Notes from the MAR Legal Hotline: September 2026
By: The Massachusetts Association of REALTORS® Legal Team
Q: I have a client who is preparing to rent out an ADU located within their owner-occupied home. It is a small, one-bedroom unit intended for one occupant. The landlord has expressed a preference to rent the unit to a single individual rather than two occupants. Before advertising the property, I wanted to confirm what, if anything, we are legally permitted to state regarding occupancy.
A: If there is no lawful restriction establishing a maximum occupancy of one, you should leave the landlord's one-person preference out of the listing entirely. Describe the property rather than the desired tenant: “One-bedroom accessory dwelling unit located within owner-occupied residence.” You could then accurately describe its square footage, bedroom size, parking, utilities, private/shared entrance, laundry, etc. If the municipality/building department has established one person as the lawful occupancy limit, the situation is different. In that case, it is recommended to use language tied specifically to the governmental restriction rather than the landlord's preference, such as: “Maximum occupancy: 1 person, pursuant to applicable occupancy/building requirements.” Before using that language, however, require evidence of that ruling in writing from your client.
Q: My client is not a US citizen or resident and is preparing to sell his US real estate. Should I disclose the FIRPTA withholding requirement to potential buyers?
A: Yes, as the responsibility is on the buyer, it should be disclosed. The Foreign Investment in Real Property Tax Act (FIRPTA) requires the buyer of real property from a foreign seller (non-US-citizen or resident; foreign-owned corporations, partnerships, trusts and estates) to withhold a portion of the sales price and remit tax to the IRS. Generally, the closing attorney assists the buyer with the FIRPTA withholding and compliance but the buyer should be made aware of this withholding obligation. Remember, however, it is prudent that you consider potential fair housing concerns and do not offer more than what is needed: for example, simply stating that the sale is subject to FIRPTA withholding should be sufficient to put the buyer on notice.
Q: A tenant denied access for pest treatment claiming they were not notified. We have rescheduled the appointment. What is the recommendation for notification?
A: Under 105 CMR 410.003(E), an occupant must provide access, upon at least 48 hours’ notice, for work needed to comply with the Sanitary Code, including pest elimination. However, confirmed delivery of notice does not automatically authorize the landlord to force entry over a tenant’s objection. For the rescheduled appointment, the landlord should provide a new written notice at least 48 hours before the appointment. A good practice is to deliver the notice 72 hours or more in advance through multiple documented methods: hand-deliver under the door with a dated photograph/witness, email/text, certified/regular mail. It should include Pest-control company’s name and telephone number, date of treatment, areas or locations to be treatment, active ingredients of products that may be used, and any preparation, vacancy, pet-safety, and reentry instructions. If the tenant continues to refuse access, document it and contact the local board of health or inspectional services department. Ask the agency to issue and enforce a compliance order.
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.