Disclosure Issues: Failure to Disclose Defects of Properties in Massachusetts

When a seller is selling a home, they have a duty to disclose certain defects of the home to the buyer; if they fail to do so, they may be in violation of the law and the buyer may have a cause of action against the seller as such. Consider the following about the duties of a seller to disclose when listing a home, as well as remedies that a buyer can pursue if they have purchased a home with undisclosed defects. For help that is specific to your case, call the law office of Deborah Gold-Alexander Attorney at Law directly today.

What Is a Seller Required to Disclose in Massachusetts?

When it comes to disclosures during the buy-sell prices, Massachusetts is a seller-friendly state and is one of the few states that still adheres to a legal rule known as caveat emptor, or “buyer beware.” Essentially, this means that while sellers in Massachusetts are required to disclose some things — especially if asked — the burden lies on the buyer to ask the right questions and conduct a thorough home inspection. That being said, a seller must disclose:
  • The presence of lead paint in the home;
  • The type of waste disposal system that a home has, i.e. septic tank, etc.; and
  • The condition of the waste disposal system. Under Massachusetts’ law, the system must be inspected at the time of sale.
In addition to disclosures about the above, a seller is obligated to disclose the truth when asked. In other words, while the seller does not have to volunteer any information other than that which is listed above, if they are asked about a defect, they cannot lie, misrepresent, obfuscate, or otherwise conceal any important information.

The Rights of a Buyer After Purchasing a Home with Undisclosed Defects

While sellers do have a legal duty to disclose certain defects and information about the home, as well as to be honest when asked about other defects, a seller may breach this duty. If a buyer purchases a home and later learns about a defect that was undisclosed by the seller, what are the buyer’s rights?
If the buyer can prove that the seller had a duty to disclose the defect because the buyer had specifically asked about the area of the defect and the seller had misrepresented the information or lied, then the buyer likely has cause to bring forth a civil action against the seller for misrepresentation, breach of contract, or fraud. A civil action can result in monetary damages for the buyer.
However, the buyer must keep in mind that a civil action could be very costly to the buyer.  Also, a civil lawsuit can take years to successfully litigate in a Massachusetts court, especially since the Covid-19 pandemic which has substantially delayed court proceedings in most of the courts.  Additionally, suing a seller who has perhaps moved out of state or the area and/or also may not have large assets to satisfy any judgment that the buyer may obtain can be challenging.  While a buyer may win a judgment against a seller, the next step is to collect on the judgment and that could be difficult to do.
Therefore, the buyer should use their best due diligence in investigating a property before buying because as the buyer should be aware of any issues, they may also have to live with issues that may appear after they take ownership.  Buyers certainly don’t want to spend “good money after bad”.   The best prevention on behalf of the buyer is to inspect, investigate and ask questions.  Those who waive inspections may have to deal with any post-closing problems.

Talk to a Qualified Real Estate Attorney to Learn More

To learn more about your rights as a buyer in Massachusetts and what your options are if you purchase a home with undisclosed defects or if you are a seller who receives a notice of lawsuit because of alleged undisclosed defects, consult with a skilled Massachusetts real estate lawyer with experience working on cases like yours. Attorney Deborah Gold-Alexander has over 30 years’ experience in real estate law and is ready to start working on your case today. Call Deborah Gold-Alexander Attorney at Law directly for a free initial consultation, or send her a message online today.