Massachusetts is one of the few states that still follows the old common law rule of caveat emptor, also known as “buyer beware.” This means that, as a seller, you are required to disclose very few things about your house and, as a buyer, you need to ask the right questions and make sure to get the home inspected before purchasing.
There are two things that sellers must disclose in Massachusetts: the existence of lead paint in the house and presence of a septic system. However, if a prospective buyer asks questions, the seller cannot lie or hide the truth.
Existence of Lead Paint
Under the Massachusetts Lead Paint Statute, you must notify buyers of the dangers of lead paint if your home was built prior to 1978. You can do this by completing a Massachusetts “Property Transfer Notification Certification” and providing it to the buyer before entering into a purchase and sale agreement. This form informs the buyer of the dangers of lead paint, any knowledge (or lack of knowledge) about lead paint on the premises, and the opportunity to conduct a lead paint inspection within 10 days of the notification. However, just because the seller doesn’t know of any lead paint on the premises, that doesn’t mean that there isn’t any. The Certification must be signed by the seller and the buyer. If you fail to do this, you can face a fine of $1,000 and owe damages to the buyer.
Presence of a Septic System
Title 5 of the Massachusetts Code (15 CMR § 15.301) requires sellers of homes with septic systems to 1) disclose this in writing to the buyers and 2) have it inspected within the two years leading up to the sale and 3) provide both the buyer and the board of health with copies of the report. This is commonly known as a Title V Certificate.
Exceptions to this rule exist, including a delay to the inspection (up to 6 months after the sale) if weather conditions prevent inspection or if you received a certificate of compliance for a new system within three years of the sale and can show that you have had the septic system pumped at least one time since then. Additionally, condominiums and townhomes are different: the association that governs it is responsible for commissioning the inspection and report.
This rule does not require a seller to remedy a faulty system, they are only required to report it.
Obligation Not to Lie or Hide the Truth
In Massachusetts, if a buyer asks you about the condition of the home, you must give a truthful answer, even if it is “I don’t know.” Additionally, if you volunteer information to a buyer, that information also has to be true. Basically, if a buyer is interested in your property, do not lie or conceal the truth from them, or else you could be sued later on for misrepresentation.
The amount of information you must disclose depends on the situation and can be a point of negotiation in a sale.
Best practices for both buyers and sellers are to have an attorney advise you on the process. Sellers can be advised on what to disclose, how to disclose, and how to negotiate, while buyers can be advised on what questions to ask and when to get an inspection (which is always a good idea!).
If you are buying or selling in Massachusetts, contact Stephen Allen at Ladimer Law today for guidance through this process!
Copyright © 2023 Ladimer Law Office PC
209 West Central Street
Natick, MA 01760
Ladimer Law specializes in estate planning. We protect our clients, their heirs, and their assets by listening closely, knowing the law, and executing estate plans that fit and evolve.