Massachusetts Law on Failing to Disclose Defects of Residential Properties

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In Massachusetts, sellers of property have certain duties. One such duty is to disclose certain defects of the property. If the seller fails to disclose such defects, the buyer may have remedies available to him or her.

In some cases, buyers purchase a home that they believe is in good condition. However, they may discover weeks, months or even years after the sale that there is a defect. Even worse, they find out that the seller knew about this problem at the time of the sale but failed to warn the buyer about it.

Duties of the Seller

Massachusetts law has different requirements for private, individual sellers of residential properties than it does for individuals employed in the real estate industry. Private sellers are required to disclose whether the residential property has a septic tank, cesspool or other waste disposal system that is private. Additionally, the seller must disclose its condition. These sellers must also disclose whether the home has any lead paint. Sellers have to have their homes inspected for this purpose if the home was built prior to 1976. If there are other defects like mold infestation, termites or water leaks, these types of sellers do not have to voluntarily disclose defects.

Involuntary Disclosures

Although these sellers do not have to voluntarily offer information about other defects, they do have to provide this information if specifically asked by the buyer. This duty to disclose applies if the buyer asks about any known defects, whether any repairs were made or whether any repairs need to be made. If asked about this information, the seller has to provide honest information and fully disclose any known defects. However, the seller has no duty to disclose information about any suspected defects about which they have no actual knowledge. Nonetheless, sellers cannot intentionally avoid discovering suspected problems to avoid their duty to disclose.

Seller Remedies

If a seller lies, provides vague statements or otherwise violates his or her duty to disclose, the buyer can bring a lawsuit for fraud, misrepresentation or breach of contract.

Duties of Other Parties

Massachusetts law places a higher burden on real estate professionals, agents and brokers than it does on other citizens. Chapter 93A of Massachusetts Consumer Protection Act requires such professionals to voluntarily disclose any fact that may influence the buyer not to purchase the agreement.

For example, if a seller tells his or her real estate agent that there is a water leak on the property that has potentially caused mold growth, the real estate agent has to reveal this information to potential buyers.

Remedies Against Real Estate Professionals

Buyers who learn that real estate professionals violated this duty to disclose and the buyer wound up purchasing the property can file a Chapter 93A claim against the real estate professional. The buyer can receive damages for his or her actual losses, as well as punitive damages that are double or triple the amount of actual losses. The real estate professional may also be ordered to pay the buyer’s attorney fees and legal costs.

Buyer Protection Steps

One of the oldest legal sayings is “caveat emptor” which translates to “buyer beware.” It is important that buyers take steps to protect themselves during the purchase process. Buyers cannot simply rely on sellers or real estate agents being fully forthright with information about the property’s defects.

One of the ways that buyers can protect themselves during this process is by having a complete inspection performed on the property by an independent and reputable home inspector that is not affiliated with the seller or the lender. Additionally, buyers should specifically ask about any problems with the house, such as whether there has ever been any issues with mold, termites or other pests, whether the roof or any other portion of the house has leaked or whether the home has sustained water damage due to flooding.

They should ask for a list in writing that specifies problems that the seller has observed or experienced and the status of the repair. The list should include information about any structural problems, problems in the interior and problems in the exterior. It should also include any problems to any other structures on the property, such as a detached garage or pool. Having this information in writing can later help support a claim if a need arises.

If a problem is later discovered that should have been disclosed, the buyer should consider taking legal action with the help of a real estate attorney.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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