allow for their dog. While many online sites offer certificates, licenses, or other registration documents stating that an animal is a service animal, no such registration, licensing, or certification process exists under the law. The Fair Housing Act allows for a landlord to request reliable documentation from a tenant when a reasonable accommodation is requested and the disability and/or disability-related need for the animal is not obvious or is otherwise unknown. HUD has specifically noted that such documentation from the internet is generally insufficient to satisfy the reliable documentation requirement. It is important to note that this does not disqualify reliable documentation…

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Notes From the Legal Hotline: June 2023

June 1, 2023

- By The MAR Legal Team

Q: What changes were recently made to the Sanitary Code? A: Following several delays, amendments to the Sanitary Code became effective on May 12, 2023. The tracked changes version of the new Code may be viewed here. While many of these changes are relatively minor in scope, REALTORS® working in the rental sphere will want to take particular note of the following amendments: Landlords will need to provide 48-hours’ notice to tenants prior to accessing the property to effectuate compliance with the Code (in non-emergency situations). This notice requirement does not extend to access for other non-Code-related purposes, such as real estate showings, which should be addressed in a lease agreement. Landlords must now provide (and maintain) a refrigerator and freezer unless the written lease agreement requires the tenant to supply those appliances. Kitchen walls above the countertops must have…

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Notes From the Legal Hotline: May 2023

May 1, 2023

- By The MAR Legal Team

Q: What legal remedies does a landlord have when a tenant terminates their lease early? A: A lease is a legally enforceable contract between the landlord and tenant and a breach of a lease contract will have ramifications on the breaching party. A landlord cannot force a tenant to remain in the leased property, but a tenant who terminates a lease early may remain responsible for rental payments until a replacement tenant is secured by the landlord. The lease agreement should also be reviewed by the landlord with legal counsel to determine what the landlord may legally collect from the tenant. If using the MAR Standard Residential Lease, a tenant who abandons the lease is obligated to pay the balance of the rent due under the remainder of the lease or until the commencement of a new tenancy, whichever is…

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Notes from the Legal Hotline: April 2023

March 31, 2023

- By The MAR Legal Team

Q. What steps can a brokerage take to ensure compliance with all Fair Housing laws? A. With April being Fair Housing month, it’s a good time to review office policies and procedures to ensure compliance with all applicable Fair Housing laws. Compliance with fair housing is not only a legal requirement under both federal and state laws, but it is also an ethical obligation under the REALTOR® Code of Ethics to not engage in discriminatory practices. The first line of defense against violating fair housing is knowledge of what each of the protected classes are and what they mean. The following are the protected classes in In Massachusetts: Race, National Origin, Gender Identity, Disability, Genetic Information, Veteran or Active Military Status, Familial Status (children), Color, Gender, Sexual Orientation, Ancestry, Marital Status, Age and Source of Income. Discrimination can occur in…

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Notes from the Legal Hotline: March 2023

March 2, 2023

- By The MAR Legal Team

Q: Are there any limitations on the types of transactions a real estate licensee may engage in? A: Once an individual is properly licensed as either a broker or a salesperson in Massachusetts, they are legally permitted to engage in any type of real estate transaction throughout the Commonwealth. Licensees, however, may be subject to discipline under 254 CMR 3.14(e) if they assume any duties or responsibilities that they are not adequately prepared to undertake or for which they have not achieved competency. Additionally, Article 11 of the REALTOR® Code of Ethics contains a similar requirement: REALTORS® shall not undertake to provide specialized professional services concerning a type of property or service that is outside their field of competence unless they engage the assistance of one who is competent on such types of property or service, or unless the facts…

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Notes From the Legal Hotline: February 2023

February 3, 2023

- By The MAR Legal Team

Q: Is a brokerage required to have an escrow account? A: A brokerage is only required to maintain an escrow account if they hold transaction funds. 254 CMR 3.10 requires that all money paid over to a real estate broker during the pendency of a transaction be immediately deposited in a bank escrow account, unless otherwise agreed to in writing by the parties. An escrow account is one in which the broker maintains the funds on behalf of the parties to the transaction, but has no claim to the funds. A broker holding such funds is obligated to maintain a proper accounting of all funds held and retain those records for a minimum of three (3) years. Q: Can a real estate broker operate as the principal broker for more than one brokerage? A: Yes, an individual holding a Massachusetts…

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Notes From the Legal Hotline: January 2023

December 23, 2022

- By The MAR Legal Team

Q: Who has the legal obligation to remove snow and ice from a property? A: The State Sanitary Code requires owners to keep all means of egress free from obstruction, including snow and ice. Property owners owe a duty of reasonable care to visitors of the property and may be liable for injuries caused to a visitor due to the failure to remove snow and ice. This duty extends to landlords, who are responsible for maintaining all entrances and exits to the property in a safe, operable condition at all times. No lease provision may negate this responsibility. Only in situations where a tenant has an independent means of egress not shared with other tenants and the responsibility for snow removal is included in a written lease agreement may the landlord shift this obligation to the tenant. Placing this responsibility…

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Notes From the Legal Hotline: December 2022

December 2, 2022

- By The MAR Legal Team

Q: Does a buyer whose offer was not accepted have the right to a written objection? A: No. Most offers are valid for a finite period of time, as specified in the offer itself. Once that time period has lapsed without an acceptance, the offer is no longer valid, acting as a de facto rejection by the seller. A buyer has the ability to request a formal written rejection, but the seller is under no legal obligation to provide this, and under the principles of contract law, a written rejection is unnecessary. In situations where there may be a concern that an offer was not presented to the seller, a buyer’s agent may submit a written request to the REALTOR® representing the seller seeking confirmation that the offer was presented to the seller. Under Article 1, Standard of Practice 1-7,…

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