Ghosts, Goblins, and Disclosure Laws

By Ryan K. O’Hara, Esq.

It’s 9:53 p.m. on Oct. 31. You’ve just shut off the porch lights after an evening of greeting trick-or-treaters. You’d have expected they’d be a bit more excited about the full-sized candy bars you have sprung for, but most kids seemed nervous to approach and quick to leave. One even mentioned he couldn’t believe you’d bought the old Carpenter place. What was that about? No matter — a successful first Halloween in the new neighborhood.

Bone-tired, you slump onto the couch with a sigh. What a week! Closing on a house and moving mid-week with kids and a cat in tow: now, that’s scary. But now, with the costumed hordes dispersed and your own little monsters comatose from the sugar-high crash, there’s nothing between you and some quality time alone with a good movie (and, of course, the leftover candy).

Why can’t you relax, then? Sure, there’s that nagging feeling of being watched you’ve had since you moved in. That’s just adjusting to a new place, though. So what if a lamp or two has turned itself on and off? Old homes have funky wiring. Granted, the rattling chains and heavy footsteps you’ve heard the first few nights have been … interesting, but surely, it’s just the house settling.

Ryan K. O’Hara

“Massachusetts law generally allocates these risks to the buyer. The rule of ‘caveat emptor,’ or ‘buyer beware,’ remains the driving principle in determining liability between buyers and sellers for undisclosed property issues.”

Having rationally dispelled childish thoughts of ghosts and goblins, you settle in to press play — just as a ghoulish apparition manifests, its pallid flesh inches from your face, its abyssal mouth moaning nine terrifying words: “what, the sellers didn’t tell you about the tenants?”

So, who’s to pay the Ghostbusters’ bill? As unlikely as this haunting scenario may seem, the Massachusetts Legislature has, in fact, enacted a statute to dispel any specter of doubt as to a seller’s potential liability for an undisclosed haunting. Under Massachusetts General Laws, Chapter 93, Section 114, “the fact or suspicion that real property may be or is psychologically impacted shall not be deemed a material fact required to be disclosed in a real estate transaction.”

As used in the statute, ‘psychologically impacted’ includes any suspicion “that the real property has been the site of an alleged parapsychological or supernatural phenomenon.” The statute prohibits any “cause of action … against a seller or lessor of real property or a real estate broker or salesman … for failure to disclose to a buyer or tenant that the real property is or was psychologically impacted.”

Ghost of a Chance

Though Massachusetts property buyers might not often confront this exact issue, unwelcome surprises with newly purchased real estate are unfortunately common. Disappointed purchasers facing unexpected (and often costly) problems with their property frequently ask who is legally responsible to fix the issue.

Massachusetts law generally allocates these risks to the buyer. The rule of ‘caveat emptor,’ or ‘buyer beware,’ remains the driving principle in determining liability between buyers and sellers for undisclosed property issues. Massachusetts common law puts the burden on prospective buyers to ask questions, seek inspection, and generally conduct whatever due diligence they desire before proceeding to purchase a property.

Sellers do not have an affirmative duty to disclose known or potential issues with property before selling, except in limited instances required by statute or regulation (such as the presence of lead or a septic system). And generally, sellers have no obligation to fix issues with a property that come up after closing (with notable exceptions such as the implied warranty of habitability for new homes sold by builder-vendors).

Of course, this does not mean sellers have carte blanche in selling a property with known issues. If asked a question about their property and choosing to answer, sellers must answer honestly. If a seller makes a representation of a material fact regarding the property that a buyer reasonably relies on in choosing to purchase, and that representation is false, the seller may be liable for negligent or intentional misrepresentation.

For example, if a seller is aware of a flooding issue, is asked about whether there is a history of flooding, and falsely states there is none, they may be liable for damages incurred to remedy future flooding. Sellers also cannot conceal issues and prevent prospective buyers from discovering them without exposing themselves to potential liability for doing so. And for sellers who are selling in the conduct of their trade or business (or for agents representing sellers), different obligations and liabilities could arise under the Massachusetts consumer protection law, Massachusetts General Laws Chapter 93A, if known issues are not disclosed.

Still, in the great majority of scenarios, the risk of undisclosed latent property issues lies with the buyer. Accordingly, it is incumbent on buyers to have appropriate caution in pursuing their purchases.

Buyers can take steps to minimize — but not eliminate — this risk. These include being clear on the inspections and due diligence to which they will be entitled, consulting with seasoned professionals (such as real estate agents, inspectors, and attorneys), ensuring material questions they have regarding the property are asked of sellers, and otherwise thoroughly investigating the property they are purchasing before entering binding agreements or proceeding to close.

Bottom Line

Every piece of real property is unique. So is every real estate transaction. If you are buying or selling real estate, or dealing with an issue post-closing, seek advice from trusted professionals to ensure your interests are protected. Otherwise, you may be in for a fright — no matter the time of year.

Attorney Ryan K. O’Hara is an associate in the Northampton Office of Bacon Wilson, P.C. He serves on the board of directors for the Hampden County Bar Assoc. and is a participating member of the Hampshire County Bar Assoc., and is licensed to practice law in the state of Massachusetts. The foregoing was presented for information purposes only, is not legal advice, and does not create an attorney-client relationship.