UFFI is urea formaldehyde foam insulation which was installed in homes in the 1970s and gave rise to concerns because the insulation could create allergic reactions to the occupants of homes and, in the event of a fire, it could turn toxic and thereby become a deadly hazard. So in 1985 the legislature passed a statute which required the seller of property to investigate as to whether or not UFFI was in the property and if it was, to disclose it to the buyer. The Department of Public Health came up with a form of disclosure and regulations as to what owners should do in order to make that determination. The legislature also set up a trust fund under which money became available to remove the insulation and there were a series of lawsuits brought against the companies that manufactured and installed it to try to get them to remove it. The banks and brokers became concerned that they would be subject to liability because of this obligation to disclose, so the legislature in 1991 passed a statute that provided that no real estate agent, broker or salesman or bank or other lending institution which offers a mortgage on a residential dwelling containing UFFI, would have any liability to the buyer provided that the seller has stated to such real estate agent, broker or salesman, or banker or lending institution that no UFFI was in the building or that the seller had made the disclosures to the purchaser as is required by the statute prior to the date of sale. As a result of that statute, brokers made it their business to be sure that there was a representation in the documents between the broker and the owner of the property or in the purchase and sale agreement between the buyer and the seller as to the presence or absence of UFFI. Banks, in order to protect themselves, came up with forms in which both the seller and the buyer would warrant and represent to the bank that there was no UFFI in the property, and if there was, it was the buyer's problem and not the bank’s. The good news is that as time went on, harmful elements of UFFI went away which led to the repeal of the disclosure statute in 2002 and the enactment of chapter 255 section 12 J. which provides that: “No cause of action shall arise of be maintained against a seller, lessor, real estate broker or salesperson, lender or mortgagee of real property by statute or at common law for the failure to disclose to a buyer or tenant that the real property has been insulated with urea formaldehyde foam insulation.” Notwithstanding that clear exculpation of liability you will still continue to see the requirements of brokers and banks that the disclosure be made. There is no more entrenched bureaucracy than the bureaucracy which creates forms for real estate closings. No form is ever deleted; only new forms are added and, as anyone knows who ever attended a real estate closing, the expression “passing papers” has never been more relevant. So the in short answer to your question is that you do not have any duty to disclose the presence or absence of UFFI but you will still probably be required to sign an affidavit at the closing because, if all of the forms are not signed, the money doesn't flow.

If you have questions about this or any other legal matter, please contact Tom Bennett at (617) 531-6574 or tvb@barronstad.com.

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