The way I understand the law in Massachusetts, sellers and real estate agents don't need to tell you everything about a house you are buying, but they have to answer truthfully when asked for information and can not lie about problems. So if an agent lied to us about a foundation problem (we asked about it) that she and the seller knew about can we sue her under the Massachusetts Consumer Protection Act (93A) because of the "unfair and deceptive" answer? Can we get triple damages?
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Editor's Response
Chapter 93A has been interpreted by our courts in a broad and far-reaching manner. Certainly, a real estate agent cannot intentionally misrepresent the facts. So, for example, if she knew there was a serious problem with the foundation and lied to you about it, that would be an unfair and deceptive act. FYI, there is a MA case that is right on point: Glickman v. Brown, 21 Mass. App. Ct. 229, 486 NE2d 737 (1985).
Our courts have gone even further than that, however. Let's say you asked the agent about the foundation (after seeing a large crack, for example) and, without knowing the answer to your question, she stated that the foundation was fine. That statement may also be actionable under 93A if it later turns out that the foundation was not fine. In Piers v. Wheeler and Taylor, Inc., 8 Mass. Law Reporter 410 (1998), the court held that a seller and real estate agent may be liable under 93A because they made a statement about a home (free of lead paint) without verifying that fact. In fact, the court called such behavior "willful misconduct." The willful misconduct language is key, because that finding by a court is one of the triggers for triple damages. So, in your case, even if the real estate agent did not know about the problem, she was obligated to either say nothing in response to your question and defer to your home inspector or to verify the substance of her claim. You may want to discuss this matter with an attorney in your area who does consumer protection work. Good luck.