By: The Massachusetts Association of REALTORS® Legal Team
 

Q: What language can we include in the contract to purchase regarding inspections? Can we specify that the buyer is only inspecting structural issues?

A: The regulation does not allow the seller to accept an offer where there is a limitation or restriction of the right to conduct a home inspection (as defined by regulation). Limiting the ability to terminate the contract to only structural issues would limit the buyer’s right to inspect as defined by the law.

Home inspection of systems and components that are readily accessible and observable, as defined in the regulations: roof, exterior, structure, electrical, plumbing, heating, cooling, general interior conditions, insulation and ventilation.

The buyer, however, is free to include, limit, or restrict additional inspections beyond the scope of the legal definition, which may include items that may require subject experts such as engineering and environmental; pests, radon, sound proofing, soils, well water, etc.

See MAR’s webpage dedicated to Home Inspection Regulations for more information.  

Q: According to the home inspection law, when can a buyer waive a home inspection?

A: There are two instances where a buyer can waive a home inspection under the new law. The first is if the transaction falls into one of the few narrow exemptions. These generally include transactions that are not arm’slength transactions and include transfers such as transfers due to divorce, foreclosure, and for estate planning purposes. The one exemption that may be relevant to REALTORS® is the exemption for new construction where there is not substantial completion of the home. The second time a buyer may waive their right to a home inspection is after acceptance of their contract to purchase. The purpose of the home inspection law is to secure the right of a buyer to conduct a home inspection if they wish and remove the ability to waive or negotiate away that right ahead of entering into a contract. The buyer ultimately does not have to have a home inspection; their right to have a home inspection is a right that exists post contract for the term indicated in the contingency. If they do not want to exercise that right, they can terminate the contingency by either moving to the secondary contract (Purchase and sales agreement) or they can terminate the contingency by utilizing Form 523: Post-Contract Termination of Inspection Rights after they have a fully executed offer.

Q: How should agents handle the Property Transfer Lead Paint Notification form when submitting an offer? Can a buyer waive the lead paint inspection?

A: Yes, a lead inspection is separate from the buyer’s right to conduct a home inspection and should be treated as such. A buyer may not be concerned about lead paint but may still wish to perform a home inspection. Indicating a waiver for the lead inspection does not imply that the buyer will forgo their home inspection after the offer is accepted. Additionally, while MAR’s Contract to Purchase includes lead as a possible inspection, identifying lead hazards is not part of the state-defined home inspection.

Services provided through the Massachusetts Association of REALTORS® is intended for informational purposes and does not constitute legal advice, nor does it establish an attorney-client relationship. The Massachusetts Association of REALTORS®, by providing this service, assumes no actual or implied responsibility for any improper use of responses to questions through this service.  The Massachusetts Association of REALTORS® will not be legally responsible for any potential misrepresentations or errors made by providing this service. For more information regarding these topics authorized callers should contact the MAR legal hotline at 800-370-5342 or e-mail at legal@marealtor.com.