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Understanding the Disclosure Obligations for Sellers in Massachusetts

by | Sep 2, 2021

Disclosure Obligations for Sellers

When you’re in the market for a new home, there’s a lot to consider. Importantly, it’s essential to ensure you do your complete due diligence on the property you’re looking to purchase. You can’t expect that the seller will freely disclose every flaw in the structure, and they’re not necessarily legally required to do so.

It’s crucial to understand that Massachusetts follows the legal doctrine of caveat emptor, meaning “buyer beware.” In other words, you might be out of luck if you later discover that you’ve purchased a house with mold in the basement, a leaky roof, or electrical problems — unless you specifically asked the seller about such conditions.

Although the burden is mainly on the buyer to ask the right questions and obtain a thorough inspection, sellers are still required by law to make several disclosures to prospective buyers.

A Seller Must Disclose Lead Paint

Critically, sellers are required to disclose the existence of lead paint to a prospective buyer. This disclosure is not optional — it’s mandatory under both state and federal law. If the home was built before 1978, a buyer whose offer you have accepted must be provided with a Property Transfer Notification Certification before entering into the formal contract.

Failure to provide the notification before the purchase and sale agreement has been signed could result in a seller incurring a monetary penalty. They could also be on the hook for other damages suffered by the buyer.

Not only must the buyer be informed of the risks of lead paint to children and adults and the lead law requirements — but they must also be provided with any information concerning the existence of lead paint in the home.

Specifically, a seller must furnish the buyer with any:

  • Lead reports
  • Risk assessments
  • Letters of compliance
  • Letters of Interim Control

A seller must also inform the buyer that if a child under the age of six will be living in the home, it must be deleaded or brought to Interim Control within 90 days of taking title.      

Disclosure of a Septic System is Mandatory

Title V of the Massachusetts Environmental Code requires sellers to inform a buyer in writing if the property relies on a septic system, rather than a public sewer. Importantly, the septic system must also have been inspected within two years of the sale. If weather conditions prevented an inspection, it can be performed up to six months after the sale.

There are a few exceptions. Notably, septic systems in condominiums must be inspected every three years. However, if the condominium has less than five units, the system associated with the unit being transferred must have been inspected within two years.

Septic system inspections are not necessary if the property is being transferred to certain close relatives.   

Are There Other Required Disclosures?

Other than the lead paint and septic system disclosures, sellers in Massachusetts generally don’t have to reveal anything else concerning the condition of their property. That is, unless the buyer asks. If a prospective buyer has specific questions about the property, a seller must truthfully disclose the information.

Learn More About CLG’s Residential Real Estate Practice

Based on a modern business model, Continental Law Group provides high-quality legal services for residential real estate transactions in Massachusetts and New Hampshire. With a focused commitment to serving the needs of clients, CLG has offices located in Boston and Salem, MA, and Portsmouth, NH. Call (617) 616-8210 to learn more about CLG’s residential real estate practice and other legal services.  

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