In 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
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