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Home Buying – Seller’s Disclosure Requirements

There are a lot of questions that you should be asking if you are buying a home, and a lot more if you are a first time home buyer.  With that said, however, what does a seller really have to disclose to a home buyer without being asked?  The true answer to that question is: it depends.  This article will run through some facts about private sellers and sales through real estate agents.  By the end you should have a decent understanding of what you are up against and how the rule of Caveat Emptor (“let the buyer beware”) can still affect your purchase.

In Massachusetts, a private seller has no legal duty to disclose anything about the property.  This means that he does not have to disclose anything about the leaky pipes, the basement that floods, the failing water heater, or anything else. It is true that when you buy a home, most people include a statement of condition and most real estate agents will require that a seller complete one.  However, if it is not provided by a private seller, there is no legal recourse against the seller.  This is why it is important to have a licensed inspector prepare a report on the condition of the property.  At least the inspector should have liability insurance that will protect a buyer from his negligence.

Even though a seller does not have to disclose defects on the property, he cannot lie and say that they do not exist if he knows that they do.  If you ask the seller is asked a question and he does not give you a truthful answer, this is an affirmative misrepresentation and he would be liable for any damages that he may have caused.  With that said, how would you prove this?  Keep that in mind, too.

Real estate agents on the other hand, are held to a higher standard.  However, being held to a higher standard does not mean that they automatically have to disclose defects.  In reality, the real estate agent’s responsibility to disclose is the same as an individual.  Even though they may not need to disclose defects, the good news is, most will.  This is because Massachusetts has various consumer protection laws in pace that protect home buyers.  Although not tailored specifically to real estate transactions, the court system views the home buying process as a consumer transaction and it is afforded the same protection as other commercial transactions.  Rather than face a potential consumer protection law suit, an honest real estate lawyer will disclose all known issues to avoid having to pay costly damages.  A consumer protection lawsuit can yield three times the amount of actual damages incurred by the consumer.

What this information means, is: you have to ask questions.  This is one of, if not the biggest, investments that you will ever make.  You should do you due diligence by asking questions and having the real estate properly inspected before agreeing to purchase.

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