Member Input on General Operations
The MLS Board and/or staff considered the following requests or suggestions about non-Contract items:
REQUEST: Can the confirmation email we get back from Listings@berkshirerealtors.org keep the subject line so that we can more easily track multiple contracts we have submitted to the Board Office?
- Great Idea. In the coming month, the staff will test a new way of auto-responding to items that come to the Listings@BerkshireRealtors.org email account. Right now we have our server sending a receipt of delivery, but we will try to change that to be a receipt from our outlook account that will actually REPLY to a message and include the original subject line and a copy of the message as well. Hopefully you’ll see a flawless transition. Hahah. I know – technology odds are against us, but we’ll give it a go!
REQUEST: Add fixer-upper category to all property types, not just residential. Many would like to search on that for multifamily as well as residential.
That option is part of a condition field. We can add the entire field to multifamily, but will look for member input on if that is a good idea / bad idea and why. The other options for condition are: To Be Built, Never Occupied, Other, Certified Historic or Recently renovated. Your thoughts? Please email Sandy@BerkshireRealtors.org.
REQUEST: Add new house styles of Post and Beam and Arts and Crafts.
- Thanks for the suggestion – these options have been added!
REQUEST: Change middle and high schools for Otis. Should be choice of Monument or Lee, not just Lee.
- Thanks for the information. The school “choice” has been added to the choices of Lee or Monument.
The Contract & Forms Task Force met and reviewed suggestions and comments received. They made the following recommendations to the MLS Board and are meeting again next week to get started on reviewing new contracts.
Purchase and Sale Agreements
Request that the storage tank clause include, as it did before, a definitive confirmation that the seller knows of NO underground oil tanks. Currently the form just allows the seller to check off what types of tanks they disclose that they do have.
- TF Recommendation: Consensus to obtain an interpretation from Board legal Counsel about the difference in liability if one affirmatively discloses what exists from a list (what type of tanks exist), versus stating to the best of one’s knowledge something does NOT exist (underground tanks specifically).
Request that we add flood insurance clause and remove the radon and asbestos as separate clauses since they are both defined in the home inspection contingency clause (like mold, pests, wetlands) that do not have written disclosure forms, as lead paint does.
- TF Recommendation: Consensus to add a flood insurance clause to mirror disclosure statements in MAR form. Consensus to eliminate asbestos clause since it is in the home inspection paragraph, but to retain radon unless space is an issue. Rational is that radon is still an unseen hazard that the buyer should know about. Asbestos is seen / disclosed by inspector.
Request that we add a disclosure that the Buyer has received the Home Inspectors Facts for Consumers as required by state law.
- TF Recommendation: Consensus to educate the members that the last revision changed paragraph 35 included this.
“35. DISCLOSURES: BUYER and SELLER acknowledge that they have been provided with a completed copy of the ‘Mandatory Licensee-Consumer Relationship’ form, as mandated by the Massachusetts Board of Registration of Real Estate Brokers and Salespersons. BUYER acknowledges receipt of lead paint disclosure form (for residences built before 1978) and a Home Inspectors Facts for Consumers brochure, prepared by the Office of Consumer Affairs. The BUYER acknowledges that there are no warranties or representations on which BUYER relies in making this Offer, except those previously made in writing.”
Request that we change the Certificate of Occupancy language to only apply to a new home and not “for any dwelling that requires it”.
- TF Recommendation: Consensus is to leave the language as it stands. This is an important component for multifamily transactions (where each unit requires a CO) as well as any dwelling that has substantial renovations. It was noted that we could add an educational element to clarify that the city department approving a substantial building remodel will leave a permit open if it REQUIRES a Certificate of Occupancy. The owner should know if one is required, and should an agent realize that a home as been extensively remodeled, should ask the seller about it. If there are any open permits that have not had all required paperwork completed, it is flagged. It should also be noted that various departments in a city/town can issue a CO, depending on instance that required it. Multifamily dwellings are inspected and issued a CO typically by the Health Department. Renovation COs are issued by the Building Inspector.
Request to allow for the description of monthly, quarterly or weekly in the condo fee field.
- TF Recommendation: Consensus to change the condo fee to say MONTHLY. REALTORS can then make a comment in the remarks if the monthly breakdown is to be paid quarterly or annually or otherwise agreed. This would allow for the most consistency and not require a change by FlexMLS.
Request to change the Condo input to more clearly identify the unit #. It was noted that to pull up a tax card you have to use the main complex address, but most are not specifying the unit or building information for REALTORS to find.
- TF Recommendation: Consensus is to ask FlexMLS to move Unit/Building # and Floor Level of Unit to the address tab to the input form, and to add it to the reports by the address. Also, consensus to make both fields mandatory and to replicate that on the Multifamily forms
Request to review #33 Agreement to Mediate Dispute or Claims on the P&S to create a time limit to protect the seller. This was the message: “I was notified from my seller that they received a letter to mediate an issue that took place in September, closing was in August, buyer had it fixed, then notified seller 7 months later that she was going after them for $15,000. Seller had no knowledge of this issue, never had a problem like that under their ownership, owned for 10 years. Buyer had a very thorough inspection with Bill Stevens, and buyer had a signed Sellers Disclosure. Had to do with a leak from an upstairs bathroom, came through ceiling downstairs. Seller had to hire their Attorney to dispute this. Seller was not notified to view the problem or to have his own contractor look at it to see the cause of the problem. Buyer hired a non-licensed contractor to do the work. My concern is, there is NO time frame in this clause that protects the seller from something like this happening, I.e. 90 days, 120 days, etc. Shouldn’t there be a time frame to protect a seller?”
- TF Recommendation: Consensus to leave the Mediation agreement clause as written. Modifying the mediation clause will not protect the seller, because it is the statute of limitations that determines how long a seller can be held liable. If we limited the period to mediate, the buyers would then have the ability to bring the seller directly to court for the alleged damages. This clause only requires they try mediation to resolve a dispute first, which is considered a far cheaper and easier process (court fees and attorney costs especially) than a full blown court case. It is our understanding that we cannot limit a buyer’s right to sue – but they can mutually agree to mediate first. Therefore, the committee decided to leave the clause the way it is written.
Request to expand office remarks to include more information. “In our office, we use it to enter private information such as the sellers names, addresses if not living at the property, unlisted phone numbers, email addresses, lock box codes etc. It is especially important if the listing agent is seriously ill, is away and somehow out of touch, and an offer might need to be presented etc We feel at least double or triple the space is necessary.”
- TF Recommendation: Consensus to ask FlexMLS to make this change, provided we have the fields and ability to do so at no cost.
Request that we remove the seller’s signature from the Termination Notice. The request stated that “the P&S Inspection Contingency gives the Buyer the unilateral right to withdraw but, yet, when the Termination Notice is submitted it provides for the Seller’s signature/s which invites debate and seems to nullify the Buyer’s unilateral right to withdraw, subject to the provisions of the Inspection Contingency.”
- TF Recommendation: Consensus: This termination form is to be used to protect the escrow agent in releasing the funds held. If the buyer has a contractual right to terminate the agreement, the form is just an optional notice with mutual instructions to release the funds form escrow. If the seller balks at signing the release for a legitimate termination, the seller should be advised that they will NOT get any money until they prove buyer did not have any right to terminate the agreement. In fact, if the seller refuses to allow the buyer to terminate as promised (in the Purchase and Sale agreement due to the inspection, financing or other contingency), the buyer would likely bring suit against the seller to collect funds and the seller would incur additional legal costs associated with collections. The escrow agent can only release when mutually agreed by both parties. If there is no dispute, it should be simple to get the form signed. If there is a dispute, the seller should know they may face a breach of contract lawsuit. Either way, the escrow agent is protected and must hold the funds until the parties agree or the courts decide.
Exclusive Right to Sell Agreements
Request to change dates back to original format on the Exclusive Right to Sell Agreement.
- Contract & Forms TF Recommendation: Consensus is to maintain current structure, re-educate members on how to complete the forms, along with the MLS requirements. Have Kim inform Sandy if there is more than 2 instances where forms are being done incorrectly by agents in one office. Sandy will speak to the DR to explain their office isn’t completing the contracts correctly, give information and ask them to take the time to share and explain to all agents in their office. Repeated violations result in larger fine.
- The beginning and end dates of the contract should be used when entering the listing. The contract says the broker will submit the listing into the MLS within 2 days of the sellers signature. If the broker is unable to submit the listing into the MLS system within 2 business days because the contract is not scheduled to begin for longer, the seller must sign a refusal to list in MLS for that time period. You’ve promised to list it within 2 days of their signature, so this protects you when you don’t, and complies with all MLS rules. The start date of a contract and the seller’s signature date should typically only be different when you are not working with your seller in person or via electronic signature and contracts are mailed or emailed. All other times, the contract should start when the seller signs.
Request to add rented property (hot water heater, alarm system, etc…) disclosures on the Exclusive Right to Sell Agreement and the MLS Input so that the information can be available for the completion of the updated Purchase and Sale Agreement
- Contract & Forms TF Recommendation: Consensus is to make this change on both the Exclusive Right to Sell form and the MLS Input form
Standard Legal Clauses
Consensus to ask Legal Counsel about the inclusion of the following standard clauses in a new clause library.
- Home Sale Contingency
- 48 Hour attorney Review period
- If Title V doesn’t pass or is non-conforming
- Water Flow / Well testing
Consensus to address the following contracts at the upcoming meetings.
- Facilitation Forms submitted by Paul Harsch
- Purchase and Sale Land Agreement
- Exclusive Buyer Agency Agreement
- Exclusive Right to Sell General Addendum
The committee also recommends that the MAR Sellers Description of Property be added to the forms database in Flex, with the understanding that this could incur additional costs of up to $500.