Buying a Massachusetts Home: What Does the Seller's Disclosure Form Tell Me?

How Massachusetts home buyers can best obtain information about the property's condition.

You are about to purchase a home in Massachusetts. If you are like most Americans, this is likely among the most significant financial transactions that you will ever enter into. Buying a home can be a stressful process, and there are countless considerations. Among those considerations is whether the home is worth what the seller is asking for it. Are there any issues that reduce its value? If you buy the home, will there be any surprises that will end up costing you money—a mold infestation, a broken refrigerator, or a warped wooden floor? These facts are crucial to discover before you sign a purchase contract. What, if anything, must your Massachusetts home seller disclose to you?

Disclosure Laws in Massachusetts

Many states have extensive requirements for sellers to disclose information about the home before it is sold. Massachusetts, however, is a caveat emptor, or “buyer beware,” state, meaning that judges ordinarily refuse to compensate buyers for home defects found after the purchase.

Massachusetts’s statutory requirements for disclosure are fairly minimal. The onus is largely on you, as the buyer, to hire an inspector to perform a thorough evaluation of the property before you buy. Generally, Massachusetts requires only that home sellers disclose the existence of lead paint, as well as the existence and condition of a septic system.

The Massachusetts Lead Paint Statute requires that if the home was built before 1978, the seller must notify you before the purchase contract is signed about the potential dangers of lead paint and disclose any information about the presence of lead paint on the property. This is typically done through Massachusetts’ Property Transfer Notification Certification. According to the statute, buyers have ten days from receiving the Certification to perform their own independent inspection for lead paint. If the seller fails to give you that certification before the signing of the purchase contract, he or she is subject to a $1,000 penalty as well as other potential damages.

Title 5 of the Massachusetts Environmental Code requires the seller to disclose whether the property has a septic system. Septic systems will be more commonly found in rural areas (such as Braintree or Alewife), rather than suburban or urban ones (such as Boston or Needham).

The code additionally requires that the system have been inspected within the two years before the sale (or six months after the sale if circumstances such as frozen ground prevent an earlier inspection). Real estate agents will ordinarily encourage sellers to have this inspection completed before the property is put on the market. Even if the inspection does not occur before the house is placed on the market, the purchase contract will likely have a clause making the sale contingent on a healthy inspection. As the buyer, you should insist on seeing the inspection report, and would be wise to have an independent analysis performed as well (given the high costs of making repairs to the septic system on your own).

Beyond these two specific requirements, Massachusetts does impose some heightened disclosure rules when the seller uses a professional real estate agent. A licensed agent is required by Chapter 93A of Massachusetts Consumer Protection Act to reveal any information about which he or she is aware that could affect your decision to purchase the property. In other words, if the seller told the agent that the pool is leaking, the agent is required to tell you. If the agent does not, and you discover the issue, that agent risks personal liability (as well as the loss of his or her real estate license). Importantly, though, the agent is not required to inspect the property firsthand or otherwise verify what the seller says. Thus, if the seller tells the agent that the house is in perfect condition, nothing forces the agent to go look closely at the pool to make sure before repeating that to you.

Do These Disclosures Tell Me Enough?

As you can see, the required Massachusetts disclosures are fairly minimal. Most homes will not even have either a septic tank or lead paint. Even if your seller uses a real estate agent, that agent may not know anything about the property that would require him or her to make a disclosure.

What about the air conditioning, you may be wondering? Or the pipes? Or the major appliances, like the refrigerator, microwave, and garage door? For most home buyers, these are the types of costly issues that could influence your decision to buy, or at least the price at which you are willing to buy.

Of course, you can negotiate with the seller and ask him or her to make additional specific disclosures as to the condition of the property. Beyond this, the burden is on you to hire an experienced home inspector. Only with a fresh set of independent eyes will you feel comfortable and informed enough to buy the home.

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