Silence vs. Lies: Your Complete Guide to Massachusetts Caveat Emptor and When Sellers Must Disclose

If you're buying a home in Massachusetts, you've probably heard the phrase caveat emptor—Latin for "let the buyer beware." In practice, that means something very simple and very serious: the burden of discovering defects rests on you, the buyer.

But here's the catch: Massachusetts law also contains powerful protections against misleading statements and deceptive conduct—especially by real estate agents. Understanding where silence is allowed and where it crosses the line into illegality is the key to buying safely in this state.

Massachusetts does not require sellers to provide a comprehensive disclosure form like many other states do. Instead, buyers are expected to conduct their own due diligence before closing. That means:

Hire a licensed professional to examine:

• Roof - Age, condition, leaks, replacement needs
• Foundation - Cracks, settling, water intrusion, structural integrity
• Electrical - Code compliance, capacity, safety hazards, outdated systems
• Plumbing - Water pressure, leaks, pipe material (lead, polybutylene), sewer line condition
• HVAC - Age, efficiency, functionality, replacement costs
• Water Intrusion - Basement flooding, moisture, mold, drainage issues
• Structural Issues - Framing, load-bearing walls, additions, unpermitted work

For properties requiring deeper analysis, consider our Property Evaluator tool for comprehensive value assessment before making an offer.

Sellers don't have to volunteer problems, but they must answer honestly if you ask. Questions should include:

• Has the basement ever flooded? (Even once matters—it indicates risk)
• Any roof or foundation issues? (Past repairs, ongoing problems, known defects)
• Age of furnace, AC, water heater? (Replacement costs can be $5K-$15K each)
• Any past insurance claims? (Water damage, fire, structural issues)
• Any known water intrusion? (Leaks, moisture, mold, drainage problems)
• Unpermitted work or additions? (Can affect insurance, financing, future sales)
• Any environmental issues? (Oil tanks, asbestos, lead, radon, contamination)
• Neighborhood nuisances? (Noise, traffic, events, construction planned)

If asked, sellers must answer truthfully and completely. A half-answer or evasive response can constitute misrepresentation.

Look beyond the house itself:

• Zoning changes - Proposed developments, rezoning, density increases
• Proposed developments - New construction, commercial projects, infrastructure
• Neighborhood nuisances - Traffic patterns, noise sources, events, construction
• Sex offender registry - Public safety information (check Massachusetts Sex Offender Registry Board)
• Environmental factors - Flood zones, contamination sites, air quality, water quality
• School district changes - Redistricting, school closures, new schools
• Transportation projects - MBTA expansions, highway changes, traffic patterns

Sellers generally don't have to disclose these unless you specifically inquire. Use our Town Finder to research area characteristics and neighborhood data for comprehensive location analysis.

While most disclosures are optional, two are legally required:

For homes built before 1978, sellers must:

• Provide the federal Lead Paint notification
• Disclose known information about lead-based paint hazards
• Give buyers the Lead Paint pamphlet
• Allow buyers 10 days to conduct a lead inspection (if requested)

For more on pre-1978 homes and their unique risks, see our comprehensive guide to older home challenges.

If the property uses a septic system:

• Seller must disclose in writing
• System must be inspected within 2 years of sale
• Seller must provide the Title 5 report
• Buyer has right to review the inspection report

Here's the legal truth:

Massachusetts courts generally allow sellers to remain silent about defects unless they lie, conceal, or mislead.

The famous Swinton v. Whitinsville Savings Bank case (1942) established that sellers can say nothing about defects—even hidden ones—if they don't actively mislead the buyer.

Translation: If you don't ask, they don't have to tell you.

This is why your inspection and questions matter more in Massachusetts than almost anywhere else.

If a seller chooses to speak about a feature, they must disclose the whole truth.

Examples of illegal half-truths:

• Advertising an attic as a bedroom while hiding the fact it's illegal (no egress, no permit)
• Promoting rental income when zoning prohibits the use
• Claiming "updated systems" while concealing that updates were unpermitted
• Stating "no known problems" when problems were actually known
• Describing property as "move-in ready" when major repairs are needed

Once they speak, they cannot create a misleading impression.

Even if a seller doesn't intend to lie, they can still be liable if:

• They make a specific fact-based statement
• It turns out false
• You relied on it
• You suffered damages as a result

Important: Waiving inspection does not automatically remove your rights if the seller made a specific misstatement (e.g., "new roof deck"). However, proving reliance becomes more difficult if you waived inspection, so always conduct due diligence.

This is where Massachusetts becomes unusually protective of buyers.

Under Massachusetts General Laws Chapter 93A (the Consumer Protection Act), agents are considered businesses and must:

• Disclose known material defects - Agents cannot remain silent about problems they know exist
• Avoid deceptive conduct - No misleading statements, half-truths, or omissions
• Avoid misleading omissions - If silence would create a false impression, disclosure is required
• Verify important facts - Agents must exercise reasonable care in verifying property information
• Avoid passing along false information - Even if the seller provides false information, agents cannot simply pass it along without verification

What counts as a "material" fact?

Anything a reasonable buyer would want to know, including:

• Structural problems - Foundation issues, framing problems, structural damage
• Foundation issues - Cracks, settling, water intrusion, structural integrity
• Wet basements - Flooding history, moisture problems, drainage issues
• Unpermitted work - Additions, renovations, electrical, plumbing without permits
• Zoning violations - Illegal use, setback violations, non-conforming structures
• Off-site hazards - Environmental contamination, flood risk, noise sources (if not obvious)
• Known defects - Any problems the agent is aware of, even if not visible

This is why most post-closing lawsuits target agents—not sellers. Agents have higher legal duties and deeper pockets.

For comprehensive guidance on working with agents, see our complete guide to buyer agency in Massachusetts.

You may have legal options, depending on the type of misconduct:

Courts may award:

• Repair costs - Cost to fix the defect
• Diminished value damages - Difference between property value with and without the defect
• Attorney fees - Legal costs (especially under Chapter 93A)
• Sometimes rescission - Rare but powerful: court can order the sale to be undone (rescinded)

Caveat emptor does not protect a lying seller or a concealing agent.

But it does protect a silent seller—so your inspection and questions matter more in Massachusetts than almost anywhere else.

Massachusetts buyer protection works like this:

✅ Ask everything - Direct, specific questions about known issues
✅ Inspect thoroughly - Comprehensive home inspection by licensed professional
✅ Assume nothing - Verify all claims, check permits, research history
✅ Document all answers in writing - Email is sufficient, verbal is not
✅ Use your inspection contingency - Never waive it entirely
✅ Hire an experienced buyer's agent - They have legal duties to protect you
✅ Don't rely on goodwill - Trust but verify
✅ Don't rely on assumptions - Ask specific questions
✅ Never rely on the listing - Listings are marketing, not disclosure

Continue your buyer education with these comprehensive guides:

• Forensic Red Flags: How to Identify Real Estate Fraud Before You Sign - Learn the patterns that expose shell companies, predatory lending, and equity stripping schemes
• The New Rules of Homebuying: Buyer Agency in Massachusetts - Complete guide to hiring, vetting, and paying your buyer's agent
• Listing Agent Questions: Town-by-Town Guide - Essential questions to ask listing agents about properties
• Pre-1978 Homes: The 50-Year Obsolescence Challenge - Understanding the unique risks of older homes
• Essential Knowledge - Comprehensive buyer education resources

Use our tools for comprehensive due diligence:

• Property Analysis - Comprehensive property evaluation and risk assessment
• Property Evaluator - Professional property value analysis reports
• Town Finder - Research towns and neighborhoods
• Glossary - Real estate terms and definitions

This guide provides educational information about Massachusetts real estate disclosure law based on publicly available legal sources, including court decisions, statutes, and legal precedent. It is not legal advice and does not create an attorney-client relationship. Real estate law is complex and fact-specific. Consult a qualified Massachusetts real estate attorney for advice specific to your transaction.

Key Legal Sources Referenced:

• Swinton v. Whitinsville Savings Bank, 311 Mass. 677 (1942)
• Kannavos v. Annino, 356 Mass. 42 (1969)
• Cance v. Carbone, 92 Mass. App. Ct. 1108 (2020)
• Massachusetts General Laws Chapter 93A (Consumer Protection Act)
• Residential Lead-Based Paint Hazard Reduction Act (1992)
• Massachusetts Title 5 Septic System Regulations