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Legal Summaries

Oh, how many times have we tried to clone our state legal department? Real Estate law gurus Steve Ryan, Esq,, General Counsel and Government Affairs Director of the Massachusetts Association of REALTORS® and his ever supportive Associate Counsel Mike McDonough keep us out of trouble on a daily basis!

Now, both will share their information with you each month; provide you with a highlight of the calls they field on the legal hotline; and keep us posted with changing Massachusetts law. Also included here are national notes from NAR’s legal department concerning federal cases that are of interest to Massachusetts brokers and salespersons.

Members may access the Legal Hotline by calling 800-370-LEGAL (5342), sending an e-mail, or faxing questions to the Legal Department at 781-890-4919.

Selling Estates - Notes from the Legal Hotline

By Steve Ryan & Margy Grant, MAR's Legal Team

A brief look at selling estate properties and the complications of probate law in Massachusetts.  More information

Title 5 - Notes from the Legal Hotline

Q&A By Steve Ryan & Margy Grant, MAR's Legal Team

Today's question from the legal hotline pertains to Title 5 and a failed inspection...  More information

Seasonal Rentals - Notes from the Legal Hotline

By Steve Ryan & Margy Grant, MAR's Legal Team

Pets, lead paint and security deposits. The MAR legal team answers the most frequently asked questions about seasonal rentals.  More information

Email Messages Can Create Binding Contracts

Put your $$ where your fingers are??

A recent court case found email communications alone could create a contractual agreement between a buyer and seller that is enforceable and meets the statue of fraud requirements for the sale of real property. Read the Details of this Decision...

Asbestos - Notes from the MAR Legal Hotline

By Steve Ryan, General Counsel and Margy Grant, Associate Counsel

MAR Legal Hotline weighs in on Asbestos in real estate and answer member questions about the removal and disclosure requirements as well as brief tips to help you identify asbestos in the field.  More information

Tenant Issues in Foreclosure - Notes from Legal

By Steve Ryan & Mike McDonough, MAR's Legal Team

Learn about the responsibilities of a lender that has acquired title to a home in which tenants are currently residing.  More information

Referral Fees & Open House from MAR Legal Hotline

Steve Ryan & Margy Grant Give Update

The MAR Legal team cover how and when to legally pay referral fees to Active and Inactive Salespersons and address open house blues - when something happens is the Realtor on site liable?  More information

Slippery Going, Who is to Blame

Legal Hotline Weighs in on Seller Agent Responsibilities

Snow and ice have stayed at bay so far this winter, but the Massachusetts Assocation of REALTORS legal counsel have a few valuable tidbits to share about your liability for a property in our fickle New England weather.  More information

Asbestos Issues Found, Seminar Held

Take a moment to familiarize yourself with Asbestos handling & Liability

In recent weeks, the Board office has fielded several calls regarding asbestos, and a REALTORS obligation and liability of disclosure.  More information

Compensation - Notes from the MAR Legal Hotline

Cooperative Compensation Issues Addressed this month

Are you wondering how cash-back issues at closing can affect the compensation offered to cooperating brokers? The MAR Legal Team weighs in with an answer to a common question asked on the Legal Hotline...  More information

Mortgages - Notes from the MAR Legal Hotline

Putting Deals together when Financial Issues arise.

Financial issues that arise during a closing can be frustrating, and many times plain hazzardous. The MAR Legal Counsels offer a few recommendations on how to handle perilous situations...  More information

Leaving a Firm - Notes from the MAR Legal Hotline

This month's Legal Q&A features issues surrounding Terminating Office Affiliations

In the best case senariou, when an agent leaves a firm there are clear guidelines for handling the transition in an Independent Contractor Agreement. The MAR legal team answers the most frequently asked questions about what happens when you don't have one.  More information

Lead Paint Notes from the Legal Hotline

Proper Disclosure and Paper Trail

The state legal team has answered a few relevant questions from Berkshires Central Council regarding the proper disclsoure of lead paint and paperwork requirements in the new age of technology.  More information

Rental & Fair Housing Notes from the Legal Hotline

What is an Owners obligation for service pets and ramps?

If you represent owners of rental units, perform property managmenet or are a multi-unit owner yourself, this is valuable information from the Legal Hotline. Can you really say "No pets?"  More information

Title 5 Obligations

Who Pays, and When

In reading the Purchase and Sale Agreement, did you ever wonder why the seller doesn’t have the ability to terminate the contract if the title 5 fails inspection? Shouldn’t they have the ability to get out, especially if they can’t afford to fix it?  More information

Mortgage Issues - Doing Business Locally

Buyer - and Seller - And Realtor Beware

While there has been a lot of talk about the sub-prime and predatory lending issues across the commonwealth and the nation, we are experiencing another problem in the Berkshires. It seems that there are a number of transactions that are dissolving in the final hours...  More information

Co-Exclusive Listing Overview

Decision Reached Regarding Acceptance into MLS

The MLS Board of Directors did extensive research into the issue of co-exclusive listings and their legality in Massachusetts as well as their acceptance in our Multiple Listing Service database. The results are posted for those interested. More Information

Fire Department Regulation

House Numbers Required

Recently, a fellow REALTOR was denied a CO certificate because the house she had listed did not have the house number displayed on the home (there were numbers displayed on the mail box). The certificate was issued but she could not have it in hand until this situation was recitifed.  More information

Board of Registration Update

New Search to Establish Associates of Firm

The Board of Registration has released a new search that will show agent affiliation with an office. During our initial overview of the website, we discovered that many, many affiliations were not listed, or were incorrect for our members.  More information

Short Sale Foreclsoure Information

Compiled Material from the Berkshire, Mass and National Associations

The Board held a Short Sale / Foreclosure Breakfast Forum and distributed quite of bit a helpful information for REALTORS. We have included all of the materials provided here as well.  More information

Listing Entry Reminder

Contracts Must be Executed before Entered!

According to the terms of the contract, the agent does not have an Exclusive Right to Sell the property nor do they have the right to enter the listing into the MLS until a contract has been executed /signed / dated.  More information

Short Sales - Notes from the Legal Hotline

By Steve Ryan & Mike McDonough, MAR's Legal Team

A legal question from the listing broker of a short sale property, answered by MAR's legal team  More information

Estate Sales - Notes from the Legal Hotline

By Steve Ryan & Mike McDonough, MAR's Legal Team

Who needs to sign... Question answered from a listing agent of an estate sale.  More information

Leases - Notes from the Legal Hotline

By Steve Ryan & Mike McDonough, MAR's Legal Team

Is there really a 30 day requirement to provide a tenant with a copy of their executed lease?  More information

Stigmatized Property - Notes from Legal Hotline

By Steve Ryan & Mike McDonough, MAR's Legal Team

A common question among REALTORS® is what to disclose when it comes to tragic events such as suicides or homicides which may have occurred at a particular listing. A section of Chapter 93A, known as the stigmatized property law, provides the answer to these types of questions  More information

Clarification: Tax Credit Used as Down Payment

Advise Buyers to Consult with Banker

We've received questions about the $8,000 tax credit being used as a buyer's down payment, and asked Steve Ryan, MAR General Counsel to respond. Steve said, "Under the new rule the tax credit can be used for FHA loans for both the down payment and for the closing costs but only AFTER the buyer has come up with the first 3.5% themselves. The 3.5 can come from their savings or from a gift from relatives.

The 8k can be used to buy down the interest rate or to decrease the principal of the loan but, again, the first 3.5% has to be their $ not the tax credit. The reason the feds changed the original plan was due to concerns about buyer getting homes with none of their own money being involved and thus having no stake or 'skin in the game' as they keep saying.

Alternatively, MHFA already has a no $ down program for certain buyers and 3% down program for all buyers & those may actually be the better programs here in MA." Mass Housing Program Details

PLEASE NOTE: Tax credit is available on ALL 1st time homebuyer new purchases within the loan/income limits, not just FHA mortgages. The ability to use the tax credit for a downpayment is limited to FHA borrowers, but not all Berkshire lenders are participating in this program - encourage your buyers to ASK. More information below.

The owner of the property named

Clarification was made

Note: The MLS Board approved a new MLS Policy that reads: "The owner of the property at the time of the exclusive right to sell agreement, including banks or relocation companies, shall be named on the MLS listing sheet as seller".

This clarification was made because cooperating brokers were not able to draft enforceable, legal Purchase & Sale agreements without this information. The seller's name field is required in the MLS, and as such, needs to be completed accurately. The MLS board did agree that there are limited circumstances in which a seller specifically directs their agent to withhold that information (in which case it would still, most likely be publicly available on the deed and researchable by a buyer's agent). Exceptions to the rule can be granted upon written instructions from the seller, conveyed to the MLS office with the Exclusive Right to Sale agreement, and with the understanding that the listing broker will promptly provide the seller's name to cooperating brokers upon request, to facilitate potential offers.

Foreclosure Prevention Video Series

FREE For Berkshire Realtors, Online NOW

A partnership of local Realtor Assocation across Massachusetts joined together in late 2009 to apply to the National Assocation for assistance in training members on Foreclosure Prevention and Short Sale Processing. A 7-series set of videos was created specifcally for you, and a live training program will be scheduled in 2010 free of charge to all Realtors of the Berkshrie County Board. Check the calendar for details on the live session, and visit our Online Education Center to view the videos at no cost.

New Free Guide on Wells:

What Every Realtor Should Know about Private Drinking Water Wells

The EPA has sent the Board Office a new brochure entitled " What Every Realtor Should Know about Private Drinking Water Wells" This brochure can be viewed online for free (you can print it yourself) or you can call the Board for one hard copy (while supplies last) I also have a contact in the New England EPA Office if you would like me to request more hard copy brochures for your clients.

Lead Paint Renovation Rule

Effective 4/22/2010

Common renovation activities like sanding, cutting, and demolition can create hazardous lead dust and chips by disturbing lead-based paint, which can be harmful to adults and children. As such, the EPA issued a issued a rule requiring the use of lead-safe practices and other actions aimed at preventing harmful effects from lead exposure.

After April 22, 2010, federal law requires Contractors who perform renovations, repairs, and painting jobs in pre-1978 housing and child-occupied facilities, to be certified and to use lead-safe work practices. To become certified, renovation contractors must submit an application and fee payment to EPA.

Renovation contractors must:

  • provide owners, tenants, and child-care facilities with a copy of EPA's lead hazard information pamphlet "Renovate Right".
  • document compliance with this requirement via the EPA’s pre-renovation disclosure form
  • Contain the work area and limit exposure
  • Minimize dust during construction.
  • Clean work space thoroughly.

Direct Link to the EPA for Contractors Lead Paint Renovation Rules

Renovate Right! A Contractors Brochure for Home Owners (pdf)

Sample Record Keeping Checklist for Contractors

Smoke Detector Regulations

Changes Effective April 5, 2010

Smoke Detectors: Updates Effective April 5, 2010

The new smoke detector regulation goes into effect on April 5, 2010. The new regulation still requires photoelectric smoke detectors within 20 feet of a kitchen or full bath containing a shower. Areas located beyond 20 feet will now be required to contain dual detection by either a single unit or two separate units. This regulation applies to residential properties (up to 4 units) constructed prior to January 1975 that have not undergone major alteration covered by the State Building Code. It also contains a provision for low voltage household warning systems that may have been installed in these homes. A new Smoke and Carbon Detector flyer has been created, for you to provide to your seller. This form was okay'ed by the Pittsfield Fire Inspector.

Upgrades of Oil Tank Supply Line

New Regulation Effective July 1, 2010

Effective July 1, 2010, homeowners must upgrade their oil tank supply line to prevent undiscovered leaks. There are two manners of upgrade; an oil safety valve on the tank or a protective sleeve that encases the actual oil line from tank to burner. Since all homeowners (not just those transfering title) must comply with this new regulation, you'll start to see Home Inspectors identify this issue during their inspection and Fire Inspectors check when issuing a smoke/carbon certificate.

This regulation applies to 1-4 family homes heated with oil, unless the burner and entire supply line is located above the oil tank. Homeowners conforming with this new regulation will also be able to purchase insurance coverage for oil leaks (typically not covered), as mandated by the regulation. For more information, please see Mass DEP guidance

Lead Paint Renovation Rule Compliance

Guide Effective 4/22, 2010

After April 22, 2010, federal law requires Contractors who perform renovations, repairs, and painting jobs in pre-1978 housing and child-occupied facilities, to be certified and to use lead-safe work practices. To become certified, renovation contractors must submit an application and fee payment to  More information

Good News! New Appraiser Guidelines

Released 6/30/2010 from Fannie Mae

The June 30th Update requires (among other things) lenders use of appraisers with a direct, local knowledge of the area, offers guidance when using distressed property comps, allows Realtors to provide factual info directly to appraisers to help ensure accuracy, and prohibits lenders from changing the appraisal / home value.  Read the full Inman News Article

New Mortgage Assistance Rules

Three NEW disclosure you may need to provide

Under new MARS rules there are three potential disclosures that a REALTOR® may need to make. Here are models that could be used in written materials (the requirements vary slightly for oral communications made to consumers).  More information

Board Report from NAR Midyear Meetings

An update on Board issues, technology, legislative actions and more

A lot of interesting items from the 2012 NAR REALTORS Legislative meetings in Washington DC. Includes Rally highlights, legal and legislative initiatives, Board of Directors report, MLS issues and more.  More information

Bogus Realtor Complaint Site

They’re gonna be in so much troublllle

We recently received a call from a REALTOR member upset about a posting on a “Realtor” complaint site , thinking the site was operated by NAR. We are not posting the website’s name because it will generate traffic, boost search engine ratings and drive MORE business their way when the curious amongst us click the link (we know, we’re like that too.) The website is using the REALTOR term in the domain, using the REALTOR logo throughout the site, and using the REALTOR trademark on the website, all of which violate the copyright and trademark owned by NAR.

The site is designed to track complaints about Realtors from members of the public [eye roll]. Our Berkshire Realtor member received an email from a supposed interested customer who expressed concerns about working with him since he had a bad review from the “Realtor association”. Most of the “bad reviews” read the same... This guy/gal never returns calls! For $49 via paypal you can remove one bad “complaint” and for $99 you can eliminate all future complaints. 

Please be assured that the site was not only reported to the NAR legal Department, but that there is an entire enforcement division that will be looking into this and filing the necessary legal remedies if they can’t get the site removed in other channels. Please know that the site itself, and most likely the consumer e-mail referencing the site are both most likely scams . If you find that a REAL buyer or seller is concerned about something they read on the internet (doubt it), verify its authenticity and address it, or feel free to direct them to the Board office so that we can factually and impartially explain if/when is a scam. 

Fair Housing, Syndication & Copyright

Issues Demand your Immediate Attention

Did you know????

Fair housing testers are actively searching

fairhousingThere have been many lawsuits, but the most recent fair housing lawsuit was filed by a self proclaimed "fair housing tester" who was activiely searching for listing remarks that violate fair housing laws, and filed discrimination LAWSUITS against both the listing agents and broker-owners for violations found. The most recent case was interesting, to say the least.  To address the seriousness of this issue, we’ve developed three simple steps that you can take to protect your company, your agents and the public:

  1. Learn About the Issue:What promoted this notice and details about the Fair Housing, Communications Decency and Digital Copyright Acts.
  2. Check/Fix Your Listings: Look at several REAL life violations in currently found in our Berkshire MLS Listings
  3. Get Great Training: Check out the Webinar we scheduled for you and our online training resources!

1-2-3 Fair Housing Steps in a easy tp print PDF

Copyright Symbol: 

The MLS board has voted to begin watermarking all MLS submitted photos with a copyright ©BerkshireMLS.  The purpose is to protect the listing data, help thwart copyright infringement and detect infringement if it occurs. We will aggressively pursue anyone who uses your listing data without authorization. While the BerkshireMLS owns the copyright for the compilation of listings, each Participant still owns the copyrights to his or her own company’s listings and photos.  (the independent contractor agreement you have with your agents, or work-for-hire agreement you have with any authors or photographers determine actual ownership / use of copyright).  There are many active lawsuits nationwide and two Ethics complaints have been filed locally surrounding copyright infringement BY AGENTS, using previous agents listing photos.  Anyone who copies photos that he or she didn’t take is stealing, and such actions are prohibited by copyright law.  You can only use photos or text with the permission of the creator.   Please remind agents they may not use photos unless they have obtained permission from the photographer, and make sure you have updated your independent contractor agreements to include copyright assignment.  NAR has created a fantastic “flow of rights” with sample copyright language for all situations a brokerage might encounter. 

Syndication in Your hands: 

There were slight modifications to the data input screen in FlexMLS when entering a new listing, giving you the option of syndicating your listings to, iBerkshires and/or Point2 Partners (including Zillow, Trulia, AOL and over 80 partners).  This keeps syndication in the hands of the seller / agent / broker for display where it is most effective.  As always, the MLS Board is studying syndication issues as they emerge and encourage you to have a conversation in your office about the pros and cons of online marketing of all types.  If you haven’t read the Clariety State of Syndication report yet, there is a direct link for some great information.

It is important to us to know if you’ve received and read this information.  As the broker responsible for the office, we hope that the message is coming through and we are helping to protect your best interests.  Please do us a favor and reply to this message to let us know you’ve received it… and let us know if there is anything else we can do to help.  We’d so appreciate that feedback!!

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Berkshire County Board of Realtors® - 99 West Street, Suite 200 Pittsfield, MA 01201-5845 413-442-8049
Sandra J. Carroll, Chief Executive Officer - Sue O'Brien, Member Services Admin - Kim Gritman, Office Clerk

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