Disclosure of Certain Stigmas BY MAR LEGAL TEAM
Realtors® are required by Massachusetts law (Chapter 93A) to disclose known physical defects to prospective buyers. This obligation clearly applies to defects such as a leaky roof or a faulty foundation. Often, there are questions about whether Realtors® need to also disclose things that may have a psychological impact on the property: murders, suicides, paranormal phenomenon, and other psychological stigmas. In 1998, Massachusetts enacted the Stigmatized Property Law (Chapter 93, Section 114). This statute specifically states that brokers do not have a duty to investigate or affirmatively
that the question implicates fair housing and direct the prospective buyer to the local police department. Similarly, Realtors® should exercise caution when
disclose murders, suicides, allegations of ghosts, or other
facing questions related to whether a previous occupant
possible stigmas. As with other inquiries from prospective
was diagnosed with COVID-19. The Stigmatized Property
buyers, a Realtor® must answer the question relating to
Law does not require disclosure of diseases that are unlikely
the stigma honestly and to the best of their knowledge.
to be transmitted through occupancy. Furthermore, while
Realtors® do not have a duty to investigate stigmas, even if
it remains a novel question, the National Association of
specifically asked about them by prospective buyers. If the
Realtors® recommends treating COVID-19 as a disability
answer is unknown, or additional information is requested,
protected by the Fair Housing Act, meaning that disclosure of
the Realtor® should direct the prospective buyer to the
an individual’s diagnosis of COVID-19 without their consent
appropriate source of the information.
may violate federal disability protections.
Realtors® must also be cognizant of questions that involve
Massachusetts largely follows the doctrine of caveat
protected classes under the Fair Housing Act. While the
emptor – or buyer beware – when it comes to buying and
Stigmatized Property Law addresses disclosure of crimes that
selling real estate. The required disclosures are fairly limited
may have occurred within the bounds of the property, buyers
under the existing statutory framework. In representing
often inquire about crime in the neighborhood. Realtors®
buyer clients, Realtors® should determine what information
must be careful to avoid steering buyers away from certain
is important to their client and ensure that appropriate
neighborhoods, as this would likely violate the Fair Housing
questions are asked of the seller to enable the buyer to make
Act. If faced with this situation, the Realtor® should explain
an informed decision.
September/October 2020
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