Realtor Safety
®
What every agent/broker should be prepared for
HOW TO STAY SAFE ONLINE p 4 STAYING SAFE FROM LIABILITY DURING THE PANDEMIC p10 SEPTEMBER IS SAFETY MONTH p16
Realtor Safety
®
What every agent/broker should be prepared for
HOW TO STAY SAFE ONLINE p4 STAYING SAFE FROM LIABILITY DURING THE PANDEMIC p10 SEPTEMBER IS SAFETY MONTH p16
Inside this issue of Bay State REALTOR®
More from MAR » www.marealtor.com/news
2 Message from the CEO Safety First REAL ESTATE @ WORK 4 3 Let’s Close At The Registry Of Deeds – Wait What? Closing Transactions During The Pandemic Michael Krone, Esq.
4 Real Social How To Stay Safe Online Teah Hopper
8 Trending Topics: How to Spot a Scam Sabrina Lapointe
» Massachusetts Association of Realtors® Facebook
9 Five Questions With Carl Carter
LEGAL NOTES 10 10 Legal Realtor® Staying Safe From Liability During the Pandemic Stephen M. Perry, ESQ. 12 Notes from the MAR Legal Hotline
»
14 ADA Website Compliance Checklist Catherine Taylor 15 Disclosure of Certain Stigmas MAR Legal Team
FEATURE 16 16 September Is Safety Month Diane M. Sterrett
Twitter.com/MARealtors MEMBER VOICES 20 20
President's Message Taking Care and Keeping Ourselves Safe Kurt Thompson
22 Beverly Carter Foundation 23 Calendar; 2020 C2EX Challenge 24 Member Benefit Spotlight: Data Breach & Cyber Liability Insurance Sabrina Lapointe 25 Keeping Yourself and Your Business Safe Paul Yorkis ADVERTISER DIRECTORY MLS PIN................................................IFC RMS................................................5 National Association of Realtors.............6 National Association of Realtors.............7 Realty Guild...........................................20 Pearl Insurance.....................................22
NEREN MLS...........................................22 Accustar..............................................23 A to Z Moving & Storage........................24 MassHousing......................................24 Weichert........................................BC
September/October 2020
1
Message from the CEO THE OFFICIAL PUBLICATION OF THE MASSACHUSETTS ASSOCIATION OF REALTORS® SEPTEMBER/OCTOBER 2020 VOL. 67, NO.5
Safety First
PRESIDENT
Kurt Thompson, CBR, CRS, LMC
BY THERESA HATTON ®
Safety first! This issue of Bay State Realtor is focused on the safety of our members. At first thought, you might think of safety in terms of a physical attack, but in the current real estate market, protecting the health of agents and clients alike is equally important. With such a low level of inventory in Massachusetts, homes are being sold at a rapid pace. This environment requires our members and their customers to make quick decisions and uncomplicated offers. The stress and pressure on all parties is real. Keeping yourself safe includes your physical and mental well-being. In these pressured times, be sure to schedule some time to yourself, away from screens and meetings and allow yourself some time to recharge. If members do not take time away to rest, the heightened stress can make the body more prone to illness. With this pandemic, and the busy market, members need to take precautions to keep themselves protected. I am sorry that we won’t get to see each other in person at the MAR Conference this fall. MAR leaders and the team on staff are all working hard to keep the industry safe so that business can be conducted. We look forward to seeing you in-person at a future time. We hope that you enjoy this issue of Bay State Realtor® magazine. Best regards, Theresa Hatton MAR CEO
PRESIDENT-ELECT
Stephen Medeiros, CRS, SRES, e-Pro TREASURER
Dawn Ruffini, CHMS, CNS IMMEDIATE PAST PRESIDENT
Anne Meczywor, ARS CBR, CRS, AHWD CEO
Theresa Hatton, RCE, CAE PRODUCTION COORDINATOR
Sabrina Lapointe 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
2
Bay State REALTOR®
Let’s Close At The Registry Of Deeds – Wait What? Closing Transactions During The Pandemic BY MICHAEL KRONE, ESQ. Much in the world has changed in 2020 and closing a real estate transaction in Massachusetts is no exception. Gone are the closings where buyers, sellers, their attorneys, the closing attorney and the brokers all convened at the Registry of Deeds to sign the papers that would transfer ownership of the home to the excited buyers. Since early March the Registries have been largely closed to the public.
We had already begun to see fewer sellers at the closings, with their attorneys coming in their stead or simply mailing the signed documents to the closing attorney. Brokers would often show up with the paperwork and leave with the checks. Today transactions are being closed in yards, on picnic tables, and in large conference rooms with each of us at opposite ends of a table and everyone with masks. We look for ways to handle the transaction as simply and safely as possible. This naturally leads to thinking about virtual solutions. Just as the company meeting has gone from the boardroom to Zoom, so too can the real estate closing. Almost every state has a law in place (many only temporary) that would allow for some type of virtual real estate closing. Massachusetts has its own version that was signed at the end of April by Governor Baker dealing with the issue of virtual notarization of closing documents – most importantly the deed and mortgage. Until April, Massachusetts law did not allow for virtual notarization of any kind. Even after passage of the law there were questions, and still are, as to what Registries and lenders will accept such notarizations and in what form. There still appears to be no universal consensus amongst each group. Before we can understand what their trepidations might be in accepting such documents, one needs to examine the Massachusetts law in comparison to other state laws. The most comprehensive and fully electronic closing and notarization laws in some other states allow for Remote Online Notarization (RON). These are similar to using DocuSign to have the parties execute the purchase and sale agreement. No one is meeting, personally or virtually, and the signing and notarization are all accomplished online. Some states allow for this, but Massachusetts is not one of them. The next form of virtual closing is the Remote In-Person Notarization (RIN). This is where the parties meet via video, the notary conducts the closing and then notarizes the documents once sent back to him or her. Massachusetts has adopted this system, but it is cumbersome. The process is as follows: The notary initializes a recorded video conference with the buyer or seller, has the parties physically show the front and back of two forms of identification and has them swear that they are physically located within Massachusetts. Once the parties sign, they overnight the original documents and copies of their IDs to the notary. When received, the notary initiates a second recorded video conference with the parties and notarizes the documents.
The notary must prepare an affidavit regarding the closing, put a statement on his or her notarization indicating it was done remotely, and retain a copy of the ID’s, affidavit, and recording of the session for ten years. The issues with this system include relying on the borrowers to send the documents back to the notary, using a video conference system that is safe and can record, and maintaining these records for ten years. In addition, some lenders are not allowing this type of transaction for their mortgages. Add to that the potential Registry of Deeds or Land Court rejection and we see that this isn’t a universal solution. There is also what is referred to as the Hybrid Closing, where the parties meet via video or by phone, they view the documents online via DocuSign or other similar service while the closer explains the documents to them. They electronically sign most of the documents and a notary comes to them to obtain their signatures on hard copies of the documents that require notarization. A good solution because there is no chance of Registry rejection but, again, not accepted by all lenders. Today the drive by closing, where the notary goes to the home of the buyer and hands them the closing package and either sits in the car and explains the documents via phone or video chat, or simply watches through a door as the buyers' sign has the greatest adoption as a contactless solution. At Equity/O’Donnell, unless we are meeting in our office or the buyers are comfortable meeting outside of or in their homes, we have found this method that we call DoorSide Closings to be the most effective and least fraught with issues than the other options for contactless closings. There is no doubt that the full virtual closing is in the near future for Massachusetts. The requirements and form will be set over time. We have become comfortable with not meeting physically to close the purchase transaction and that usually means that we won’t go back to the ways we once transacted even when the pandemic ends. I will think fondly of the days that we all dressed in business attire, met in a crowded conference room and closed the purchase with handshakes, hugs and best wishes. A tradition that had already faded has now been shoved to the ash heap by the times we live in. 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. September/October 2020
3
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 Stay Safe Online BY TEAH HOPPER ® Everyone should take online safety seriously, but Realtors must be especially cautious on the Internet. The nature of the real estate industry means that your location is often public, and that you likely have a wider audience than many of your friends and followers. Social media is an incredible tool for Realtors®, and when you use it safely it becomes even better. So, let’s talk about how to stay safe online.
Know your accounts. Do you have a Facebook Business Page for your real estate posts? If not, you should make one. Facebook Business Pages are known for their marketing capabilities, but they also allow you to keep your personal and professional posts separate. This means that you can choose to keep private information, like details on family vacations, exclusively on your personal page, where you have more control over who sees each post. (Yes, you can actually change the privacy setting of each individual post.) Just keep in mind that Facebook Business Pages are always public, so the items you share are available for all to see. This is great for listings, but for personal details? Not so much! Instagram also has privacy features. You can make your account public, which means that everyone can see your posts, or private, which keeps your posts hidden until you accept someones request to follow you. I do recommend if you use Instagram that you keep your account public and only share information you are okay sharing publicly. But if you prefer to make your account private, navigate to “settings” on the Instagram app. With a private account, if you reject a person’s follow request, they will not be able to see your photos.
Check your privacy settings. Many social media accounts default to hyper-public settings, so it’s important to alter them to fit your needs. To change your Facebook privacy preferences, navigate to “settings,” then click “privacy.” Here you can customize everything from who can see your posts to who can send you friend requests. Take the time to review and update your settings. 4
Bay State REALTOR®
Take the time to review and update your settings.
Be selective. While it can be flattering to get lots of friend or follow requests, it’s not a good idea to accept every single one. When you are selective about who you bring into your personal accounts, you gain privacy and security. You should carefully vet future friend requests, but you can also clean out your current list of friends and followers, too. Delete anyone you don’t know and anyone you don’t want seeing your personal information. This will make sure your personal pages are just for you and the people you care about and give you peace of mind about what you are sharing.
Think before you post. Before you share a post on social media, ask yourself if this is the right platform for it. For example, do you want to share your current location on a public business page, or is that something to share with close friends only?
Do you want to share silly, personal photos with a wide audience in Instagram or are those better for your Facebook Stories? Taking a quick second to double-check your posts can keep you safe. This week, add a social media check up to your to-do list. Assess all the privacy settings on each account, and start to clean out your current lists of friends of followers. Remember, social media is only fun if it's used safely. 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.
September/October 2020
5
6
Bay State REALTOR®
September/October 2020
7
{trending topics}
How to Spot a Scam BY SABRINA LAPOINTE – Senior Communications Coordinator
There is no doubt that this year we have all experienced many firsts. With everything going on since the rise of the Covid-19 pandemic, there’s a lot to be aware of. One thing that may not necessarily be top of mind is looking out for scams. Many of you have probably had certain scams on your radar for some time now as a Realtor® scams such as wire fraud, email hacking, general cyber scams, impersonation scams, and open house scams, among many other things. So, how can we avoid being victims of these scams? Pay close attention to details and know what suspicious behaviors to look for. For example, to avoid wire fraud via email hack, be sure to check the email address very closely. With email phishing, the email itself will typically look very convincing. The company logo will likely be present, the name will look familiar, the email will be worded professionally and so on. But keep a close eye out for any slight typo in the email or a change in the email address from the sender such as coming from @outlook instead of @gmail as it did initially. The second you note anything suspicious, steer clear of that email and most importantly, make sure you don’t click on any links! Scammers are becoming more and more creative with ways to steal your money and or personal details. It is important to stay alert and know what signs to look out for. Always keep your personal details secure and keep all passwords and pin numbers in a safe place. Be sure to choose your passwords wisely. You want a good combination of letters and numbers to ensure it isn’t something very obvious, such as your birthdate or dog's name. Something else to be on the lookout for is false documents. There are a couple of different ways to identify this. Look for a generic rather than a personal greeting, closely read the email looking for grammar or spelling mistakes and phony logos. As you all know, wire fraud can be very prolific in the real estate industry. When handling transactions involving large sums of money, it’s important to be very vigilant. 7
Bay State REALTOR®
Wire fraud is one of the fastest growing cybercrimes in the U.S. About 11,300 people were victims of wire fraud in the real estate and rental sector in 2018 (a 17% increase over 2017), with losses of more than $150 million, according to FBI data. According to a report on NAR, these criminals will assume the identity of the title company, real estate agent, or closing attorney and forge the person’s email and other details about the transaction. They will then send an email to the unknowing buyer and provide new wire instructions to the criminal’s bank account. Encourage your clients to look closely and check with you if there is any doubt in their minds. If there is any suspicion in for example, wiring instruction it’s important to listen to that doubt in your mind. Always err on the side of caution. Be careful and as always, if it doesn’t feel right, it probably isn’t.
5QW
Five Questions With Carl Carter
Enhancing Realtor® Safety Carl Carter, Jr., is a Realtor® and the Founder of the Beverly Carter Foundation, a 501(c)(3) nonprofit dedicated to improving agent safety. His mom, Realtor® Beverly Carter, lost her life at the hands of a couple posing as clients in 2014. Since his mother's passing, Carl has dedicated as much time as possible to spreading the message of safety. He was recently appointed as a Delegate to the National Safety Council, where he advocates for the safety of lone workers. He has a Master and Bachelor of Business Administration degrees from the University of AR in Little Rock, AR, and an Executive Masters in Public Service from the Clinton School of Public Service.
You founded the Beverly Carter Foundation back in 2017. Can you talk a bit about why you chose to start the Foundation and share more about the Foundation’s mission?
Q1.
A. Losing my mom was, and continues to be, a devastating tragedy to my family. Although mom had followed many industry-standard safety protocols, it wasn’t enough. Within this industry she loved so much, her murder catapulted a national conversation about safety and I’m thankful to have joined the conversation. When asked “Why Beverly?” her killer explained that she was “a woman that worked alone — a rich broker.” My mom was targeted based on perceptions that could just as easily apply to any of us within the industry. As I’ve told my mother’s story through the years, I’ve met hundreds of agents that have been victimized while working. I carry each of their stories with me and they fuel my passion for raising awareness through the Beverly Carter Foundation.
Q2.
What are some safety tips you recommend for Realtors®?
A: 1. "Bad Guys" fit no definable profile. As many people have expressed since Beverly’s murder, “I would never think that doing business with a woman could be dangerous.” Beverly’s captors broke the mold of what many people think a “bad guy” fits.
2. Insist upon an in-person, preshowing buyer consultation in a public place. Never let the first time you meet a client be at a vacant home for a showing. During the pandemic it may be more feasible to have virtual consultations that can be shared or recorded. 3. Obtain identification & share it with colleagues in a secure location. Consistently obtain identification on all new clients. 4. Share your itinerary & location. Establish a buddy system with at least five colleagues and family members. Whenever possible, use technology to remove any inefficient, manual processes for sharing your itinerary. What would you say is a good general safety plan to follow when hosting an open house? A: When it comes to open houses, agents should have a plan that focuses on accountability. Working in pairs, adding video surveillance, digital sign-in processes, and encouraging local law enforcement and neighbors to drop-by are all great ways to add accountability (and remove anonymity) to those touring the home. While we want everyone that enters the home to feel welcome, we need obvious measures in place to deter criminal intent.
Q3.
and/or colleagues. Life360, a location sharing app, enables the creation of multiple ‘circles’ to organize your familial, friendship, and professional groups nicely. For new prospect screening, I use the Forewarn app daily. For safety during showings, I’m a huge fan of the SentriLock safety feature (note that it must be enabled). What extra safety precautions should Realtors® be taking during this coronavirus pandemic? A: Research has found the virus can live on ‘plastic and stainless steel surfaces up to 70 hours,’ so be especially mindful when handling lock boxes and door knobs. Beyond the safety considerations, I’ve also implemented a process to notify the seller’s agent after my showings that PPE was worn and door knobs were disinfected. I think it is a nice way to let the sellers know we were mindful of their well-being while touring their property.
Q5.
Is there anything else you would like to add? Undoubtedly, my mom toured thousands of homes throughout her career as an agent. However, all it took was ONE appointment for her life to end. We must remain diligent about our personal safety so we can get home to our family each day.
What are some safety apps you would recommend to Realtors®? A: For location sharing, I recommend enabling smart phone GPS sharing at all times with trusted family members
Q4.
September/October 2020
9
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 ®}
Staying Safe From Liability During the Pandemic BY STEPHEN M. PERRY, ESQ ., Casner & Edwards, LLP Real estate brokers have always known that the services they provide are “essential,” but it was gratifying that the Commonwealth of Massachusetts agreed with this assessment when most other businesses were shuttered due to the coronavirus pandemic. A frequent question among businesses that are now reopening, as well as those that have been open all along, is whether there are significant liability risks associated with operating during the pandemic. Will a business be liable if an employee becomes sick?
What about a customer who blames the business for contracting the virus? Should companies require that employees, contractors or customers sign waiver forms to ward off liability? In looking at these issues, it is helpful to understand what possible liability claims a business might theoretically face in connection with COVID-19. Under the common law of negligence, every individual and every business owe a duty of reasonable care not to cause injury to another person. This would potentially include a duty not to negligently expose another person to a serious, contagious illness. For example, during the AIDS epidemic there were cases in which those stricken with the disease sued sexual partners who knew or should have known that they were HIV-positive but did not disclose it. In the context of COVID-19, the potential claim would be that the business or its agents failed in some respect to take reasonable precautions to prevent the spread of the disease, and that as a result of this negligence, the plaintiff became seriously ill or died. 10
Bay State REALTOR®
Class action lawyers are already soliciting clients for personal injury, and wrongful death claims against nursing homes and cruise ships where COVID-19 outbreaks have occurred. It is easy to see how the family of a nursing home resident or a cruise passenger might blame the business for the death of their loved one. There is always some extra precaution that allegedly should have been taken, especially with the benefit of hindsight. Furthermore, in the nursing home and cruise ship contexts, proving the causation element – that the resident contracted the disease at the nursing home or on the cruise ship – is relatively easy. But what about in the real estate brokerage context? How likely is it that someone who contracted the virus and became seriously ill will be able to trace it back to the brokerage business, and, more specifically, to a negligent act or omission on the part of the broker or its agents? In general, those who seek to blame their sickness on a real estate brokerage firm are likely to have a difficult time proving
that they contracted the illness specifically due to negligent acts or omissions of the brokerage or its agents, rather than elsewhere in the community. If we assume that the broker and its workforce are taking the usual precautions by staying home when sick, wearing masks during close encounters and while indoors, and following the other recommended safety precautions, how will the plaintiff prove both that the broker acted negligently and that the ill or deceased person caught the disease as a result of that negligence? The person may have contracted COVID-19 while at the grocery store or filling up the gas tank or getting a haircut, or talking to a neighbor. Getting sick in the community is not like getting sick on a cruise or at a nursing home. There is a lot of contact tracing occurring, so it is theoretically possible that an outbreak of several people could be traced back to an open house. It is entirely possible that one or more customers who became ill might learn that an agent they worked with had tested positive. In these situations, there shouldn’t be liability on the part of
the broker or agent if the agent did not know that he or she was sick and took the usual, reasonable precautions. If the case involved serious injury or death, the facts might be disputed, for example, by claims that the agent took off his or her mask or was exhibiting signs of illness when they met. The first line of defense against any potential COVID-19 claim is to take reasonable precautions to prevent the spread of the disease. Remind the workforce to stay home if they are sick, keep areas clean, and enforce any applicable mask and social distancing requirements. Some firms also require customers to affirm that they are not and have not been experiencing symptoms of illness. Assuming these COVID-19 precautions are taken, it seems very unlikely that a broker will be found liable for serious illness or death allegedly traceable to the broker’s business. Proving negligence in such a situation would be difficult, and proving causation may be even more so, especially if the person who became ill had ventured out to various other places in the community where the disease
could have been contracted. It also bears mentioning that there may very well be coverage for potential COVID-19 liability claims under the broker’s general liability policy. Should a broker require employees, contractors, or customers to sign a waiver form in which claims arising out of COVID-19 (or other injuries) are waived in advance? As to non-licensee W-2 employees, the answer is no. Any illness that such employees acquire at work would be handled through the workers’ compensation system, and not through a personal injury claim against the employer. Whether a broker should obtain a signed waiver of liability from the broker’s agents, and from customers before they are shown any properties, is a matter of business judgment. Under Massachusetts law, a properly drafted waiver of claims, signed in advance, will generally bar negligence claims, but not claims for gross negligence or intentional misconduct. For example, Massachusetts cases have barred negligence claims due to waivers signed in advance by people who were later injured while
horseback riding, during motorcycle safety classes, and during cheerleading practice. If a customer signed a waiver and release form discharging the broker and property owner for any claims relating to the customer’s entry onto any marketed property, the release would likely be effective unless there was “gross negligence” on the part of the broker. That is a high hurdle to clear. Some property owners may themselves be concerned about potential COVID-19 liability if they let people into their home and may insist that a broker use waiver forms before making their property available for a showing or open house. If this comes up as a common concern among property owners, then putting together a form that releases both the property owner and the broker from liability from COVID-19 (and other illnesses and injuries) makes eminent sense. Otherwise, whether a broker should use a waiver form comes down to how big a concern the broker may have about potential COVID-19 liability claims that are theoretically possible but not especially likely. September/October 2020
11
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 a listing agent able to hold offers to present to the seller at a later date? A: Yes, but only if instructed by their seller to present all offers at a certain time. An agent may not unilaterally decide to hold all offers until a date certain or place any other limitations on the presentation of offers. If a seller has not instructed the agent to delay the presentation of offers, the agent must promptly present them as required by the Massachusetts Regulations and the Realtor® Code of Ethics. If an agent receives instructions from a seller modifying any Realtor® obligations, they should memorialize the instructions in writing to assure clarity and reduce risk. It is important to remember that any decision to modify these obligations must be the seller’s. Additionally, if the presentation of offers will be delayed, the agent should convey that information to prospective buyers, and must be followed. If a buyer’s agent has concerns that a listing agent failed to present an offer to the seller, Realtors® can seek redress through a written request of the broker under authority of Article 1 of the Realtor® Code of Ethics (See Standard of Practice 1-7). This request obligates the broker to provide written confirmation that the offer was submitted, or that the seller has waived that obligation. This does not obligate the seller to formally sign the “rejection” portion of an offer, but instead places the onus on the listing agent to confirm that they have complied with the law.
Q. W hen is it permissible to contact another agent’s client? A: Realtors® learn early on in their careers that contacting another Realtor’s® client may be a violation of the Code of Ethics, as well as state law governing contracts. Article 16 of the Code of Ethics prohibits Realtors® from engaging in any practice or taking any action that is inconsistent with another Realtor’s® exclusive relationship with a client. The Code requires Realtors® to make a reasonable effort to determine whether an individual is subject to a current exclusive agreement prior to entering into an exclusive agreement of their own. This, however, is not without exceptions. The Code contains several carve outs permitting a Realtor® to contact a represented individual: ■ General announcements, canvasses, or mailings to prospects describing available services and terms of availability. ■
Offering to provide, or entering into a contract to provide, a different type of real estate service unrelated to the type of service currently being provided.
■
Offering the same type of service for property not subject to other brokers’ exclusive agreements.
■
To inquire as to the terms of the existing exclusive agreement if the other agent refuses to disclose the expiration date and/or the nature of the existing agreement.
■
The contact was initiated by the individual, the Realtor® may discuss the terms of a future agreement or may enter into an agreement that becomes effective upon the expiration of the existing agreement.
Interfering with another agent’s relationship with a client may also expose an agent to liability under a claim of interference with a business relationship. In order to obtain relief under this theory, the following elements must be satisfied: ■
12
Bay State REALTOR®
There was a valid contractual relationship or a valid business expectancy.
■
There must be knowledge of the relationship or expectancy.
■
There must be intentional interference with the relationship or expectancy.
■
There must be damages.
If you find yourself in a situation where you are unable to successfully contact the Realtor® on the other side of the transaction, and your situation does not fall within one of the enumerated exceptions, you should attempt to contact the broker. Unfortunately, even if contacting the broker does not yield the desired result, you risk an ethics complaint, and possibly a contract interference complaint, if you attempt to contact a represented individual directly.
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.
September/October 2020
13
ADA WEBSITE COMPLIANCE CHECKLIST BY CATHERINE TAYLOR – MAR Associate Counsel
The Americans with Disabilities Act (ADA) requires that businesses make both their physical space and their online space accessible to individuals with disabilities. Denial of full and equal access to website content, and real estate services as a result, may also be a Fair Housing violation. The Web Content Accessibility Guidelines provides a detailed breakdown of the steps that can be taken to make online content more accessible to people with disabilities, including auditory, cognitive, neurological, physical, speech and visual. If you are uncertain whether your website is in compliance, check with your web developer.
COMPLIANCE TIPS Website Images Include alternate (alt) text for images ■ Use text rather than an image of text (except logos) ■ Do not rely on screen orientation ■
Audio & Video
Ensure that text can be enlarged without distortion ■ Do not use images of text (except logos) ■ Each page should have a language assigned ■
■
Include subtitles, captions, and/or written transcripts Allow auto-play of sound or video to be paused ■ Do not have videos flash more than 3 times/second
Links
■
■
Colors
Navigation
Use high contrast between text and background colors ■ Do not use color as the only prompt to convey info. ■
Fillable Forms ■
14
Text
Include labels immediately next to fillable field(s).
Bay State REALTOR®
■
Links should describe where the link is going State type of document linked to and size (DOC/PDF)
Allow website to be navigated using the keyboard only Provide multiple ways to find information ■ Do not use site time limits ■ Individual pages should have unique titles ■ ■
Disclosure of Certain Stigmas BY MAR LEGAL TEAM
Realtors® are required by Massachusetts law (Chapter 93A) to disclose known physical defects to prospective buyers. This obligation clearly applies to defects such as a leaky roof or a faulty foundation. Often, there are questions about whether Realtors® need to also disclose things that may have a psychological impact on the property: murders, suicides, paranormal phenomenon, and other psychological stigmas. In 1998, Massachusetts enacted the Stigmatized Property Law (Chapter 93, Section 114). This statute specifically states that brokers do not have a duty to investigate or affirmatively
that the question implicates fair housing and direct the prospective buyer to the local police department. Similarly, Realtors® should exercise caution when
disclose murders, suicides, allegations of ghosts, or other
facing questions related to whether a previous occupant
possible stigmas. As with other inquiries from prospective
was diagnosed with COVID-19. The Stigmatized Property
buyers, a Realtor® must answer the question relating to
Law does not require disclosure of diseases that are unlikely
the stigma honestly and to the best of their knowledge.
to be transmitted through occupancy. Furthermore, while
Realtors® do not have a duty to investigate stigmas, even if
it remains a novel question, the National Association of
specifically asked about them by prospective buyers. If the
Realtors® recommends treating COVID-19 as a disability
answer is unknown, or additional information is requested,
protected by the Fair Housing Act, meaning that disclosure of
the Realtor® should direct the prospective buyer to the
an individual’s diagnosis of COVID-19 without their consent
appropriate source of the information.
may violate federal disability protections.
Realtors® must also be cognizant of questions that involve
Massachusetts largely follows the doctrine of caveat
protected classes under the Fair Housing Act. While the
emptor – or buyer beware – when it comes to buying and
Stigmatized Property Law addresses disclosure of crimes that
selling real estate. The required disclosures are fairly limited
may have occurred within the bounds of the property, buyers
under the existing statutory framework. In representing
often inquire about crime in the neighborhood. Realtors®
buyer clients, Realtors® should determine what information
must be careful to avoid steering buyers away from certain
is important to their client and ensure that appropriate
neighborhoods, as this would likely violate the Fair Housing
questions are asked of the seller to enable the buyer to make
Act. If faced with this situation, the Realtor® should explain
an informed decision.
September/October 2020
15
September is
SAFETY Month! BY DIANE M. STERRETT
After the spring and summer we’ve been through, when you hear the word “safety” the first things that probably jump to mind are COVID-19 safety procedures such as wearing face masks when meeting clients and in the office, not shaking hands with clients any more, and holding virtual open houses. All those things are still really important, but as the virus spread fluctuates, so do the rules. The best advice we can give you is to keep listening to the governor’s guidance, follow all CDCrecommended health protocols, and take care of yourself.
Now that we have the compulsory COVID-19 talk out of the way, what other kinds of safety are we concerned about as Realtors®? Personal safety, brokerage safety, and cybersecurity. Let’s take a brief look at all three. Personal Safety
When asked if their brokerage had standard procedures for agent safety, only 45% of Realtors® in a recent survey said yes. A full quarter, 26%. said no; while a startling 29% said they didn’t know. Breanne Gingerich, manager of NAR’s Realtor® Safety Program, is working hard to change that and improve the safety culture among Realtors®. “Realtors® are incredibly personable and kind people, that’s who they are at the core. But that works against us when you consider that by nature of our business, we meet with strangers for a living,” Gingerich says. What she means by safety culture is talking about safety procedures often, and training agents from the beginning about the importance of having safety protocols in place that they follow with every client, every day, every time. Increasing awareness of safety risks Realtors® face on the job empowers them to be prepared and helps reduce risk. The job holds inherent risks, such as meeting with strangers and unlocked doors at open houses. “Another hidden danger is a misconception that most crimes against Realtors® are crimes of opportunity or random acts of violence,” Gingerich explains. 16
Bay State REALTOR®
“But most often that is not the case. The data shows that these crimes are most often predatory in nature: the attacker really preys on the victim before attack. They might search or shop around for Realtors® in an area, choose that person based on a photo or any number of things. They research the victim, come up with a plan on how to get that person alone, and determine how they’re going to execute on that plan.” Thinking about risks ahead of time and having safety protocols in place reduces your risk. Gingerich offers her top five personal safety tips: 1. Do not meet clients alone, always meet in a public place, even if you talk on phone first and you think you have a good sense of the person. Similarly, don’t hold open houses alone or be at a property alone. Bring a colleague, friend, buddy, or spouse. 2. Dress in a way that makes it easy for you to escape an unsafe situation. Primarily consider your shoes – 3” stilettos or slippery Italian loafers – may look good but will only impede your progress if you need to run. In addition, do not wear expensive jewelry or carry a purse. Always keep your phone on you. 3. When showing a property, always keep your back to the door and let the client walk in front of you. That way no one can sneak up on you. 4. Do not go into basements, attics or crawl spaces with a client, allow the client to explore them on their own. 5. Don’t overshare about your personal life, reveal the name of your child’s school, where you work out, go for coffee in the morning or any other routine they don’t need to know. Consider the information your client must have, and stop there. In the same vein, don’t be friends on your personal social media accounts with buyers and sellers whom you don’t already know.
Brokerage safety It’s crucial for a brokerage or real estate office to have protocols in place to protect their agents and to build a culture of safety in the office. “Having a program increases the chance that each agent goes home safely that night. Spreading awareness of dangers and risks that Realtors® face on the job, and being prepared, can be difference between life and death,” Gingerich says. If your brokerage doesn’t have safety protocols in place, now is the time to create them. Consider rules about meeting clients at the office or a café first, not at an empty secluded house; and not getting into a client’s car. Realtors® need to be in the driver’s seat – literally. If a client insists on taking their own car, have them follow you. Think about bringing in a qualified safety educator, either with NAR’s Safety Matters course or your own, to teach your agents about safety, the importance of trusting your instincts and listening to that voice in your head.
Gingerich offers her top office tips: 1. Set up a buddy system and keep track of your colleagues through sharing calendars. Always let someone know when you have an appointment and when they can expect to hear from you. Share a time frame and location list of where you’re going be and at what time. 2. Establish predetermined code words, phrases, or emojis among coworkers that can be used as signal for help while at an appointment. So when someone from the office texts to check in with you during an appointment and you’re not feeling safe, simply text back the predetermined code word or emoji and they can send help. If everything’s fine, send back a thumbs up. 3. Do not work alone in the office – ever. If you’re meeting late at night, walk with colleagues to your car. 4. Have clients sign in at the front desk so there’s record of who has visited.
Consider photocopying their IDs to strengthen this tactic. 5. Set up a waiting room and always meet clients at the front of the office, do not allow them to walk around freely. NAR offers an essential course on how Realtors® can limit risks to preserve safety and facilitate a positive business outcome, called Safety Matters: Safe Business = Smart Business. Just updated in 2019, there are two versions: a three hour and a one hour course. It covers many topics, including risks in the business, safety systems to limit risks, and more. It is offered by Realtor® associations, proprietary schools or real estate franchisees that have a license with NAR’s Real Estate Buyers Agent Council (REBAC). You can find more information on the NAR website by searching ‘Safety Matters Course’.
Cybersecurity Sixty percent of small businesses that are victimized by a successful cybersecurity breach go out of business within six months, according to a report by the Ponemon Institute. Perfect cybersecurity does not exist, says Jessica Edgerton, NAR Associate Counsel, in her webinar on the topic. “All we can do is implement best practices, educate ourselves and be vigilant. I call it staying paranoid in a healthy nonfreaking out kind of way.” Real estate is particularly attractive to cybercriminals for several reasons: there are multiple players involved which brings a lot of opportunity to hack in; transactions generally involve large sums of money; and brokerages are usually small to mid-size companies. The risks range from direct theft of funds to business disruption, to loss of reputation to the cost of system cleanup. A dangerous misconception is that your brokerage is too small for criminals to bother with. But the truth is, cybercriminals know that generally September/October 2020
17
look for reasonable protection of PII as well as failure to comply with privacy and security policies. You could face hefty fines, FTC audits and requirements to take remedial measures. Unfortunately, employees are often unknowingly the source of a data breach through a mistaken click or lack of security. Best practices to offset the human error element include: Habit modification – beware of malware apps, unsolicited texts, and pop-ups.
■
Encourage reporting of possible breaches.
■
Stay up-to-date on the latest scams and malware attempts.
■
smaller businesses are less protected. Fundera, a small business financial resource, estimates 43% of cyber attacks target small businesses. A common cybercrime in the real estate industry is wire fraud, where a hacker collects data from your system and sends your home buyer or their banking representative a very convincing and well-timed email. It looks like it came from your office with last minute changes regarding where to wire their money. Not knowing the email is a fraud, they wire their funds to the criminals, who disappear with your client’s money. To prevent this fraud, Edgerton recommends educating your clients early in the process, warn them to be suspicious of changes in wiring information, develop security conscious email and password practices, and avoid handling disposition of funds when possible. If you’re the entity that was hacked, contact the local police as well as the FBI. But it’s not all about the money – cybercriminals want your data too, either to sell on the dark web or use in a ransomware attack, where they take your data and demand a ransom for its return. The data they’re after is called Personally Identifiable Information (PII), which varies by state. Massachusetts law defines it as: 18
Bay State REALTOR®
''Personal information'' a Massachusetts resident's first name and last name or first initial and last name in combination with any one or more of the following data elements that relate to such resident: (a) Social Security number; (b) driver's license number or stateissued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident's financial account; provided, however, that ''Personal information'' shall not include information that is lawfully obtained from publicly available information, or from federal, state, or local government records lawfully made available to the general public.” Brokerages need to know what PII you have in your systems, work to protect it, and never keep it longer than you need it. If you have a breach, you may have legal liabilities, clients can sue, and you could even lose your license. State laws are in flux over remedies and breach notification regulations, so keep up with changes. The Federal Trade Commission (FTC) protects consumers against “unfair or deceptive commercial practices” and they have ruled that bad cybersecurity falls in that category. They
Implement and enforce appropriate policies regarding PII, document destruction, breach notification, and IT security. Your reputation is at risk too. Symantec’s 2019 Internet Security Threat Report (ISTR) reports nearly one in ten targeted attack groups now use malware to destroy and disrupt business operations, a 25% increase from the previous year. Criminals send an email disguised as a clever notification or a business referral with an attached file containing malicious script. Opening the attachment executes a script which downloads malware intended to destroy your systems. The FBI’s 2019 Internet Crime Report says business email compromise (BEC) scams are the most damaging and effective type of cybercrime, accounting for over $1.77 billion in losses for victims last year. And in Q1 2020, almost 31,000 organizations were targeted. The remedy? Edgerton says think before you click. Ask yourself if this is a trusted source and if you have received attachments from them before. If it’s a link instead of an attachment, hover your mouse over the link and look at the actual URL address. If it looks fishy, do not click.
■
Edgerton’s top infrastructure safety tips: Keep your system software up-to date, and install security patches when prompted. Implement antivirus and firewall protections. Back up your system in a secure location offline. If you’re the victim of a ransomware attack, you’ll have more choices of whether to pay if you have backup files.
Consider a voluntary IT security audit to determine your weak points. Segment your IT environment and restrict programs and information to a need-to-know basis. Third-party IT vendors pose a security risk as well. Do your due diligence, check their
reputation and read your contract carefully to make sure you’re covered if they do something that gets you sued.
!
Most of all, Edgerton says, don’t feel overwhelmed. A great place to start is NAR’s recently updated Data Security and Privacy toolkit. https://www.nar.realtor/data-privacy-security/nars-data-security-and-privacy-toolkit
September/October 2020
19
member voices R E A LT O R ® V I E W S
{president’s message}
Taking Care and Keeping Ourselves Safe BY KURT THOMPSON This edition of the magazine gives us the opportunity to focus on an issue in our industry that doesn’t get nearly enough attention – safety. When thinking about what safety looks like in the real estate industry, there is a lot to consider. There is our physical safety, digital safety, financial safety, and now with COVID-19, we must also take into consideration the safety of our health. Since this is the September/ October issue and September is Realtor® Safety Month, we thought it would be a good idea to share some safety tips and precautions. However, it’s important to note, these safety precautions are something we should be engaging in ALL year round. Taking the proper safety measures daily, is key in ensuring a safe day-today life for our Realtor® community. As the state begins to open back up, and we begin to increase our activity showing homes and helping people find their dream home; we must proceed with caution and safety in mind. We all know the nature of our business often puts us in potentially dangerous situations. This is why it is so imperative to let a trusted colleague know when you’re showing homes and where the location is. To take your safety one step further, try to bring someone with you when showing a home or meeting a client for the first time. It is really important to have a safety plan in place before you need it! The good news is, there are many resources available to help keep you safe on the job. You can check out one of NAR’s regularly
20
Bay State REALTOR®
scheduled safety webinars, download apps designed to help keep you safe, as well as check out the safety alert program. We believe every Realtor® should feel empowered and safe when working. Be sure to always stay alert, let others know where you are, travel in pairs when possible, meet with new clients in public environments, use Zoom meetings when possible, park in areas that allow for a quick exit and take advantage of safety tools at your disposal. Another good idea is to educate yourself as much as possible. Take self-defense courses, learn how to spot potential scams, learn
how to better secure your clients information. All of these steps show that you not only care about your own personal health and safety, but you are also doing what is in the best interest of your clients. The nature of our jobs requires us to meet with new people frequently in various locations, and sometimes in vacant homes. This doesn’t mean we can’t stay safe. Give yourself peace of mind by taking extra steps to ensure your safety and the safety of your fellow agents. Let’s keep safety in the forefront of our minds as we move forward helping make this industry as safe as it can be, one step at a time.
CHANNING REAL ESTATE SINCE 1987
The Edge You Need to SUCCEED
“During the Covid 19 pandemic I have gained great insights through the information sent by the Guild and its members.” Cathy Toomey, Stone Ridge Properties 978.314.9706 realtyguild.com inez@realtyguild.com An Association for Independent Real Estate Oꢀces
Beverly Carter Foundation In honor of September being Realtor® safety month, MAR was pleased to donate to the Beverly Carter Foundation (BCF). The BCF is a completely independent not-for-profit foundation with the mission of ensuring safety for all Realtors®. Supporting this foundation aids in providing educational resources, training events and trainer certification, safety program implementation and consulting, victim support and advocacy, and safety advocacy in legislature, among other things. Founder and Executive Director of the foundation, Carl Carter experienced the loss of his mom, a Realtor® who was killed while working. Since then Carl has dedicated his life to helping spread safety tips, creating a safer environment for real estate professionals. Carl was also featured in an earlier part of this issue, in our ‘Five Question’s With” column. If you would like to donate, volunteer, or learn more about how to help, visit beverlycarterfoundation.org.
COUNT ON PLUS PROTECTION Are You Confident In Your E&O Coverage? Does your current coverage: • have an exclusive, 17-year carrier partner? • offer enhanced cyber liability? • boast endorsements by 20 state REALTOR® associations? And merit reviews like this? “The best E&O insurer!” - Gillespie Realty LLC Contact your MA representative, Stephanie Bates, to compare today or visit pearlinsurance.com/MARplus. 800.894.7607 | stephanie.bates@pearlinsurance.com
201317-PI-EO-PAD
22
Bay State REALTOR®
CALENDAR Virtual Courses Virtual Broker Summit September 23, 2020 9:00 am – 12:15 pm GRI 201: Tools of the Trade October 15, 20 & 21 9:00 am – 1:00 pm Tom Matthews Paula Savard ■ Nelson Zide ■
■
GRI 202: Building a Foundation TBD ■ Peter West ■ Gary Bourque ■ Andy Consoli
2020 C2EX Challenge Have you taken on the 2020 C2EX challenge yet? The challenge began on June 1 and is running until October 1, 2020. Completing the challenge gives you the chance to showcase your expertise in the industry and show how much you value being a Realtor®. The winning state associations will receive grants which allows the opportunity to showcase advanced expertise in the real estate industry. Show everyone that you are capable of the highest level of professionalism by earning the C2EX endorsement.
Winners announced during the NAR Annual Conference. The state associations with highest point totals will win $5,000 grants to further their promotional efforts of the Commitment to Excellence program! To compete in the challenge, state associations must register by searching ‘2020 C2EX Challenge Submission Form’ and completing the form. The deadline to submit your form for entry is October 1, 2020.
Associations are divided into the following categories: ■ Small
(less than 4,999 members) (5,000-14,999 members) ■ Large (15,000-29,999 members) ■ Mega (30,000+ members) ■ Medium
Associations earn points two ways: Three points for every member that begins the C2EX program between June 1-October 1. ■ Five points for every new C2EX Endorsement earned between June 1-October 1. ■
September/October 2020
23
Member Benefit Spotlight BY SABRINA LAPOINTE
Data Breach & Cyber Liability Insurance Many of us have fears about our sensitive customer information getting into the wrong hands. It’s always in your best interest to keep your information safe. Not to mention, it will put your mind at ease. MAR members can take advantage of a valuable cyber insurance program designed to help real estate professionals mitigate and minimize the devastating effects of a cyber-attack or data breach. As members of MAR, you qualify for special competitive and affordable rates. Members have access to one of the best cyber insurance plans, offering the most comprehensive coverage options available to businesses of all sizes. Especially as we still navigate our way through COVID-19, we are seeing firsthand more and more scams taking place, putting Realtors® and their clients alike at risk.
The Data Breach & Cyber Liability Program offered by 360° CoveragePros is designed to provide the critical insurance coverage necessary to help protect companies from the high costs and implications of a privacy breach or other cyber related incident, as well as comply with state and federal regulations and costly penalties. Take the extra step to give yourself that added security. Cyber liability insurance helps your company respond in the event of a cyberattack or data breach. For example, if your network or computer systems are hacked into or corrupted by a virus, this is where having cyber liability insurance would come into play.
Homebuying just got more possible Down payment assistance and MIPLUS mortgage insurance with job-loss protection is a powerful combination for first-time homebuyers. TM
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
24
Bay State REALTOR®
Keeping Yourself and Your Business Safe BY PAUL YORKIS, 2020 President, Realtors® Commercial Alliance of Massachusetts
It is important to look at Realtor® safety from many perspectives. Unfortunately, we know that Realtors® have been harmed or even murdered while showing a property or doing an open house, so your physical safety should always be paramount. There are other aspects of personal and business safety that also should be considered.
Errors and Omission Insurance:
Property Insurance:
If you are associated with a firm, check with the principal to make sure you understand the coverage that is provided. If you own your own firm check with your insurance provider to make sure your policy is providing the coverage you need for yourself and the agents associated with your firm. Consider asking your insurance agent to attend an office meeting to explain the coverage. Does your errors and omissions policy provide adequate coverage for Fair Housing and cyber liability? Does it provide bodily injury/property damage protection for an open house? Not all policies are the same according to John Torvi, from Landy Insurance in Norwood, Massachusetts. John said, “Not all policies are the same and not all coverages are the same. It is important to make sure you have the coverage you need based upon your company’s business practices.”
If you own your building, is your policy coverage up-to-date based upon the protection you desire? Check with your insurance agent to see if you have adequate coverage. If you are renting your office space as a tenant, what kind of coverage should you have to protect yourself, your agents, and property? Jim Fougere from A Better Insurance Agency based in Ashland, Massachusetts strongly encourages firms to have a general liability policy to extend to the building owners, employees and guests.
Data Protection and Storage: Have you backed up your electronic records off site or on the cloud? How are you protecting your hard copy records? With more Realtors® working from home using their personal computers, what office policies and software protocols are in place to prevent cyber-crime?
Auto Insurance: Do you take clients out in your vehicle? If you do transport clients have you notified your auto insurance carrier? Some carriers may require a policy amendment. Document your communication with your agent regarding this.
The NAR Code of Ethics: When is the last time you read the Code of Ethics and discussed the Code with agents in your firm? Understanding the Code may prevent
having an ethics complaint or request for arbitration filed against you, or a fellow agent in your firm. Ethics hearings are not fun. Preparing for them is time consuming and can be very emotional.
Fair Housing: Are you and your fellow agents aware of all the regulations regarding fair housing? Having a state or federal agency investigate your or your firms conduct is avoidable by knowing and complying with the laws and regulations. Does your errors and omission policy include Fair Housing protection? Tenant discrimination insurance is also available for your clients according to Jim Fougere.
Liability Coverage When Showing a Property: When you show a property, residential or commercial, what insurance coverage do you have for yourself and what coverage is typically in place? You may be covered by the errors and omission policy (or maybe not) or by a professional liability policy.
Brokers Bond: If you hold a real estate brokers license, you are supposed to have a surety bond. Is your bond current? Educating yourself and your agents regarding applicable federal and state laws, the Code of Ethics, discussions with the principal of your firm, and discussions with your insurance carriers can help keep you and your business safe and minimize risk. September/October 2020 25
