MAR Legal Hotline Notes - May 2017
Wednesday, May 3, 2017
Posted by: Maria Brogan
A buyer’s agent scheduled a showing of an occupied home and the lockbox recorded entry to the home with the agent’s code. I learned later that she was not in attendance with the buyer. Is it a violation of the REALTOR® Code of Ethics for an agent to allow a buyer into the house by themselves?
Unauthorized access may be a violation of the Code of Ethics. Standard of Practice 1-16 applies to listing brokers and agents. “REALTORS® shall not access or use, or permit or enable others to access or use, listed or managed property on terms or conditions other than those authorized by the owner or seller.” Unauthorized access by cooperating brokers is covered by Standard of Practice 3-9. “REALTORS® shall not provide access to listed property on terms other than those established by the owner or the listing broker.”
So what is “unauthorized access?” Most listing agreements provide that the owner authorizes the use of the lockbox system under that system’s rules. MAR’s listing contract specifically includes such language. However, the buyer’s agent may have violated both the lockbox rules and the Code of Ethics by permitting access by the buyer without the buyer’s agent’s presence. If the lockbox was a combination box and the listing agent gave the buyer’s agent the combination for the buyer agent’s needs in showings, the buyer agent would not have authorization to give the combination to the buyer and would likely be in violation of the Code under Article 3 and Standard of Practice 3-9.
I understand that the recreational use of marijuana is now legal in Massachusetts. Does a landlord have to allow people to smoke or grow marijuana in rental properties?
No. As written, the law allows for landlords to prohibit the smoking of marijuana on or in their property, but owners should be sure to check the language of their lease agreements and may want to specifically address this issue. Just as a landlord may prohibit smoking of cigarettes in an apartment, they may also prohibit smoking of marijuana. Additionally, an owner may prohibit the cultivation of marijuana as well. It is important to note that although legal under state law, marijuana remains a Schedule 1 illegal substance under federal law. Up until this point the federal government has taken the position that it will not enforce federal law in those states that permit recreational marijuana usage. However, there is no guarantee that they will keep this position in the future as more and more states change their laws to allow for the use of marijuana.
I am a licensed salesperson and have decided to leave my office to join another firm. I have two active listings. My new broker has advised me that I cannot take my listings with me without consent of my current broker and my client. Is my new broker correct?
Your new broker is correct. Massachusetts law requires that listing contracts be executed between the seller and the broker, rather than the salesperson. Absent an agreement between you and your broker stating otherwise, the listing will remain with the broker, even if you leave that office. If, however, your current broker agrees to release the listings to the new office, the seller must agree. Remember, the listing agreement was executed between the seller and the broker, and the seller has no requirement to follow you to another firm even if the current broker has given you permission to do so.
It is highly recommended that when you join any office you include specific provisions in your independent contractor agreement that clearly explain how listings you have at the time of your termination (whether voluntary or involuntary) will be handled. It is much simpler to have this conversation when you join an office, rather than when you leave.
Source: Massachusetts Association of REALTORS® Legal Staff
Michael McDonagh, MAR General Counsel
Justin Davidson, MAR Legislative & Regulatory Counsel
Claire Crowley, MAR Staff Attorney