Intended User for Litigation Appraisal

[hastalavista]

OK, a quick question:

I'm completing an assignment on an SFR that may be used in litigation. The facts are:
1. House was purchased 2 years ago and represented as having a view and an implied rear yard level lot utility that had been improved.
2. Homeowner is now trying to make some changes to house, and it is discovered that rear yard area has encroached upon vacant rear lot.
3. Jurisdiction is ordering current owner to return rear lot portion to "pre-improved" condition.
4. Finally, rear lot owner has right to erect a 8' fence, which could significantly impair current unobstructed view from rear yard.

My initial appraisal is to determine if there is some calculable loss in value due to the reduced lot utility and the difference in what was an unimpaired view vs. one that can be impaired.
Time is of the essence for filing date, so the client and I have worked out a SOW and engagement letter that allows me to provide a finding now, and I have the ability (if case goes to trial), to augment my research (which always could mean a change one-way or another in the value difference).

Also-
I'm using the AI form for this with expanded addenda.
Intended users are:
My client & his legal representative.
Any board, commission or court authorized to adjudicate the matter.

Here's my specific question:
I understand that that an adversarial party to my client may obtain a copy of my report during discovery proceedings, or perhaps if both sides try to negotiate. My question is would the opposing parities also be considered Intended Users?

I'm inclined to say "no". If the court rules that my report is the basis of value, that's the court's decision and it would be imposed upon the other party. That's different than me saying I'm providing my analysis with the opposing party's needs as an intended use.

And, if the answer is "no", do I make any reference in my report that I understand my report may be obtained by 3rd parties and my report does not consider these parties intended users?

Thanks in advance!

 

[Smokey Bear]

Tell me that the lawyer is looking at prescriptive easement? How long has the rear yard been in this improved condition?

As for the other issue, Denis - GET A LIFE! It's a HOLIDAY WEEKEND! Have some fun, burn something on the barbecue, get sunburned etc.

I refuse to think about intended users or scope of work on a holiday weekend. :new_all_coholic:

 

[hastalavista]

Tell me that the lawyer is looking at prescriptive easement? How long has the rear yard been in this improved condition?

This has been ordered by the homeowner- attorney has not been choosen yet.
Rear yard has been improved prior to client's purchase and was improved that way from previous purchase (back to 2000) at least.

As for the other issue, Denis - GET A LIFE! It's a HOLIDAY WEEKEND! Have some fun, burn something on the barbecue, get sunburned etc.

This is what happens when I screw around during the week rather than work!

I refuse to think about intended users or scope of work on a holiday weekend. :new_all_coholic:

I don't blame you!

 

[Smokey Bear]

Denis - prescriptive easements only take 5 years, so they may be able to get around it that way. And yes, I know about the playing during the week and having to work the weekend to get caught up.

Hope you get a chance for at least a little fun this weekend.

I have a neighbor who claims that my fence is inside her lot line. It's quite hilarious, she has a long single car driveway, and makes sure to park her car 2 feet over the driveway on what she thinks is the lot line. BUT, my back yard abuts her detached garage, and that garage has been there since cars were invented, and they have no access to my yard. She'll be real surprised if she tears down the garage and tries to build the new one in my yard, like she keeps talking about. You'd think an architect would know about prescriptive easements.

 

[Mike Kennedy]

DENIS...... I always insist the Attorney order the appraisal in writing; name Attorney as Client, Owner as Intended User. "Jurisdictional" comes into play as court ordered document due to purpose of the appraisal. I don't name the court as an Intended - don't believe thats' necessary under USPAP. Just my opinion - maintains "arms length" relationship which Judges in my market prefer. The other side obtains copy of appraisal as matter of course - during discovery. They are not included as Intended Users. Thats how I address it - subject to specific changes in Intended Users per my Client's instructions (attorney). Go have a burger and a beer.

 

[xm72mhd]

Denis,

First rule is work for the attorney only. Then your work is not discoverable because it is part of his work. Much better deal for the homeowner too.

You could end up testifying against what your client thinks his best interests are if you're not careful here. He will not like you if you do that, and you may find yourself in the middle of being sued by your client just 'cause he's mad at you.

If you are doing an appraisal for litigation then the intended use is litigation and whether the others are users or not is any body's guess. But, it hardly makes any difference, l except in terms of liability, since you are going to be in the thick of it anyway.

 

[Otis Key]

Denis - prescriptive easements only take 5 years, so they may be able to get around it that way.

Clarification, depends upon the state. No offense Cynthia. Just didn't want every one to think it was that way everywhere.

I always insist the Attorney order the appraisal in writing; name Attorney as Client, Owner as Intended User.

I partly agree. Have the attorney order and name the attorney as the client and intended user. The attorney represents the owner/s and he/she can deal with that aspect. The attorney intends to use it for the court case, FWIW, IMHO.

Next, since my comments already indicate it I might as well admit it: I agree with Edd. (Someone rush the paramedics to his house)

Finally Denis - let's go back to SOW and intended use. The HO's are being sued for encroachment or the HO's are going after the sellers? As you know, it can, in reality, impact what we as appraisers end up with, intentional or not. I can say that I've research some sales in certain price ranges whereby the view amenities were a significant factor; and then on the other hand, I've also researched some in a different price range where it made absolutely no impact; and then (gotta love this business - don't ya) there have been some properties that were enhanced due to the lack of a view (Interstate sound blocking walls comes to mind).

So to answer your question: (Oops - almost answered a quesiton that wasn't asked) NO - I would not name anyone except the attorney but since there is no named attorney, aka client, then you're stuck with naming the HO, and/or his/her legal representative (hint) to be named or appointed by the courts....the above is not intended to imply I'm an attorney or have legal knowledge.....but I did sleep in MY bed last night.

 

[Rich Heyn]

OK, a quick question:
Here's my specific question:
I understand that that an adversarial party to my client may obtain a copy of my report during discovery proceedings, or perhaps if both sides try to negotiate. My question is would the opposing parities also be considered Intended Users?

I'm inclined to say "no". If the court rules that my report is the basis of value, that's the court's decision and it would be imposed upon the other party. That's different than me saying I'm providing my analysis with the opposing party's needs as an intended use.

And, if the answer is "no", do I make any reference in my report that I understand my report may be obtained by 3rd parties and my report does not consider these parties intended users?

Thanks in advance!

An intended user is not some entity who intends to use your appraisal. An intended user is your client and any entities you, as the appraiser, intend to use the appraisal. Just because the appraiser knows some third party will receive a copy of the appraisal does not make that party an intended user.

As to your second question, you may or may not find it appropriate to notify third parties that they are not intended users. If you feel it necessary to avoid misleading any party, you must do so. Even if that is not the case, it may not be a bad idea.

Check out page 96 of 2006 USPAP. And have a good holiday.

 

[hastalavista]

Thanks to all!

Edd-
I was hoping you'd comment- thanks! I'll mark down this date that you and Otis agree. (somebody check Otis' drink!)

To all-
Yes, I would have preferred to work only with the attorney. The situation is a little more complicated; the owner is the son of an appraiser who works for me and is in a bind (I just want to make sure I don't get "bound" also) time-wise. I'm trying to help (don't worry, he's paying a fair fee for the work!).

Rich-
Just re-read Statement 9. Thanks!


I'm hesitant to post any more specifics about this assignment since it may end in litigation. What I am going to do is limit the "intended user" to my client, and "intended use" will be Market Value Analysis.

 

[Wayne Tomlinson]

What you have is not a Fannie appraisal, therefor, you do not have to name half of the civilized world as intended users or "may depend on" persons.

It will really be best to have the attorney na,ed the intended user for a lot or reasons. Of course the other side will want to have, and likely will have a copy of your report, unless your present client does not like your answer and does not disclose the fact that you even have done one.

Perhaps they are just wanting to know what the values would be, to determine how to proceed.

Attorneys are few peoples favorite persons, but when you need one, you cannot engage one too soon.



WayneTomlinson