Is There a Duty to Disclose Noise?

by ROBERT S. KUTNER, ESQ. Partner, Casner & Edwards | Jun 24, 2015
The basic rule governing the duty to disclose conditions affecting a listed property is summarized in regulations of the Massachusetts Attorney General, interpreting the Consumer Protection Act, also known as “Chapter 93A.” Those regulations provide that each person engaged in business has an obligation to disclose “any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction.”
The basic rule governing the duty to disclose conditions affecting a listed property is summarized in regulations of the Massachusetts Attorney General, interpreting the Consumer Protection Act, also known as “Chapter 93A.” Those regulations provide that each person engaged in business has an obligation to disclose “any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction.”

Most sellers are not considered to be in the business of selling real estate and are not subject to claims for violation of Chapter 93A. Sellers do have a duty to avoid making misrepresentations of fact or failing to respond truthfully to a specific question, but do not have a duty to volunteer information. On the other hand, real estate brokers are engaged in business. Therefore, they have a duty to disclose what they know about noise, if that condition may be a continuing problem. There is no “bright line test” whether a specific noise or noise level must be disclosed. There is no decibel level above which noise must be disclosed, nor is there an absolute rule identifying the distance of the noise source from a property before a disclosure is required.


“The Princess and the Pea”
On occasion, a real estate agent may be faced with a “princess and the pea” scenario.
Some buyers may be overly sensitive to noise of a particular type or duration, even though the same noise would not bother the majority of buyers. The standard
applied by the courts is to make the determination according to the sensitivity of a “hypothetical reasonable buyer.” Because that standard is difficult to apply in
practice, the best approach is to err on the side of disclosure. Noise levels are considered “facts” that must be disclosed, not “opinions” that need not be
disclosed. It is recommended that a broker tell the buyer about the situation before an offer is made and allow the buyer to investigate the issue and decide whether to
proceed. In other words: “When in doubt, disclose!”


Open and Obvious
A reported decision on the subject provides an illustration. In a two to one decision, the Massachusetts Appeals Court ruled in McEneaney v. Chestnut Hill Realty (1995) that an agent’s statement to a purchaser that the condominium being purchased was “quiet” and that there were “no noise problems,” were statements of fact, not opinion. The purchaser claimed that the agent knew, but did not disclose, historical noise and vibration problems with the air conditioner chiller system. The dissenting judge pointed out that the unit had been quiet for nearly three years after the purchase: Nevertheless, the majority of the court allowed the case to proceed to trial. Where a possible source of noise is “open and obvious” the law does not require an affirmative disclosure to be made to a buyer. For example, if the noise is from railroad trains and “railroad crossing” signs (or railroad tracks) are visible from the property, there is no duty to make a verbal disclosure.

White Noise
Several years ago my law firm defended a noise claim brought by a buyer of a home about a quarter of a mile from Route 495 who alleged that the listing broker should have disclosed that the property was subject to noise from truck traffic. Because of the volume of traffic during the day, the noise was “white noise” that did not stand out. However, on clear, still nights, the occasional passing of a diesel truck broke the silence.Claims against the broker were dismissed after showing the superior court judge that the buyer had submitted an offer during the winter when leaves were off the trees. A video taken from the front of the property showed vehicles passing on the highway. Based upon the video, the claim was dismissed on a motion for summary judgment.

Cleared for Landing
Other claims against real estate agents might involve not disclosing noise generated by airplanes taking off and landing at a nearby airport. Geographic distance and other factors come into play. For example, if a house is along the flight path of a runway that is used on a daily basis and is within a half mile of the airport, disclosure may be needed. If, however, the house is two miles from the airport, the noise level may be reduced to the point where disclosure is not needed. Again the issue involves whether the situation is “open and obvious,” and whether the noise level would affect the decision of a “hypothetical reasonable buyer” to purchase. Frequency of use of a particular runway may vary depending upon the day of the week and wind direction. The risk of a claim can be reduced by disclosing the proximity to the airport and allow the buyer to investigate. It is recommended that the disclosure be about the proximity to the airport, not that noise is a “problem.” It is not generally advisable for agents, even buyer’s agents to conduct their own investigation to determine flight paths, since this may make the agent vulnerable to a claim if the noise level, flight paths or type of aircraft is not fully disclosed or differs over time. About 10 years ago I defended a claim for failure to disclose proximity of a property to flights at Hanscom Field in Bedford. Claims against the broker were discmissed after establishing that the buyer who was from Michigan had taken a job at an office building that was less than one mile from the airport. The buyer’s knowledge of the airport’s location was fatal to his claim. In another case, a real estate broker was sued for alleged failure to discover and disclose that a home was subject to noise from a nearby sand and gravel plant. The buyers had heard noise from beyond the thick woods at the back of the property before their offer, but thought it was from construction of a home subdivision that would end after the subdivision was completed. The broker did not know the source of the noise and made no representation and the claims were easily resolved. By showing that the agent had no actual knowledge of the source of the noise and had encouraged the buyers to investigate and reach their own conclusions, the claim was resolved without payment. Of course, if the agent had actual knowledge of the cause of the noise, the agent would have had a duty to disclose, even if no question had been raised.

Odor and Traffic
The recommendations governing disclosure of noise also apply to other types of conditions that may affect some people, such as odors and traffic. For example, are odors from a nearby factory noticeable weekdays, even though they are not noticeable during a Sunday open house? Is there a traffic jam in the area whenever there is a home football game at the nearby college or on weekdays when workers from the local factory are leaving for the day? If the condition is “open and obvious,” the real estate agent has no duty to make a separate disclosure. If the condition is not easily noticed and the agent has actual knowledge of the situation, making a disclosure will reduce the risk of a claim by buyers who are surprised when they learn of the situation after their purchase.