When marketing homes in Stoneham – such as this three-bedroom ranch on Gleason Road, which is currently for sale – Realtors must consider whether to disclose that a study is being conducted to redesign the interchange of Interstates 93 and 95 (Route 128).

A plan to redesign one of the most dangerous and heavily traveled highway interchanges in the state has real estate agents scrambling to decide what to disclose – and when – to potential homebuyers in several Middlesex County communities.

The Eastern Middlesex Association of Realtors – in an effort to protect its members from potential lawsuits — last week approved a five-sentence disclosure statement for real estate agents to provide to homebuyers in Reading, Stoneham, Woburn, Wakefield and surrounding communities. The disclosure informs buyers searching for a home that the state is considering a redesign of the Interstate 93/Interstate 95 (Route 128) interchange.

When word spread about the interchange project last month, residents in those communities were shocked because the redesign could require the state to take property by eminent domain and drastically alter the surrounding landscape. The interchange redevelopment, which is being called the state’s second biggest highway project next to the Big Dig, is only being studied by the Massachusetts Highway Department at this point. No definitive plans have been unveiled yet.

Faced with so much uncertainty about what the project would entail and after fielding calls from anxious homeowners who were in the process of selling or wished to sell in the future, local Realtors realized they needed to come up with some type of disclosure policy.

“I think you really do have to tell the people [homebuyers],” about the project, said Christopher E. Coleman, general counsel for EMAR. Coleman drafted the disclosure statement, which EMAR’s government affairs committee approved last Thursday.

In an interview early last week, Coleman cited state law, explaining that agents must disclose to homebuyers “any material fact that may influence that homebuyer’s decision whether or not to buy the house.”

“I think the two key phrases there are: Is it [the project] a material fact? And would it influence a buyer’s decision to buy?” said Coleman, a partner at Carter & Coleman in Reading.

Instead of playing a guessing game as to whether the project is a “material fact” that would influence a buyer’s decision, Coleman is advising EMAR members to disclose that MassHighway is currently conducting a feasibility study to redesign the interchange.

“You lose nothing by disclosing,” said Coleman.

The situation creates several challenges for real estate agents, including forcing them to decide to which homes the disclosure should be applied, according to Coleman. Everyone would agree that if a home is targeted for eminent domain taking then it would influence a buyer’s decision to buy that home and a disclosure would be necessary, he said. But the situation is less clear for homes that abut the project or are within view of the multilevel ramps that may be built, he said.

For real estate agents, the situation becomes even more clouded when it comes to property values. Residents with homes near the interchange fear their property values will plummet if the interchange is redesigned to include multilevel ramps that can be seen from miles away.

Coleman said it’s conceivable that a home currently on a sleepy residential street valued at $500,000 could lose up $100,000 or more in value if a ramp is built nearby.

“If a Realtor fails to disclose the proposed project to the buyer, and a judge or jury finds that potential impact was material and would have impacted the buyer’s decision to purchase, the Realtor’s liability could be great,” said Coleman.

The potential risks are what convinced Coleman and EMAR to get a disclosure in place. The disclosure that EMAR leaders approved is designed to be given to homebuyers to sign.

Even before Coleman had drafted a disclosure for the association, some local real estate agents were taking their own precautions.

One agent, for example, included a disclosure in the purchase and sale agreement in the sale of a home on South Street. The disclosure was written under a section titled additional provisions, which included information about radon gas and urea formaldehyde foam insulation.

In another example of precautionary measures, agents at Fitzgerald & Assoc. in Reading were instructed in mid-July to have every homebuyer, regardless of what community they were searching in, sign a disclosure about the MassHighway study.

“We’re in a position where we have an obligation to disclose any adverse things happening in the area,” said Priscilla Fitzgerald, owner of Fitzgerald & Assoc. “We’re telling any buyer that comes into the office that there is a feasibility study going on.”

The disclosures in both cases are purposefully short and general, mostly because there remains great uncertainty about the project. MassHighway expects to have a final plan and more public meetings in the fall before turning the proposal over to state environmental authorities.

Several Realtors said that the hardest part is that they don’t know which streets and roads would be directly affected by the project or which, if any, private properties would be taken by the state through eminent domain. For that matter, they don’t even know if the interchange will be redesigned at all.

At one point, state officials were contemplating nine different redesign plans. Original plans called for property takings in Stoneham. The most recent plans being talked about would involve no home takings in that town, while 35 to 40 homes, mostly in Reading, would be taken by eminent domain.

“I think the big thing for me is the uncertainty because we really don’t know what the final configuration is going to look like and if there is going to be a final reconfiguration,” said Mary Ann Quinn, a longtime Realtor who works at Re/Max Top Achievers in Reading.

Days after the study was announced, Quinn began informing “serious homebuyers” about the study and referring them to MassHighway officials and town engineers for more information. Quinn said her office was providing a written disclosure about the study in the seller’s description of properties that were listed for sale in the surrounding communities.

“It’s [the interchange redesign] thrown some uncertainty into what was previously a very safe and predictable place to buy,” Quinn said.

‘Tricky Position’

Because real estate agents can’t predict what the outcome of the project will be, they can’t tell a home seller or buyer for sure that a particular property will be taken or in any way affected, said Sen. Richard R. Tisei, R-Wakefield.

“It puts Realtors, I think, in a tricky position,” said Tisei, who is also the broker-owner of Northrup Assoc., a real estate firm in Lynnfield.

While Tisei said he is not certain whether real estate agents are legally obligated to disclose anything about the project, he agrees that from a “common sense” point of view it is best for agents to generally disclose to homebuyers that a study is under way.

Tisei said he neither supports nor opposes the project but wants to “mitigate the impact” of whatever redesign happens. Tisei served as a moderator at a July 18 meeting organized by EMAR for real estate agents to learn more about MassHighway’s plans.

Carol Shapiro, EMAR chief executive officer, initiated the meeting after getting calls from several agents in the area who were marketing or about to list for sale homes that are in the vicinity of the interchange. At the meeting, which drew some 300 Realtors, a MassHighway official and Steve Ryan, the general counsel for the Massachusetts Association of Realtors, fielded about 60 questions.

Several people who attended said Realtors left the meeting more confused than before, and worried that too many questions were still unanswered. Tisei said agents were asking very specific questions – particularly queries pertaining to specific properties – that were too difficult to answer because a final plan has not yet been approved

Still, the meeting convinced EMAR leaders that they needed to provide some guidance to those in the real estate profession.

“I felt we had a responsibility … to prepare a disclosure to protect buyers, sellers and real estate agents,” said Shapiro.

Last Thursday, EMAR leaders met with Coleman, who presented several versions of a disclosure statement.

This disclosure that was eventually approved reads as follows: “The Massachusetts Highway Department has proposed plans for the redevelopment of the Route 93/95 interchange. The scope of the project is uncertain at this time. If the project goes forward, it is likely that the entrance and exit ramps for the interchange will be relocated. Anyone interested in obtaining more information about the project may contact the Massachusetts Highway Department – Mr. Stan Wood – Division 40 at (617) 973-7721.”

Initially, there was talk about limiting the disclosure to properties located within a certain radius of the interchange. But EMAR officials felt that the redesign, if completed, could affect many communities, so they did not want to restrict the disclosure to only certain properties.

EMAR will be mailing and faxing the disclosure to all members who are principals of real estate offices. EMAR leaders will be following up with a phone call to make sure that the office principal received and understood the disclosure. The office principals can decide how and when to use the disclosure, Shapiro said. The disclosure will also be included in EMAR’s newsletter and Web site and will be available in the association’s Reading office.

State Plans Highway Project; Agents Ramp Up Disclosure

by Banker & Tradesman time to read: 6 min