Scheduling a Smoke Inspection In Boston

If you need to schedule a smoke and carbon monoxide detector inspection don’t wait until the last minute!  The Boston Fire Department allows for a smoke certificate to be good for 90 days, unlike the Commonwealth of Massachusetts which only allows for the 60 days.   Encourage your sellers to apply for an inspection as soon as the purchase and sale is signed so they can get on the schedule for the Boston Fire Department.   This will allow for plenty of time to get the inspection done and allow for corrective action when the home does not pass.  During the spring the BFD experiences a high volume of inspections so please plan ahead. 

Scheduling A Smoke Inspection In Boston
This year, the National Association of REALTORS® (NAR) Conference and Expo is coming to Boston from November 2-5. The conference features a vast number of nationally-recognized real estate trainers and industry experts and allows you to build your referral network with more than 20,000 REALTORS® from throughout the US and several foreign countries in attendance.

You can choose from 100 education sessions to learn about strategies and solutions that meet your clients’ needs. And browse the industry’s largest trade show, with over 400 exhibitors, to find products and services that will help you conduct business more efficiently. Attendees gain the knowledge, tools and contacts to be successful in this competitive business.

Tickets are on sale now and there are a single-day, multi-day and full convention packages available. Check out the website here to find out more about the conference and to register.
NAR Convention Comes to Boston, Registration Open Now
GBAR is saddened to report the loss of one of our longest-serving volunteer members, Judy Moses, who died tragically on Sunday after being struck by a car in Medford. The broker-owner of Pathway Home Realty Group in Newton Centre, Judy joined the REALTOR® association in 1987. A former GBAR Director and GBREB Director, she also was a past member of the MAR Board of Directors and currently served as an alternate state director. She also served on numerous committees at the local and state levels. Judy was very active with the Women’s Council of REALTORS®, having served as a local chapter president, state governor and regional vice president, before being elected to the office of president of the WCR National Chapter in 2007. She was a RPAC Major Investor and held the professional designations ABR, CRS, GRI and SRES.

She was the consummate professional; a loyal friend to so many of her colleagues, and a warm, generous, kind-hearted woman who cared deeply for her clients, fellow REALTORS®, and the dogs she provided a home to or cared for at local animal shelters.

A Funeral Mass will take place on Friday, May 4 at 11:30 a.m. at the Holy Rosary Church, 1015 Shirley St. in Winthrop. You may also express your condolences by sending a sympathy card or note to Judy’s husband, Charles Capace, to 123 Wolcott Road, Chestnut Hill, MA. 02467.

For a complete obituary, access this link
Remembering Judy Moses
In the new world of globalized business, and as REALTORS®, it is becoming increasingly important to better understand how to navigate the growing global real estate market. For this reason, GBAR has developed a Global Council, and is offering variety of seminars and educational courses to help you navigate the global real estate climate in Greater Boston.

On May 30, we are hosting our first International Connection seminar of 2018, on the topic of Cryptocurrency. Cryptocurrency, such as bitcoin, is becoming an alternative way to pay for regular things and thousands of merchants worldwide accept bitcoin including Microsoft & Expedia.  Cryptocurrency has found its way to the real estate profession as consumers can even buy a house with bitcoin - as long as the buyer and seller agree on exchanging bitcoin for the property.

Our speakers will cover the basic frameworks of what distributed ledger technology is – and how it works. They will present examples of how cryptocurrency can be used in a real estate transaction and they will also highlight some of the concerns and risks associated with the volatility of cryptocurrencies!  

We also have an upcoming education course for the Certified International Property Specialist (CIPS), focusing on Asia/Pacific International Real Estate.  This course covers the social, economic, political and geographic characteristics s of major countries in the Asia/Pacific region, as well as the important characteristics of the real estate markets of the region including influential laws and real estate brokerage practices.  Click here to find out more about our CIPS course on June 12. 
Take Your Business Global with GBAR
Questions continue to swirl around the subject of what kinds of fees can legitimately be charged to residential tenants and rental applicants.  The law remains murky, meaning that landlords and brokers must proceed with caution.

Fees Charged By Landlords At or Prior to Term Commencement
Chapter 186, Section 15B of the Massachusetts General Laws (“Section 15B”) forbids landlords, at or prior to the commencement of any tenancy, from requiring a tenant or prospective tenant to pay any amount in excess of the rent for the first full month of occupancy, the rent for the last full month of occupancy, a security deposit equal to the first month’s rent and the cost of purchasing and installing a new lock and key.  In an important 2014 decision, Perry v. Equity Residential Management, L.L.C., United States District Court Judge Rya Zobel declared that these provisions must be applied strictly and are “simply not susceptible of more than one reasonable construction.”  She proceeded to invalidate the following fees charged by a landlord prior to commencement of the tenancy:
a $50.00 application fee per person;
an amenity or community fee ranging as high as $500.00; and
a $250.00 fee for the privilege of being allowed to keep a pet.
Massachusetts courts have likewise disallowed any amounts charged by landlords at or prior to the commencement of the lease term unless expressly authorized by Section 15B.

Fees Charged by Landlords After Term Commencement
Section 15B contains a separate provision prohibiting landlords, at any time subsequent to the commencement of a tenancy, from demanding rent in advance of the current month’s rent or a security deposit in excess of the amount otherwise allowable.  In Perry, Judge Zobel took the position that the statute did not bar the landlord from charging a monthly pet fee of $30.00; because the tenants “became obligated to pay this fee after they were already tenants, they may not turn to Section 15B for relief.”  She acknowledged, but respectfully disagreed with, a contrary 2012 ruling by Judge David Kerman of the Northeast Housing Court in Broad Street Associates v. Levine.  In his view, Section 15B “makes no distinction between up-front deposits and recurring fees.”  He also noted, however, that the landlord had not offered “any economic or other explanation or justification for the fees,” without clarifying whether that would have made a difference.  He also pointed out that the landlord did not “characterize, or attempt to justify” the recurring pet fees as “additional rent”, implying that the landlord could have simply increased the rent in consideration of allowing the pet.
Whether the correct interpretation of the statute is Judge Zobel’s or Judge Kerman’s won’t be known until the issue is definitively resolved by an appellate Massachusetts court.  In the meantime, landlords who impose fees after the term of a lease has commenced can seek to defend these charges on the basis of (1) Judge Zobel’s decision and (2) the fact that the charges have a sound economic basis (such as the additional wear and tear likely to be caused by having a dog in an apartment).

New Occupant Screening Fees
One particular fee which some landlords charge relates to the screening of a proposed new subtenant or roommate.  In this scenario, the landlord is typically seeking to be reimbursed for costs like a credit report, processing a rental application, qualifying the new occupant and amending the lease agreement.  If the landlord requires a new lease and the new occupant will not move into the apartment until the term of that lease begins, the analysis becomes a bit more complicated.  Any fee charged by the landlord for screening the new occupant could be viewed as being imposed prior to the commencement of the new tenancy in violation of Section 15B.  The landlord would take the position that, notwithstanding the new lease, this is really a continuation of the original “tenancy”, legitimizing any fee for screening the new occupant just as the monthly pet fee was permitted by Judge Zobel in Perry.  In any event, the landlord could presumably recoup the cost of screening the new roommate by increasing the rent payable under the new lease.

Service Fees
Another type of fee, which is believed to be exempt from the statutory restrictions whenever charged, relates to additional services provided by the landlord to a particular tenant.  The best example is a parking space, for which a separate charge is routinely made.  Another illustration is offered by Gardner v. Simpson Financing Limited Partnership, decided in 2012 by a federal District Court judge and cited with approval by Judge Zobel in Perry.  The landlord in that case utilized a lease form requiring tenants to maintain personal liability insurance in a minimum amount of $25,000, covering personal injury or property damage caused by the tenant or any guest.  The landlord had arranged to obtain a master insurance policy to which tenants could be added.  Those tenants who chose to participate were essentially required to reimburse the landlord for their proportionate share of the premium.  Tenants also had the option of adding contents coverage for an extra charge, protecting themselves from loss if their personal property was damaged by fire or other casualty.

Some of the residents alleged that the premium charges violated Section 15B.  The judge disagreed, characterizing the master insurance policy as an “additional service” made available to the tenants, who decided on their own whether to participate in the program.  Admittedly, tenants were required to obtain liability insurance, but they were not compelled to use the landlord’s insurer.  In the case of contents coverage, the decision of whether to obtain insurance at all was the tenant’s alone.  It would, in the words of the judge, “elevate form over function” to penalize the landlord in these circumstances.

Contrast these fees with those charged for additional services which a tenant doesn’t want, like the amenity fee struck down in Perry. The same result was reached in Hermida v. Archstone, a 2011 case involving tenants who were charged a one-time $475 amenity fee for the right to use the property’s swimming pool, gym and outdoor grill.  Although this fee was meant to be optional, the tenants were not so informed.  Ultimately, they demanded a refund. The tenor of the Hermida decision clearly suggests that the result would have been different if the tenants were told that they needed to pay the amenity fee only if they in fact wished to take advantage of having a swimming pool, gym and outdoor grill on site.  None of these facilities (unlike, say, a toilet or functioning heating system) is legally required to be made available to a residential tenant and there is no good reason why they can’t be withheld from tenants who choose not to pay for them.  It seems clear that Judge Zobel would concur, given her characterization of the prohibited amenity fee in Perry as mandatory and non-refundable.

Commissions Charged By Brokers
Any amount which a landlord is allowed to charge can alternatively be collected through a real estate broker; the economic impact on the tenant is exactly the same.  A more difficult question is whether a broker can impose charges in addition to those lawfully collectible by a landlord.  That issue was raised in Samia v. McElaney, a 1983 decision handed down by the Boston Housing Court.  The judge readily acknowledged that Section 15B prohibits a landlord from collecting a broker’s commission from a rental applicant.  In Samia, however, the broker was not acting as the landlord’s alter ego.  Rather, the broker’s firm was characterized as a “separate bona fide business operation engaged in locating apartments for tenants” even though the landlord was its major source of listings.  Under these circumstances, the judge found “no prohibition” against the broker’s charging a commission to a rental applicant.

Other Fees Charged By Brokers
The same logic which permits a broker to charge a commission should apply as well to other fees.  For example, a broker may wish to collect and process information (similar to what is contained in a rental application) with respect to a prospective tenant and/or order a credit report.  The broker would essentially be taking the position that that part of its job is to investigate the desirability of the applicant; this is somewhat analogous to getting a prequalification letter from a mortgage lender in order to confirm that a would-be homebuyer will be able to pay for a house.  Interestingly, an article in the April issue of Units, the publication of the National Apartment Association, suggests that the “fastest growing form of fraud today” consists of persons falsifying a rental application, for example by supplying a false social security number or landlord reference.  The author recommends more careful scrutiny by “leasing teams”.  Rather than charging separate application and/or credit report fees, some brokers may simply prefer to include those costs as part of their basic commission.

It must be emphasized once again that the law remains in a serious state of flux, preventing an authoritative pronouncement regarding the legitimacy of particular fees, especially those charged after the term of a lease has commenced.  Members are urged to consult with their own attorneys.

Philip S. Lapatin, Esq.
Holland & Knight LLP
May 3, 2018

For any questions you may have, please contact GBAR Director of Risk Management & Legal Counsel William G. Mullen III, Esq., at or 617-399-7842.
Charging Fees to Residential Tenants
Last month, the as part of the National Association of REALTORS® (NAR) Sustainability program, NAR released its 20189 REALTORS® and Sustainability Report .This report surveyed members from across the country about sustainability issues facing the industry as well as the preferences that their consumers and communities have.

Among its findings, the report shows that:
Forty percent of respondents reported their MLS has green data fields, and respondents typically used the green data fields to promote green features and energy information.
Seventy-one percent said energy efficiency promotion in listings was very or somewhat valuable.
Sixty-one percent of respondents found clients were at least somewhat interested in sustainability.
Twelve percent of respondents reported that their Commercial Information Exchange (CIE) had green data fields, and the CIE green data fields were used to promote energy information, green features, and green certifications.
A majority of agents and brokers (70 percent) said that energy efficiency promotion in listings was very or somewhat valuable

“Consumers continue to make it clear that environmentally friendly features and neighborhoods are an important factor in deciding where and what home to buy,” said NAR President Elizabeth Mendenhall. “REALTORS® are leaders in the conversation about real estate sustainability, energy conservation and resource efficiency, and will continue to promote environmentally conscious strategies and best practices that benefit not just our clients, but also our communities.”

For more information, view the full Sustainability Report here. Want to learn more about green features and sustainability?  Sign up for our GREEN Designation course!
Consumers Prefer Green Features, Real Estate Sustainability
A limited supply of homes for sale, appreciating home values, and rising mortgage rates tempered sales of single-family homes and condominiums in March from year ago levels in Greater Boston, according to data issued today from the Greater Boston Association of REALTORS® (GBAR).

Sales of detached single-family homes saw a year-over-year decline of 13.1 percent in March as 728 homes were sold compared to the 838 homes sold in March 2017. This year’s sales total is the tenth highest figure on record for the month of March and is a 51.7 percent increase on the February 2018 sales total of 480 homes sold. The condo market also experienced a decline in sales of 10.3 percent from 823 in March 2017 to 738 last month. Last month’s condo sales total is the eighth highest on record for the month and is also a 58.4 percent increase on the 466 condos units sold in February 2018.

“Again this month, we’ve witnessed the impact that the lagging supply can have on the market, however it is promising to see the month-over-month sales totals increase significantly this month as we start to enter the busy spring market,” said GBAR President Marie Presti, broker-owner of The Presti Group in Newton. “We’re continuing to see the strongest demand for homes priced at $500,000 or above, and this concentration of activity is fueling the upward pressure on home prices.”

Indeed, the median sales price of single-family homes continued to increase last month to a new record-high for the month of March at $579,950. This reflects a 4.9 percent increase in median sales price from March 2017 of $552,912. Likewise, the condo market experienced an increase in median sales price, from $515,000 in March 2017 to $547,608 last month. This is a 6.3 percent increase and is a record-high median sales price for the month of March.

“The record-high prices have yet to quell buyer enthusiasm, as we have eager buyer population looking to close on a home as soon as they can,” added Presti. “Our issue continues to be that our inventory of homes for sale is lagging behind the demand for housing, which has affected our overall sales totals.”

Active listings dropped significantly in both markets last month as the single-family home market had 1,970 active listings at the end of March 2018, which was a 22.9 percent drop from the 2,556 last March. Similarly, the condo market active listings also fell 22.9 percent from 1,706 in March 2017 to 1,316 last month.

“As prices continue to appreciate and inventory levels remain low, prospective sellers continue to have the upper hand as we enter the heart of the spring market,” Presti noted.

For additional information regarding March 2018 Greater Boston Housing statistics, including our new interactive housing market data dashboard, visit the Monthly Housing Market Reports page.
Greater Boston Home Sales Soften in March

Did you miss our May Newsletter? Read about upcoming BOMA Boston events, news, and educational opportunities!

Read the May BOMA E-News

May E-News

Did you miss our April Newsletter? Read about upcoming BOMA Boston events, news, and educational opportunities!

Read the April BOMA E-News

April E-News
First, let’s review terminology here so that everyone is on the “same page”.  In Massachusetts, there are three primary statuses of real estate licensees (suspended and revoked licenses are not considered in this discussion):  Active; Inactive and Expired.

1.  “Active” status indicates that the licensee is in good standing with the Board of Registration of Real Estate Brokers and Salespersons, has completed the required number of continuing education credits during the prior renewal period and has paid the licensing fee for the current two-year period ending on his/her birthday.  Individuals with active real estate licenses may lawfully engage in the business of real estate with members of the public and derive commission-based income or a salary from their employer from their efforts.

2. “Inactive” status indicates that the licensee is in good standing with the Board of Registration of Real Estate Brokers and Salespersons, has not completed the required number of continuing education credits during the prior renewal period, but has paid the licensing fee for the current two-year period ending on his/her birthday.  Individuals who hold inactive real estate licenses may not engage in the business of real estate with members of the public, but may receive referral fees, except as described below.  

3. “Expired” status indicates that the licensee is no longer in good standing with the Board of Registration of Real Estate Brokers and Salespersons, has not completed the required number of continuing education credits during the prior renewal period(s) and has not paid the licensing fee for the current (or past) two-year periods ending on his/her birthday.  Individuals who hold expired real estate licenses may not engage in the business of real estate with members of the public and may not receive compensation for their services or receive referral fees.

Massachusetts General Law Chapter 112, Section 87XX ½ created an “inactive” license status for those licensees who have not completed the required continuing education credits.  As inactive licensees are prohibited from affiliating with a broker, a referral fee may be paid to them directly. This is the only instance where a salesperson can receive a referral fee directly. Massachusetts General Law Chapter 112, Section 87RR requires that an active salesperson’s referral fee must be paid to the broker in which they are affiliated.

Most questions to the Broker Legal Hotline deal with salespersons who have left the business and are still in their two-year renewal cycle and are considered “active”, but are no longer actively selling real estate (i.e. they retired or permanently left the business).  As stated above, the only way for a salesperson with an “active” license to be compensated is to be affiliated with a broker.  Certain “referral only” brokerages have been established where “active but not practicing” licensees may hang their licenses solely to earn referral income.  However, because of Mass General Law Chapter 112, Section 87XX ½, once a salesperson’s license becomes inactive, the individual is no longer allowed to hang their license with the referral only brokerage company.  Therefore, many salespersons make the personal decision to keep their license "active"; a solid reason being that the referral only brokerage is responsible for collecting the fee from the referring brokerage, thus decreasing the amount of personal follow up necessary when trying to collect the referral fee from a brokerage who has been less than forthcoming with their obligations.  On the downside, there typically are costs associated with belonging to a referral only brokerage.

It is important to note that a licensee with an “active” license cannot elect to become “inactive.”  The change of status only becomes effective upon the next renewal period when the licensee pays a licensing fee and certifies that they have not obtained the required number of continuing education credits for the prior two-year period. 
Can a Broker Pay a Referral Fee to Someone With an Inactive License?
Earlier this month, the Massachusetts House of Representatives and Senate passed legislation to tax and regulate short term rentals. The House bill would create a tiered tax system, include a variety of specific regulatory requirements, and provide cities and towns the discretion to limit the duration of rentals. The Senate version of the bill would create a uniform tax on all rentals and would allow cities and towns to decide how to regulate short-term rentals.  

Since these bills have major differences, a conference committee consisting of three members from each chamber will need to be appointed to reconcile the differences and agree on a final bill to send to Governor Baker. Both chambers have included language that would require any platform or entity (including brokers and salespersons) to be responsible for collecting and remitting taxes if they are also collecting the rent for the owner.

The Massachusetts Association of REALTORS® (MAR) along with the Greater Boston Real Estate Board (GBREB) have raised concerns in both chambers on the issues of private property rights and broker's obligations to collect and remit taxes, and will continue to monitor these bills. For more information, please read this article from the Commonwealth Magazine. 
Mass. House, Senate Pass Short-Term Rental Bills
A phishing email, purportedly from the “REALTOR® Party via DocuSign,” has been sent to some National Association of REALTOR® (NAR) members. NAR says the email, which contains an attachment, is a phishing attempt, and recipients should delete it. If you’ve opened the email and entered your DocuSign credentials, you should log into DocuSign and change your password immediately. Remember never to act on or click on any links in emails that appear suspicious or for which you cannot verify the sender via a telephone call. It’s a good idea to provide this advice to clients, too.

Spam emails can't be prevented entirely, but REALTORS® can reduce the amount of unwanted email that comes into their in-boxes. And on the flip side of the coin, REALTORS® who use email to find and work with clients can take steps to ensure that their own electronic communications aren't seen as spam.

For more information on cyberscams and cybersecurity best practices, visit NAR’s webpage.
New Email Scam Targeting REALTORS®
On April 30, GBAR is sponsoring an event entitled “Blockchain: Digitally Rebuilding the Real Estate Industry”, hosted by CoreTrendz, which focuses on blockchain technology, the world's leading software platform for digital assets.

Blockchain technology is a transformational force of significance to all real estate industry stakeholders and professionals. The first property transactions have already been recorded on blockchain, and the technology promises to revolutionize the industry by streamlining the purchase and sale of land, preventing data loss, bringing greater efficiency to pricing, and dramatically optimizing the mortgage and escrow processes.

This exclusive event, headlined by Avi Spielman, one of the world’s leading experts on blockchain and real estate, will introduce key topics, including: 

A non-technical introduction of blockchain fundamentals
Blockchain as it relates to current issues and inefficiencies in property titles
Government and legal issues associated with distributed ledger innovation,
The most important real estate blockchain trends and start-ups to be aware of.
Click here to register and use the discount code “GBAR2018” at checkout to save when you sign up!
GBAR Sponsoring Blockchain Technology Seminar
Last month, members of the GBAR Charitable Grants Task Force met to review grant applications submitted by local housing groups and agencies requesting assistance from the GBREB Foundation. As there are many worthy organizations that need financial assistance, the committee recommended 15 local, non-profit housing and homeless assistance organizations that would most benefit from receiving a grant from GBAR. The GBAR Board of Directors have approved the following organizations to receive a grant of $2,000: A Place to Turn in Natick, Allston Brighton Community Development Corp. in Brighton, Boston Sock Exchange in Wayland, Caritas Community, Inc. in Braintree, Creative Living in Andover, Family Promise Metrowest in Natick, Housing Families in Malden, Mission of Deeds in Reading, Old Colony Habitat for Humanity in Attleboro, Project Just Because in Hopkinton, RESPOND, Inc. in Somerville, and Second Chances, Inc. in Somerville. Additionally, the following organization will receive a $500 grant: Council of Social Concern in Woburn, and Newton at Home in Newton.

All recipient organizations will be recognized and honored at the 2018 GBAR Awards & Networking Breakfast on Friday, June 22.

Please remember, when you pay your REALTOR® dues you have the option to voluntarily donate to the GBREB Foundation. We sincerely appreciate every donation, as it allows us to continue our charitable efforts and give back to the communities we serve.
GBAR Awards $25,000 to Local Housing & Homeless Assistance Agencies

Click the button below to read the March/April 2018 RHA NextGen Member Newsletter

Click for Newsletter

NextGen Member Newsletter Mar/Apr

On Tuesday April 3rd, Governor Baker announced that he would be filing new legislation to add more requirements to home sales transactions. The bill, H.4371, would require sellers to complete a home energy audit prior to sale. The bill would capture single family homes and homes with up to four units listed for sale. The bill would also direct the state Department of Energy Resources to establish an energy scoring program for the sale of residential property. The Governor’s bill is similar to S.1839 An Act Relative to Home Energy Efficiency sponsored by the late Senator Kenneth Donnelly.

Under current state law home inspectors and associate home inspectors are required to provide a document outlining the procedures and benefits of a home energy audit to all clients purchasing a single-family residential dwelling, a multiple-family residential dwelling with less than five dwelling units, or a condominium unit in structure with less than five dwelling units.  In addition, Massachusetts residential consumers currently pay a surcharge on their energy bills for energy audits they can have performed on their home at no additional cost.   

The Greater Boston Real Estate Board (GBREB) and Massachusetts Association of REALTORS® (MAR) have consistently opposed adding new requirements at the time of property transfer. GBREB and MAR have expressed concern the legislation will unnecessarily complicate and delay the home buying process as well as impact the negotiation of contracts regarding the acceptability of the ratings. In addition, GBREB has raised concerns regarding stigmatizing older homes and adversely impacting home values.  

The legislation has been referred to Joint Committee on Telecommunications, Utilities and Energy for a public hearing. 

Gov. Baker Seeks to Require Energy Audits Prior to Home Sale
April 2018 marks the 50th anniversary of the passage of the Fair Housing Act in the United States.  In commemoration of Fair Housing Month, today’s Legal Brief will discuss discriminatory practices and lead paint testing.

The Massachusetts lead paint law (most recently modified in December 2017) applies to structures built before 1978, where a child under the age of six resides.  The law specifically stipulates that property owners must remove or cover (encapsulate) dangerous levels of lead on window sills measuring five feet or less from floor, stair tread or ground, from handrails and from railing caps.  All other “Accessable/Mouthable” (“A/M”) surfaces only need to be at an intact standard for compliance.  “Friction” (or “F”) surfaces, which include door edges, door jambs and stair treads, require de-leading of all points of potential friction, stair treads will need to be de-leaded in their entirety, and these surfaces cannot be encapsulated. 

Whenever any residential premises containing dangerous levels of lead in paint, plaster or other accessible structural material undergoes a change of ownership and as a result a child under six will become or will continue to be a resident therein, the new owner shall have 90 days after becoming the owner to obtain a Letter of Full Compliance or a Letter of Interim Control.  Further, the owner’s legal obligation exists regardless of the owner’s knowledge of the presence of lead paint.  

As such, any new owner with a child under six must address this issue within the first 90 days they reside in the property or they will be in violation of the law after that period.  Further, current owner’s who reside in the property with a child under the age of six who had not previously tested for lead paint, cannot now refuse a buyer’s right to test for fear that lead paint will be found on the property and they will be found to be in violation. 

In property sales, the Childhood Lead Poisoning Prevention Program requires owners of property built before 1978 who are selling or leasing with an option to purchase and any agent who is involved with the sale or lease to provide prospective purchasers with information regarding the compliance status of the property.  Also included in this information is a Property Transfer Lead Paint Notification package explaining the Lead Law, legal responsibilities, the hazards of lead paint, etc.; a copy of any lead determination inspection, risk assessment and/or compliance documents; information about lead poisoning which occurred at the property; and information about any criminal complaints that have been brought against the owner for violations of the Lead Law. 

A real estate agent has the following responsibilities in property sales:

(1) Read or allow the buyer to read the Notification form;
(2) Verbally inform the buyer of the possible presence of lead and the provisions of the Lead Paint Law;
(3) Verbally inform the buyer of the availability of a lead paint inspection; and
(4) Have the buyer sign the Notification form that has been filled out by the seller of the property.

Note: Sellers and real estate agents are in violation of the federal and Massachusetts law if the buyer signs the Notification form prior to receipt of the Seller’s written responses on that form.

Although Massachusetts law states that the completed Property Transfer Lead Paint Notification form must be acknowledged by all parties prior to the signing of the purchase and sales agreement, the Notification form must actually be signed by both parties prior to the acceptance of any offer, in instances where an Offer To Purchase Residential Real Estate is utilized, because such offer is a binding contract for the sale of the property and the Purchase and Sale Agreement is simply a reiteration of the terms of the offer with other terms and conditions for performance thereunder. The law allows the buyer 10 days in which to have a lead inspection performed. If lead is discovered, the buyer may withdraw from the sales transaction.

Does a seller have the ability to refuse to allow a potential buyer to perform a test for lead hazards on a property?  No, any potential buyer has an absolute right under Federal and State law to perform such testing prior to becoming obligated under a sales contract.  But can the seller legally instruct the listing agent to inform all potential buyers to waive this right, or that they will reject an offer?  No, any instructions along these lines would potentially give rise to a fair housing violation for discriminatory practices against families with children under the age of six and lead to liability on behalf of both the seller and listing broker for participating in discriminatory behavior.

Similarly, a property owner cannot refuse to sell or lease property to a person(s) with children under the age of six in order to avoid the lead paint law requirements. If a seller does, the property owner will be discriminating against families with young children in order to avoid testing or de-leading a unit with a rental.  As such, a listing broker must follow all the lead paint laws to inform consumers of their rights under the law and avoid potential liability.  Listing brokers must beware of potential liability for participating in discrimination if property owners refuse to follow the law, or instruct you to avoid following lead paint or fair housing laws. 

Are there penalties if an owner or brokers fail to comply with the lead paint law notification requirements?  Yes, M.G.L. chapter 111, section 197A(e), states that an owner who fails to comply is (1) liable for all damages caused by the failure to comply (including medical expenses and special education expenses); (2) a penalty of up to $1,000; and (3) subject to a M.G.L. chapter 93A (Consumer Protection Act) lawsuit if the person is in the real estate business (e.g. a real estate broker or builder).  In addition, all Federal and State penalties under fair housing laws are also applicable, including, but not limited to, actual damages, punitive damages, injunctive relief, civil penalties upwards of $10,000 for a first offense and loss of your business and broker’s licenses.   

Following all applicable lead paint and fair housing laws is a sound business decision.
Discrimination and Lead Paint Testing...Refusal to Allow Testing is Unlawful!
Amid a short supply of homes for sale and rising mortgage rates, sales of single-family homes and condos softened in February, from the same month a year ago, in Greater Boston, according to data issued today from the Greater Boston Association of REALTORS® (GBAR).

Sales of single-family detached homes saw a year-over-year decline of 5.5 percent in February as 481 homes were sold compared to the 509 homes sold in February 2017. This year’s sales total is the twelfth highest figure on record for the month of February, with the record of 665 homes sold in 2007. The condo market experienced a more modest decline in sales, falling 1.5 percent from 464 in February 2017 to 457 last month. Last month’s condo sales total is the ninth highest on record for the month, with the record-high of 642 also coming in 2007.

“Sales could have been much stronger had the inventory been up, but these drops are still modest given the shortage of listings on the market this winter,” said GBAR President Marie Presti, broker-owner of The Presti Group in Newton. “Higher home prices and rising mortgage rates have tempered buyer enthusiasm to a degree, but the biggest challenge for those in the market for a home remains the insufficient supply of homes for sale to meet demand,” said Marie Presti.

The median sales price of single-family homes continued to increase last month to a new record-high for the month of February at $549,000. This is reflective of an 8.9 percent increase in median sales price from February 2017 of $504,000. Likewise, the condo market experienced an increase in median sales price, from $520,000 in February 2017 to $546,000 last month. This is a 5.0 percent increase and is a record-high median sales price for the month of February.

“With fewer entry-level and starter homes available in the market, we’re seeing a greater concentration of activity in the mid-to-upper price range, which is contributing to the rise in median sales price,” explained Presti. “Additionally, with the lack of inventory, we’ve seen more multiple offer situations as buyers want to find a new home before mortgage rates and home values climb further.” 

Active listings dropped significantly both markets last month as the single-family home market had 1,786 active listings at the end of February 2018, which was a 16.2 percent drop from the 2,130 last February. Similarly, the condo market active listings fell 13.5 percent from 1,470 in February 2017 to 1,271 last month.

“Potential sellers should feel confident listing their homes, especially with prices continuing to appreciate,” said Presti. “We have an eager buyer population who are looking to close on a home as soon as possible amid rising interest rates.”

Looking ahead, we anticipate an uptick in sales activity, according to Presti, as steady increases in new listings and pending sales occurred in February.

Indeed, both markets experienced a healthy number of new listings and pending sales during February. In the single-family market, 1,162 new listings came on market last month, a 10.1 increase on February 2017, and pending sales fell just 1.1 percent from 783 to 774. The condo market saw 985 new listings last month, which was a 14.8 percent increase from the February 2017 total of 858, and pending sales jumped up 10.7 percent from 728 in 2017 to 806 last month.

For additional information regarding February 2018 Greater Boston Housing statistics, including our new interactive housing market data dashboard, visit the Monthly Housing Market Reports page.
Home Sales Cool in February in Greater Boston
GBAR, in conjunction with the National Association of REALTORS®, is pleased to announce an opportunity for members to nominate a local community beautification or infrastructure project for a micro-grant through NAR’s Placemaking Program. Developed in 2012, this initiative encourages REALTOR® associations and their members to engage in modest neighborhood improvement projects that revitalize or enhance community land. Many Placemaking activities are small, inexpensive, and incremental in nature. Examples include community gardens, bus stop enhancements, dog parks, farmers’ markets, outdoor seating or parklets, playgrounds, public art, etc., each of which can often help to improve a neighborhood and make it a better place to live, work and play.

GBAR is currently accepting applications from members and member firms for projects located in one of the 64 communities that comprise the GBAR/GBREB jurisdiction. Projects should be intended to transform an unused or underutilized space into a vibrant community place where all residents of a community are encouraged to gather often. In addition, projects should include involvement by local REALTORS® and the GBAR, and ideally will have other community partners and funding sources. The micro-grants are limited in size up to $3,000 and will be awarded based on a number of factors, including accessibility to the entire community; the social outcomes and number of opportunities the place provides for multiple activities to occur; likelihood that the project will lead to planning and implementation of other community revitalization efforts; and level of involvement in the project by REALTORS® and the REALTOR® association.

The deadline to submit an application is April 15th.
Grants Available for Neighborhood Improvement Projects
The deadline to submit an application to serve on a National Association of REALTORS® Committee in 2019 is Tuesday, May 1. Members may submit up to five committee applications and receive up to five endorsements per applicant. Click here to begin the NAR Committee Application Process.

For those currently serving on an NAR Committee please remember:
•Current committee members are NOT automatically considered for reappointment. A member currently serving on a committee whose term expires in 2018 must submit an online application if he/she would like to be considered for service in 2019. 
•Members who have a continuing term that expires in 2019 or 2020 do not need to apply to remain on the committee.

Click here for a list of Frequently Asked Questions regarding the NAR Committee Appointment Process.
NAR Committee Application Deadline Approaching

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