3.2 Property Disclosures

Caveat Emptor — With Hard Limits

Unlike most states, Massachusetts does not require a standardized seller property-condition disclosure form. The default rule is caveat emptor ("let the buyer beware"): the buyer bears responsibility to inspect. But this rule has firm boundaries that the exam tests heavily — a seller's silence is permitted, but a seller's lie or active concealment is not.

What caveat emptor does and does not allow

The 93A overlay

Massachusetts General Laws Chapter 93A (the Consumer Protection Act) and 940 CMR 3.16 make it an unfair or deceptive act for a seller or broker to fail to disclose a known material fact that could influence the buyer, or to misrepresent condition. A 93A violation can expose the wrongdoer to double or treble damages plus attorney's fees. So while there is no disclosure form, brokers have a real duty not to participate in deception.

The licensee's distinct duty

A real estate licensee's disclosure duty is broader than the seller's. Under 254 CMR and 93A, a broker who knows of a material defect must disclose it to the buyer regardless of the seller's silence. A broker cannot hide behind caveat emptor. Stigma-only facts (e.g., a prior death on the property) are generally not material defects a seller must disclose under Massachusetts law, but a direct question must still be answered truthfully.

Mandatory Affirmative Disclosures at Sale

Despite caveat emptor, several affirmative disclosure or certificate requirements apply to Massachusetts residential sales.

1. Federal Lead Paint (pre-1978 housing)

For target housing built before 1978, federal law (and Massachusetts's strict lead law) requires the seller to:

The seller is not required to test for or remove lead to sell. However, Massachusetts's own lead law requires removal/abatement when a child under 6 resides in the unit, which is a key state-specific add-on the exam tests.

2. Smoke and Carbon Monoxide Detector Certificate

Before the deed transfers, the seller must obtain a Smoke and Carbon Monoxide Detector Certificate from the local fire department certifying compliant, working detectors (M.G.L. c.148, §26F and §26F1/2). Without it, the closing generally cannot proceed. The seller pays the inspection fee.

3. Title 5 Septic System Inspection

For properties served by a private septic system, Title 5 (310 CMR 15.00) requires:

A common exam trap: students think Title 5 requires removal of any septic system, or that the certificate is good for 5 years. The inspection is valid for 2 years (3 with pumping records), and only failed systems must be upgraded.

Other Disclosure Touchpoints and Practical Tips

Beyond the three mandatory items, several disclosure situations recur in Massachusetts practice and on the exam.

Agency disclosure

Massachusetts requires licensees to provide the Massachusetts Mandatory Licensee-Consumer Relationship Disclosure form at the first personal meeting to discuss a specific property. This is a state-required disclosure of whether the agent is a seller's agent, buyer's agent, or facilitator. It is not a property-condition disclosure, and students sometimes confuse the two — but it is a hard requirement under 254 CMR 3.00.

Stigmatized property and psychological facts

A seller is generally not required to disclose psychological or stigma facts, but if a buyer asks directly, the licensee must answer truthfully or decline rather than lie.

Practical broker workflow

Because there is no standard form, prudent Massachusetts brokers often use a voluntary seller statement and recommend a professional home inspection to the buyer in writing. This protects the buyer (caveat emptor) and shields the broker from later 93A claims. The broker should document in the file that the lead, smoke/CO, and Title 5 obligations were communicated. Failing to flag a known defect — even one the seller stayed silent about — exposes the broker personally, because the licensee's disclosure duty is independent of the seller's.