There are many stages in the real estate process, all that have their own forms, contracts, disclosures and helpful information. We’ve tried to compile all of the resources available to Berkshire REALTORS and their clients in the order that you would use them in the field, and guidelines for when and how you should present each form. This is only a guideline and you should ALWAYS defer to your office policy, your broker of record and your legal counsel.
- When a Seller Meets You
- When a Seller Hires You
- During the Selling Process
- If your Buyer becomes Interested in Seller’s Property
- When a Seller Receives An Offer / Until Closing
- Mandatory Consumer-Licensee Disclosure: Formerly the Agency Disclosure form, this form MUST be presented to all consumers at the first personal meeting to discuss a specific property. Click here for a Mandatory Consumer Licensee Disclosure Form. (Note, many brokers in the business call this form an “agency disclosure form”.)
- Consumer Guide to Representation: A helpful fact sheet you can use to explain agency representations, outline your fiduciary duties and let seller and buyers know what to expect when working with you in a real estate transaction. This is an optional form that is great to use when explaining the Mandatory Consumer-Licensee Disclosure.
- Dual Agency Roles: This outlines for the consumer exactly what duties are limited in a dual agency situation. This is an optional form to help you present the concept of dual agency to clients, and can be provided at any time. It is most commonly used when first getting the Seller’s Consent or Buyer’s Consent form signed when first agreeing upon representation, or when presenting the Seller and Buyer Notice of Dual Agency form used when a dual agency situation occurs.
- Exclusive Right to Sell Agreement: Completed to secure the right to sell a property, offer co-brokerage compensation to other agents, and establish the terms, duration, asking price and parcel that is for sale. Careful notice should be taken to ensure the legal deed holder signs the right to sell the property.
- Seller’s Consent to Dual Agency Addendum: If your office is a traditional firm offering buyer and seller representation, this addendum should be completed per your indication on the Exclusive Right to Sell agreement. It should be used if your office represents both buyers and sellers and has chosen to operate as dual agents when a conflict occurs. It must be provided and consent must be obtained so that in the event that a dual agency situation occurs, you have previously received seller’s consent and can then proceed to operate in a dual capacity, with notice, as a disclosed dual agent.
- Seller’s Consent to Designated Agency: This addendum should be completed per your indication on the Exclusive Right to Sell Agreement. If your office represents both buyers and sellers and has chosen to operate as designated agents when a conflict occurs (where the broker acts as a dual agent and designates agent(s) in the office to fully represent the buyer and other agent(s) to fully represent the seller. It must be provided and consent must be obtained so that in the event that a designated agency situation occurs, you have previously received seller’s consent and can then proceed to operate in a designated capacity, with notice, as a disclosed designated agent.
- Seller’s Consent to Sub-Agency: This addendum should be completed per your indication on the Exclusive Right to Sell Agreement that the seller wishes you to engage subagents in the sale of their property. A requirement of the Massachusetts agency legislation provides that Brokers MUST obtain written consent of the seller BEFORE they can offer sub-agency to cooperating brokers. This form ensures proper consent has been obtained and that the seller has been notified of the vicarious liability. It is referenced as an addendum in the Exclusive Right to Sell Agreement, so if that box is checked, you must have this form signed as well.
- Seller’s Deferral of Showing Addendum: This optional form should be used in the rare instances when a seller asks the listing broker to wait to show the property until a later date. Some common reasons are to complete renovations or house clean outs, if the owner is out of town, etc. This form allows the agent to delay showings until a fixed date, when all buyers, including the agent’s own buyers, are provided with access to the home at the same time.
- Seller’s Refusal to List Property in the MLS: If your seller wishes to withhold their listing from the MLS, this form, along with a copy of the Exclusive Right to Sell Agreement MUST be submitted to the MLS in instances where the seller requests that the broker withhold the listing from the MLS database entirely. It explains the marketing and co-brokerage limitation that such a decision impacts and gains consent to modify the Exclusive Right to Sell Agreement MLS section.
- Carbon Monoxide & Smoke Detector: This optional fact sheet offers your seller with information on the carbon and smoke detector requirements that they will need to comply with before closing. This optional form helps to explain the detector requirements and inspection process so they can prepare.
- Lead Paint Property Transfer Notification: Under Massachusetts and federal law, owners of homes built before 1978 must complete the Property Transfer Lead Paint Notification for prospective buyers or tenants with an option to buy. this form must have been completed by the seller and buyer BEFORE an executed Purchase and Sale Agreement, therefore, we suggest that the seller sign this at the time of the listing, and that the agent uploads this form to the MLS documents section of the database. This way, interested buyers will have access to this form and can sign it before they make an offer. Without this step being completed in advance, the process could be delayed in obtaining a Purchase and Sale agreement.
- Seller’s Description of Property Condition: The Exclusive Right to Sell Agreement indicates that the seller will provide a completed Seller’s Description of Property Condition form to be provided to prospective purchasers. Therefore, you will want to have the seller complete this form to the best of their knowledge, so that you can properly disclose material defects known about the property. It also helps buyers understand any issues that currently exist in the home before making an offer. This form is not mandatory in the state of Massachusetts, but some offices may make this form a part of the requirements for listing a property. It is helpful to clearly establish written disclosures about knowledge of a homes defects.
- Open House Disclosure: This placard can be used at your open houses instead of providing all visitors with an individual agency disclosure form. If you don’t intend to have all visitors sign an agency disclosure, you must display a placard with similar language.
- Modification of Exclusive Right to Sell: This form is used anytime there is a change in the initial contractual terms agreed upon by the broker and seller. Common uses are for price changes, or listing extensions. It should be retained by the listing broker with the original Exclusive Right to Sell Agreement. You should be aware that a “withdrawal” is a withdrawal from the marketing of a property, not from the Exclusive Right to Sell obligations. If your client is seeking to terminate their relationship with your firm, the client and the broker owner must execute their own document to terminate the contractual relationship.
- Seller & Buyer Notice of Dual Agency: This form must be provided after dual agency consent is obtained (usually obtained in the Exclusive Right to Sell or Buy Agreements), as soon as you determine a conflict has arisen on a specific property with specific buyer and seller clients. When consenting to dual agency, you promised to provide notice to both parties if a dual agency situation arose. This is that notice.
- Seller & Buyer Notice of Designated Agency: This form must be provided after designated agency consent is obtained (usually in the Exclusive Right to Sell or Buy Agreements), as soon as you determine a conflict has arisen on a specific property with specific buyer and seller clients. When consenting to designated agency, you promised to provide notice to both parties if a designated agency situation arose. This is that notice.
- Lead Paint Property Transfer Notification: Confirm that you have the completed Lead Paint Property Transfer Notification with buyer’s and sellers initials and signature no later than receipt of the Purchase and Sale agreement.
- P & S Agreement: The master Purchase and Sale agreement offered by the Berkshire County Board of REALTORS has been approved by legal counsel as it is written. Additions or deletions are not sanctioned by the Board and should only be undertaken at the advice of legal counsel or express direction of the client. Please note that each paragraph marked with an arrow represents a section of the contract that has options or fill-in fields that MUST be completed and change the terms of the standard agreement. Take a look at the Purchase and Sale agreement and see how much easier it is to peruse the ‘changes’, knowing that the rest of the language is standard! The only caveat is that you should always make sure that your clients go through the entire contract to understand the obligations that they are agreeing to before signature.
Companion Flyers for the Purchase and Sale Agreement
- Dispute Resolution System: The Purchase and Sale contains an agreement that the buyer and seller will mediate their disputes related to the agreement before filing a lawsuit. This fact sheet provides information on that agreement, and process.
- Right to Farm Disclosure: Twenty-two communities in Berkshire County have passed some form of Agricultural Farming bylaws, many of which include a ‘right to farm provision that requires agents to present a ‘Right to Farm’ disclosure form to buyers, no more than 21 days after the purchase and sale contract is entered into, or prior to the sale or exchange of real property. This form must be signed by the buyer and on file with the city or town before transfer or else a fine in the amount of $300 can be assessed.
- P & S General Addendum: The form is used when language needs to be added to the Purchase and Sale Agreement. Remember that the addition of legal obligations to a contract remain the job of an attorney, and agent must never participate in the unauthorized practice of law. In its most general sense, the practice of law involves giving legal advice to clients or drafting legal documents or contract terms for clients. The standard agreement has been drafted, reviewed and approved for use by counsel and any changes or additions should only be done at the direction of counsel.
- P & S Income Property Rider: In the event that a property that you are drafting a Purchase and Sale Agreement contains income elements, this addendum is an easy way to identify those that are part of the sale. Alternatively, a lawyer can draft riders or income addendum if this does not fit the circumstances of your sale.
- P & S Condo Rider: In the event that a property that you are drafting a Purchase and Sale Agreement for is a condominium with additional approval or term requirements.
- P & S Instructions to Release from Escrow: To be used if the Purchase and Sale is terminated and the escrow agent needs to release deposits as agreed by the buyer and seller.
- P & S Termination of Contract: In the event that a buyer terminates a Purchase and Sale Agreement based on financing or inspection issues, this form can be used to allow the listing agent to release the escrow deposits.
- P & S Extension of Time for Contingencies: In the event that a buyer is unable to meet the deadlines for financing, septic or inspection, this form allows the buyer to request and the seller to grant (via signature) an extension of the protection terms in paragraph 4 of the purchase and sale.
- P & S Extension of Time for Performance: In the event that the agreed upon closing date needs to be moved, you can draft and have the buyer and seller sign to agree to change said date.
- P & S Agreement Land: An alternative version of the Purchase and sale agreement where the provisions dealing with a structure have been omitted.