When selling your property in Massachusetts, you need to be aware that there are disclosures that are a legal requirement in the state. These disclosure requirements are relatively minor compared to some other states, but if you ignore the requirements or are unaware that you need to make the disclosures whether a potential buyer asks about them or not, then you could be in breach of the law and may also fail to sell your property.
What are home disclosure requirements when selling a home?
Most people use a real estate agent or broker to help them sell their home when they are ready to do so. The real estate agent will naturally try and make the most of the best features of the property and minimize any negative features. However, if there are serious concerns related to the property’s structural properties or safety it is always wise, irrespective of the law, to let the estate agent or broker know in advance. Although Massachusetts doesn’t make it a legal requirement to provide a disclosure form to any prospective buyer like some other states, the estate agent may ask you to provide a statement listing any known potential safety concerns or structural defects to indemnify the agent if there have been errors or misstatements made.
A wise purchaser would probably hire a property inspector to check the property out in advance, but most states require the seller to disclose certain features of their property that could be of concern in advance before they are discovered by the purchaser or the purchaser’s inspector.
Massachusetts has a relatively light disclosure requirement. It is often referred to as a ‘caveat emptor’ regime, or in plain English ‘buyer beware’. The two main disclosure requirements are confined to whether there has been lead paint used anywhere in the property and whether there is a septic system installed. More about these disclosure requirements below, but it must also be mentioned that many buyers will have questions about the property before they commit to putting in an offer on it. If a serious question has been asked about something which could be a safety concern, you are required to honestly answer it. Avoidance of the question or giving a false answer could be considered a breach of disclosure law and if discovered before a sale has been completed, would almost always lead to the sale being discontinued.
Disclosure requirement 1: Is there lead paint anywhere in your home?
It is a state and federal requirement for all sellers in Massachusetts to declare the presence of lead anywhere on their property if it was built before 1978. Most lead is likely to be present in paint, but it could also be present in plaster or other materials. Massachusetts has its own property transfer lead paint notification which the seller must complete and provide to the buyer before purchase. This sets out the dangers of lead paint, the buyer’s right to insist on a paint inspection and the fact that the seller is liable if there is a failure to disclose the presence of lead. A property transfer notice certification is signed by the seller, the buyer and the agent or broker before completion of the sale. This is a legal acknowledgement by all signatories that the information provided is truthful and accurate.
Disclosure requirement 2: Septic tank or sewer?
It is highly unlikely that a seller would not know whether their sewage is disposed of in a septic tank system or in a public sewer. The main concern here is that if your property has a septic system it needs to be inspected before any sale takes place. This is a legal requirement in Massachusetts (Title 5 of the state’s environmental code). Only if the property is being transferred to a family member and it is residential, is the requirement not necessary. Otherwise, a copy of the septic system inspection report needs to be made available to the prospective buyer and any defects attended to before the sale is executed.
Disclosure requirement 3: Requirement to provide honest answers to prospective buyers’ questions
This is simply a requirement to tell the truth about your property if a buyer asks you a specific question. Of course, you may not know the answer, but then you can say you don’t know and that’s fine. In some states there is a ‘psychological disclosure’ requirement. This is when there may be something that has occurred in your home that could be disturbing to some people who may wish to buy it. For example, if someone has died from AIDS, or there was a murder or suicide or even an alleged haunting, this may be considered unsettling psychologically enough to be disclosed. This disclosure requirement is not necessary in Massachusetts (unless you are asked, of course). Failure to tell the truth or attempting to avoid telling the truth when asked specific questions could not only be regarded as a breach of state law, but could lead to you being sued for misrepresentation later on.
Talk to a real estate attorney if unsure of your responsibilities as a seller
A real estate attorney can help you understand your legal responsibilities as a property seller and whether you have a duty to inform potential buyers of anything other than the requirements stated above. For more information, visit our website Mucci Legal or contact us for a free initial legal consultation today.