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By Richard D. Vetstein, ESQ
Caveat Emptor is an old common law rule which means "Let the Buyer Beware." In plain English, it means that home buyers are on their own when it comes to the condition of the property. If there is a defect of any kind, it becomes the buyer's problem, not the seller's.
Most home buyers are unaware that in Massachusetts, with a few exceptions, the rule of Buyer Beware is still alive and well. That is why in the vast majority of transactions, buyers choose to have the property inspected by a licensed home inspector. And it's also why there is a contingency in the offer or purchase and sale agreement giving the buyer the right to opt out of the agreement if there are serious issues.
But what happens if the home inspector misses a broken A/C unit, or the sellers concealed that the basement flooded, or the Realtor didn't tell the buyers there was a Level 3 sex offender next door? These are all thorny disclosure issues.
Private Sellers: No Duty to Disclose
A private seller has no legal duty in Massachusetts to disclose anything about the property (except for the presence of lead paint). Yes, you read that correctly. He doesn't have to say boo. Will that assist the buyer in selecting the home for purchase? Maybe not. But if the basement floods, the seller does not have to say anything about it.
A seller, however, cannot affirmative misrepresent a material fact about the property. That is, if the seller is asked a direct question, such as "has the basement ever flooded?" and he answers "never" when it has, he has lied and can be held liable for that.
Most agents will insist that Sellers fill out a Statement of Property Condition (see below) which will fully disclose just about every conceivable condition of the premises. However, the standard form does contain small print language purporting to limit the agent and seller from disclosure liability.
Real Estate Agents: Heightened Duty
Under Massachusetts consumer protection regulations governing real estate brokers, a broker must disclose to a buyer "any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction." This is somewhat of a subjective standard; what may matter to one buyer may not matter to another. If a broker is asked a direct question about the property, she must answer truthfully, accurately, and completely to the best of her knowledge. Further, a broker cannot actively avoid discovering the details of a suspected problem or tell half-truths. This is why most Realtors err on the side of full disclosure, as suggested in Bill Gassett's blog.
As for that Level 3 sex offender living next door, I would advise the listing agent to disclose that fact. The Massachusetts Supreme Judicial Court has held that off-site physical conditions may require disclosure if the conditions are unknown and not readily observable by the buyer and if the existence of those conditions is of sufficient materiality to affect the habitability, use, or enjoyment of the property and, therefore, render the property substantially less desirable or valuable to the objectively reasonable buyer. I think a dangerous sex offender would be something a buyer would want to know about, wouldn't you?
In 1999, Massachusetts joined a growing number of states that require home inspectors to be licensed. There is now a state Board of Registration of Home Inspectors.http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000042&DocName=MAST112S221&FindType=L Home inspectors are now required to carry at least $250,000 of errors and omissions insurance. The board is empowered to suspend licensed home inspectors for violations of the statute or regulations and to impose civil penalties on persons purporting to conduct a home inspection without the required license.
A home inspector is one of the most important referrals your Realtor will give you. Most agents know which inspectors are great and which are terrible. If you are the unfortunate victim of an incompetent home inspectors, they can be sued civilly for breach of contract or negligence.
Massachusetts Sellers Disclosure
View more from The Massachusetts Real Estate Law Blog
has represented clients in hundreds of lawsuits and disputes involving
business, real estate, construction, condominium, zoning, environmental,
banking and financial services, employment, and personal injury law.
real estate matters, Mr. Vetstein handles residential and commercial
transactions and closings. In land use, zoning, and licensing matters,
Mr. Vetstein offers his clients an inside perspective as a former board
member of the Sudbury Zoning Board of Appeals. Mr. Vetstein has an
active real estate litigation practice, and was a former outside claims
counsel for a national title company.
on his own business degree and experience, Mr. Vetstein assists his
business clients with new business start ups, acquisitions, sales,
contract, employment issues, trademarks, and succession planning. Mr.
Vetstein also litigates, arbitrates and mediates a wide variety of
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