By Timothy C. Twardowski and E. Christopher Kehoe
Q. If my basement leaks and the problem was never mentioned when I bought the house, can I sue the former owner?
A. In Massachusetts, there is no requirement for a seller to disclose known defects. However, if a potential buyer inquires about a specific condition, then the seller has a duty to fully disclose the extent of his knowledge.
Moreover, courts may side with the buyer in cases in which the buyer enters into a transaction because of a seller's false statements, misrepresentation or bad faith.
Many real-estate brokers ask the seller to complete a seller's disclosure form, which asks whether the basement ever leaked or flooded or whether there are any known defects in the basement or other structural elements of the home. The disclosure form is then given to the buyer prior to the home inspection.
Q. This may sound silly, but my neighbor's dog is always pooping on my lawn. Do I have any recourse?
A. If you have raised this issue with your neighbor and it continues to be a problem, then you should contact your local animal-control officer. Most cities and towns have regulations that prohibit pet owners from allowing their animals to be at large, to the injury or nuisance of others.
Many communities also require dog owners to maintain their pets under complete and effective control (usually by means of a leash) whenever they are not within the boundaries of their owners' property. In many cases, violations are subject to fine on a per-offense basis.
Q. My neighbor's yard is in such bad shape that it is an eyesore. Is there anything I can do?
A. Short of living in a planned community with rules that require yards be landscaped and maintained in a certain way, you may be out of luck — unless the yard constitutes a public-health or safety issue.
However, if your neighbor's "eyesore” also includes junked cars, appliances, machinery or similar debris, you should contact your local building inspector or code enforcement officer to determine whether your town has a junk bylaw.
Q. The house I wanted to buy failed a radon test. Should I insist that the seller fix this?
A. Radon is a naturally occurring radioactive gas that is suspected as a contributing cause of lung cancer. Radon typically enters a home through cracks in a foundation, sump hole or dirt basement floor.
There is no legal requirement that the seller remediate radon in a particular property, just as there is no requirement that a buyer purchase a property that fails a radon test.
In the residential marketplace, sellers are usually motivated to remediate radon problems because, once the problems are known, most brokers will require that they be disclosed to potential buyers.
Q. There is a part of my land that I rarely utilize, but people tend to use it as a "cut-through.” Should I stop them?
A. Yes, you should. If people use the cut-through on a regular basis for a period of 20 continuous years, it could establish a "prescriptive easement” across your property; at that point, people would have permanent rights to the property, no matter what you said. This is a particularly common problem with beach access.
Even if you want to be a friendly neighbor, it would be prudent to take steps to bar such access from time to time (perhaps once a year) and to inform those people who use your property as a short cut that they are doing so with your permission.
The writers are lawyers with the Boston office of Robinson & Cole. They can be contacted at ttwardowski@rc.com and ckehoe@rc.com.
May 1, 2007
