Massachusetts is one of few states that still follows a legal rule known as caveat emptor, or “buyer beware.” This basically mean there is not a lot you are legally required to disclose to the buyer when selling your property. The burden is on the buyer to ask the right questions and perform a home inspection in order to determine the property’s physical condition, features, and so forth.
Massachusetts law requires only that home sellers disclose the existence of lead paint (see the Massachusetts Lead Paint Statute) and the presence of a septic system (see Title 5 of the Massachusetts Environmental Code).
While these are the only two legally required disclosures, you can expect prospective home buyers to ask you questions about the property, particularly after they’ve conducted a home inspection. And you cannot legally lie or actively hide the truth.
A buyer might also request during negotiations that you make additional written disclosures.
If your home was built before 1978, you (most likely through your real estate agent) must notify buyers whose offer you have accepted about the dangers of lead paint. Do so by completing the Massachusetts “Property Transfer Notification Certification.” Per Massachusetts practice regarding entering into a home-sale contract, you will need to supply this notification before you and the buyer enter into the formal, lengthy purchase and sale agreement that eventually replaces the offer contract with which you start the deal.
In this certification form, you are telling your home’s buyers about the dangers of lead paint in general, disclosing any information you have about its presence on your property (or that you have no information), and informing buyers of their opportunity to conduct their own lead paint risk assessment within ten days of having received the form.
The Property Transfer Notification Certification must be signed first by you, then by the buyer, and also by any real estate agents involved in the transaction. It must be completed and signed prior to signing a purchase and sale agreement. If you fail to initiate this, you could be assessed a penalty of up to $1,000, and ordered to pay other damages to the buyer.
According to Title 5 of the Massachusetts Code (15 CMR § 15.301), sellers of homes that have a septic system must not only disclose this in writing to buyers, but have it inspected within the two years leading up to the sale and give the report to the buyers and to the local board of health. This is commonly called a Title V Certificate.
The inspection can be delayed until up to six months after the sale if weather conditions such as frozen ground prevent an earlier inspection, however.
Also, exceptions exist, such as in cases where you've receivea certificate of compliance for a new system from the approving authority within the three years before the property transfer and you can show through system pumping records that you had the system pumped at least once during the third year.
If your home is in a condominium or townhouse community, the association that governs it will be responsible for commissioning the inspection and report.
The condition and cost of repairs to bring failed systems up to code can become a major negotiation issue in situations where sellers are not willing to make neededy repairs and buyers insist on having the repairs done. Not all home buyers will insist on this, however, and Massachusetts law doesn’t require home sellers to bring their septic systems into compliance with the law before selling the property.
If the prospective buyer (or buyer’s agent) asks you (or your agent) specific questions about the condition of the property, or if you volunteer certain information about the property, you are required to disclose the truth—or at least any facts that that a reasonable person would rely on in making a decision to purchase a home. This standard comes from various Massachusetts court decisions in individual cases. In other words, you can’t lie, obfuscate, or conceal important truths once a buyer takes an interest in a certain aspect of your property.
Unfortunately, exactly how much you need to disclose is a subjective determination and depends on the facts of each situation. Home buyers in Massachusetts routinely ask sellers to warrant, or state to the best of their knowledge, that the property contains no underground storage tanks, nor any hazardous materials such as radon, chlordane, or formaldehyde insulation.
Including such additional disclosures is a matter for negotiation between you and the buyer. A qualified real estate attorney can assist with the negotiations.
Most Massachusetts buyers who have entered into serious negotiations to buy a home will also reserve the right to have the property inspected by a licensed home inspector. After this inspection, buyers often come up with additional questions about the property’s condition. These questions might range from whether or not the basement has ever flooded to the condition of the electrical system. If you fail to do answer truthfully or you mislead the buyer, you could later be sued and held liable for misrepresentation.