Each month the legal team at the Mass Association shares questions that came through their legal hotline. Below is their latest update.
Q: Can a REALTOR® member use the REALTOR® trademark as a part of their team name?
A: No. This use of the membership trademark is prohibited. As a basic rule, the REALTOR® name has one meaning: a member of NAR, thus indicating the real estate professional’s pledge to adhere to NAR’s Code of Ethics. For over 100 years, the REALTOR® trademarks have differentiated members of NAR from non-members and are protected by federal laws. Adhering to their proper use helps to ensure their continued protection and safeguard their special meaning.
To ensure proper contextual use of the REALTOR® marks, use the “Member Test” – simply substitute the word “member” for “REALTOR®” and objectively determine if the sentence conveys your original meaning.
While using the trademark as part of your team name violates the rules, members may use the REALTORâ trademark in connection with their personal name (Jane Doe, REALTOR®) and in connection with their brokerage name or DBA (ABC Brokerage, REALTORS®), however, the brokerage’s legal name or DBA cannot include the trademark.
For more information, please see NAR’s Membership Marks Manual, which provides examples for email addresses and domain names. Remember, a member’s license to use the REALTOR® trademark automatically terminates when that individual ceases to be a member in good standing of NAR.
Q: What real estate activities require a license? What tasks can an unlicensed assistant perform?
A: Massachusetts licensing law states that “no person shall engage in the business of or act as a broker or salesman directly or indirectly, either temporarily or as an incident to any other transaction, or otherwise, unless he is licensed.” MGL Ch. 112 §87RR. Only licensed real estate brokers and salespersons can assist consumers with the purchase, sale, lease, or exchange of real property.
Unlicensed real estate assistants should generally be limited to administrative office tasks, such as screening phone calls, coordinating appointments, and handling correspondence.
These assistants should avoid tasks that involve direct contact with clients and customers. While some administrative tasks may require client interaction, discussions should not pertain to properties or listings that exceed basic administrative matters. For example, assistants should not discuss home values or marketing strategies, as these responsibilities should be handled by a licensed broker or salesperson.
Massachusetts Division of Consumer Affairs and Business Regulation put forth guidelines on the use of unlicensed assistants by real estate brokers/salespersons.
Impermissible tasks by unlicensed assistants include, but are not limited to:
Listing presentations
Writing contracts, or purchase offers
Showing houses
Calling for feedback from co-brokers after showing
Previewing houses for prospective buyers
Contacting buyers and sellers in follow-up function
Attending closings or property walk-throughs
Attending or conducting open houses
Q: When must consent and notice of designated or dual agency be executed?
A: In Massachusetts, brokerage companies are permitted to represent both buyers and sellers through dual agency and designated agency. According to the law, agents must obtain consent and provide notice when engaging in dual or designated agency.
Before establishing a dual or designated agency relationship, agents must secure the informed written consent of both the seller and the buyer. This consent must be obtained before a potential transaction is identified, but no later than the execution of a written contract to purchase.
If consent is included in a listing or buyer’s agreement, a subsequent notice must be provided upon the occurrence of dual or designated agency. If consent is granted prior to identifying a specific transaction, a notice form must be submitted before the offer is executed. If consent is not included in the initial agreement, it can also be obtained through a separate document.
Services provided through the Massachusetts Association of REALTORS® is intended for informational purposes and does not constitute legal advice, nor does it establish an attorney-client relationship. The Massachusetts Association of REALTORS®, by providing this service, assumes no actual or implied responsibility for any improper use of responses to questions through this service. The Massachusetts Association of REALTORS® will not be legally responsible for any potential misrepresentations or errors made by providing this service. For more information regarding these topics authorized callers should contact the MAR legal hotline at 800-370-5342 or e-mail at legal@marealtor.com.