Brian is correct actually. The rule of caveat emptor, or buyer beware, does protect sellers (but not their Realtors) for bare non-disclosure. That is, a private seller has no legal duty to disclose anything about the property at all. Don’t ask, don’t tell. A Realtor, however, is on a different footing legally and subject to that CMR regulation you cited above. Remember, a private seller is not bound by 93A as they are not engaged in the business of selling real estate.

So the advice you give above is more to protect agents, than sellers.

If, however, a seller is asked a direct question about the property, and LIES or MISREPRESENTS the condition (that is, the seller knows the basement floods and says it has not flooded ever) than there would be liability for misrepresentation. That’s why attorneys and brokers always advise sellers to not say anything to a buyer and stay away from showings, inspections, etc.

Of course, no one can prevent someone from suing a seller and their agent. And your advice to err on the side of disclosure is good advice. Hiding the ball will not garner much negotiating good will!

Best, Richard D. Vetstein, Esq.

Regarding your question about whether the seller has to disclose substantial defects, there is no legal requirement for the seller to disclose unless asked. I had a situation where the seller got a quote from a basement waterproofing company then did not disclose the water issue in the basement. I only found out because by chance I had called the same waterproofing company after the water appeared and the same technician showed up so he was able to confirm the seller knew about the water issues. There is a much longer story to this but the bottomline is I am trying to make sure buyers are aware of this pitfall and how important it is to ask questions. I was going to start a non-profit but opted to get my real estate license thinking it would be a better way to spread the word. When I read your blog I definitely agreed with your suggestion that buyers should request a copy of the seller’s disclosure form but I feel like your comments infer that there is a legal requirement on the seller’s to disclose when that isn’t the case. I’m hoping the law has changed in the last couple of years and that you had some attorney friends that would be able to provide the latest info regarding seller disclosure requirements in Massachusetts.

Best Regards,
Brian

I can tell you that under Chapter 93A the regulations of the Attorney General state that an unfair or deceptive act is committed if a person …”fails to disclose to a buyer or prospective buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction.”

I think a case could easily be made that if someone’s basement floods every spring that would be a reason for which a buyer could be influenced or not to buy a home. Would you disagree?

I am not an attorney so I am not about to practice law here but I could find nothing anywhere that makes it ok for a seller not to disclose such an issue unless asked. Does that make sense? We both know a basement could be bone dry when a buyer looks at a home in the Summer time and then get water at some other point in time.

I don’t think a buyer not asking about water gets a seller off the hook.

Another example would be a seller putting their home on the market and a buyer purchasing and doing a home inspection at which time substantial defects are discovered. The buyer does not go through with the sale. The seller takes the house off the market but then decides 3 months later to put it back on the market. Does the seller now not have to disclose the issues discovered? My opinion is they have to disclose but again I am not a lawyer.

I’m saying that the seller is not legally obligated to disclose anything unless asked which gives the seller the opportunity to not disclose a latent defect. Obviously I think the seller should disclose but that is not my understanding of how the law is written. I had an issue a couple of years ago when I was the buyer so I’m very familiar with the subtle details and was hoping to find out from you if there has been any change to the law in the last couple of years. Please take the time to check this out as this type of information is very beneficial to potential buyers.

Best Regards,
Brian

I think you have a very informative site and I intend to read it more frequently! However, there is one comment that I think is materially incorrect and should be addressed. The comment “In the event the form is not used it does not mean the Realtor and seller are off the hook for giving proper Real Estate disclosures on any defects they may be aware of with the home or neighborhood.” While that comment is true for the Realtor it is not true for the seller. My understanding is in Massachusetts, seller‘s are under no obligation to disclose defects and other conditions affecting the property about which the seller is not asked (unless the law has changed recently). If a seller is determined to hide problems they could purposely fail to inform their listing Realtor of defects and other conditions creating a situation where a buyer that has read that comment and relied on it as fact could not ask any questions then be surprised when problems arise after the closing. I think this reinforces your main concept to have the seller complete the Massachusetts Seller’s Statement of Property Condition but I’m hoping you can clarify what the seller is obligated to disclose.

Best Regards,
Brian