Who Is Responsible for Upgrading a Failed Septic System?

Under Massachusetts law, when a property is being sold, who’s responsible for upgrading a failed septic system?

A “For Sale” home that has an accepted offer, fails the Buyers Title 5 septic system inspection. The Buyer is demanding that the owner fix the system prior to closing. The Seller says they don’t have to upgrade the system because the property is being sold “as is.”  Who is right?

According to a recent article in “Bay State REALTOR” Magazine by Stephen Ryan, Esq, MAR General Council, The Seller is right. Unless the Seller or the listing broker, has made some representation with regards to the condition of the septic system, there is nothing in state law or regulation that compels the seller to pay for the upgrade.

Further, the law does not require that the system be upgraded prior to transfer of title. Title 5 simply states that the system must be upgraded within two years of the inspection that indicates failure or sooner if the local board of health determines that a faster upgrade is necessary for protecting public health.

Based upon the forgoing, the Buyer may choose to withdraw based upon the inspection contingency in their contract or determine whether they want to pay for the upgrade themselves. It is also possible that a lender may allow them to close prior to the upgrade while holding back a portion of the Seller’s proceeds. This would require acquiescence on the part of the Seller.

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Art Hillman is a third generation resident of the town of North Attleboro.  He has been a REALTOR® since 1986 and a top listing and selling agent for many years in Massachusetts serving the Greater Attleboro Area.

Learn more about home ownership in "The Art of Home Ownership".