The Deck Twenty-Eight Feet from the Water

The licensee may not complete the form for the seller, and “as-is” does not do the work the seller thinks it does.

• Give the seller the required residential property disclosure form and let the seller answer it. The licensee can explain what a question means and can point to records the seller has, but filling in answers or drafting the seller's responses is practicing beyond the license and creates a record problem.
• Blanks are not neutral. An unanswered question about water, septic, or structures is itself a statement that the seller has nothing to disclose on that topic. Ask the seller to answer each item or write “unknown,” and document that request.
• “As-is, no representations” does not override the disclosure statute or the duty to disclose known material defects. The seller still must disclose what the seller actually knows, and an “as-is” clause does not insulate a seller or a licensee from a claim of misrepresentation or fraud about known conditions.
• The licensee's own duty is independent. The licensee must disclose known material facts to the buyer - including the arsenic result and the missing septic documentation - even if the seller is reluctant. The licensee should disclose in writing, keep the evidence of delivery, and recommend the buyer verify everything.
• The buyer's waiver of inspection is not a waiver of disclosure. Confirm in writing that the buyer received the known information, and put the licensee's recommendations (water test, septic evaluation, code check) in writing so the file shows what was advised.

Nobody on the transaction team knows yet - and the licensee must not assert that it is legal.

• Shoreland zoning in Maine operates through municipal ordinances built on state minimum guidelines: a 75-foot setback from the normal high-water line for most structures, with limited exceptions. A 28-foot deck is well inside that line.
• A structure that lawfully existed before the ordinance took effect may be a nonconforming (grandfathered) structure, but nonconforming status is not self-proving and is not the same as a permit. It depends on when the deck was built, whether the town had a shoreland ordinance at that time, whether it was permitted, and whether it has since been enlarged or reconstructed - a nonconforming structure generally cannot be expanded in a way that increases its nonconformity.
• If the deck was built after the ordinance without a permit, it is a violation. Consequences can include enforcement action, fines, required removal or relocation, and a title and resale problem for the buyer.
• What to do: advise the buyer in writing to obtain the permit history from the town office and a written determination from the code enforcement officer before closing, and consider a title/survey review to see whether the deck appears on any plan. Do not represent it as conforming or permitted, and do not relay the seller's “it's been there forever” as fact. Note that as a non-water-dependent structure, a deck in the setback is vulnerable to enforcement regardless of age documentation.
• If the buyer chooses to close with the issue unresolved, get written acknowledgment of the risk. On a cash deal the lender won't catch it, which makes the licensee's disclosure more important, not less.

Disclose, recommend, document - then let the buyer decide.

Arsenic (0.014 mg/L vs. 0.010 standard):

• This is a known material fact in the file. The buyer must be told in writing, with the test report provided.
• Explain practical consequences without opining as a water-treatment expert: it is above the state standard, it is a health consideration, treatment (point-of-use or whole-house filtration) is available at a cost the buyer should price out, and a single test is a snapshot - recommend a fresh, properly collected test.

Septic (2016 replacement, no HHE-200 in file):

• The absence of the design form does not prove a defective system, but it means there is no documented design basis, bed size, or location. Recommend the buyer obtain the town's septic permit/installation records, a septic inspection, and a sketch of the system location relative to the well and the shore.
• If the buyer later wants to expand the cottage, the site may need a site evaluation to establish capacity - a cash buyer often forgets this until after closing.

“Just get it done”:

• The licensee's job is not to guarantee speed; it is to make sure the buyer's speed is informed. Say so plainly and in writing: “You can close in 14 days; here is what will not be verified by then.”
• Do not discourage testing, and do not imply the issues are resolved because the seller signed “as-is.” A compressed timeline is a reason to give the buyer information earlier, not to withhold it.
• Document every disclosure and every recommendation declined. If the buyer waives, the file should show the buyer was told what they were waiving.