The Truth about Massachusetts Seller Disclosures

By
Real Estate Agent with The Buyers' Counsel

Seller disclosureIn Massachusetts, a seller disclosure is not mandatory.  While a real estate broker has an obligation to disclose any known material defects about a property, a seller is only obliged to disclose the presence of lead paint.   

Although sellers of properties cannot misrepresent the facts to a buyer, they have no duty to openly relay any information that they are not directly asked and often attorneys representing home sellers will recommend that their clients do not, in fact, fill out a seller disclosure statement since it may open them up to unnecessary liability. 

As a home buyer, you will sometimes see seller disclosure statements filled out when the seller is represented by a Realtor® since many real estate companies have their own policies regarding disclosures.  These pre-printed forms have three sections with questions that property sellers need to address. 

Section I - Title, Zoning and Building Information  

This section asks questions regarding title problems, easements and zoning classifications.  It also covers variances, special permits and any work that has been done on the property. These questions are pretty straightforward and a property owner should be able to answer them clearly. 

Section I also asks whether or not the owner "has been informed" that any part of the property is in a designated flood zone or wetlands.  Even if the answer to question is no, it does not necessarily mean that the property is not in one of these areas.  Sometimes a seller may not be completely aware on these points. I have witnessed sellers claim that their property was not in a flood zone, only to discover that it actually was.  More due diligence should always be a requirement in determining whether or not a property is located in a flood zone or if it has a wetlands issue. 

Section II - System Utilities Information 

Section two covers underground fuel tanks, which are illegal in Massachusetts, and the owner of a home should be aware if there was a tank at any time. If so, it needs to have been properly removed and there should be available a certificate stating this from the DEP (Department of Environmental Protection.) 

Also included in this section are questions regarding the water and sewerage system.  If there is a private septic system on the property, the seller must have the septic inspected and Title V Certification issued prior to closing.  If the drinking water source is a well, you should have the water quality tested along with regular home inspection. 

As a part of this section, the seller will also list the appliances that are included with the home purchase as well as information regarding any security systems or air conditioning. 

Section III - Building/Structural Improvements 

In this section, questions regarding asbestos, lead paint, radon and insects should be carefully scrutinized.  Often these questions are answered with an "unknown," particularly with lead paint.  A seller may not want to commit to answering these questions or may be uncertain.  Further investigation is always warranted in these areas.  A test for radon and insects can be conducted along with your regular home inspection.  A lead paint specialist can also be brought in to test for the presence of lead paint if this is a concern. 

The main thing to keep in mind about property disclosures is that they are voluntary.  Yes, sellers must answer the questions on these forms to the "best of their knowledge"; however, that can sometimes be vague or contain a degree of uncertainty.

If you have specific concerns about anything associated with a home, it is best to ask a direct question. When asked a specific question about a property issue, a seller is legally bound to provide you with the correct answer.  

 

Do you have questions about buying a home in the Metrowest area?  I would love to talk with you. Please feel free to call me at 508-881-6230 - any time or E-mail me. 

 

Copyright 2009 - Claudette Millette, Broker, Owner, TheBuyersCounsel - 800-392-1446  - E-mail    

 Learn More about Massachusetts Home Buyer Representation - Greater Boston and MetroWest Massachusetts -  Serving Massachusetts Home Buyers Since 1992 

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Rainmaker
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Vickie Nagy
Vickie Nagy, Broker Associate Alta Realty Group | BRE#01363932 - Palm Springs, CA
Delivering Desert Living, Year-Round Golf, Tennisl

It's really hard for me to believe that sellers are not required to make any disclosures in the state of Massachusetts. While I have only practiced in the south and the west, disclosures have always been required.

Nov 09, 2009 08:22 AM #1
Rainmaker
403,123
Claudette Millette
The Buyers' Counsel - Ashland, MA
Buyer, Broker - Metrowest Mass

Vickie:

I know.  It is interesting. Even though they are not legally required you will usually see them, particularly if the home is represented by a Realtor since most real estate companies require them. But, a for sale by owner definitely does not have to provide one.

 

 

Nov 09, 2009 08:29 AM #2
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Hannah Williams
Re/Max Eastern inc. - Philadelphia, PA
Expertise NE Philadelphia & Bucks 215-953-8818

Claudette..In Pennsylvania seller disclosures are part of the agreement of sale a mandatory form..There are a few exception one being-it is not required if it is an estate ..It is very interesting that you do not have this form as a part as your agreement of sale..Thanks for the info

HelpfulHannah your friend in Philadelphia

Nov 09, 2009 08:34 AM #3
Rainmaker
403,123
Claudette Millette
The Buyers' Counsel - Ashland, MA
Buyer, Broker - Metrowest Mass

Hi, Hannah:

In many ways, this state is very consumer protection oriented, so it actually is odd that we don't have seller property disclosures as a requirement. 

 

Nov 09, 2009 08:41 AM #4
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Loreena and Michael Yeo
3:16 team REALTY ~ Locally-owned Frisco TX Real Estate Co. - Frisco, TX
Real Estate Agents

That's good to know about MA. Here in TX, Sellers must disclose unless they meet Texas Property Code 5. Hmmm... Maybe because I'm used to doing things done here, I prefer that it becomes mandatory for sellers.

Nov 09, 2009 11:14 AM #5
Rainmaker
403,123
Claudette Millette
The Buyers' Counsel - Ashland, MA
Buyer, Broker - Metrowest Mass

Loreena:

Well, that is something very different from Massachusetts. I would also prefer it if seller disclosures were mandatory here.  It just makes sense, really.

Nov 09, 2009 01:29 PM #6
Rainmaker
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Tony and Suzanne Marriott, Associate Brokers
Haven Express @ Keller Williams Arizona Realty - Scottsdale, AZ
Serving Scottsdale, Phoenix and Maricopa County AZ

The first challenge we have with a current approved Short Sale is excavating the concrete that the owner poured over the access hatch!

Aug 06, 2010 11:58 AM #7
Rainmaker
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Inna Ivchenko
Barcode Properties - Encino, CA
Realtor® • Green • GRI • HAFA • PSC Los Angeles CA

Here, we use C.A.R. forms: Seller Property Questionnaire and TDS for seller to disclosure all material known facts about the property. The explanation should be clear, complete, and coherent. Regardless of disclosures, buyers have to conduct a careful inspection of the property. 

Oct 08, 2017 04:41 PM #8
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Claudette Millette

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