Legal
2/27/2015
Notes from the MAR Legal Hotline
Michael McDonagh, MAR General Counsel
Ashley Stolba, MAR Associate Counsel
Justin Davidson, Legislative & Regulatory Counsel
March 2015
Q: I am a listing agent with an exclusive right to sell agreement that expires in two months. The seller is telling me that they want to terminate the agreement effective this week. Do I have the right to refuse to release them from their listing agreement? What options do I have in this situation?
A. Your rights and obligations, as well as those of the seller, should be clearly spelled out in the listing agreement that you have both signed. If there is no express provision in the agreement that allows the seller (or you) to unilaterally terminate the contract without the approval of the other party then neither party should assume that such a right exists. For example, if your agreement states “either the seller or broker may terminate this agreement at any time for any reason with no further obligations to the other party after such termination,” then the seller probably would have the right to end the listing agreement. Absent that type of clear option to terminate, neither party should presume that they can walk away from the agreement any time they choose.
Perhaps the most important issue to be addressed is determining why the seller no longer wants to continue with the agreement. If their circumstances have changed due to a job loss or family issue and they simply do not believe they can go forward with any sale of their home, you may want to consider mutually agreeing to suspend the marketing of the property for a specified time. This agreement should be in writing and should make clear that you will not continue to advertise or show the property but that all other contractual obligations established by the listing agreement, including your right to compensation if a sale occurs during the originally specified listing period-remain in effect. If you and the seller make this decision, be sure to make the necessary updates in the MLS, pursuant to your MLS's rules and regulations.
If, however, the seller’s decision to terminate is based upon their dissatisfaction with your firm’s efforts to sell the property then it may be more appropriate to talk with them about what their expectations regarding your services are. A good place to start may be a review of the original listing agreement. Explain what types of marketing and other services they should they have reasonably expected from your firm on the property and how you have tried-and will continue to try-to meet those goals.
It is also possible that their dissatisfaction is based upon a lack of up-to-date knowledge about the market in your community. Have interest rates gone up? Have prices gone down? Are they affording your agents sufficient access the properties for showing? What kind of additional services do they think your office should be providing? Exploring these issues in an informal discussion can go a long way towards avoiding costly legal problems down the road.
Q. When someone is buying a home, is it ok for the buyer to sign a blank lead paint form and submit it with the offer?
A. No. The lead paint form must be completed and signed by the seller and the listing broker before it is signed by the buyer. The purpose behind the law is to ensure that the seller has disclosed any information he may have, or lack thereof, regarding the presence of lead paint in the premises. The buyer’s signature on the form acknowledges receipt of that disclosure by the seller. When a buyer signs a blank form he is incorrectly acknowledging a disclosure he has not actually received yet.
Q: Who is responsible for deleading a house that has lead paint: the buyer or the seller?
A: If the buyer has children under the age of six who will be living in the house, M.G.L. c. 111, s. 197(a) requires the buyer to delead the house. If the buyer does not have any children under the age of six who will be living in the house, there is no obligation to delead the house.