When selling your home, you may need to inform prospective buyers about certain features and details of the property to ensure complete transparency. Buyers would certainly do their own inspections, but sellers must disclose certain information to them by law.

However, Massachusetts has no such law that mandates sellers to provide a disclosure statement to potential buyers. At most, your real estate agent will ask you to complete a form that includes a provision that indemnified them from any misstatements or errors made during the deal.

The state follows a legal tenet called the “caveat emptor,” or let the buyer beware, which places the onus of assuming the risk on the buyer at the time of purchase. This means that the burden lies on the buyer to carry out due inspection and acquire the right information from the seller before proceeding with the transaction.

Two Essential Disclosures

However, Massachusetts law stipulates two important disclosures that the seller must duly provide to the buyer.

If the property has lead paint or a septic tank system, the seller must tell the buyer before the deal is finalized. Besides this, buyers can make additional inquiries about the property after inspection at their own discretion.

Here is some pertinent info about these two necessary disclosures:

Lead Paint Disclosure

If your home was built before 1978, Massachusetts state law stipulates you must notify buyers whose offer of purchase you have accepted, either by yourself or through your real estate agent. The law states that this disclosure must be made before entering into the sale agreement, which supersedes the initial offer agreement.

This disclosure is covered by the Property Transfer Lead Paint Notification, which the seller presents to a potential purchaser before finalizing the:

• lease with an option to purchase
• purchase and sale agreement
• memorandum of agreement used in foreclosure sales

The seller must duly inform the buyer if there’s lead in the paint, plaster, or other structural materials used on the property. It is also a good idea to include details on the dangers it poses to children and adults and lead poisoning prevention steps.

Under the Lead Law, the buyer must be informed that if they have a child under 6 living in the property, they’ll have to have the premises deleaded or bring the property under Interim Control within 90 days of acquiring it. The seller must also provide an inspection and risk assessment reports, along with any letters of compliance.

The seller must hand over a copy of the state’s property transfer lead paint notification.  It should clearly mention the information mentioned above, the right to a lead paint inspection, and the seller’s liability for failing to comply with the law.

This notice certification must be signed before executing the purchase and sale agreement. By signing it, all the concerned parties acknowledge the information mentioned within the notification and agree to comply with Lead Paint state law requirements.

The notification must first be signed by the seller, followed by the buyer. If real estate agents are part of the transaction, their signs are also required. It is a prerequisite to signing the purchase and sale agreement. Failure to comply can result in a fine of up to $1000 and other damages payable to the buyer.

Septic System Disclosure

Under Massachusetts state law, sellers must inform buyers if their property is serviced by a septic system instead of the public sewerage system. At the time of property transfer, Title 5 of the state environmental codes stipulates an inspection of the property’s septic system.

Title 5 applies to the transfer of property to a new owner. Suppose the change of title is between family members, such as spouses or from parent to children. In that case, the inspection can be avoided for residential properties. In all other transfers, an inspection is a necessity.

According to the Title, sellers of homes with septic systems must notify the new owner and have had the system inspected within the preceding 2 years to the date of sale.

There are substantial concessions for sellers, allowing them to delay the inspection for up to six months after the sale. But this usually happens if the weather conditions are not favorable, such as frozen ground around the septic tank.  Homeowners who received a compliance certificate for their system three years before the purchase but got their system pumped at least once during the third year can also avail exceptions.

The cost of repairing septic systems can run into the thousands and become a bone of contention for sellers and buyers during the transaction. Luckily, for homeowners unwilling to concede huge amounts for repairs, Massachusetts law does not require them to bring their septic system in compliance before proceeding with a sale. Unlike the lead paint stipulation, sellers are not liable for penalties.

Additional Disclosures

Buyers are entitled to inquire the seller or the seller’s agent for specific details about the property. In some cases, the seller might like to disclose the facts by their own will, without the buyer making an inquiry.

Either way, the information must be true and based on facts to not misguide a buyer looking to making a purchase. While this condition is not specified by law, court precedents establish sellers’ need to provide factual information about their property. In any way, the seller or their agent must not seek to obfuscate or conceal important information regarding the property from a prospective buyer.

The scope of the disclosure is subjective and depends on the facts of the situation. Some common inquiries from buyers revolve around whether the property has underground tanks or the inclusion of any hazardous material, such as radon or formaldehyde insulation within the structure.

Homeowners are not legally bound to inform buyers about any “psychological impact” the property may have, such as if the property was the site of felony for example. However, if the buyer inquires, the seller must not hold back any relevant information.

A qualified real estate attorney is better suited to guide you about the relevant disclosures and negotiations involved in the process of purchasing and selling a property. With years of collective experience in property transactions behind us, The Law Offices of Richard Mucci can offer you effective and valuable legal guidance for your property sale and purchase process. Contact us for a free consultation.