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When to Update an Estate Plan

Massachusetts and New Hampshire estate plans, wills, trusts, and the like need periodic maintenance, just like a lot of things in life. Admittedly, they do not need constant maintenance like a car, boat, or house, but you cannot forget about it once you create one. As time passes things change in your life, and in order to properly carry out your wishes, you sometimes have to make changes. Below you will find some common reasons for updating an estate plan or will.

  1. Birth or death of a Beneficiary or Fiduciary.
  2. Divorce or Marriage.
  3. Change in the Law or Tax Law.
  4. Moving to a new state or change of permanent residence.
  5. A sudden increase or decrease in assets.
  6. Purchasing or Selling a Business.
  7. Beneficiaries reaching the age of majority.
  8. Planning for an estate of a person who is reaching the age of 70 ½.
  9. Disability or Illness.
  10. A substantial passage of time.

The list above illustrates some common reasons for updating your estate plan in Massachusetts and New Hampshire. A good rule of thumb: if you feel like your estate plan needs some updating, it probably does. At the very least, you could talk to an experienced attorney who can confirm whether your current estate planning documents will satisfy your final wishes.

Can My Landlord Enter my Apartment When I am Not at Home?

A landlord cannot enter your apartment just for any reason. There are, however, some very important reasons why a landlord may enter your apartment and those reasons are set forth in Massachusetts General Law 186 Section 15B. In addition, agreements between a landlord and tenant where the landlord reserves the right to enter for whatever reason are unenforceable.

Some common reasons where a landlord may lawfully enter an apartment include:

  1. To make repairs to the premise;
  2. To inspect the premise;
  3. Show the property to a prospective tenant, purchaser, mortgagee or its agent;
  4. In accordance with a court order;
  5. If the premise appears to have been abandoned;
  6. To inspect, within the last thirty days of the tenancy or after either party has given notice to the other of intention to terminate the tenancy, for the purpose to determining the amount of damage, if any, to the premise which would be cause for deduction from any security deposit held by the lessor pursuant to this section.

Even with these common exceptions, most good landlords will inform you in advance of their intent to enter the apartment. This is a good list of examples where a landlord can lawfully enter an apartment, but it is by no means the only examples that a court would say is acceptable. If you feel like your rights have been violated, you are encouraged to talk to a Massachusetts Landlord-Tenant Attorney.

What to Expect During an Eviction Proceeding in Massachusetts.

Everyone who has to appear in court to argue an eviction knows the date and time, but not much else. Most people do not know the specifics of what actually happens nor what to expect from the very time they walk in. This article will run down some of the important things to know before you go to court to argue your summary process case. There is no reason to be kept in the dark. Every court has their own quirky rules so this article is designed to give you the nuts and bolts only.

The Basics:

One of the most important things, and this should go without saying, show up on time. You do not want to be late for any court appearance; showing up late will set a bad example. Sure, you will still probably be able to be heard, but do you really want to take that chance? Most Summary Process hearings start at 9:00am. This means that you and many others will be rushing the doors of the courthouse for first call, and you all have to go through security. Since so many people have to be at the same place at the same time, there is usually a bottleneck at the security checkpoint. You should plan on being at the courthouse at least a half hour early to avoid missing first call.

Second common sense thing to know: dress appropriately. Please do not wear sweatpants and flip-flops. This should, however, not affect the outcome of your case, but keep in mind that you will be surrounded by people wearing suits. I am not saying you have to wear a suit, just dress appropriately. Appearance is important in our society, especially in a courthouse. Think of it this way, you want to blend in with the right people.

Final common sense thing to know: turn your phone off. If you must bring it with you, turn it OFF. Do not turn it to vibrate. If it rings in court you run the risk of having it confiscated.

Once Inside:

Once you have arrived and found the Housing Court Department, you can go into the Clerk’s office to determine which courtroom the cases will be heard in and obtain a list of cases that will be heard that day. It is a good idea to review that list (the docket) to make sure your name is listed. If it is not listed, you should immediately ask an employee of the Housing court and they will help you resolve the issue. It is possible that your case was filed in the District court which has the same authority to hear eviction cases.

Once you confirm your case is on the docket and the appropriate courtroom, you can find a seat in the courtroom for first call. If the courtroom is still locked, wait outside until a staff member opens the door to announce first call. When everyone has filed into the courtroom, the Clerk will begin reading the list of cases for the day. He/She will read both the plaintiff’s name (the person bringing the action) and the defendant’s name (the person responding), and each party must respond with their respective title when the clerk reads their name, which is either “plaintiff” or “defendant.” This is the court’s way of taking attendance.

After the Clerk confirms that both parties are present, they will either assign your case immediately to the judge or to a housing specialist. The Clerk will tell you whether you should appear before the judge or the hosing court specialist after both parties have checked in. After you confirm with the Clerk that you are present, you can leave if you can do so quietly without disturbing anyone. Outside the courtroom find yourself a place to sit and wait.

After everyone has been checked in and assigned to either the judge or the housing specialist, it becomes a waiting game. Some people like to call it a “cattle call.” This means that you sit and wait to be called into the courtroom or the hosing specialist’s office.

Most summary process cases (evictions) are heard by the housing specialist fist. They typically callout the names’ of the parties and bring you into an office. In the office the housing specialist will introduce himself and ask each party to do the same. After everyone is introduced, they will ask the plaintiff to run down the facts of the case and what they are seeking. The defendant then responds with their interpretation and any defenses they have to the eviction. This should be a calm, civil discussion. The housing specialist, who is essentially a mediator, has no authority to bind the parties, so they will most likely allow you to say anything you want if it is in the interest of a settlement. The housing specialist will also tell you what is legal and what is not with regards to a settlement. Don’t be quick to dismiss this process. If you know the outcome will be the same before a judge or if you know that you have no legal argument, don’t waste the court’s time. This type of behavior will only irritate the judge. Most cases resolve during this process. The most common reasons are: you are taking a risk leaving the decision to a judge; and, you can usually work out the same agreement with the housing specialist. If and when an agreement for judgment is made, the housing specialist will put your agreement for judgment in writing for both parties to sign. After the document is signed, it goes to the judge for final decision and to confirm that everything contained within the agreement is lawful. That is it, you can leave if you agree to judgment with the housing specialist. If there was a problem with the agreement for judgment, a member of the court will notify you at a later date and what would be needed to correct the problem.

If your case was assigned immediately to the judge or if you were unable to reach an agreement for judgment with the help of the housing specialist, you will have an opportunity to be heard by a judge. At this point, you should have a seat in the courtroom and wait for your case to be called. Please keep in mind that if you have no lawful reason for not agreeing to judgment with the help of the housing specialist, you run the risk of irritating the judge.

Once you are in the courtroom, the clerk or another member of the court will help everyone get settled. Just listen to what they say and they will instruct you where to go. Once your is called, step forward and introduce yourself. Do not spill your guts right away. The judge will instruct you on how to begin, however, this typically begins with the plaintiff and then the defendant. Remember to speak LOUDLY, think carefully before you respond, be respectful, and stand when you speak. You will have a chance to speak so do not interrupt anyone, especially the judge. Once the judge is satisfied that he/she has heard enough, each party is usually allowed to give a closing statement, which is a short recap.

Everything in the courtroom moves fast, a lot faster than you think. You have to know what you are going to say to be effective. Stay confident and listen to the questions that you are asked and do not volunteer anything that was not asked. It is ok to be nervous, but do not let the nerves impact the outcome of your case.

Keep in mind that each court is a little different, so ask a member of the court of any procedure that you are unsure of, they are usually more than willing to help.

Finally, the judge does not normally say how he/she is ruling at the end of the summary process hearing. They typically take everything under advisement and issue a judgment the following day. You will receive the judgment in the mail. If you do not receive the judgment in the mail, you can contact the Clerk’s office and they will be able to find it for you.

There you have it, a rundown of what to expect the day of trial. This article is long, but it does no justice to the intricacies or idiosyncrasies of the court. Most people do not spend a lot of time in court so I hope that this was some help.

Massachusetts Consumer Protection – Unfair and Deceptive Trade Practices

If you have ever felt that a business had used unfair or deceptive practices against you for personal gain and thought you had no recourse, you were wrong. Massachusetts and the United States prohibit the use of “unfair or deceptive” practices by a business. Each agency has created various consumer protection laws that seek to hold business accountable for these unfair and deceptive practices. The Federal Trade Commission regulates the wrongdoings at the federal level and the Attorney General’s Office of Consumer Protection regulates the practices at the state level.  Both of these regulatory agencies provide enforcement by the government to stop the practices and by the individual’s suit for damages.

In order to bring a consumer protection action, you must be the victim of unfair and deceptive acts that occur “in the conduct of trade or commerce.” This means that you must have been wronged by a business or a person who regularly sells the goods sold or regularly provides services sought.  Therefore, this does not cover private transactions between individuals. Such as the private sale of a used car or sale of old furniture, unless you can prove that they conduct sales of the like on a regular basis for profit.

An unfair or deceptive trade practice occurs when a seller acts unfairly to or deceives a buyer.  Yes, I know, this is a circular explanation, but the act is violated by simply that.  This means that any action by a business that is unfair or deceptive is unlawful. The statute specifically outlines some practices that are considered unfair or deceptive, such as: false advertising, misrepresentation, or deceptive pricing practices. However, if you have been wronged by a business and it is not clearly within the statute, you may still have a claim for damages if the act was unfair or deceptive.

If you feel that you are the victim of an unfair or deceptive trade practice, you should contact a lawyer who can help you fully analyze your situation. After review, you must deliver a 30-day demand letter to the merchant. This letter describes the harm you have suffered as the result of the merchant’s unfair or deceptive actions, how you want to be compensated or how you want to resolve the matter. The merchant has 30-days to respond to your offer in writing with an offer to settle.  You can find examples of these letters online through various Massachusetts agencies.

If the merchant fails to respond within the timeframe, you can proceed with a claim against the merchant. Also, if the merchant does respond and you feel that their offer is inadequate, you can proceed with filing your claim. Cases involving consumer protection matters are usually heard in the Small Claims Court, the District Court, the Housing Court, or the Superior Court. Please be aware that if the merchant does make an offer to settle and you reject it, if the court find that the original settlement was reasonable, you will be limited to the amount offered and will not be able to collect your attorney fees or costs of brining the lawsuit.

If a court finds that a merchant did not make an offer to settle or made an inadequate offer to settle, the court can grant the following if it finds that you had a valid claim: the court can award actual damages or $25.00, whichever is greater; an attorney fee; costs and fees; and between two to three times the damages if it find that the merchant’s conduct was “willful or knowing.” The whole purpose of the law is to put you in the same position you would be economically, had the merchant not breached the consumer protection law. Getting the two to three times damages only happens if you can prove that the merchant’s actions were “willful or knowing,” which can difficult.

In conclusion, if you have been wronged by a business, you are entitled to compensation. You should gather your evidence and seek the advice of counsel who will be able to organize and prepare you for what will happen next. Also, keep in mind that you may have a claim where a lawyer will represent you without a fee, as the court can grant an attorney fee as part of the judgment.

The Elimination of the “Natural” Accumulation Defense in Massachusetts Slip and Falls

Massachusetts has finally joined the other New England states and eliminated the long-held standard of “natural” and “unnatural” accumulations in determining landowner negligence in slip and falls caused by ice and snow.  In determining landowner negligence, liability would be assessed only by determining whether accumulation of snow and ice was a “natural” or “unnatural.” If the accumulation was a “natural” accumulation, the landowner was not liable for the resulting injury. If the accumulation was an unnatural accumulation, the landowner was responsible for the resulting injury. In Papadopoulos v. Target, 457 Mass. 368 (July 26, 2010), the Massachusetts Supreme Judicial Court abolished the long-held, “archaic” rule. The court ruled that the all landowners have a duty to “act as a reasonable person under all of the circumstances” and completely eliminated the distinction of “natural” and “unnatural” accumulations of snow and ice.

Under the old rule, the landowner had no obligation to remove or warn of “natural” accumulations of snow and Ice.  Now, however, the Supreme Judicial Court concludes that the standard of care in snow and ice cases should be no different than the standard of care owed by a landowner in any other premises liability action. This means that a landowner owes a duty to maintain its premises in a reasonably safe condition given the circumstances.

This decision does not create a new standard of care; rather, it seeks to apply the reasonable person standard to the existing rule. It does not change the need for the plaintiff to prove negligence, nor does it reduce the defense of comparative negligence. The main purpose is to make landowners responsible for making their property reasonably safe for lawful visitors, regardless of the source of danger, and whether the condition was an act of nature or an act of another person.

This makes the rule more uniform. It seeks to apply the same standard whether the condition occurred in rain, snow, summer, fall, whatever. The court states that “if a property owner knows or reasonably should know of a dangerous condition on its property, whether arising from an accumulation of snow or ice, or rust on a failing, or a discarded banana peel, the property owner owes a duty to lawful visitors to make reasonable efforts to protect lawful visitors against the danger.”

The court will now balance the expense of removing the snow and ice with the likelihood and seriousness of foreseeable harm to visitors, and consider the following:

  1. The amount of foot traffic to be anticipated on the property;
  2. The magnitude of the risk reasonably reared; and
  3. The burden and expense of snow and ice removal.

Although the standard that is applied to snow and ice slips and falls has changed, the rule that is applied to these matters is no different from what would be applied if an accident happened on a landowner’s property any other time.

Lead Paint: Landlord’s Duty

Lead paint is toxic, dangerous to children, and can be found in almost all homes built before 1978. The Commonwealth of Massachusetts knows this and has developed numerous laws to protect tenants from exposure to lead paint and to help those tenants who have lead poisoning seek compensation. This article will discuss the dangers of lead paint, notice requirements, when an apartment needs to be delead, the requirements for lead abatement, and an owner’s liability.

Dangers of Lead Paint: children are the ones who are most often affected by lead poisoning, and this is why the lead paint laws center around their best interest. Children are typically affected by lead poisoning more than adults because – hopefully – adults know enough not to eat paint chips. Although this is not the only way to get lead poisoning, it is probably the most common. When excessive amounts of lead enter a child’s system, a child can develop a decreased IQ, shortened attention span, experience speech delays, hyperactivity, regression of recently acquired skills, irritability, or loss of appetite.  These impairments can result in inpatient or outpatient therapy to help treat the lead poisoning, which even after treatment can leave the child with lasting physical and/or mental impairments. The Department of Public Health and the Center of Disease Control have set standards to determine what is considered safe blood levels.

Notice Requirements: Mass. General Law Chapter 111 § 197A(d) sets forth a notice requirement upon a landlord who is renting a property with lead paint. A landlord must inform prospective tenants about the hazards of dangerous levels of lead in a home and how they can protect themselves from exposure. This is done, in part, by giving the tenant a standard notification brochure that informs them about the hazards of lead. It must outline the symptoms indicative of lead poisoning, medical treatment used to combat lead poisoning, and precautionary measure that can be used to reduce the risk of exposure for young children (it also includes other important parts of the law and gives contact numbers for lead poisoning. Please see a brochure for a complete understanding). This brochure can be found online and is designed to provide the tenant with a clear illustration of the law. In addition to having to provide this brochure, the landlord must tell the tenant where lead paint located on the premise. A failure to comply with these laws can result in a fine that cannot exceed $1,000.00.

When a Premise Must be Delead: The OWNER of a property containing dangerous levels of lead must obtain a letter of compliance or interim control in the following circumstances (meaning, remove the lead/abate):

  1. If a child under age six resides in the home, regardless of whether there has been a lead inspection; or
  2. The owner receives an order to delead because a child under six years of age resides there or a child under six, who is lead-poisoned, has resided there within the past 12-months; or
  3. The owner receives an order to delead because a child under six years of age who is lead poisoned resides there, in which case the owner will be required to abate the issue.

Requirements of Lead Abatement: All abatement procedures must be completed by an authorized person, usually a licensed deleader. An owner or agent can perform some of the work, but not until the premises is inspected by a licensed lead inspector and the owner received the proper licensing to remove the lead himself. Abatement usually requires that five feet from the floor up be properly treated. This five-foot area is called the “accessible, mouthable surface.” The inspector will tell you what will need to be done for a proper abatement and, you must know, this never means simply painting over the area with non-lead paint. This can be an expensive process for the landlord, but it is required by law.

Owner Liability: An owner is liable for all damages caused to a child under the age of six who resided in a unit with lead violations that causes the child’s blood to exceed the levels that the Department of Public Heal defines as lead poisoning.

No landlord wants to have to pay for a costly deleading, but doing so can prevent a costly suit that can come about from a child getting lead poisoning. In addition, there is not much that can be done to prevent the state from forcing you to delead. This is true even if you rent to a person that does not have a child and then he/she has a child. Also, stating that you will only rent to people without children is an entirely different issue, and it is also illegal to do in Massachusetts.

Benefits of Having a Trust

There are practitioners out there who will say that everyone needs a trust, there are some who say that it depends, and there are some who will try to avoid them at all costs.  I am of the opinion that it really depends on your individual situation.  However, in order to determine whether you need a trust or not, you need to understand some of the benefits.

Avoiding Probate: Avoiding probate is probably the greatest advantages of having a trust.  The trust itself is its own entity, and this is what allows trust assets to pass outside of the probate process.  This single reason is often enough for many to create a trust, especially if that person has a large estate that would subject to an expensive and lengthy probate process. The time and fees that are involved in administering a larger estate can be enormous. With that said, sure, there are going to be fees and taxes involved in establishing most trust, but this is something that needs to be weighed before you go through with creating a trust.  The good news is, those initial fees usually outweigh the typical probate expenses.

Privacy: In addition to avoiding probate expenses, a trust also avoids the publicity of administering an estate.  The trust itself is not subject to the same disclosure as a will.  This means that you do not have to publish to the world what you are doing with your assets when you die, like you essentially due when you probate a will.

Control: Aside from providing for management of assets both before and after death, they protect the beneficiaries by giving control of the trust fund to the trustee by limiting the beneficiary’s rights to receive income or principal.  This is probably the only way that you will be able to protect the interests of your beneficiaries after you die, in the way that you believe to be in their best interest.

Beneficiary Protection: In addition to control, a trust protects the interests of the beneficiaries.  For example, it is not wise to leave money to younger children, it is usually not even permissible to leave money (without a custodian, guardian, etc.) to a minor child.  If assets are left directly to a minor child, that money will need to be held by that child’s guardian who must report to the court everything that he or she does with the assets until they reach the age of majority.  If a trust is utilized, your trustee will manage the assets and distribute income or principal based on the terms of the trust agreement, and the trustee is under no obligation to report to the court.

Disabled Beneficiary Protection:  Protecting the interests of disabled beneficiaries warrants its own section.  Most people do not understand, perhaps they do not know that if they give virtually any money to a disabled beneficiary that is receiving supplemental state or federal benefits, they are likely to lose those supplemental benefits.  With a properly drafted supplemental needs trust, the benefits of the disabled individual remain intact.  This type of trust allows a trustee to pay for the things that government programs will not.  In addition, it remains the complete discretion of the trustee distribute money from the trust.  This is how the trust preserves its assets from creditors and/or the government.

Those are some of the main benefits that you find in common trusts.  If you are interest in a trust, you have to evaluate your situation and find the appropriate kind of trust that matches the purpose that you would like the trust to serve.

Irrevocable Life Insurance Trusts

A lot of people understand that life insurance passes outside of the probate process, but what they don’t understand is that this does not protect the money from an estate tax.  For some reason there is a belief that if the money passes outside the probate process, the money is also not subject to estate taxes.  This is simply not true.  Pursuant to the Internal Revenue Code, when a beneficiary receives payment from a life insurance policy, they receive that money income tax free. However, any proceeds paid by a life insurance policy to beneficiaries is potentially taxable to decedent’s estate.  Since life insurance policies usually makes up such a large portion of a decedent’s estate, it is important to understand how an Irrevocable Life Insurance Trust can help in estate planning.

Creating an Irrevocable Life Insurance Trust can be an integral part of an estate plan.  Since the life insurance policy typically represents such a large portion of a decedent’s estate (usually tens-of-thousands to hundreds-of-thousands of dollars), having an Irrevocable Life Insurance Trust can be difference of having to pay an estate tax or not paying one at all.  By creating an Irrevocable Life Insurance Trust and making it both the owner and beneficiary you should be able to successfully prevent the payout from becoming part of the taxable estate.

In order to prevent a life insurance policy from becoming part of a decedent’s taxable estate, the trust must be named as both the owner and beneficiary of the policy during the insured’s lifetime.  The trust must also be be irrevocable, which means that the insured cannot retain any control over the policy, such as an ability to alter or amend.  By doing this, you will prevent the assets from becoming part of the taxable estate.  It is clear that you give up some rights by making the trust the owner and beneficiary of a life insurance policy, but you really do not give up that much.  When you purchase a life insurance policy, you typically want any payout to go to your spouse, children, grandchildren, whatever, and an Irrevocable life insurance trust allows your to do the same things. However, instead of those beneficiaries being listed on the insurance policy, they are listed in the trust document.  The trust then becomes the instrument that distributes the money to the beneficiaries.  The biggest drawback is losing the ability to update the trust if there is a change in family circumstances.

In addition to being able to list the same beneficiaries that you would have on your insurance policy, you will also be able to draft different provisions into the trust that will protect the beneficiaries’ interests, and also be able to draft provisions that can help distribute the money under conditions that you feel are appropriate.  So, in essence, you give up some control while you are alive, but are afforded other benefits that make up for it when you are deceased.  For example, you can direct the trustee to pay the proceeds when your children reach a certain age or attain a certain degree.  You can also include spendthrift provisions, or you can direct the trustee not to pay out money if the beneficiary is dependent on drugs, has a gambling problem, or if the payment would affect supplemental needs benefits.  This type of planning protects both your interest and the interest of the beneficiary.

Finally, the cost of all this.  As you know, nothing is free, and making an irrevocable gift is no exception.  When you designate an Irrevocable Life Insurance Trust the beneficiary of an insurance policy, that gift becomes taxable, although there are ways to minimize the gift taxes.  How to minimize the gift tax is completely dependent on your situation and, unfortunately, something that cannot be easily described right now.

If you are interested in Irrevocable Life Insurance Trust, you are encouraged to contact the office for more information.  The office can help explain the above and help demonstrate how you will benefit form this type of trust.

Self Help and Constructive Evictions

Every once in a while I will get a call from a landlord asking whether it is acceptable to throw their tenant’s belongings out into the street, or asking if they can lock them out, or turn their heat off.  These seem to be the most popular of the unlawful questions I get for evictions and, the answer to all of them, is a resounding NO!  I have to admit, if I had a tenant who was taking advantage of me, I would consider these things, too.  Although, after considering what the outcome would be if I did, I would quickly reconsider.  This article will discuss self-help evictions and constructive evictions, and the what might happen if a landlord implements one of them.

Constructive eviction occurs when a landlord’s act or failure to act renders the tenant’s premise uninhabitable so that the tenant has no choice but to vacate.  This most often occurs when a landlord fails to control the actions of other tenants, fails to supply adequate heat, or turns off utilities that he/she is required to provide.  Public policy bars a landlord from utilizing these methods for eviction.  Same is true if the tenant singed a lease agreement that states that no act or failure to act by the landlord shall be construed as a constructive eviction.  These types of provisions are void and never enforceable.

Self-help evictions occur when a landlord does something to prevent tenant’s access to the premise.  This includes the physical removal of tenant’s property or the so called “lockout.”  If a landlord does this to a tenant, the tenant can seek an injunction or restraining order against the landlord.

Constructive and self-help evictions are clearly agains public policy in Massachusetts and the court will access actual damages or three times the rent, plus a reasonable attorney fee for these types of evictions.  In addition, actual damages can include the costs of meals and alternative shelter.  This means that the penalty for implementing either of the two is high.  A landlord should follow the proper eviction procedure to avoid having to pay a tenant for violating the law.

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.