MAR legal counsel: Michael McDonagh, Ashley Stolba and Justin Davidson, share with us questions received through the MAR legal hotline along with their responses.
Q: A seller client of mine has requested that I refuse access to his property to a particular individual in the community at any open house or showing. Is it illegal for a seller to limit or restrict who many enter a property at an open house or a showing when the property is listed for sale?
A: Most likely, yes. Although a seller may restrict access to their property, that decision cannot be based upon an individual’s status in a protected class. Such action would potentially result in a claim for discrimination based upon a violation of state and federal fair housing laws. If a seller has a personal reason to refuse access to a particular individual, then they may instruct you, as the listing broker, to follow those instructions. As a listing broker, it is reasonable to ask the seller for their reasons for not allowing someone into their property. It is also advisable to request this information in writing.
Q: For entry-only listings, does the Code of Ethics allow me to contact the seller for purposes of listing the home?
A: No. In order to be in the MLS, the seller and listing agent must have executed an exclusive listing agreement. The REALTOR Code of Ethics Article 16 provides that “REALTORS shall not engage in any practice or take any action inconsistent with exclusive representation or exclusive brokerage relationship agreements that other REALTORS have with clients.” Furthermore, Standard of Practice 16-4 states that, “REALTORS shall not solicit a listing which is currently listed exclusively with another broker,” and that the REALTOR may only contact the seller if the listing agent refuses to disclose the expiration date and nature of the listing, and only to secure such information and discuss taking a future listing.
Q: I heard that the reciprocity rules for Massachusetts licensees engaging in brokerage in New Hampshire have changed. Is this true?
A: Yes. In the past, if you were a Massachusetts licensee representing a buyer on a property in New Hampshire, New Hampshire laws allowed you to enter into a state-mandated cooperative agreement with a real estate broker in New Hampshire and represent your buyer in the transaction. Over the summer, however, New Hampshire legislature amended the law so that it now only applies to commercial transactions and no longer applies to residential transactions. Therefore, Massachusetts brokers may only represent buyers on commercial transactions, which is defined in New Hampshire as any real estate other than real estate containing one to four family units, and only after entering into a written agreement with a licensed New Hampshire broker that includes the following terms: the terms of cooperation, any compensation to be paid by the licensed broker; and a statement that the out-of-state broker and the out-of-state broker’s agents will comply with the laws of New Hampshire. For a copy of the form and for any questions on this change, please visit the New Hampshire Real Estate Commission’s website: https://www.nh.gov/nhrec/. The form is listed under “Consumer Information” on the left side of the page.