Latent Defects in Massachusetts Real Estate | Seller Disclosure Laws

by Jim Armstrong

Selling a home in Massachusetts comes with legal responsibilities that many sellers underestimate. One of the most common—and costly—mistakes sellers make is failing to disclose latent defects.

In Massachusetts, sellers who knowingly fail to disclose hidden material defects can face serious legal consequences, including lawsuits for misrepresentation, fraud, and violations of Massachusetts General Laws Chapter 93A. These claims can arise months—or even years—after the sale has closed.

Understanding what latent defects are, and how disclosure laws work in Massachusetts, is essential to protecting yourself as a home seller.

What Is a Latent Defect Under Massachusetts Law?

A latent defect is a material defect that:

Is not readily observable through a reasonable inspection
Is known to the seller at the time of sale
Materially affects the value, use, or desirability of the property

This is different from a patent defect, which is open and obvious to a buyer (such as cracked tiles or missing railings).

Massachusetts courts focus heavily on what the seller knew and whether the buyer could reasonably have discovered the issue on their own.

Common Examples of Latent Defects in Massachusetts Homes

Some of the most common latent defect claims in Massachusetts involve:

Chronic basement flooding or water intrusion
Prior mold problems that were concealed or painted over
Known roof leaks temporarily patched before listing
Structural issues hidden behind finished walls
Unsafe or non-code-compliant electrical wiring
Septic system failures or recurring backups
Undisclosed fire, smoke, or water damage
Known foundation settlement or movement

If the seller knew about the issue—even if they believed it was “fixed”—it should be disclosed.

Massachusetts Disclosure Obligations: What Sellers Are Legally Required to Reveal

Massachusetts does not use a single standardized seller disclosure form like some states. However, that does not mean sellers have no duty to disclose.

Under Massachusetts common law and consumer protection statutes, sellers must disclose known material defects that are not readily observable and that could influence a buyer’s decision.

Failure to do so can expose a seller to claims for:

Fraud or negligent misrepresentation
Breach of contract
Rescission of the sale
Violations of Chapter 93A (Unfair and Deceptive Practices)

Chapter 93A claims are especially serious. If a seller is found to have knowingly concealed a defect, a court may award:

Treble damages (triple damages)
Attorney’s fees and costs

“As-Is” Sales Do NOT Eliminate Disclosure Obligations in Massachusetts

One of the biggest myths in Massachusetts real estate is that selling a home “as-is” removes the seller’s disclosure obligations.

It does not.

An as-is sale means the seller is not agreeing to make repairs. It does not permit:

Concealing known defects
Providing misleading or incomplete answers
Remaining silent about material issues the seller knows exist

Massachusetts courts have consistently ruled that “as-is” language does not protect sellers from claims of fraud or misrepresentation.

Why a Buyer’s Home Inspection Does Not Protect the Seller

Another common misconception is that a buyer’s home inspection shields the seller from liability.

In Massachusetts, a seller may still be liable if the defect was:

Known to the seller
Hidden or concealed
Outside the scope of a typical inspection
Not reasonably discoverable by the buyer

Home inspectors rely, in part, on seller disclosures. Withholding known information can undermine the inspection process and expose the seller to liability.

Most lawsuits don’t start over small cosmetic issues. They arise when buyers discover:

Expensive, recurring, or chronic problems
Evidence that the seller knew about the issue before closing

During litigation, buyers often uncover:

Contractor invoices
Insurance claims
Emails or text messages
Neighbor or tenant testimony

Many sellers are surprised by how easily prior knowledge can be proven.

Best Practice for Massachusetts Home Sellers: When in Doubt, Disclose

The safest and smartest approach is simple:

If you know about it, disclose it.

Disclosure does not mean you must repair the issue. It means you must be honest about what you know.

Proper disclosure:

Reduces legal exposure
Builds buyer trust
Prevents post-closing disputes
Allows for informed negotiations

In many cases, disclosure does not derail a sale—it simply leads to realistic pricing or negotiated terms.

Get Professional Guidance Before You List

If you are selling a home in Massachusetts and are unsure what must be disclosed, consult a knowledgeable real estate professional before listing.

A proactive strategy can help you:

Identify potential disclosure risks
Present issues transparently
Protect yourself from future legal claims

👉 Related Resources:

Final Thoughts

Latent defects are one of the leading causes of real estate litigation in Massachusetts. Sellers who fail to disclose known material issues often face lawsuits that cost far more than any upfront transparency would have.

Honest disclosure is not just the right thing to do—it’s the best legal protection a Massachusetts home seller can have.

FAQ - Frequently Asked Questions: Latent Defects in Massachusetts

What is a latent defect in a Massachusetts home sale?

A latent defect is a material problem with a property that is not readily observable during a reasonable inspection and is known to the seller. These defects are hidden and may affect the value, safety, or use of the property.

Are Massachusetts home sellers required to disclose latent defects?

Yes. Even though Massachusetts does not require a single statewide seller disclosure form, sellers may still be legally responsible for failing to disclose known material defects that are not obvious to a buyer.

What are common examples of latent defects in Massachusetts homes?

Examples include chronic basement flooding, concealed mold history, known roof leaks, hidden structural damage, unsafe or non-code-compliant wiring, undisclosed fire or water damage, and recurring septic or sewer problems.

Does selling a home “as-is” in Massachusetts eliminate disclosure obligations?

No. Selling a home “as-is” generally means the seller is not agreeing to make repairs, but it does not protect a seller who knowingly conceals or misrepresents a material defect.

Can a Massachusetts home seller be sued after closing for undisclosed latent defects?

Yes. A seller may face legal claims after closing if a buyer discovers a hidden material defect and can show that the seller knew about the issue and failed to disclose it or provided misleading information.

Does a buyer’s home inspection protect the seller from liability?

Not necessarily. A home inspection may not uncover hidden or concealed defects, and an inspection does not automatically relieve a seller of responsibility if the seller knew about a material defect and did not disclose it.

What is Chapter 93A and why is it relevant to Massachusetts home sellers?

Chapter 93A is Massachusetts’ consumer protection law addressing unfair or deceptive practices. In certain situations, failure to disclose known material defects can increase a seller’s legal exposure, including potential attorney’s fees and enhanced damages.

If a defect was repaired, does it still need to be disclosed?

Often, yes. If a defect was significant, recurring, or could reasonably affect a buyer’s decision, disclosing the history of the issue and the repair may be appropriate.

What is the safest disclosure approach for Massachusetts home sellers?

The safest approach is to disclose known material issues in writing and provide documentation when available. Sellers who are unsure about a specific situation may wish to consult a qualified real estate professional or attorney.

Jim Armstrong
Broker, Certified Massachusetts Real Estate Instructor
Armstrong Field Group
Aluxety Real Estate