A Consumers Guide to Selling a Home in Massachusetts
The sale of a home is one of the largest transactions that an individual makes during a lifetime. The assistance of a qualified real estate agent can transform complex negotiations into a most rewarding endeavor for a seller. This pamphlet is provided as a consumer service to the home selling public and demonstrates the Massachusetts REALTORS'® commitment to promoting home ownership opportunities for all citizens of the Commonwealth.
Exclusive Listing Agreements
Although there are several different types of listings for the sale of real property that an owner may give a broker, the most common in Massachusetts is an "exclusive right to sell" agreement. Under an "exclusive right to sell" agreement the listing broker is given the right to earn a fee for professional services if the property is sold by anyone, including to a buyer located solely through the efforts of the owner.
Multiple Listing Service
Where a buyer works with a real estate agent who participates in a multiple listing service ("MLS"), the agent can cooperate in showing a buyer any property in the MLS, even though it may have been listed through another office.
Agency Relationship
Whether you are the buyer or the seller you can choose to have the advice, assistance and representation of your own agent. Do not assume that a broker is acting on your behalf unless you have contracted with that broker to represent you. If you are a seller you may authorize your listing agent to cooperate with agents from other firms to help sell your property. These cooperating agents may be subagents who represent a seller or be agents of buyers. A seller can generally obtain broader exposure for a property by authorizing a listing broker to compensate a cooperating agent who successfully procures a buyer. If you are a buyer you have the option of working with a seller's agent or buyer's agent. The decision will depend upon the types of services you desire and the method of compensating the agent. A broker who is representing a buyer and shows that buyer a property listed with the broker's office is said to be a "dual agent". Dual agency is permissible provided that both buyer and seller have given informed consent. The duties of a real estate licensee do not relieve the consumer of the responsibility to protect his/her own interest. If advice is desired regarding legal, tax, insurance or other matters, a professional in those areas should he consulted. Regulations of the Board of Registration of Real Estate Brokers and Salespersons require that written notice of the agency relationship of a real estate agent be provided to buyers and sellers at the first personal meeting to discuss a specific property. The buyer and seller are asked to sign an acknowledgement of receipt of the notice.
Real Estate Agents Are Not Inspectors And Do Not Guarantee Property Condition
Real estate agents are not trained to find structural, electrical, plumbing, septic and other problems with a home or land and do not guarantee the condition of property they sell. In general, agents have no duty to inspect a property for defects and have no duty to verify information received from sellers, municipal departments or other reputable sources. Naturally, real estate agents may not "knowingly (make) any substantial misrepresentation" (MGL c. 112 section 87AAA(a)). Agents have no liability for innocently passing along to buyers information from reputable sources, even if it is later determined to be inaccurate. Agents who provide buyers with names of lawyers, accountants or other professionals do not automatically guarantee the accuracy of the reports of those professionals. Since May 1, 2001 home inspectors have been required to be licensed by the commonwealth and to carry errors & omissions insurance. REALTORS® can provide you with a list of inspectors.
Seller's Rights and Responsibilities
Right To Accept Terms Of Listing
The seller has the absolute right to set the listing price. The real estate agent may prepare an "opinion of value" to assist the seller in setting the price. An agent may refuse to accept a listing for any lawful reason.
Right To Have All Offers Presented
By law, real estate agents are required to present all offers to a seller. The Massachusetts Board of Registration of Real Estate Brokers And Salespersons interprets this obligation as continuing until an agreement has been signed. Normally real estate agents will not solicit buyers or continue to show property after acceptance of an offer, unless otherwise agreed. Even if a buyer makes an offer for the full listing price, the buyer cannot usually require the seller to accept, since listing prices are considered invitations to bid.
Nature of Seller's Duties to Condition of the Property
Every seller has the duty to respond fully and accurately to any request for information about a property. This is true whether the information is requested directly by a prospective buyer or by a real estate agent who, in turn, may pass along the information to a prospective buyer. Answers that are misleading or are half-truths are improper. If a seller is unsure of information, the seller should not guess, but should qualify his answer. Otherwise, the buyer may be misled. Sellers may be required to provide information about the presence of lead paint or urea formaldehyde foam insulation, where applicable.
Septic Systems And Cesspools
Massachusetts environmental regulations require that a property which is serviced by a septic system, cesspool or other private waste disposal system be inspected within two (2) years before sale (three (3) years if pumped at least once each year) or within six (6) months after sale (if weather conditions prevent a pre-sale inspection). Only licensed inspectors and soil evaluators may conduct such inspections. Should a system fail an inspection, the buyer and seller may negotiate who will pay to repair or replace the system or, if the agreement for sale contains a contingency, the buyer may decide to withdraw. The fact that a system passes a Title 5 inspection is not a guarantee that the system will continue to function properly. Even a properly maintained system may only last an average of 15 to 20 years.
Smoke Detector Certificates
Massachusetts law requires that all residential structures be equipped with approved smoke detectors upon sale. The local fire department will issue a certificate to prove compliance.