What’s the Difference Between Non-Disclosure and Misrepresentation When Selling a Home in Boston, Massachusetts?

What’s the Difference Between Non-Disclosure and Misrepresentation When Selling a Home in Boston, Massachusetts?

If you are selling your home in Boston or surrounding areas, it can be difficult to understand what you are legally obligated to disclose to the buyer. For example, do you have to tell the buyer that the plumbing leaks? Or that your home has been the site of a flood? How about that a felony crime occurred in your home? Or that the presence of mold has been detected?

Massachusetts has very specific laws regarding a seller’s duty to disclose information to a buyer. The follow considers those laws, as well as the difference between non-disclosure and misrepresentation when selling a home in Boston:

Massachusetts Buyer Beware Law

Massachusetts maintains the law of “buyer beware,” or caveat emptor. The law essentially means that when a buyer is purchasing a home with a defect of any kind, the buyer inherits the defect and is responsible for it; it is no longer the burden of the seller. It also means that a private seller in Massachusetts has no duty to disclose any defects on the property to the buyer, with two exceptions: a seller must tell a buyer whether or not there is lead paint in the property, as well as whether or not the property has a septic system. If the seller sells the property and later the buyer discovers that there is a defect, the buyer has no legal recourse for holding the seller liable under Massachusetts law.

Non-Disclosure vs. Misrepresentation

While the law protects sellers from disclosing defects about the property, it does not allow for misrepresentation of facts about the property. To be sure, one section of Massachusetts real estate code reads that the lack of disclosure requirement does not “authorize a seller, lessor, or real estate broker or salesman to make a misrepresentation of fact or false statement.”

So what exactly is a misrepresentation as it pertains to disclosure law?

Misrepresentation of a fact is a lie or intentional misstatement of a known truth. For example, when talking to a buyer, a seller does not need to volunteer information about the property. But, if the seller asks something such as, “Has the property ever flooded?” and the seller has knowledge of a flood on the property, the seller must be honest in their response.

This issue was addressed by the Massachusetts Appellate Court in 1994 in the case Greenery Rehabilitation Group Inc. & another vs. Jack J. Antaramian & others. The court concluded that generally, a seller has no duty to disclose defects about a property, and that “such nondisclosure does not amount to fraud.” The court further concluded that simply failing to reveal information is not the same as misrepresentation.

Working with an Experienced Closing Lawyer

The disclosure laws above are one of the biggest arguments for hiring an inspector to assess a property before purchasing it. However, it is also important that you have a closing lawyer on your side who can review all documents related to your transaction and help you to understand your rights.

At ClosingLawyer.Pro, we are here for you. We have the experience and skillset you’re looking for, and always offers consultations free of charge. Contact us today to schedule your free consultation now.  

Posted in Boston Real Estate Attorney
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