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…

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Notes From the Legal Hotline: January 2022

January 3, 2022

- By The MAR Legal Team

Q: I just found out my buyer client bought a house with another agent. What options do I have? A: What recourse is available in these situations depends on the type of relationship between the agent and the buyer. If the buyer and agent entered into an exclusive representation agreement, and a property was purchased during the term of that agreement, or any extension thereof, a commission may be owed. The MAR Exclusive Buyer Agency Agreement states, in relevant part: The parties agree that compensation equal to ___ (insert percent of purchase price or another amount) shall be due BROKER upon successful completion of this Agreement or in the event that, within ___ days following the term of this Agreement, BUYER or any person acting for or with BUYER purchases, leases or otherwise acquires an interest in the real…

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Notes From the Legal Hotline: December 2021

December 3, 2021

- By The MAR Legal Team

Q: I heard there is a new Mandatory Licensee-Consumer Relationship Disclosure. Is that true and when does it need to be presented? A: The Relationship Disclosure must be presented to a consumer at the first personal meeting in which specific property is discussed. Recent changes to the Mandatory Licensee-Consumer Relationship Disclosure clarify that the disclosure is only required in residential transactions, which are defined as land with a building intended for use as a one to four-unit residential dwelling or the purchase or sale of land on which a building is intended to be constructed for use as a one or two-unit residential dwelling. Additionally, the disclosure now states that, in the absence of a personal meeting with a consumer, the licensee must provide the consumer with the relationship disclosure, either electronically or otherwise, prior to the licensee entering…

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Notes From the Legal Hotline: October 2021

October 5, 2021

- By The MAR Legal Team

Q: What tasks may an assistant perform in a real estate office? A: The tasks that may be performed by an assistant in a real estate office are going to depend on whether the assistant is licensed or unlicensed. A licensed assistant may perform any tasks permitted of licensees in a real estate transaction, but an unlicensed assistant is much more limited in the tasks they may perform. Some examples of activities in which an unlicensed real estate assistant can engage are: General administrative tasks, such as answering the phones and sending mailers Placing signs on listed properties Scheduling appointments for the licensee Preparing open house materials   Unlicensed assistants should avoid tasks that place them in direct contact with clients or customers. Specifically, the following are some activities unlicensed assistants should avoid: Providing specific details of a property…

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Notes from the Legal Hotline: September 2021

August 30, 2021

- By The MAR Legal Team

Q: May a landlord use COVID vaccination status in screening prospective tenants? A: While vaccination status itself is not a protected class, the reason an individual is unvaccinated may be because of a protected characteristic, such as children under the age of 12 or individuals with disabilities. A landlord wanting to use vaccination status as a screening tool would need to be prepared to allow exemptions to the policy in these types of situations and should be advised to work closely with an attorney in doing so. Landlords looking to prevent the spread of COVID in their properties may instead want to consider policies for common areas of the building, such as frequent sanitization, asking tenants to wear masks, and avoid congregating in large groups. Q: What happens now that the Supreme Court struck down the CDC Eviction Moratorium?…

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Notes from the Legal Hotline: August 2021

August 2, 2021

- By The MAR Legal Team

Q: How should a REALTOR® handle a seller who wants to meet the prospective buyers before accepting an offer? A: As a real estate professional, it is the job of the REALTOR® to educate their clients on the home selling process and assist the seller in achieving the most favorable terms and conditions for the sale of their property. Determining which offer to accept should be based solely on objective criteria. A seller wanting to meet interested buyers prior to selecting an offer introduces subjective information that may lead to a Fair Housing violation. Race, color, religion, sex, handicap, familial status, national origin, gender identity, sexual orientation, ancestry, genetic information, marital status, age, veteran/military status, and source of income are all protected classes in Massachusetts. In meeting prospective buyers, the seller will learn information that will identify a buyer…

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Notes from the Legal Hotline: July 2021

July 1, 2021

- By The MAR Legal Team

Q. I have an Exclusive Right to Sell but another Broker just listed the property in the MLS. What do I do? A: An Exclusive Right to Sell Listing Agreement is a bilateral contract between the seller of the property and the listing broker. One party may not unilaterally change the terms of the contract or “cancel” the contract. A seller who enters into a subsequent listing contract with a second brokerage is in breach of the original contract and may be obligated to compensate both listing brokers according to the terms of the contract. When approached by a prospective client, a REALTOR® has an affirmative obligation under Article 16 of the Code of Ethics to make reasonable efforts to determine that the client is not subject to an exclusive agreement for the same type of real estate service.…

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Notes from the Legal Hotline: June 2021

May 28, 2021

- By The MAR Legal Team

Q. Is a broker able to associate with more than one brokerage? A. Yes, the single affiliation requirement contained within Massachusetts General Laws Chapter 112, Section 87RR speaks only to individuals licensed as salespersons. As the law is silent in this regard as to those licensed as real estate brokers, brokers may associate with multiple brokerages. Although permissible under Massachusetts laws, a broker of record may restrict associate brokers from working at another brokerage. Q. If I represent two buyers interested in submitting an offer on the same property is that dual agency? A. No, this is not considered dual agency. An agent may represent multiple buyers interested in the same property so long as the agent is able to fulfill their fiduciary responsibilities to each. The MAR Exclusive Buyer Agency Agreement speaks exactly to this possibility and affirmatively…

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Notes from the Legal Hotline: May 2021

May 3, 2021

- By The MAR Legal Team

Q: What information am I able to provide clients when they ask a legal question? A: Due to the nature of the real estate business, REALTORS® often receive requests from clients for what amounts to legal advice. In an industry controlled by contracts, this is unsurprising. REALTORS® must walk a fine line in representing their clients’ interests without engaging in the unauthorized practice of law. You, as a REALTOR® may provide legal information, but you may not provide legal advice or draft legal documents or clauses. Article 13 of the Code of Ethics not only prohibits the unauthorized practice of law but also places an affirmative duty on REALTORS® to “recommend that legal counsel be obtained when the interest of any party to the transaction requires it.” REALTORS® may assist clients in the completion of standard form contracts, such…

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Notes from the Legal Hotline: April 2021

April 2, 2021

- By The MAR Legal Team

Q: If the MLS states that all offers are due by a specific date and time and my buyer submits an offer after that, does the listing agent need to present that offer? A: Maybe. The Massachusetts Real Estate Regulations require that a licensee submit all offers to purchase or rent real property to the owner of the property upon receipt of such offers. This obligation is not absolute, however, and may be modified through an instruction from the seller. A seller may provide their agent with instructions related to the sale of their property, including a specific time that offers are due by. If an offer is received after the time set by the seller, an agent may not be obligated to present that offer based upon the seller’s instruction. A listing agent’s fiduciary obligations require them to…

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