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Sellers' Legal Issues

Listing Agreements and Agent Roles

Exclusive Listings

Often, a Seller and a REALTOR® choose to arrange an exclusive right to sell listing. 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.

Listing Agent

A Listing Agent is engaged to help you sell your home. The Agent works with you to determine the asking price, make your home presentable for sale, inform you about laws and regulations such as fair housing requirements, septic regulations and lead paint laws. Any forms or disclosure documents required by law can be obtained through the listing agent. The listing agent is the seller's advocate during sale negotiations, presenting offers to the seller and counseling the seller about the qualifications of potential buyers.

Other Agent Roles

There are buyer's agents (exclusively), and disclosed dual agents, who represent both buyers and sellers, cooperating agents who are authorized by the seller to cooperate with agents from other firms to help sell the property. Any of these agents may provide information on financing and legal representation, and may accompany buyers to the home inspection, however, only the buyer's agent can assist in formal price negotiations on behalf of prospective home buyers.


Offer to Purchase

By law, real estate agents are required to present all offers to a seller. Once a seller receives an offer to purchase, he or she may counter offer, by accepting the offer with additional stipulations, including but not limited to a renegotiation in price. Buyers and sellers should be careful when making offers and counteroffers to ensure that they understand all the terms and conditions in the offer and any contingencies included therein. Common contingencies in an offer to purchase can include home inspection, financing approval and lead paint inspection.

Purchase and Sale Agreement

The seller's agent will assist in finalizing the terms of the sale between buyer and seller in the form of a written purchase and sale agreement. This agreement once signed is a binding contract to which the seller and buyer will be obligated.

Legal Obligations of Seller

Title 5

Massachusetts law requires that a property that is serviced by a septic system, cesspool or other private waste disposal system be inspected within two years before the sale or within six months after the sale (if weather conditions prevent a pre-sale inspection). Only licensed inspectors and soil evaluators may conduct such inspections. Should the 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 choose to withdraw. For more details:

Smoke Detectors and Carbon Monoxide Detectors

Massachusetts state law requires that all residential structures be equipped with smoke detectors and carbon monoxide detectors, and it is the owner's obligation to receive a compliance certificate from the local fire department.

April 5, 2010: New State Smoke Detector Requirements

Fair Housing

The federal Fair Housing Act makes it illegal to deny or restrict a choice of housing to any person on the basis of race, color, religion, sex, disability, familial status (children), or national origin. Furthermore, state law prohibits practices that deny access to housing based on age, ancestry, marital status, sexual orientation, status as a veteran or member of a military service or recipient of public or rental assistance.

Lead Paint

The Commonwealth's lead paint statute requires lead abatement in residential dwellings built before 1978 when a child under the age of six resides on the property. Specifically, the law stipulates that property owners must remove or cover (encapsulate) dangerous levels of lead on surfaces measuring five feet from the floor or below. Property owners are required to disclose to homebuyers and tenants known information about the presence of lead-based paint and the hazards of lead paint prior to a sale or lease being executed.

For more information or to schedule a showing, contact us today.

Copyright Massachusetts Association of REALTORS®. Reprinted with Permission.