Bay State Realtor® Magazine - November/December 2020

Realtor of the Year ®

David McCarthy of Canton

HOW TO DO SOCIAL MEDIA RIGHT NOW p 4 DO I HAVE TO SELL TO HIM? p8 2020 AWARDS OF EXCELLENCE p16

Realtor® of the Year David McCarthy of Canton

HOW TO DO SOCIAL MEDIA RIGHT NOW p 4 DO I HAVE TO SELL TO HIM? p8 2020 AWARDS OF EXCELLENCE p16

Inside this issue of Bay State REALTOR®

More from MAR » www.marealtor.com/news

2 Message from the CEO Looking Back and Forging Ahead

REAL ESTATE @ WORK 4 3 Say Goodbye to the Real Estate Closing Michael Krone, Esq.

4 Real Social How to Do Social Media Right Now Teah Hopper

6 Five Questions With Steve Medeiros 7 Making the Home Loan and Buying Process Easier Rashalon Hayes

» Massachusetts Association of Realtors® Facebook

LEGAL NOTES 8

8 Legal Realtor® Do I Have to Sell to Him? Stephen M. Perry, ESQ. 10 Notes from the MAR Legal Hotline

»

12 From the Bench MAR Legal Team 14 Infographic: 020 Home Buyers and Sellers Generational

Trends Report

FEATURE 16 16 2020 Awards of Excellence, Realtor® of the Year, and Local Realtors® of the Year Awards Sabrina Lapointe

MEMBER VOICES 20 20

Twitter.com/MARealtors

President's Message Realtor® Resiliency Kurt Thompson

21 AG Source of Income Settlements 23 Calendar; Subscribe to MAR Podcast 23 Calendar; Subscribe to MAR Podcast 24 Member Benefit Spotlight: TaxBot Sabrina Lapointe; MAR Charitable Foundation Disburses Fall Round of Housing Grants 25 Thoughts About Our Future Paul Yorkis ADVERTISER DIRECTORY MLS PIN................................................IFC Fairway Mortgage....................................5 MassHousing......................................9 NEREN MLS...........................................11

RMS....................................................13 A to Z Moving & Storage........................23 Weichert........................................BC

November/December 2020

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Message from the CEO THE OFFICIAL PUBLICATION OF THE MASSACHUSETTS ASSOCIATION OF REALTORS®

Looking Back and Forging Ahead

BY THERESA HATTON As we near the end of 2020, I am reflecting on the challenges we have faced in our industry as a whole and in our everyday lives. But more importantly, I am thinking about the resiliency of Realtor® members and how proud I am to be part of this great organization.

NOVEMBER/DECEMBER 2020 VOL. 67, NO.6 PRESIDENT

Kurt Thompson, CBR, CRS, LMC PRESIDENT-ELECT

Stephen Medeiros, CRS, SRES, e-Pro TREASURER

Dawn Ruffini, CHMS, CNS IMMEDIATE PAST PRESIDENT

Anne Meczywor, ARS CBR, CRS, AHWD CEO

With that resilience in mind, I look forward to 2021 and some of the changes MAR is making to better position us as the leading voice of real estate in Massachusetts and to better support you, our members:

Theresa Hatton, RCE, CAE

We have a new logo. With reliance on online search and

Sabrina Lapointe

social media, MAR needed an updated logo to convey its mission in digital environments. Unlike our former logo, which was designed primarily for print materials, the new logo adapts seamlessly to mobile screens, including as a social media avatar.

We launched a new website and database that is mobile- friendly and browseragnostic. The web navigation and content are based on feedback we received from our members. You can now seamlessly transition from our website to your member portal to find important committee information, all with single sign-on functionality.

As we look ahead to 2021, we are seeking more cost- effective and environmentally friendly ways to share our content. This will be the last printed edition of Bay State Realtor® magazine. Be on the lookout as we continue to share great tips, advice, and feature articles on our blog at marealtor.com and through our social channels. If you are not signed up to receive email communications from us, I encourage you to do so.

Now more than ever, we remain interconnected through our mission to empower Realtors® to succeed, and I cannot wait to support you in your year ahead.

With gratitude, Theresa Hatton MAR CEO

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Bay State REALTOR®

PRODUCTION COORDINATOR ART DIRECTOR

Sharon Womble ADVERTISING SALES

Julie Lewis (508) 612-4841 (Publication No. 703-610) ISSN: 0891-5539 Published by the Massachusetts Association of Realtors®, Mailing Address: 333 Wyman Street, Waltham, MA 02451-1139 (781) 890-3700 The Bay State REALTOR® magazine is published bi-monthly (Jan./Feb., March/April, May/June, July/August, Sept./Oct., Nov./Dec.), as a member service.

Subscriptions are $2.50 per year for members and are paid out of member dues. Non-member subscription rate is $40 per year. The comments and opinions expressed herein are those of the authors and do not necessarily reflect the opinions, views, or policies of the Massachusetts Association of Realtors®. Copyright 2020. All rights reserved. Periodical postage paid at Boston, MA. POSTMASTER: Send address changes to: Massachusetts Association of Realtors® 333 Wyman Street, Waltham, MA 02451-1139

SAY GOODBYE TO THE REAL ESTATE CLOSING

BY MICHAEL KRONE, ESQ.

In my 35 years of closing real estate transactions I have truly seen quite a bit. From the mundane to the ridiculous, the sensible to ludicrous, from joyous to somber. It has been an interesting ride. All of that now seems to be a thing of the past. With the onset of COVID 19, the closing process seems to have changed forever. In my last article I discussed the remote closing processes that are being used in this region and throughout the country, the bifurcation of the closing, brokers no longer at the closing, and buyers and sellers never meeting.

The new remote closings are more convenient, but they are missing a unique component – the personal interaction. The congratulations from the seller and broker, the handshakes and hugs, the bottle of wine or basket as a gift, the utter joy watching the new homeowners take the keys and walk out of the closing room holding hands are what makes the closing special.

Ok, so I am nostalgic, but I am nostalgic about what makes our job enjoyable – the interaction with happy people. The hugs and the handshakes were the first to go. The actual presence of all parties at the same closing table was next. The actual presence of anyone in the closing room may soon be gone forever.

Open houses have certainly changed in your region. Gone are the days of sizing up your competition for the house, neighbors pretending to be prospective buyers just so they can see what their unfriendly abutter’s house looks like. If there are more than six people viewing at once someone is likely to call the police.

And how about closing the purchase at the Middlesex South Registry of deeds, no AC, furniture from the 50’s, sweltering summer days and jockeying (a/k/a fighting) for a table? Or what about going up to the recording desk to put the deed and mortgage on record and immediately thereafter handing over the check and keys? I have fond memories of closing at the Norfolk Registry of Deeds in the basement or outside of the land court office in the back of the first floor. I’d get there 20 minutes early just to be sure we had a table, tell the person at the paging desk where I was and then visit with the title examiners I knew as colleagues and friends. I enjoyed seeing other attorneys I knew and meeting attorneys for the first time. It was fun helping the younger attorney along without sounding like a dad, or telling some funny stories to make people feel at ease and plowing through the documents so the buyers could get to the house to meet the moving van.

The entire industry seems to be looking for solutions to

make the transaction more convenient, the sit at home in your sweatpants, experience. I am sure that many folks are much happier with that. It is almost quaint to think back to the day when we all dressed up to attend the closing. It was a big deal. It is an old-fashioned experience, like dressing up for a nice dinner out.

No one wants to do it anymore.

The new real estate closing is more streamlined, more efficient and more convenient, convenience being the most important factor. It all makes sense. The excitement of going to the real estate closing will go the way of the excitement of actually going to a car dealership and test driving a new car or going to the market to actually pick out your fruits and vegetables, or even going to the restaurant to order your takeout and speak with the staff.

Enjoy the new closings of today. Help your buyers feel excited and give them the personal experience that makes the Realtor® industry unique. It’s new to many of us but being with them virtually can be as rewarding as being there in person if you really get into it. If we can all meet virtually, close the transaction and everyone continue their day without having to drive to a location and sign a hundred pages then that is a good thing. Doing closings the old way as compared to today is like the clunker car I owned as a young man – I am nostalgic about it, but I enjoy my new car a lot more.

Michael Krone is a practicing attorney with over 35 years’ experience in real estate transactions. He is Senior Vice President of Equity National Title and Massachusetts Counsel for O’Donnell Law Group. He can be reached at mkrone@equitynational.com.

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real estate @ work

N E W S , T R E N D S , & T O O L S F O R R E A LT O R S ®

{real social}

How to Do Social Media Right Now

BY TEAH HOPPER We’re living in a crazy, unprecedented time. With so much uncertainty surrounding us, our social media strategies feel uncertain as well. While some people are hesitant to jump on social media right now, I’d argue that it is more important than ever. Here are the questions I’ve been frequently getting asked about social media during the pandemic—and my tips for best practices.

Should I keep posting?

Yes! People want and need to communicate and socialize, and social media gives us a safe way to connect.

I find Facebook Groups to be an especially great way to communicate with others right now, but you don’t have to start an online community to connect with your people.

Just continue to post content you enjoy and that relates to your brand and social media strategy – but do so mindfully.

What should I be posting?

Continue to post the same content, but keep an eye on our current environment – as it changes so quickly! Could it be misinterpreted, or somehow offensive? If yes—or if you aren’t sure—skip it and save it for later. Otherwise, continue to share content that educates and provides value. Posting “normal” content can be a (good) distraction and bring some joy to your followers' feeds.

And, of course, you can use the current situation to inspire new pieces of content. Ask how you can provide value to your audience: What skills or expertise or experience can you share in light of our new normal? Can you share some helpful tips for navigating real estate during these times?

■ How has the market shifted in your community?

■ What are three things sellers should know for listing during COVID? ■ How have showings changed and what do your buyers need to know to be prepared?

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What about scheduling? Should I be scheduling posts?

Things are changing on a daily basis, so be cautious. Don’t schedule posts more than a few days out, and review your content often. Regularly reviewing your posts will ensure you don’t share outdated or insensitive content, but it also gives you the opportunity to tweak your messaging to be even more relevant.

For example, one of my clients had prescheduled a blog about spring cleaning. It would’ve been perfectly fine to auto post - but we would have missed the opportunity to make it even more meaningful. We tweaked the caption to include a message about spending more time at home and, just like that, we had content that felt timely and relevant.

If I am just getting started, is now the time to start posting on social media?

This is a great time to start. Most people are spending more time online. Use this change in your routine (and possibly some extra time in your schedule) to create a social media marketing strategy. If you put in the time now, you’ll have a solid plan in place when life goes back to “normal.”

And if you have already been posting for a while, use this time to tweak or update your social media strategy or batch create content. Your future self will thank you for putting in the work!

Here are a few more things to keep in mind when using social media during this challenging time:

Be mindful. This is impacting everyone differently, but it is impacting everyone! Be aware of the different circumstances people are facing, and empathize with others whenever possible.

Be present. It’s more important than ever to show up for people. Connect with others, and spread some joy and love.

Challenge yourself to send five messages a day or, better yet, go Live and get in front of your audience.

Be authentic. We are all making this up as we go. Now is not the time to try and be perfect. The more authentic you can be, the more your audience will connect with you.

Be cautious. Social media isn’t just about what you post—it’s also about what you consume. Spend some time off of social media. Put some boundaries in place. Unfollow people and pages as needed. Look out for yourself, your thoughts, and your mental health.

Let’s use social media for good, and as a way to connect and inspire one another. If you need any guidance with your social media strategy, don’t hesitate to reach out.

Teah is a social media strategist that helps businesses, entrepreneurs, and Realtors® discover their unique story and simplify their social media through a strategic approach so that they can find joy in social media again, get their time back, and live the life they desire. Teah can be reached at teah@teahhopper.com or on her website at teahhopper.com.

November/December 2020

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5QW

Five Questions With Steve Medeiros

The Future of MAR With Steve Medeiros Steve Medeiros is a Broker Associate with Keller Williams Realty. He has been a Realtor® since 2004 and serves the south coast. Steve resides in Dartmouth with his wife Sue and his two sons, Tyler and Nathan.

Q1.

What led you to a career in Real Estate?

A. I grew up around real estate investment properties. My dad owned many rental properties, and I spent a lot of time helping him fix up and maintain those buildings until I left for college.

After college, I started reading books about real estate investing and decided to jump in and buy my first investment property. I partnered with my dad on the purchase of a six family. I also partnered with 11 investors in a 24unit condo complex. My dad said, "You should get your license because you are really good at this." I got my salesperson license in 2004 with no intention of selling full time. As I began working with clients, I realized how valuable my experience was to my clients and just how much I could help people achieve their real estate goals. When my wife and I had two boys 18 months apart in 2006 and 2008, my priority became providing for my family now instead of investing for the long term. Thankfully, at the same time, my business was taking off because I had built it on a strong foundation of exceptional customer care and a great network of business professionals to serve those clients.

Tell me about your involvement Q2. with MAR, what have you been a part of since joining?

A: After volunteering at my local [association] for about 10 years, my first experience with MAR was when I attended the Realtor® of the Year luncheon in 2014. The following year,

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I served as President-elect for my local association, served for the first time on the MAR Board of Directors (BOD) and the MAR Government Affairs Committee (GAC). I truly enjoy the impact we have as volunteers on our industry and on behalf of our members and clients. In 2016, I graduated from the MAR Leadership Academy where I made some lasting impactful relationships and gained a deeper understanding of the Realtor® organization’s impact and how I could be a part of that positive impact. In 2017, I had a pretty busy year serving as local President, Chair of GAC and RPAC Participation Rep, plus sitting on the Executive Committee, RPAC Trustees, Forms Committee, BOD plus several NAR and local Committees. I had my best year to date while volunteering at a high level. When I stop and think about my involvement, it has always been about either the pursuit of knowledge and improving my skill set or being of service and sharing my talents to make a difference. Thankfully, I have had many opportunities to learn and serve and that has had a positive impact on my business.

What are some of the goals Q3. you want to achieve during your time as President of MAR? A: With Covid-19 forcing us to adapt in so many ways, we need to be even more focused on staying true to our core values as an organization and not lose touch with how we got here. We have an incredible strategic plan that

gives us many key objectives for the next several years. My goal for 2021 and beyond is to keep our culture strong and even strengthen it. In a virtual environment, we need to work even harder to keep that front and center.

What type of environment do Q4. you hope to create at MAR? A: We need to be certain our staff, our volunteer and our member experience is fun, rewarding, and valuable and that should be our focus with everything we do. When we focus on that kind of high-level experience, it will be easy to find new volunteers and new members. With new members and new volunteers, come new ideas and a greater reach to support our advocacy efforts on a local, state, and national level.

What are you looking forward Q5. to most about being President of MAR? A: What I am looking forward to most about being President are two things.

One is being able to meet our members from across the state. I hope Covid-19 will subside enough for that to be able to happen to a greater extent than was possible in 2020. The second thing is the opportunity to dive into the work executing the strategic plan and creating that high-level experience with our staff and amazing volunteers. When we come together to accomplish something incredible for our members, that is when the magic happens as a volunteer.

Making the Home Loan and Buying Process Easier RASHALON HAYES, Assistant Vice President of Field Mortgage at Navy Federal Credit Union It’s safe to say you’ve adapted and overcome one of the most challenging years in real estate. Inventory constraints, record low interest rates, the coronavirus pandemic, and increased demand for single-family homes have made this year one for the history books.

As we wrap up this year and begin looking forward to 2021, I wanted to share a lender’s perspective on how we can all work with homebuyers to make the process easier and smoother for everyone involved.

First, let’s all start by encouraging buyers to get their financing lined up as early as possible in the process.

We believe it’s important that buyers begin by better understanding what they can afford, checking their credit score to address any potential credit issues they may not be aware of, and identifing the loan product that will give them maximum buying power. We tell Navy Federal members they should take advantage of online loan calculators to better understand their budget. After that, potential buyers should compare lenders on their financing options before they even begin house shopping.

Shopping for the right financing is just as important as finding the right home. It helps the buyer feel more comfortable and it helps you close the loan more quickly.

That’s why we recommend buyers compare lenders and ask for closing cost estimates. That way, the buyer can understand not only the interest rate of their loan, but the fees charged by lenders. These fees vary greatly and choosing the right lender can save buyers big in the long run.

Thereafter, they are ready to obtain the pre-approval from the lender of their choice.

Also, there are lenders in the marketplace that offer loans that do not require private mortgage insurance. Pair that savings with a loan that requires little to no down payment, and suddenly you have a buyer that has more purchase power and is better suited to get into the home they really want. This is especially beneficial for first-time buyers, so if you’ve been contacted by buyers who are just “kicking the tires,” you can provide them with great insight that will provide real financial value to their experience.

Secondly, the real estate agent and buyer should stay in contact with the loan officer throughout the process. Many lenders are offering easy-to-use digital application platforms, but as you know, it’s the human interaction that really seals the deal in the end. Working with an experienced lender, the buyer will be connected with a loan officer who can not

only provide insightful information, but even help along the way. At Navy Federal, we think it’s important to have open communication between borrower, lender, and Realtor®.

We’re all in this together.

Finally, as a result of the economic issues caused by the pandemic, buyers can expect a different closing experience.

For example, many lenders will need to conduct their final employment verification closer to closing than in years past.

Also, title agencies are embracing new approaches to closing to help ensure physical distancing. If you have a buyer that’s especially sensitive about their closing experience, share those concerns with the title agency right away. The better the closing experience is for the buyer, the greater their satisfaction with you and the entire process.

These are unprecedented times. The economy may swing one way or the other in the coming year. I believe there’s reason for optimism, as many who were on the fence about refinancing likely did so during the first half of 2020, opening up the market to those more focused on purchasing a home. I do expect that we’ll see an upswing on the purchase side in the coming months. Hopefully, if lenders and agents can better prepare buyers for this process, it can be smoother and quicker than ever before.

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legal notes T R A N S L AT I N G T H E L A W F O R Y O U

{legal Realtor ®}

Do I Have to Sell to Him?

BY STEPHEN M. PERRY, ESQ ., Casner & Edwards, LLP We’ve probably all heard stories about the expansion of political disagreements into retail establishments.

A restaurant in Virginia refused to serve the President’s former press secretary. A burger franchise in Alabama declined to serve police officers. A New York City bar refused admittance to a patron who was wearing a MAGA hat. Meanwhile, store workers have been shot for asking patrons to wear a mask, a request that itself has become embroiled in politics.

Those involved in real estate transactions are not immune from the extreme political divide that grips our country. Owners of real estate who are listing those properties may very well say, “I won’t sell to anyone who supports [fill in the blank].”

What does the law have to say about the injection of politics into the world of real estate sales? Is it lawful for a property owner to refuse to sell real estate to those whose political views are deemed offensive to the property owner?

The case of the disgruntled wearer of a MAGA hat who was refused admittance to the bar, he actually went to court. The bar won. The judge determined that applicable federal and New York law protected discrimination on account of race, religion, and gender, but not discrimination on account of political beliefs. As fervent as some of the President’s supporters may be, the judge rejected the plaintiff’s argument that his wearing a MAGA hat was a bona fide part of his religion. And the plaintiff’s First Amendment rights to freedom 8

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of speech did not come into play because the First Amendment only restricts the actions of governmental bodies and not private establishments.

Some commentators have opined under similar reasoning that there was no legal problem a few years back when a woman in California instructed her real estate broker not to entertain any offers on her house from Donald Trump supporters. They pointed out that the fair housing laws do not protect against discrimination on account of political beliefs. While it is true that political beliefs, as such, are not protected by the fair housing laws, things may not be so simple as that.

To illustrate this point, let’s go back to the situation with the bar. Only this time, suppose

that it was a bar in Birmingham, Alabama, and that it put up a sign stating that only registered Republicans would be allowed to enter. This would likely keep out the overwhelming majority of Black patrons. In fact, it would be a pretty good way of bringing back the Jim Crow laws. For that reason, even though the civil rights laws do not protect against political discrimination, a refusal to admit into the bar those who were not Republicans would almost certainly constitute unlawful race discrimination.

The same problem would potentially apply in the real estate scenario if sellers were to advertise their property with a statement that said, “Democrats need not apply.” On the face of things, this advertisement might seem to be addressing

only political affiliation. But its effect would be to potentially prevent the overwhelming majority of Black buyers and a disproportionate share of other minority groups from buying the property. Because the advertised political restriction would have a disparate impact on members of protected minority groups, it would likely be found to violate the Fair Housing laws.

Now, let’s turn the tables and suppose that a seller were to advertise that offers from supporters of the President will not be considered.

This would not necessarily have a disproportionate impact on the minority groups referred to above, nor would it support a claim of socalled “reverse discrimination.” Still, it would not be without its risks. For example, one could imagine a case being asserted by a potential buyer who adamantly opposed abortion rights on religious grounds and who claimed that the advertised refusal to sell to any supporters of the President constituted religious discrimination.

There are conservative leaning groups that finance this type of litigation.

Perhaps such a claim would find some success, particularly with a Supreme Court that is increasingly protecting against perceived religious discrimination. No one’s religion requires that they wear a MAGA hat when they go out for a drink, but there are individuals who profess that their religious beliefs require the support of one candidate over another.

So far, we’ve been talking about publicly advertised or announced statements that only offers from one or the other side of the aisle would be accepted. Even though the fair housing

laws do not protect against political discrimination, we’ve seen how such announcements or advertisements could be problematic if challenged based on their disparate impact on members of legally protected groups.

But suppose the sellers do not make public their intention to pay attention to political affiliations. Suppose they simply elect when the time comes to reject the offer from the supporter of a political adversary and to accept instead a lower offer from a buyer whose political beliefs align with theirs.

In such a case, they might very well end up in the position of the New York City bar that prevailed against the man in the MAGA cap. Just as a seller would be free to reject a buyer that the

seller disliked, the seller could legally reject an offer from a buyer whose politics the seller disliked—as long as the rejected higher offer did not come from someone who could claim to be have discriminated against based on protected attributes such as race, religion, national origin or sexual preference.

From the perspective of the Realtor®, it would be best to treat all prospective buyers equally and not to participate in or to communicate limitations based on political affiliations. If the seller then chooses to be influenced by political considerations in choosing which offer to accept, that is just another sign of the times.

Down payment assistance and mortgage insurance with job-loss protection— a powerful combination for first-time homebuyers.

Check with us this fall for expanded offerings!

Only with a MassHousing Mortgage. www.masshousing.com/partners

E Q UA L H O U S I N G

O P P O RT U N I T Y

November/December 2020

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Notes from the MAR Legal Hotline

BY JUSTIN DAVIDSON, ESQ., Government Affairs Director & General Counsel CATHERINE TAYLOR, ESQ., Associate Counsel JONATHAN SCHREIBER, ESQ., Legislative & Regulatory Counsel Attorney

Q. Is the agent who first showed the property to the buyer entitled to compensation?

A: Maybe. For transactions involving properties listed in the MLS, the agent who is the procuring cause is entitled to compensation once the transaction has closed. A broker is regarded as the procuring cause if it was his or her efforts that laid the foundation on which negotiations resulting in the sale began. The broker’s efforts cannot be interrupted by a break in continuity.

Determining procuring cause requires a nuanced analysis of several factors and must be determined on a case-by-case basis. No one factor alone is determinative. Furthermore, there is no “threshold rule” that dictates that the agent who first showed the property is the procuring cause.

Disputes related to procuring cause that brokers are unable to resolve themselves must be submitted to Realtor® sponsored arbitration. Procuring cause disputes submitted to arbitration will be resolved by a panel of Realtor® members who will consider some of the following questions:

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■

Were any agency disclosures made? When?

■

Was there any buyer representation agreement? Was it an exclusive agreement?

■

How was the first introduction to the property made?

■

When was the first introduction to the property made?

■

What subsequent efforts were made by the broker/agent?

■

Was contact with the buyer maintained by the original broker/agent?

■

Did the original introduction of the buyer to the property start an uninterrupted series of events leading to the sale?

■

Were there any interruptions?

■

Did the buyer terminate the relationship with the agent?

Why?

■

Was there interference in the relationship?

■

Did the buyer seek to freeze out the buyer agent?

■

Did the seller act in bad faith to deprive the agent of the commission?

Bay State REALTOR®

The full Arbitration worksheet can be found by searching for ‘NAR Arbitration worksheet. Realtors® must always remember to never let a compensation dispute interfere with the transaction. Disrupting an otherwise successful transaction with a commission dispute may lead to both an ethics complaint and a licensing complaint.

Q. M y seller has received multiple offers on their home, and one has an escalation clause – how does that work?

A: Escalation clauses are sometimes used by buyers to make their offer more appealing to the seller, especially in a competitive market. An escalation clause is a provision that is added to a buyer’s offer that allows the offer price to increase by specified increments if there is a competing offer.

Escalation clauses can be helpful in multiple offer situations, but prior to using one a buyer should be carefully counseled on the pros and cons.

As a Realtor®, it is critical to understand the components of an escalation clause regardless of whether you are representing a buyer or a seller. The components include the original offer, the amount by which the buyer is willing to escalate his or her offer, the total amount that the buyer is willing to offer (the “cap”), and information about how the buyer will cover the cost differential in the escalated offer.

To trigger the escalation clause, the seller must have received

a higher bona fide offer from a competing buyer. A bona fide offer is an offer that is made in good faith and is legitimate and enforceable. At the buyer’s request, the seller must provide documentation to the buyer of the other offer.

A seller may refuse to accept an offer that contains an escalation clause and may instead counteroffer, asking the buyer for their “highest and best.” A buyer should also be aware that using an escalation clause reveals more information to a seller than a traditional offer. The seller will know the buyer’s “cap” and may use that information to their advantage in negotiations.

The MAR Escalation Form (#520), requires a seller who accepts the buyer’s offer as escalated to deliver a signed copy of the Offer to Purchase with the purchase price modified to the escalated amount within 48-hours. The buyer would then sign the counteroffer. Once accepted, the parties have a binding contract and the escalation provisions terminate.

Realtors® and buyer clients using an escalation clause

should work closely with an attorney to ensure proper understanding and use of the escalation clause.

Written by: by Justin Davidson, General Counsel; Catherine Taylor, Associate Counsel; and Jonathan Schreiber, Legislative & Regulatory Counsel.

Service 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 legalhotline@marealtor.com.

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FROM the BENCH Landlord Liability for Snow & Ice Injuries to Tenants The evolution of liability for snow and ice injuries has left many landlords wondering what they need to do to best protect their tenants and themselves. The Massachusetts Supreme Judicial Court recently shed more light on this issue, finding that a tenant was not owed damages under the implied warranty of habitability and the covenant of quiet enjoyment when the tenant was more than fifty percent liable for their injuries.

The Case, Robert Goreham v.

Jose C. Martins Robert Goreham occupied the second-floor unit in a three-family property owned by the Martins. The premises had two entrances – the main entrance on the side of the building and a fire escape in the back of the building. Goreham regularly used the rear fire escape because it was easier and never complained to the Martins about the quality of snow removal. After slipping on ice in the driveway during the winter of 2010, Goreham sued the Martins and the snow plowing company for his injuries. The jury found the Martins negligent for failing to exercise reasonable care, but also found the tenant to be more responsible for the injury than the Martins, resulting in a judgment in favor of the Martins.

The tenant appealed.

On appeal, the court considered whether the jury’s finding of negligence required a finding that the landlords breached the implied warranty of habitability and covenant of quiet enjoyment.

The Law A landlord has a duty to exercise reasonable care in removing snow and ice in common areas of the premises.

A plaintiff who is more than fifty percent responsible for their injuries is not entitled to damages.

The implied warranty of habitability requires landlords to provide rental 12

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property that meets basic living and safety standards.

The covenant of quiet enjoyment protects tenants from serious interference with their tenancy through acts or omissions of the landlord that impair the character and value of the premises.

premises. Here, because the tenant did not lose the ability to park his vehicle and the building had a second main entrance available for use, the “character and value” of the leasehold remained intact, rendering the protections of the covenant of quiet enjoyment inapplicable.

The Decision

What This Means for Realtors®

The Supreme Judicial Court rejected the tenant’s claims and ruled that the tenant was not entitled to personal injury damages on his claim for breach of the implied warranty of habitability or the covenant of quiet enjoyment.

The Court made three key findings: 1. The tenant’s use of the fire escape, rather than the main entrance, constituted “unreasonable misuse.”

2. The implied warranty of habitability applies only to significant defects in the property itself that render the dwelling uninhabitable, and, as such, does not apply to the accumulation of snow and ice.

3. Where a tenant is able to pursue damages for a personal injury under tort liability (negligence), a court will not allow recovery of damages under a contract theory (implied warranty of habitability).

The covenant of quiet enjoyment applies to defects that “impair the character and value” of the leased

This case does not modify the long-standing law in Massachusetts requiring landlords to exercise reasonable care in removing snow and ice from common areas, however, it is a good reminder of the importance of taking necessary precautions to assure tenant safety. Realtors® who work with landlords and property management companies should make sure that their clients take appropriate steps to ensure tenants have safe egress from their units when there are snow and ice conditions present. Failure to clear snow and ice may lead to liability if someone suffers a personal injury as a result of unsafe conditions in a common area of the premises.

BY THE MAR LEGAL TEAM

What Happens if Your Seller Dies During the Term of the Exclusive Listing Agreement?

Have you ever encountered a situation where a seller has unexpectedly passed away during the term of an exclusive listing? The Massachusetts Court of Appeals recently addressed this question for the first time.

The Case, Newton Centre Realty, Inc. v.

David R. Jaffe, personal representative

Additionally, the court distinguished agency relationship agreements, such as listing agreements, from other contracts, noting that while the agency relationship does not survive the death of the principal there are certain situations where an agreement would survive. One key example for Realtors® is that a contract to purchase real estate is a type of agreement that does survive the death of the principal because it includes an interest in real property.

What This Means for Realtors® If the unfortunate situation arises where a seller passes away prior to entering into a contract to sell the home, a Realtor® may not be entitled to a commission, even if the property sells during the period of exclusivity. A seller’s estate is not obligated to continue working with that brokerage, though may choose to do so. If that is the case, the brokerage should enter into a new Exclusive Right to Sell Listing Agreement with the estate’s personal representative before selling the property.

Shirley Jaffee had entered into three separate Exclusive Right to Sell agreements with Newton Centre Realty for her three residential properties.

During the term of the agreements, Ms. Jaffee passed away and her estate’s representative sold the properties without using the brokerage during the exclusivity period of the agreements.

Newton Centre Realty then sued to collect the commissions owed under the agreements. The case addresses the question of whether the death of the seller terminates a real estate brokerage agreement.

The Decision The court relied on well-established common law principles and held that the seller’s death terminated the agency relationship between the seller and real estate agent. Therefore, the broker was not entitled to a commission in this instance.

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2020 Home Buyers and Sellers Earlier this year, NAR released its 2020 home buyers and sellers generational trends report. The report was conducted by the National Association of Realtors® Research Group. The report studied a wide variety of topics ranging from characteristics of home buyers, home sellers and their selling experience, to home selling and real estate professionals methodology.

Most Important Factors When Choosing An Agent (based on all buyers)

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8%

Agent’s knowledge of the neighborhood

7%

Agent has caring personality/good listener

6%

Agent is timely with responses

Bay State REALTOR®

19%

Agent is honest and trustworthy

17%

Agent’s experience and reputation of agent

15%

Agent is a friend or family member

Generational Trends Report Benefits Provided by Real Estate Agent During Home Purchase (process by age) Home buyers age 22 to 29

85%

Helped buyer understand process

Home buyers age 30 to 39

61%

Pointed out faults with property

Home buyers age 40 to 54

48%

Negotiated better sales contract terms

Home buyers age 55 to 64

44%

Provided better list of service providers

Home buyers age 65 to 73

48%

Improved buyer’s knowledge of search areas

Home buyers age 74 to 94

36%

Negotiated a better price

For the full report go to: https://www.nar.realtor/sites/default/files/documents/2020-generational-trends-report-03-05-2020.pdf

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2020

Awards of

David is also a Local Association Realtor® of the Year award winner.

Each year, MAR has the privilege of honoring Realtors® who have made a difference both in and out of the real estate industry. This year has been unique in many ways as we have had to operate remotely. The 2020 Professional Awards Reception took place virtually on Tuesday, September 15. Several Realtors® were recognized as they received the following awards: Realtor® of the Year, Milton H. Shaw Distinguished Service Award, and the Good Neighbor Award.

David McCarthy, broker/owner of Keller Williams Realty Boston-Metro in Boston is the 2020 Massachusetts Realtor® of the Year.

A Realtor® since 2004, McCarthy has earned his Accredited Buyer Representative (ABR), Certified Residential Specialist (CRS) and GREEN professional designations. He was elected as the At-Large Director of MAR for 2020 while also serving as a State Director and a voting member of the Executive Committee.

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Bay Bay State State REAL REALTOR TOR®®

McCarthy served as the 2018 Boston regional representative for MAR as well as the 2017 Boston Regional Vice President. A member of the MAR Board of Directors since 2013, McCarthy has also been a member of the Professional Standards Committee, Leadership Development Committee, Strategic Planning Task Force, the RPAC Board of Trustees, and Executive Committees.

McCarthy was the chairperson of the Convention Planning Committee in 2014. He also served on the MAR Finance Committee in 2020.

At the national level, McCarthy served on the Professional Development Committee in 2019. Previously he served on the Realtors® Political Action Committee (RPAC), and the Major Investors Council in 2017 and 2018.

He also served on the NAR Board of Directors in 2015, and was a member of the Member Communications Committee in 2014. McCarthy also served as an NAR Director in 2020.

McCarthy is a Golden R President’s Circle Major Investor.

EXCELLENCE Palmer Realtor®/Broker Recognized for His Distinguished Service to MAR Peter Ruffini, a Realtor®/Broker with Keller Williams Realty in Longmeadow is the 2020 Milton H. Shaw Distinguished Service Award recipient.

First awarded in 1984, the Milton H. Shaw Distinguished Service Award is presented to a Realtor® member to recognize and regard distinguished service to the Massachusetts Association of Realtors® over a period of years of continued participation in its activities and loyalty to its purpose.

A Realtor® since 1996, Ruffini served as the 2018-19 chair of the MAR Realtor® Independent Expenditure Political Action Committee. He was also a member of the Presidential Advisory Group and Task Force that helped form it. In addition, Ruffini was chair of the State Political Coordinator Presidential Advisory Group and Task Force, as well as a long-time member of the MAR Government Affairs Committee. His leadership roles at MAR included serving as president, president-elect, two consecutive terms as secretary/treasurer, vice president for government affairs, and south region vice president. He has served on the MAR Board of Directors since 2006.

On the local level, Ruffini was the 2007 President of the Plymouth and South Shore Association of Realtors® as well as Realtor® of the Year in 2009. At the national level, Peter is a Realtor® Political Action Committee Major Investor, National

Association of Realtors® (NAR) Director, and a member of the State & Local Issues Mobilization Support Committee. He was a member of the Realtor® Party Member Involvement Committee for several years and its chair in 2017. He was also a member of the Realtor® Party Advocacy Workgroup in 2013. Ruffini is a Sterling R Major Investor.

Medway Realtor® Recognized for His Community Service Efforts

William Wright, a Realtor® with RE/MAX Executive

Realty in Franklin was named the 2020 MAR Good Neighbor Award winner for his work the RE/MAX Executive Charitable Foundation.

William Wright William Wright receives his award during the virtual awards ceremony this past September.

Established in 2004 and presented annually, the Good Neighbor Award recognizes Realtors® who have demonstrated an extraordinary commitment to community service through volunteerism and civic charitable contributions that improve

the lives of local residents and make their community a better place to live.

Wright founded the RE/MAX Executive Charitable Foundation back in 2009 when another agent in his office became terminally ill. He began to raise donations for this person but quickly realized the need to help other people in his community.

The RE/MAX Executive Charitable Foundation is a non-profit, 501-c3 organization created to carry out the philanthropic mission of RE/MAX Executive Realty Associates.

The foundation's primary goal is to improve the lives of families or individuals in the MA/RI market area. During his time with the foundation, Wright and the Foundation raised over $200,000 for their cause.

Wright also engaged in other community services such as coaching Medway High School Football for over 12 years.

November/December 2020

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LOCAL ASSOCIATION REALTORS® OF THE YEAR BERKSHIRE COUNTY BOARD OF REALTORS® ERIC STEUERNAGLE Fairground Real Estate, Great Barrington

CAPE COD & ISLANDS ASSOCIATION OF REALTORS® RICHARD WAYSTACK Jack Conway & Co, Inc, Harwich Port

GREATER NEWBURYPORT ASSOCIATION OF REALTORS® FRANK BERTOLINO The North Shore Realty Group, Salisbury

NORTHEAST ASSOCIATION OF REALTORS® MARK KAVANAGH Keller Williams Realty North Cental, Bolton

NORTH CENTRAL MASSACHUSETTS ASSOCIATION OF REALTORS® KENDRA DICKINSON Keller Williams Realty North, Leominster

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Bay State REALTOR®

LOCAL ASSOCIATION REALTORS® OF THE YEAR NORTH SHORE ASSOCIATION OF REALTORS® CYNTHIA NINA-SOTO Nina-Soto & Company, Salem

REALTOR® ASSOCIATION OF CENTRAL MASSACHUSETTS JUDY PATTERSON Lamacchia Realty, Leominster

REALTOR® ASSOCIATION OF SOUTHEASTERN MASSACHUSETTS DONNA DAVIDS Coldwell Banker Realty, South Easton

REALTORS® COMMERCIAL ALLIANCE OF MASSACHUSETTS PAUL YORKIS Patriot Real Estate Inc, Medway

SOUTH SHORE REALTORS® SYDNEY ELLIOTT Williams Raveis Real Estate, Norwell

November/December 2020

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member voices R E A LT O R ® V I E W S

{president’s message}

Realtor® Resiliency

BY KURT THOMPSON At the end of each year we look back and reflect on how quickly the time has gone. This year however, things have been different. I think we can all agree that time has moved in its own kind of way and has affected everyone differently. When I began my journey as President of MAR, I had no idea what the year ahead would bring. I expected challenges and surprises but no matter what, none of us could have anticipated the magnitude of what 2020 would really bring. Despite all the changes, I’d like to reflect on how much we were able to overcome and accomplish.

In March of 2020 we began to make the transition over to operating remotely to reduce the spread of COVID-19. Suddenly our daily routines as we knew them were flipped upside down.

Our dining room tables became our new desks and our spouses, kids, and pets became our new colleagues. Although many of us were unsure of what to expect from working at home, I am so incredibly proud of the way our entire association came together virtually to accomplish many great things.

There are a number of things we were able to implement. We introduced virtual town halls back in April which we held on three separate occasions to get as much information out to our members in a time that was so rapidly changing. We wanted to make sure our members felt they had the most up-to-date information available to them and could ask questions as needed.

We also held many other events virtually such as GRI classes,

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Bay State REALTOR®

a broker summit, professional awards ceremony, board of directors' meetings, among other things.

Working from home also taught us how valuable our online resources such as Zoom meetings, webinars, the C2EX program, and electronic signatures really are. This was a year of encouraging our members to continue growing and learning, despite the circumstances looking a bit different.

While 2020 presented us with many challenges, I would argue it

also helped us all become better Realtors® and better people. We learned how to adapt to this new virtual environment and learned how to overcome the challenges that came along with it. This year has been a wonderful reminder of how resilient we all are. It has been such an honor to serve as your President for this year.

Each one of you proved what it means to have the resiliency of a Realtor®. I look forward to seeing the incredible things you will all accomplish in years to come.

AG Source of Income Settlements

BY THE MAR LEGAL TEAM Four Massachusetts real estate companies recently paid significant settlements to the Attorney General resulting from violations of state fair housing and consumer protection laws. These companies were found to have engaged in business practices that denied low-income individuals the opportunity to rent apartments because they participated in a housing voucher program.

Receipt of public assistance is a protected class in Massachusetts. Landlords and RealtorsŽ are prohibited from using an individual’s receipt of any type of public assistance, including welfare, medical assistance, or housing subsidies as the basis for denying a rental application. It is also illegal to discriminate against a rental applicant based on the requirements of these programs, including specific inspection or lease requirements.

The settlements: One company agreed to pay $15,000 in restitution and attend annual training on fair housing for three years as a result of the broker terminating contact with a prospective tenant after discovering that the tenant received public assistance and had a minor child.

Two companies each paid $9,000 in restitution and are required to attend fair housing training. One broker raised the rent on a property after a Section 8 voucher holder applied, and the other told a Section 8 applicant that the unit had been rented to another person when it remained available.

The fourth settlement involved broker advertisements that included discriminatory statements based on familial status, source of income, and disability. Under the terms of the settlement, the brokerage is required to implement fair housing training policies for its brokers and ensure company-wide fair housing compliance, in addition to paying $79,200.* In conjunction with these settlements, the Office of the Attorney General published a list of Frequently Asked Questions related to source of income discrimination.

The FAQs can be accessed through mass.gov at www.mass.gov/doc/source-of-income-discriminationfaqs/download.

MAR recognizes the importance of educating our RealtorÂŽ members on Fair Housing issues. MAR has partnered with Suffolk Law School on this important topic and will be launching a Fair Housing consumer campaign and microsite in October. In the meantime, check out our three-part Webinar Series: Fair Housing & Diversity in Real Estate at www.marealtor.com/webinar-series. *$66,000 of the settlement is suspended and subject to waiver pending compliance with the terms of the agreement.

November/December 2020

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MAR Installation of Officers

On Wednesday, October 14, 2020 the Massachusetts Association of Realtors® hosted an in-person installation of MAR Officers and Directors at the Mendon Twin Drive-In, in Mendon, MA.

The drive-installation was a first for MAR which allowed everyone to come together in-person as we installed 2021 President Steve Medeiros, 2021 President-Elect Dawn Ruffini, 2021 Immediate Past President Kurt Thompson, and 2021 Treasurer Marie Presti.

The unique experience allowed for everyone to come together in-person while being in a safe environment in the comfort of their own vehicle.

Above: Leslie Storrs of Lamacchia Realty in Leominster is the winner of the costume contest.

Above Right: President-elect Stephen Medeiros swearing in.

Right: Attendees grabbing some food at the Firefly's BBQ food truck.

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Bay State REALTOR®

The event featured a BBQ dinner courtesy of Firefly’s BBQ in Marlborough, MA, a cash bar, and a movie showing of “Back to the Future” to wrap it all up.

Thank you to everyone who came out and celebrated with us! This year has thrown curveball after curveball at all of us but we are so proud of everyone who helped make this event a success.

CALENDAR Virtual Courses GRI 202: Building a Foundation (CE-10) Students learn to: ■ Distinguish different architecture ■ Understand the appraisal process ■ Differentiate types of condos/co-ops/timeshares ■ Understand zoning and building codes ■ Familiarize clients with smart growth and green awareness Instructors: Rescheduled dates: Peter West November 4 and 5 (9:00 am -1:00 pm)

■

■ ■

Gary Bourque - November 10 (9:00 am -1:00 pm) Andy Consoli - November 12 (9:00 am -1:00 pm)

Subscribe to MAR Podcasts

MAR is back on its podcast game. We are producing episodes each month about legal information, housing market updates, government affairs updates, as well as uploading our webinars in the form of a podcast. To subscribe to our podcasts, go to bit.ly/marpodcasts. You can also go to marealtor.com/pod for additional show notes. Happy listening!

November/December 2020

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Member Benefit Spotlight

BY SABRINA LAPOINTE

Mileage And Expense Tracker

The Massachusetts Association of Realtors® Charitable Foundation awarded 13 grants during its fall round of disbursements for a total of $19,500. The recipients are:

It’s no secret that Realtors® live an on-the-go lifestyle. Constantly being on the road means racking up the car mileage and spending money on food and other expenses. But what if I told you there was a simple way of keeping track of all this?

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HECH Harwich Ecumenical Council for the Homeless, Inc.

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Nantucket Interfaith Council/Nantucket Food, Fuel, Rental Assistance Program

Members of the Massachusetts Association of Realtors® can receive a free 14-day trial of Taxbot.

It is available for iOS and Android and the offer is only available to first time Taxbot subscribers.

Taxbot is a mileage and expense tracker on autopilot.

Taxbot tracks all your driving milage using your smartphone’s GPS, that way you can easily keep track of all your business trips. Additionally, there is the automatic expense tracking which essentially keeps all your bookkeeping on autopilot. So, how does it work? Taxbot reads your photo and email receipts and matches them to the correct bank or credit card charge. Taxbot also fills in missing data, categorizes the transaction, and sends it back to you.

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Vineyard House Inc.

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A Place to Turn

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FPMW Family Promise MetroWest

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Mission of Deeds

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Project Just Because, Inc.

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Respond Inc.

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Somerville Homeless Coalition

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North Star Family Services

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Ellis Square Friends

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Net of Compassion

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Learn Live Love Cancer Outreach Org.

Taxbot is an all-in-one tool to easily keep small business owners and 1099 contractors organized and turn their mileage and expenses into deductions as simply as possible. Don’t miss out on this opportunity to receive huge tax advantages for your business.

Taxbot is there to guide you and help you keep more of what you earn. It is also a resource to help members learn money-saving strategies and simplify tax information.

Go to taxbot.com/z/ma/ to get started today!

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MAR Charitable Foundation Disburses Fall Round of Housing Grants

Bay State REALTOR®

The Massachusetts Association of Realtors® Charitable Foundation has awarded more than $475,179 in grants to victims of natural disasters, and to provide financial assistance to Massachusetts-based non-profit organizations, home buyer counseling, and shelter and emergency care services to persons transitioning from temporary to permanent housing. For more information visit www.marealtor.com/charitable.

Thoughts About Our Future

BY PAUL YORKIS, 2020 President, Realtors® Commercial Alliance of Massachusetts

When I became a Realtor® in 1991 there was no internet. There were no fax machines.

There were no cell phones. Offices and homes were using answering machines.

As a Realtor® if you wanted to know which properties were available, you needed an MLS book which contained all of the commercial and residential listings. The biggest question of the day was, “Where is the book?” when you got to the office.

When you had an offer for a property you met with the listing agent faceto-face and when you had an offer or offers for your seller client, you delivered them personally. Business was conducted for the most part by landline telephone or face-to-face.

All agents represented the seller.

Today is much different. The internet and smart phones have resulted in decreases in direct mail marketing, and face-to-face meetings with other Realtors®, and substantially increased the speed by which our business is conducted. If you don’t respond to a client’s text message or phone call in a matter of minutes some folks want to know if you are okay. Electronic signatures are okay on contracts to purchase, purchase and sale agreements, and related documents, resulting in less face-to-face contact with our clients and fellow Realtors®. Social media is a critical marketing platform and communications platform for our industry.

change our industry and those among us who are able to change are succeeding but many challenges remain.

Our industry now has a responsibility to protect our client’s health, consumer’s health, and, of course our own health because of Covid-19. But before Covid-19 we became aware of Radon gas and mold and the impacts on a homeowner's health. We became more aware of asbestos and how that impacted people in both commercial and residential buildings.

Because of recent changes in the law relating to marijuana, we now are expected to be knowledgeable about what is and is not allowed in commercial and residential properties.

Social issues have changed our industry as well. Our Code of Ethics addresses discrimination in Article 1: “Realtors® shall not deny equal professional services to any person for reasons of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. Realtors® shall not be parties to any plan or agreement to discriminate against a person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.

(Amended 1/14)

Realtors®, in their real estate employment practices, shall not discriminate against any person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. (Amended 1/14)” I think we have much more work to do regarding diversity and inclusion.

Should Realtors® be followers or leaders in the social change movement in our communities, in Massachusetts and the nation?

NAR’s efforts and MAR’s efforts demonstrate to me that we are working to lead the commitment to diversity and inclusion.

Eighty years ago, in 1940, the federal government required housing for defense workers to be segregated.

Zoning laws, lending laws, and public housing construction regulations formed the foundation for today’s challenges for social justice, economic justice, diversity, and inclusion.

I thank NAR’s and MAR’s 2020 leadership and staff for taking on this important challenge to help our industry and individual Realtors® build better and stronger communities to overcome the challenges created by the past.

Realtors® That’s who we are!

Technology to say the least, has dramatically changed our industry.

But many other factors have changed our industry and will continue to November/December 2020

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