A major change is coming to residential real estate transactions in Massachusetts. Effective October 15, a new regulation fundamentally alters how home inspections are handled, ensuring that the right to an independent inspection is protected in nearly all residential sales.

This change, formalized under the state's new regulatory structure (760 CMR 74.00), prohibits sellers and their agents from accepting offers contingent upon the buyer waiving, limiting, or restricting their right to a professional home inspection.

The Mandatory Disclosure Form

The most immediate change for every buyer and seller is the requirement to complete and sign the Massachusetts Mandatory Residential Home Inspection Disclosure Form.

Key Takeaways from the Disclosure:

• It Must Be Signed Early: This disclosure form must be signed by both the buyer and the seller before or at the time of signing the first written contract to purchase (whether that is an Offer to Purchase or a Purchase and Sale Agreement). It is a mandatory step in the transaction process.

• Affirmation of Rights: By signing, the seller warrants and represents that the agreement to purchase is not contingent upon the buyer waiving or limiting their right to a home inspection.

• Buyer's Choice, Not Seller's Demand: The form explicitly confirms the buyer's right to choose a licensed home inspector and ensures the buyer has a reasonable period of time after the contract execution to complete the inspection and decide whether to proceed if the results are unsatisfactory.

The Ban on Preemptive Waivers

The new regulation is specifically designed to stop the practice of sellers requiring or incentivizing buyers to waive their inspection rights to make their offer more competitive.

What the Law Prohibits:

• Conditioning Acceptance: A seller or their agent may not condition the acceptance of an offer on the buyer's agreement to waive, limit, or restrict their inspection rights.

• Accepting Preemptive Waivers: A seller is prohibited from accepting an offer that indicates a buyer's willingness to waive an inspection.

• "Render Meaningless" Clauses: Contractual language that might unreasonably restrict a buyer's ability to schedule an inspection, limit its scope, or prevent a buyer from withdrawing based on unsatisfactory results is largely prohibited.

Does a Buyer Have to Get an Inspection?

No. The regulation ensures the right to an inspection, but it does not make the inspection itself mandatory. After receiving and signing the disclosure form, a buyer may still elect to forgo the inspection entirely, provided that decision is made independently and without any coercion or influence from the seller or agent.

Practical Implications for Your Transaction

For Sellers and Agents:

• The Disclosure Form must be prepared and presented for signature at the earliest stage of contracting.

• You must review offers carefully to ensure no language suggests an inspection waiver was required or accepted as a condition of the sale. Violating this rule can expose agents to liability under Massachusetts consumer protection laws (Chapter 93A).

For Buyers:

• Your right to a home inspection, including the right to withdraw from the sale based on the results, is now protected from the negotiation stage forward.

• You must be given a "reasonable period of time" to conduct the inspection and make a decision. This period is determined by mutual agreement between the parties.

Limited Exemptions

The new rule applies to the sale of most residential properties (1–4 units, condos, co-ops). However, there are limited exceptions where the disclosure and prohibition do not apply, including:

• Sales between relatives

• Foreclosure and auction sales

• Certain sales of new construction where the seller provides a one-year written warranty

If you are buying or selling a home in Massachusetts after October 15, ensure you are working with a real estate professional who is aware of these new mandatory disclosure and negotiation requirements.