Massachusetts is a state that follows an old common law rule, Caveat Emptor or translated to “let the buyer beware”. Basically, it means that the seller has almost no responsibility in disclosing material defects about the house except in two instances. The responsibility of discovering any defects of a home falls soley on the home buyer.
While a common practice around me, the seller does not have to provide a Statement of Property Condition. If done, it is done voluntarily usually on the request of a real estate agent.
What Must a Home Seller Disclose?
As stated previously a home owner must disclose two things:
1- Any knowledge of lead paint if the home was built prior to 1978. Federal law requires every buyer to be provided with the Lead Paint Property Notification Transfer Notice, a document that covers the dangers of lead paint as well as the sellers knowledge of lead paint in the property. Now buyer beware…. just because the seller has no knowledge of lead paint in their home, that does not mean that the home is free from lead paint. If the presence of lead paint poses a problem for you or your family it is your responsibility to find out if their is lead paint in the home.
2- If the home is on a private septic system and the condition of the system. A seller in Massachusetts is obligated to disclose if the home is on a private sewerage system and what the condition is with a Title V Certificate. Again a buyer beware, the obligation is to report and not necessarily an obligation to remedy. From a practical standpoint, most lenders will not lend on a failed Title V but it still does not obligate a seller to replace or repair a system.
A Seller is Under Obligation to Answer All Questions Truthfully
Legally a seller (and an agent) is obligated to answer a question that is tendered by a buyer or their agent truthfully. But realize the truthful answer could be… I don’t know. Again if an issue is important to you then it is your responsibility as the home buyer to follow up and ascertain the answer on your own.
This is a quick scenario that actually happened to me to highlight the issue of buyer beware and disclosure. A few years back I had a home that went under agreement and the home buyer immediately backed out. The buyer’s agent told me their was a recent murder in the house. I googled the address and there was! My seller did not want me to disclose. I immediately called my attorney who said that I did not have to and I should follow the lawful instruction of my seller, not to disclose, but if asked we needed to truthfully answer. A property that is “stigmitized” in any way is not disclosable in Massachusetts. I will be honest, I had a lot of agents mad at me when they found out they were wasting their time. Even the agents thought I had an obligation to disclose the murder.
Many real estate agents do ask the seller to fill out a Sellers Statement of Property Condition which covers most major issues you may encounter with a home. While it is not required by law it is a practice that is considered standard in my area of Massachusetts. Disclosing issues also is beneficial to the seller it will prevent major negotiations after the home inspection or prevent the home buyer from completely backing away.
Real Estate Agents and Disclosure
When it comes to Buyer Beware a real estate unlike a home seller is obligated to disclose any known material defects that are not readily seen like a safety or structural issue that may effect the value of the home. Agent disclosure is primarily limited to the property itself and does not generally cover the surrounding area.
Bear in mind that I said known defects. The agent has not lived in the house and many times is just relying on information from the seller. It is not their job to look for and assess problems with the home.
Disclosure law is vague and ambiguous at best. What is clear is that neither a buyer or seller can lie or be dishonest in any way when it comes to a direct question from the buyer.
Buyer Beware and Buying a Home
Many home buyers are under the impression that home sellers must disclose any issues. This is as far from the truth as you can get. A home seller has almost no disclosure obligations to a home buyer. Be especially cautious if you are buying a home directly from a seller or what is called a “for sale by owner”. Cutting out the agent also cuts out almost all obligations to disclose. If a home is marketed by a real estate agent. most agents will require a Sellers Statement of Property Condition.
So the take away as a home buyer, is if something is important to you or is a concern it is your responsibility to do your due diligence with the help of your buyer’s agent. While an agent or a seller must answer a question honestly, they just might not know the answer. For example, it is not inconceivable for a seller not to know when a roof was replace if the previous owner did it. if that owner had been there for 30 years that could make the roof 10, 15or even 25 years old!
It is important to line up your team of professionals that include a home inspector, a buyers agent and an attorney to help prevent any future problems from arising.
Please be aware that this information is for a Massachusetts home buyer and that laws vary from state to state. Nolo.com provides the basics on what is required for disclosure by state from a home seller.
Additional Resources for Buyer Beware and Disclosure
- Richard Vetstein, Massachusetts Real Estate Attorney- Is Buyer Beware Alive and Well?
- Bill Gasset, Hopkington MA REALTOR- Massachusetts Seller’s Statement of Property Condition
What is Caveat Emptor or Buyer Beware? and Why Would a Home Buyer Care? was provided by Kevin Vitali of EXIT Group One Real Estate. Is making the best of you next home purchase important to you? Call me at 978-360-0422.