Q:        I work in a designated agency office. What do I do if I represent a seller as a designated agent, and a customer calls me to see my listing? I do not plan on representing the customer at the time of the showing. I want to be sure that I disclose to the customer that I represent the seller, and do not represent the customer as an agent or a facilitator. I read in a recent Bay State Realtor magazine that the Mandatory Licensee-Consumer Relationship Disclosure Form cannot be altered in any way, but isn’t it necessary to amend this form in this situation?

A:        You are correct. In this situation, the form must be amended to properly disclose your relationship with the seller. This is the only time that it is acceptable to amend the disclosure form. If you want to show your listing to a customer, you should do the following: check the box that says “seller’s agent;” check the second box for designated agency; strike the words after “represents” and insert the word “SELLER.”  The form should appear like this:

RELATIONSHIP OF REAL ESTATE LICENSEE WITH THE CONSUMER

(check one)        _√__Seller’s agent          ___Buyer’s agent          ___Facilitator

IF A SELLER’S OR BUYER’S AGENT IS CHECKED ABOVE COMPLETE THE SECTION BELOW:

Relationship with others affiliated with ___________________________________________________

(Print name of real estate firm or business and license number)

(Check one)   ____The real estate agent listed below, the real estate firm or business listed above and         other affiliated agents have the same relationship with the consumer named herein (seller or buyer agency, not designated agency).

__√__Only the real estate agent listed below represents SELLER. the consumer named in this form (designated seller or buyer agency). In this situation any firm or business listed above and other agents affiliated with the firm or business do not represent you and may represent another party in your real estate transaction. 

Q.        A real estate agent from New Hampshire wants to show his client one of my listings in Massachusetts.  When I asked him if he was licensed here in Massachusetts, he said he wasn’t but that it was okay for him to show it because his Broker had a Massachusetts license and she was the one that would be paid when the transaction closed.  Is he right?

1.         No, he is mistaken about the requirements of Massachusetts law.  Under M.G.L. 112 Section 87RR, a salesman is prohibited from providing services defined as brokerage if he is unlicensed.  The fact that he has a New Hampshire real estate license does not change the fact that he is unlicensed in Massachusetts.  Further, the MA license of his broker does not mean that he, as a NH licensee, can sell homes in this state.  For more information, the MA Board of Registration has a great summary of the reciprocity requirements for out of state licensees on their website: http://www.mass.gov/dpl/boards/re/forms/recinf01.pdf

Q.        A seller client with whom I am working wants his attorney to hold the escrowed funds when an agreement is signed.  Doesn’t the law require that I hold the escrowed money?

1.          No.  State regulations are clear on the fact that the parties can agree in writing to stipulate that someone else may hold the escrowed funds.  254 CMR 3.00(10) states, in pertinent part, the following: Unless otherwise agreed to in writing by the parties in transactions involving the sale, purchase, renting or exchange of real property, all money of whatever kind and nature paid over to a real estate broker to be held during the pendency of a transaction shall be immediately deposited in a bank escrow account and such broker shall be responsible for such money until the transaction is either consummated or terminated, at which time a proper account and distribution of such money shall be made. (Emphasis added).

The important thing for your client to remember is that the buyer must agree in writing to the seller’s attorney holding the escrowed funds.  If the offer that comes in from a buyer or a cooperating broker does not have such a provision in it and the seller wants his lawyer to hold the deposit, then the seller would have to incorporate that requirement into a counteroffer to the buyer and the buyer would have to agree to that provision.