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The Duty to Disclose Defects, or Lack Thereof, in Massachusetts Real Estate Transactions

Buying a new home can be an incredibly exciting and simultaneously stressful situation. It is not difficult to imagine the potential hassles that can arise when the property that you saved up for years to purchase, and continue to work hard to afford, begins to show signs of problems that were not fully disclosed at the time of purchase.termites

Generally speaking, since the buyer and seller are by the very nature of the transaction in a conflict of interest, there is no special fiduciary relationship, and thus sellers do not owe much of a legal duty to disclose information to buyers at the time of the sale.

That being said, however, individual sellers of residential property are required under Massachusetts law to disclose any and all of the following:

  • What sort of waste disposal the property has, such as a private waste disposal system, cesspool, or septic tank.
  • The condition of the waste disposal system. Massachusetts state law requires that the system must be inspected at the time of sale, probably to accomplish the public policy interest of having a working system and to provide full knowledge to the parties involved in the transaction. However, if weather prevents an inspection at sale or transfer, the inspection needs to take place as soon as the weather permits, but in no case later than six months following the transaction.
  • Whether there is lead paint anywhere within the home. Homes built prior to 1976 must be inspected in order to determine the presence of lead paint.

The seller is not required to disclose any other defect. Examples of potential additional defects could include things such as dry rot, water leaks, or insect infestations.

While the seller is not required to voluntarily disclose any defects, if the potential buyer asks about any defects, or whether certain repairs need to be made or have been made, the seller is legally required to disclose fully and truthfully any known defects.

The emphasis is on “known,” since under Massachusetts law, sellers are under no obligation to reveal problems that they may suspect but do not have concrete knowledge about. This does not mean that sellers can ignore suspected problems in order to claim ignorance later, but it does provide potential insulation from liability later for any defects that had not been definitively established at the time of sale.

If it turns out that a seller had not been truthful regarding a defect, and the buyer relied on the untruth in purchasing the home, the buyer may later be able to file a lawsuit against the seller for misrepresentation, breach of contract, or fraud.

However, the reality is that homeowners as a group would probably rather prevent the nightmare that stems from discovering a latent defect entirely. After all, the discovery of a defect that requires a costly repair will not magically fix itself, and all the while the homeowner will still have to meet the monthly mortgage payment and likely stay living within the home until it can be remedied or the home can be re-sold, or another solution can be reached.

Therefore, because of the potential issues that can arise due to the nature of the conflict of interest in the buyer-seller relationship, it is always in your best interest to consult with an experienced Massachusetts real estate attorney. The attorneys at Pulgini & Norton are experienced in handling issues that arise during the process of buying or renting a home or property in Massachusetts. Contact us today with any questions you have regarding any aspect of a home purchase or sale. We can be reached by phone at 781-843-2200 or online.

More Blog Posts:

Anti-Big Box Zoning Proposed In Easthampton, Massachusetts, Massachusetts Real Estate Lawyer Blog, published December 30, 2014

Your Massachusetts Real Estate Attorney Can Assess the Possibility of Lowering Your Property Tax, Massachusetts Real Estate Lawyer Blog, published December 17, 2014

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