ILONA KUPHAL
No specifics

Many homeowners in Boston’s Back Bay and South End neighborhoods have known for years that dropping groundwater levels can cause major structural problems to their homes.

Most in the real estate industry have kept tabs on the issue as well. The problem centers around older structures in neighborhoods like the Back Bay, South End, Beacon Hill, the Fenway and Chinatown that are supported by wood pilings which have deteriorated over the years because of declining ground-water levels.

Without sufficient repairs and action by state and city officials, some neighborhood activists worry that foundations may sink and homes will collapse. Replacing rotted pilings for a single townhouse in Boston can be quite costly. Some estimate it can be as much as $250,000.

But when an agent is trying to sell a home in those neighborhoods, is that something they must disclose to home seekers?

According to some legal experts, Realtors are bound by the same consumer protection law that real estate developers are and must disclose any fact which a buyer “would reasonably need to know” to decide whether to purchase a property. Yet, if sales agents are not certain about a particular problem – such as a sinking foundation – discussing the issue could unnecessarily stigmatize a property they’re trying to sell.

“Often all they know [about a home] is what the property owner tells them,” said Beth Mitchell, a partner with the real estate department of Nutter McClennen & Fish in Boston. “A seller or homeowner does not have a duty to disclose anything about the property. If they say something then they have to be complete and truthful, but they can choose not to say anything. If you are selling a condo and you happen to know that it’s sinking you don’t have to say anything.”

Local real estate agents who are concerned about the problem find that it can be a tricky balancing act figuring out how and when to disclose that there is a neighborhood concern about ground-water levels.

Ilona Kuphal, sales manager of one of Coldwell Banker Residential Brokerage’s Boston offices, said she advises agents in her office to refer homebuyers who ask about the issue to a Web site that has been created by the Boston Groundwater Trust, www.bostongroundwater.org. The site includes information about the location of monitoring wells and data that has been collected from them.

For home seekers who come from other states and may not be aware of the issue, Kuphal has recommended that agents refer them to the site.

“We certainly want people to know that is a situation that is talked about in Boston,” she said. “This is something that people who come from out of town ask about … We have people from Chicago who ask us about the ground-water situation.”

General Rules

While Kuphal agrees that the issue is very serious, she said agents aren’t engineering experts and don’t know for certain which properties are or aren’t affected by dropping ground-water levels. Over 2,000 acres of metropolitan Boston are “vulnerable to foundation damage” because of declining ground-water levels, according to information on the Boston Groundwater Trust’s Web site. As the ground water drops, wood pilings under homes are exposed to air and start to rot.

“Since there’s so little real information about it, you don’t want to get people totally alarmed. But it is something to think about,” said Kuphal.

“When we are representing a seller, if we don’t have specific information about the property we can’t disclose it,” she continued. “We can only talk about it in a general situation. We cannot be specific.”

Leaders of the Greater Boston Real Estate Board have discussed with the group’s legal counsel whether to develop a disclosure form that could be used by members, according to Joy Conway, senior vice president of government and industry affairs for GBREB.

However, GBREB was advised that there is enough general information available and that disclosure of potential problems should be specific to a property, not to an entire neighborhood. GBREB also refers members to www.bostongroundwater.org for information.

“There’s so much information available and people are very well aware of the issue in general,” said Conway, who noted that GBREB has advocated for funding for more monitoring of wells and for remedies.

Conway also added that prospective homebuyers are entitled to have home inspections done before purchasing a property. Careful inspectors can spot troublesome foundation cracks and potential problems. “One would anticipate that the home inspector would put it on the checklist,” she said.

If a foundation problem stemming from rotted wood pilings is detected after a homebuyer has purchased a property, the buyer would have a hard time seeking recourse against a Realtor. The buyer would have to prove that the agent or broker knew about the problem before the transaction was completed.

“The more likely target is whoever did the inspection for them,” said Mitchell, the lawyer who is also a member of GBREB’s Real Estate Finance Association.

The bottom line for homebuyers is to proceed with caution.

“For buyers, obviously, the more information the better. But most buyers still don’t use buyer’s agents, and buyers often forget and need to be reminded that the brokers, generally speaking, are seller’s agents and they are doing what’s in the best interest of the seller,” said Mitchell.