While many REALTORS® and most long-time residents of Wilmington and surrounding areas know about the dream of a new bridge over the Cape Fear River connecting New Hanover and Brunswick counties, new residents, newly-want-to-be residents and possible commercial businesses wanting to locate in southeastern NC may not be aware of it. Concerning this project, the first question a REALTOR® might ask: “Is this a material fact?”

The NC Real Estate Commission has a long history of opining about material facts. For example, just a few are:

• Polybutylene pipes—if they are leaking or have leaked; the fact that because of the fittings the pipes were subject to a class action lawsuit; making an inquiry about other properties when the subject property a unit in a condo or townhome by asking the HOA or other owners.
• Asbestos
• Bankruptcy (noticed)
• Pending Foreclosure (noticed)
• Mobile/Modular construction
• Lead-Based Paint
• Square footage where the prevailing practice is to disclose it

The NCREC also has a long history of disciplining licensees (brokers and licensed entities [firms]) for violating Section 93A-6 which states:

Making any willful or negligent misrepresentation or any willful or negligent omission of a material fact.

This duty was also expressed as early as the 1918 version of the REALTORS® Code of Ethics. The 2010 version for disclosing material facts is found under Article 2.

Some material facts must be discovered.

Key Concepts about Article 2 and its Standards of Practices

• REALTORS® have a duty to disclose depending on the facts
• REALTORS® may not have a duty to discover and disclose adverse factors unless reasonably apparent
• The principles in Article 2 include the obligation not to exaggerate, misrepresent or conceal pertinent facts about the property or the transaction.
• The discovery obligation extends only to those factors which would be within the expertise required by the real estate licensing authority and does not impose an obligation of expertise in other professional or technical disciplines.

For both the Code and the NCREC, a standard most often used is “what should a reasonably knowledgeable and prudent real estate licensee know or should know” about a certain matter (material fact, like selling coastal real estate, selling condominiums/townhouses, etc.).

OK – back to the Proposed Cape Fear Skyway Project. What might you want to do about it?

As the listing agent, you might consider…..

• Check to see if the property is sufficiently close as to warrant a disclosure. For example, is the listed property along the road leading to the proposed bridge? If yes, that is a definite disclosure issue!
• If not, is the road upon which the listing property is located going to be affected by traffic from the road leading to the bridge?
• Is it possible that road and/or bridge noise might be a factor to the property?

If the Seller will place information in the Residential Property Disclosure (RPD) that may be sufficient—if the property is subject to the RPD. You will want to insure that the buyer indicates that they have received a RPD at the time of offer!

If the seller will not place disclosure in the RPD, explain to the seller your license law and ethical standards require disclosure of a material fact. As a MLS Subscriber, you should considering using the MLS Remarks to make the disclosure to consumers and brokers. The MLS Remarks is on most MLS reports and often appears on websites.

As a buyer’s agent, you might consider…..

• Investigating the Cape Fear Skyway Project so you will have a general idea about where it is.
• Check the MLS information and the RPD to see if there is a disclosure issue
• Make an affirmative oral disclosure about it
• If an offer is written, consider making a written disclosure to the buyer and document the buyer’s acceptance (email reply would be OK)

As a BIC, you might consider…..

• A sales meeting focusing on the project annually
• Checking to see if any of the Firm’s listings might warrant disclosure
• Creating an office policy about “how” to make a disclosure, including a form for the disclosure. This should help new licensees become aware of and how to disclose the proposed project.

Finally, remember change is inevitable—and this project has morphed over the years! To stay up-to-date, you may want to retain this link:

http://www.ncturnpike.org/projects/Cape_Fear/

After clicking on the link, double click the map to open it further. By using the zoom tool, you will see more clearly the path and surrounding road.