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Offer to Purchase vs Purchase and Sale Agreement in Massachusetts

A typical Massachusetts home purchase uses two documents. First comes the Offer to Purchase, signed by the buyer and accepted by the seller. Later comes the longer Purchase and Sale Agreement, often called the P&S. Many people treat the offer as a formality. It is not: in McCarthy v. Tobin, 429 Mass. 84 (1999), the Supreme Judicial Court held that a signed offer on a standard form, with all the material terms, was a binding contract even though it said it was subject to a later Purchase and Sale Agreement.

So read the offer as carefully as the P&S. Whether a given offer binds you depends on its wording, and that is a question for a Massachusetts real estate attorney.

What is the Offer to Purchase?

The offer is usually a short form. It names the property, the price, the deposit, the closing date and the main conditions, such as financing and inspections. It also sets a date by which the parties will sign the P&S.

Deadlines in Massachusetts home sales come from the contract, not from a state statute. The offer and the P&S set the dates for the inspection, the mortgage commitment and closing. Read each date and count the days yourself.

Some things the law requires to happen before or around the offer stage:

• Home inspection brochure. Under M.G.L. c. 112, Section 87YY½, a home inspection brochure must be given to the buyer when the first written contract to purchase is signed. The same section bars brokers from directly recommending a specific home inspector unless a written agreement makes the broker the buyer's exclusive agent. On request, they can give the full list of licensed inspectors prepared by the state board.
• Lead paint notification. For a home built before 1978, the buyer must receive the Property Transfer Lead Paint Notification before signing the Purchase and Sale Agreement. See our lead paint law guide.

What happens between the offer and the P&S?

This window is usually when the buyer does inspections. In Massachusetts, home inspectors must be licensed under M.G.L. c. 112, Section 222 and must give a written report. Buyers of pre-1978 homes have at least 10 days, or longer if agreed, to get a lead inspection if they choose.

The buyer also starts the mortgage application, and the two sides draft and negotiate the P&S. Either side can have a Massachusetts real estate attorney draft or review it. If the home has a septic system, the Title 5 report should be in hand or scheduled. See the Title 5 guide.

What does the Purchase and Sale Agreement add?

The P&S is the detailed contract. It typically covers:

• The full legal description of the property and what is included, such as appliances
• Any additional deposit and who holds it
• The mortgage contingency and its deadline
• What happens if the title is defective or the property is damaged before closing
• Who handles items like the Title 5 inspection and the smoke and CO certificate
• Remedies if either side backs out without a contract right to do so

Check whether the P&S says it replaces the offer, and make sure any terms you negotiated in the offer carried over.

What should buyers watch?

• Know which conditions let you withdraw and keep your deposit, and the date each one ends.
• Do not let the inspection deadline pass while waiting for a report.
• Get the lead paint notification and sign its certification before signing the P&S on a pre-1978 home.
• Plan to record a declaration of homestead after closing if you want more protection than the automatic amount.

What should sellers watch?

• Accepting an offer can bind you. Be careful about accepting a second offer while one is signed.
• Book the smoke and CO inspection once there is a closing date. See the smoke and CO guide.
• Give the lead paint notification and any lead reports before the P&S is signed.

FAQ

Is a Massachusetts Offer to Purchase legally binding?

It can be. In McCarthy v. Tobin (1999), the Supreme Judicial Court found a signed standard-form offer was a binding contract. Whether yours is depends on its wording; ask a Massachusetts attorney.

How long between the offer and the P&S?

No statute sets it. The offer names the date, and the parties negotiate it.

When do I get the lead paint notice?

For pre-1978 homes, before you sign the Purchase and Sale Agreement. You then have at least 10 days, or longer if agreed, to get a lead inspection.

Can the listing agent recommend a home inspector?

Massachusetts law bars brokers from directly recommending a specific home inspector, except where a written agreement makes the broker the buyer's exclusive agent. They can provide the state's full list on request.

Should I have an attorney review the offer?

Because a signed offer can bind you, it is worth having a Massachusetts real estate attorney look at it, and at the P&S, before you sign.

Next step

A licensed local real estate agent can explain each date in your offer and help you schedule inspections inside those windows. Have a Massachusetts real estate attorney review the offer and the P&S before you sign.

Sources: McCarthy v. Tobin, 429 Mass. 84 (1999); M.G.L. c. 112, Section 87YY½, M.G.L. c. 112, Section 222, DPH: Property Transfer Lead Paint Notification, Property Transfer Lead Paint Notification, CLPPP Form 95-17 (PDF).

Lyn Robinson

Lyn Robinson Real Estate, LLC

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Massachusetts Seller Disclosure: What Sellers Must Tell Buyers

Massachusetts does not have a mandatory statewide seller disclosure form. Home sales here generally follow caveat emptor, or "buyer beware," as the Massachusetts Association of REALTORS® (MAR) legal hotline puts it. That does not mean sellers can say nothing. Several specific disclosures are required, real estate agents must disclose known material defects, and nobody is allowed to lie.

For sellers, the practical rule is simple: what you choose to say must be true. For buyers, the lesson is that a quiet seller is not a promise that the house is sound. Your own inspections do the heavy lifting.

What disclosures does Massachusetts require?

Even without a general form, these items come up in most sales:

• Lead paint. For a home built before 1978, sellers and agents must give the buyer the Property Transfer Lead Paint Notification before the buyer signs a Purchase and Sale Agreement, share any lead inspection reports or letters of compliance or interim control, and tell the buyer anything they know about lead in the home. This comes from M.G.L. c. 111, Section 197A and federal law. Details are in our lead paint law guide.
• Septic. If the home has a private septic system, the buyer must receive a copy of the Title 5 inspection report from the seller. See the Title 5 inspection guide.
• Smoke and CO alarms. Not a disclosure, but a required certificate from the local fire department. See the smoke and CO certificate guide.

What must real estate agents disclose?

Agents carry a stronger duty than sellers. The Board of Registration of Real Estate Brokers and Salespersons' rules at 254 CMR 3.00 say a licensee has an affirmative obligation to disclose known material defects in real property. That applies even to a facilitator who represents neither side.

The Attorney General's consumer protection rule at 940 CMR 3.16(2), issued under Chapter 93A, treats it as unfair or deceptive for a covered party to fail to disclose any fact that may have influenced the buyer not to enter the transaction. Chapter 93A reaches people acting in trade or commerce, which includes real estate businesses. Whether it reaches a particular private seller is a question for a Massachusetts attorney.

What are sellers not required to disclose?

M.G.L. c. 93, Section 114 says the fact or suspicion that a property is "psychologically impacted" is not a material fact that must be disclosed. The statute's examples include a property being the site of a felony, suicide or homicide, an alleged supernatural event, or an occupant with HIV or another disease highly unlikely to spread through living in a home.

The same section says it does not authorize a seller or agent to make a misrepresentation of fact or a false statement. If a buyer asks a direct question, the answer still has to be honest.

What should sellers do?

Many sellers fill out a voluntary condition statement offered by their agent's brokerage or association. If you do, answer carefully. MAR's hotline notes that information a seller provides, on a form or in answer to direct questions, must be accurate.

• Gather repair records, permits and warranties before you list.
• If you are unsure of something, say you do not know rather than guessing.
• Tell your agent about known defects. Remember the agent has a duty to disclose known material defects.
• Check the state's Lead Safe Homes database for your address if the home was built before 1978.

What should buyers do?

Treat seller statements as a starting point. In Massachusetts, the buyer's protection comes mostly from inspections and the contract:

• Hire a licensed home inspector. Under M.G.L. c. 112, Section 222, anyone doing home inspections for pay must be licensed and provide a written report. You can check a license with the state's professional license lookup.
• For a pre-1978 home, decide whether to use your right to a lead inspection. Most home inspectors are not licensed lead inspectors.
• Read the Title 5 report if the home is on septic.
• Ask direct questions in writing about water, roof, heating and past repairs.
• Have the inspection and other contingencies written into the Offer and the Purchase and Sale Agreement. See Offer to Purchase vs Purchase and Sale Agreement.

FAQ

Is there a required seller disclosure form in Massachusetts?

No statewide form is required for a typical home sale. Specific notices still apply, most importantly the Property Transfer Lead Paint Notification for homes built before 1978.

Can a Massachusetts seller lie about a defect if no form is required?

No. M.G.L. c. 93, Section 114 states that it does not authorize misrepresentations or false statements, and consumer protection and fraud law still apply. Answers a seller chooses to give must be true.

Does the listing agent have to tell me about problems?

Under 254 CMR 3.00, real estate licensees have an affirmative obligation to disclose known material defects in the property.

Does a seller have to say someone died in the house?

Massachusetts law says a property being the site of a felony, suicide or homicide is not a material fact that must be disclosed. A seller or agent still cannot give a false answer.

Is a home inspection required?

No, but it is the buyer's main protection under caveat emptor. Anyone paid to do home inspections in Massachusetts must be licensed.

Next step

A licensed local real estate agent can walk sellers through what to gather and disclose before listing, and help buyers set inspection deadlines in the offer. For questions about legal liability in a specific deal, talk with a Massachusetts real estate attorney.

Sources: MAR: Notes From the Legal Hotline, March 2024, 254 CMR 3.00 (PDF), M.G.L. c. 93, Section 114, M.G.L. c. 111, Section 197A, DPH: Property Transfer Lead Paint Notification, MassDEP: Buying or Selling Property with a Septic System, M.G.L. c. 112, Section 222, 940 CMR 3.16.

Lyn Robinson

Lyn Robinson Real Estate, LLC

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Selling a Longtime Family Home or Estate Property in Massachusetts

Selling a home you have lived in for decades, or a parent's home after they pass, involves the same Massachusetts seller steps as any sale plus a few of its own. The biggest one for an estate: if the owner has died, the person handling the estate may need permission from the Probate and Family Court before the sale is final.

Older homes also tend to trigger more of the state's sale requirements. A house built before 1978 needs the lead paint notification. One with original alarms may need new ones before the fire department signs off. One on septic needs a Title 5 inspection unless an exemption applies.

Who has authority to sell?

That depends on the owner's situation:

• The owner is living and selling. The owner signs. If someone else is signing for them, for example under a power of attorney or as a court-appointed conservator, ask the closing attorney early what paperwork the buyer's lender and title insurer will need.
• The home is in a trust. The trust document and the trustee control the sale. Have the closing attorney confirm who must sign.
• The owner has died. The personal representative of the estate (the executor or administrator) usually handles the sale, as described below.

When does an estate need a court license to sell?

Under the Massachusetts Uniform Probate Code, M.G.L. c. 190B, Section 3-715, a personal representative's sale of the estate's real estate to an arm's-length buyer is conclusive if:

• the person died without a will and a license to sell has been issued under chapter 202, or
• the person died with a will and either the will empowered the personal representative to sell the real estate, or a license has been issued under chapter 202.

In other words, if there is no will, or the will gives no power of sale, plan on a license from the court. The petition is the Probate and Family Court's Petition for Sale of Real Estate (MPC 210), filed under M.G.L. c. 202, Section 19.

The court's checklist for that petition (MPC 973) lists, among other items:

• The petition with a description of the real estate
• An inventory (MPC 854)
• An affidavit that the estate does not need a Massachusetts estate tax filing, or a closing letter, release or discharge from the Commissioner of Revenue
• A military affidavit and a return of service, unless all interested persons assent
• A proposed decree (MPC 794)

Getting assents from all heirs can simplify the process. Court timing varies, so talk with the estate's attorney before you set a closing date with a buyer.

Which sale requirements still apply?

An estate or longtime-owner sale goes through the same state checks as any other:

• Title 5 septic inspection. MassDEP exempts some family transfers, such as between spouses, parents and children, or full siblings. A sale to an unrelated buyer is not exempt. See the Title 5 guide.
• Smoke and CO alarm certificate. Required from the local fire department on sale or transfer. Older alarms often need replacing; the state says smoke alarms cannot be more than 10 years old. See the smoke and CO certificate guide.
• Lead paint notification. For homes built before 1978, the buyer must get the Property Transfer Lead Paint Notification before signing the Purchase and Sale Agreement, along with any lead reports you have.

Heirs who never lived in the house may know little about its condition. Massachusetts has no mandatory seller disclosure form, but any answer the estate gives must be accurate. Saying "we do not know" is better than guessing. Our seller disclosure guide covers what is required.

What about a death in the home?

M.G.L. c. 93, Section 114 says the fact that a property was the site of a felony, suicide or homicide is not a material fact that must be disclosed. It also says no one may make a false statement, so a direct question still needs an honest answer.

What should downsizing owners think about?

If you are selling to move somewhere smaller, a few planning points help:

• Start early on records. Find permits, septic pumping records and any lead paint letters. The state's Lead Safe Homes database may show your home's lead history.
• Line up the next home. Coordinate the sale and purchase dates in both contracts so you are not moving twice.
• Homestead on the next home. Under M.G.L. c. 188, Section 2, an elderly or disabled owner's declared homestead ends when that owner sells the home. Owners 62 or older can record a new elderly declaration on the next home. See our homestead guide.
• Taxes. Ask a tax professional about the sale before you sign, especially for an inherited home.

FAQ

Does every estate sale need probate court approval?

No. Under M.G.L. c. 190B, Section 3-715, a will that empowers the personal representative to sell can be enough. Without a will, or without that power in the will, a license to sell under chapter 202 is needed.

What form asks the court for a license to sell?

The Petition for Sale of Real Estate, MPC 210. The court publishes a checklist (MPC 973) of the other documents that go with it.

Is an inherited home exempt from Title 5?

Not when it is sold to an unrelated buyer. MassDEP's family exemptions cover transfers between spouses, parents and children, and full siblings, among others.

Does the estate need the smoke and CO certificate?

Yes. State law ties the fire department inspection to the sale or transfer of the home, not to who the seller is.

Should the estate fix up the house before selling?

That is a judgment call that depends on the house, the heirs and the market. A licensed local agent can show what similar homes sold for as-is and after updates.

Next step

A licensed local real estate agent who works with older homeowners and estates can help you sort the house, plan the inspections and time the listing around court approval. The estate's attorney should confirm the personal representative's authority before you accept an offer.

Sources: M.G.L. c. 190B, Section 3-715, M.G.L. c. 202, Section 19, Probate and Family Court: Petition for Sale of Real Estate (MPC 210), Checklist for Petition for Sale of Real Estate (MPC 973, PDF), MassDEP: Buying or Selling Property with a Septic System, DFS smoke and CO guide (PDF), M.G.L. c. 93, Section 114, M.G.L. c. 188, Section 2.

Lyn Robinson

Lyn Robinson Real Estate, LLC

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Selling a Massachusetts Home? Get the Smoke and CO Alarm Certificate

When you sell a home in Massachusetts, the local fire department inspects the smoke and carbon monoxide (CO) alarms. If they pass, the department issues a certificate of compliance. The Department of Fire Services (DFS) tells sellers to call the fire department to schedule the inspection as soon as they have a closing date.

The rules come from two sections of state law: M.G.L. c. 148, Section 26F for smoke alarms and Section 26F½ for carbon monoxide alarms. What your house needs depends mostly on when it was built and when its last major building permit was issued.

What does the law require?

Section 26F says residential buildings covered by it must, on sale or transfer, be equipped by the seller with approved smoke detectors, and the head of the fire department enforces it. Section 26F½ says every dwelling occupied for residential purposes must, on sale or transfer, be inspected by the head of the fire department for carbon monoxide alarm compliance.

The DFS guide for one- and two-family homes adds context. The smoke alarm transfer law applies to homes built or modified before the State Building Code took effect on January 1, 1975. For later homes, the date of the building permit decides which building code requirements apply. DFS also notes that most purchase and sale agreements, and many mortgage lenders, require a certificate from the fire department even for homes permitted after 1975.

Smoke and CO inspections can happen in the same visit.

What do inspectors look for?

Requirements vary by the age of the home. For a typical one- or two-family home built before January 1, 1975, the DFS guide lists:

• Smoke alarms on every habitable level, in the basement, on the ceiling at the base of each stairway leading to a floor above, and on the ceiling outside each separate sleeping area
• Smoke alarms that are photoelectric (they may be combined with ionization or CO)
• Smoke alarms no more than 10 years old, and not past the manufacturer's recommended life
• CO alarms on every level, including habitable parts of basements and attics, within 10 feet of each bedroom door

Homes permitted between 1975 and August 27, 1997, and after that date, have their own requirements, including hardwired, interconnected smoke alarms. Read the section of the DFS guide that matches your home's permit date.

Since March 31, 2006, CO alarms have been required in all residences with fossil fuel burning equipment or an attached enclosed garage, whether or not the home is being sold. DFS gives gas water heaters, oil or gas furnaces, fireplaces, pellet stoves, gas dryers and gas stoves as examples.

How do I prepare for the inspection?

DFS walks sellers through these steps:

• Find out when the home was built and when the last building permit for renovations was issued. Your building department can tell you.
• Match those dates to the requirements in the DFS guide.
• List every smoke and CO alarm in the house and check its date of manufacture. DFS says an alarm with no date has expired and must be replaced.
• Replace anything that does not meet the requirements. You may need an electrician for hardwired alarms.
• Test the new alarms once installed.

Battery-powered smoke alarms that are more than 10 years old or expired must be replaced with photoelectric alarms that have 10-year sealed, non-rechargeable, non-replaceable batteries and a hush feature.

The fire department charges a fee for the inspection and certificate. Fees and scheduling vary by town, so call your local department.

Where does this fit in the sale?

The alarm certificate is one of several items Massachusetts sellers line up before closing. If the home has a septic system, plan for the Title 5 inspection. If it was built before 1978, the buyer must get the Property Transfer Lead Paint Notification before signing the Purchase and Sale Agreement.

Older homes often need several new alarms to meet current rules. Checking dates a few weeks before the inspection gives you time to buy and install alarms without delaying closing.

FAQ

Who issues the smoke and CO certificate?

The local fire department, after its inspection. DFS calls it a certificate of compliance.

When should I schedule the inspection?

DFS says to call the fire department as soon as you have a closing date. Some towns will not book until the date is set.

Does a home built after 1975 still need a certificate?

The CO inspection applies to every residential sale under Section 26F½. For smoke alarms, DFS says most purchase and sale agreements and many lenders require a certificate even for newer homes.

Can I install the alarms myself?

Yes, DFS says you can buy and install them yourself or hire someone. Replacing hardwired alarms may need an electrician.

How much does the inspection cost?

Each fire department sets its own fee. Call yours for the current amount.

Next step

A licensed local real estate agent can help you put the alarm inspection on the same calendar as your closing and other seller items. For questions about what your specific home needs, DFS points sellers to their local fire department.

Sources: DFS: Preparing Your Home for a Smoke and CO Alarm Inspection, DFS: Guide to Massachusetts Smoke and Carbon Monoxide Requirements When Selling a One- or Two-Family Residence (PDF), M.G.L. c. 148, Section 26F, M.G.L. c. 148, Section 26F½.

Lyn Robinson

Lyn Robinson Real Estate, LLC

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Selling a Massachusetts Home With a Septic System: The Title 5 Inspection

If your Massachusetts home is on a private septic system, the sale usually needs a Title 5 inspection. MassDEP says the inspection must take place within two years before the sale. If weather prevents it, the inspection can be done up to six months after the sale, as long as the seller tells the buyer in writing.

Title 5 is the state's septic code, 310 CMR 15.000. The inspection rules for property transfers are in 310 CMR 15.300 to 15.305. Your local Board of Health enforces them, and some towns add stricter local rules, so check with the board in the town where the house sits.

When does a sale need a Title 5 inspection?

According to MassDEP's guide for buyers and sellers, an inspection is required:

• Within 2 years before a sale, or up to 6 months after if weather prevents an inspection beforehand
• When a property is divided, or two or more properties are combined
• When a change to the home needs a building or occupancy permit, such as adding a bedroom
• When MassDEP or the local Board of Health orders one

An inspection done for a sale is generally good for two years. If the system has been pumped at least once a year and the pumping records are available, the inspection stays valid for three years. If the same house sells more than once within the window, one inspection covers each transfer.

A new or upgraded system that received a Certificate of Compliance from the Board of Health does not need an inspection for a transfer within the next two years, or three years if it was pumped during the third year.

Which transfers are exempt?

MassDEP lists transfers that do not need a Title 5 inspection, including:

• Transfers of residential property between current spouses, between parents and their children, or between full siblings
• Certain transfers where the property is held in a trust (MassDEP has a separate exemption guidance document)
• Refinancing a mortgage, or taking out a new mortgage
• Appointing or changing a guardian, conservator or trustee
• Changes in the form of ownership where no new parties are added, for example for estate planning or in a divorce
• Cases where the owner or buyer has signed an enforceable agreement with the Board of Health to upgrade the system or connect to sewer within two years after the transfer

Condominiums follow their own schedule. Condos with five or more units must have all systems inspected every three years. Smaller condos either inspect every three years or inspect the system serving the unit within two years before it is sold.

A sale of a family home to an unrelated buyer is not covered by the family exemption, even if the house was inherited. If you are selling an estate property, see our guide to selling a longtime family home or estate property in Massachusetts.

Who does the inspection and who sees the report?

The property owner is responsible for arranging the inspection. Buyer and seller can shift that job to the buyer, but the change must be in writing and the inspection still has to happen within the required time.

Only MassDEP-approved System Inspectors can do a Title 5 inspection. The New England Interstate Water Pollution Control Commission (NEIWPCC) keeps the list of approved inspectors. An inspection by anyone else does not count.

The inspector must use the MassDEP-approved form and submit the report within 30 days of the inspection, usually straight to the Board of Health. The buyer must also get a copy from the seller.

MassDEP is clear about what the inspection is and is not. It checks whether the system, as it is that day, protects public health and the environment. It does not guarantee the system will keep working, especially if the next owner adds bedrooms or more people.

What if the system fails?

Some problems can get a "conditional pass," meaning the system passes once a specific part is repaired or replaced with Board of Health approval. MassDEP's examples include a metal or cracked septic tank, a broken or blocked pipe, an uneven distribution box and a malfunctioning pump chamber. Soil absorption systems and cesspools cannot be repaired under a conditional pass.

A failed system must be upgraded within two years unless the Board of Health or MassDEP sets a different schedule. That duty stays with the owner even if the sale falls through.

Who pays for the repair, and whether the price changes, is a negotiation between buyer and seller, written into the Purchase and Sale Agreement. Our piece on the Offer to Purchase and Purchase and Sale Agreement covers how those terms usually get set.

Is there help paying for a septic repair?

Two state programs are worth knowing about:

• Septic Repair Loan Program. MassHousing, with MassDEP and community lenders, offers low- and no-interest loans of up to $25,000 to owner-occupants of 1- to 4-family homes, including condos, who meet income limits. MassHousing lists maximum incomes of $69,500 for its deferred loan and $139,000 for its amortized loan, and the project must be finished within six months of closing.
• Septic system repair tax credit. The state budget office describes a personal income tax credit for owners required to repair or replace a failed cesspool or septic system under Title 5. Since January 1, 2023 it equals 60% of design and construction costs, up to $4,000 per tax year and $18,000 in total. Ask a tax professional how it applies to you.

FAQ

How long is a Title 5 inspection good for?

Generally two years before a sale. MassDEP says it stays valid for three years if the system was pumped at least once a year and the report includes those pumping records.

Can the inspection happen after closing?

Only if weather conditions prevent it before the sale. Then it can be done up to six months after, provided the seller notifies the buyer in writing.

Do I need an inspection if I transfer the house to my children?

MassDEP lists transfers between parents and their children as exempt for residential property. Sales to anyone outside the listed relationships generally are not exempt.

Can my home inspector do the Title 5 inspection?

Only if that person is also a MassDEP-approved System Inspector. A general home inspection does not satisfy Title 5.

What if the report looks altered or false?

MassDEP says to contact your regional MassDEP office about inspection results. For a report that appears falsified, it lists the Massachusetts Environmental Strike Force at 1-888-VIOLATE (1-888-846-5283).

Next step

A licensed local real estate agent can help you time the Title 5 inspection with your listing date, gather pumping records, and plan for repair negotiations before a buyer's offer arrives. Call your town's Board of Health early to ask about any local rules on top of Title 5.

Sources: MassDEP: Buying or Selling Property with a Septic System, MassDEP: Guidance on Exemptions from Title 5 System Inspections (PDF), MassHousing: Septic Repair Loan Program, Massachusetts tax expenditure budget: Septic System Repair Credit, 310 CMR 15.300-15.305.