The Real Estate Expert Witness: Referrals for Plaintiff and Defense Attorneys


real estate expert witnessWith contributions from Katelyn Crawford

The real estate expert witness provides testimony and insight to help the trier of fact determine judgment. Their testimony is especially beneficial in real estate disputes dealing with issues such as condemnation, construction defects , property management, wrongful death, landlord/tenant, premises liability, financing, commercial real estate transactions, and zoning.

Real estate expert witnesses provide litigation support by assisting the attorney in pre-trial preparations, discovery requests, and case arguments. Professionals such as real estate developers, professors, investors, brokers, property managers, architects, developers, regulators, or mortgage lenders may have the expertise required to testify as a real estate expert witness. Services that a real estate expert witness may provide vary depending on their subspecialty.

The Expert Institute sources experienced and highly-qualified real estate experts to serve as expert witnesses for plaintiff and defense attorneys. We focus on finding experts industry leaders such as board members of real estate associations, professors, and trusted authors.

It is important to hire a real estate expert witness with expertise in the specific issue in question. Otherwise, their testimony may not be sufficiently credible or nuanced to help the attorney sway the trier of fact. In a residential ad valorem taxation case, for example, it is important to choose an appraiser who is qualified to testify as a real estate expert witness and provide tangible explain the different appropriate methods of valuation and opine on appropriate fair market value.

Specializations

Generally, attorneys will request to work with a real estate expert witness who has expertise in a certain subspecialty, such as a real estate appraiser, agent, or investor.

Real Estate Appraisers

Real estate appraisers may be called to estimate the fair market value of real property before properties are sold, taxed, foreclosed, insured, or financed. They estimate the value of the property based on a multitude of factors such as the particular property’s features, historical information, property location, zoning classification, and market demand. A qualified and communicative real estate expert witness can help bolster a party’s argument as to what sum constitutes a “fair market value.”. In fact, in a family law dispute over the value of marital assets, the appellate court of New Jersey noted that “[i]t is apparent to us that an appraisal made by a qualified and recognized expert hired by defendant has a much greater evidential impact on true value than a mere book value computed on cost less depreciation.” Esposito v. Esposito, 158 N.J. Super. 285 (1978)

Real Estate Agents

Real estate expert witnesses who are experienced real estate agents are also highly sought after. These licensed professionals provide services for buyers and sellers of real property and are particularly effective real estate expert witnesses in cases of real estate malpractice. Such experts are typically hired to opine on due diligence and standard of care, the duty to notify, real estate financing, lease agreements, title issues, trust accounts, and the code of ethics set by the National Association of Realtors (NAR).

Real Estate Investors

Real estate investors provide valuable insight and expertise to litigation matters involving real estate construction . In legal disputes centering on such issues as financing, permitting, breach of contract, and regulatory compliance, a real estate expert witness has valuable insight. Their experience working with contractors, developers, government agencies, investors, lending institutions, and construction workers provides persuasive testimony about the technical details of a construction project. An experienced real estate investor testifying as an expert may help the attorney attain a favorable case judgment or settlement.

real estate expert witnessEminent Domain

Eminent domain proceedings result where the federal or state government exercises its fundamental right to take title to private property without the owner’s consent. The government must have a valid government purpose for such action. This could include building a school or municipal building, expanding public roads or highways, providing access for a utility company, or allowing for economic development.

Related: Real Estate Expert Witness Opines in Possible Improper “Taking” Case

In situations where the property owners object to the taking, or to the amount of compensation, a real estate expert witness can provide valuable insight. Specifically, their testimony can help the court determine whether relevant federal and state laws were upheld. The Fifth Amendment of the U.S. Constitution requires the federal government to pay “just compensation” for the condemned property. The 14th Amendment requires the state government to provide the property owner with “due process.”

A real estate expert witness can opine on the appropriateness of the calculation method determining the property’s fair market value and the constitutionality of the taking itself. They can compare similar properties that have recently been sold, discussing appropriate units of comparison, and providing an independent appraisal of the property’s components and the property’s value as a whole. The insight and expertise of a real estate expert witness can help the trier of fact understand whether the valuation is appropriate in light of the uses to which the subject property is plainly adapted.

For clients objecting to the taking, the real estate expert witness can testify as to the physical, legal, and economic viability of the government action and whether it constitutes a valid public purpose.

Case Example: Kansas City Mall Associates, Inc. v. Unified Gov’t of Wyandotte County 294 Kan. 1, 2, 272 P.3d 600 (2012)

In this eminent domain case, the Kansas City Mall Associates contested the jury-issued $6.95 million fair market value of their property that was subject to a condemnation action by the Wyandotte County government.

The KC Mall requested to exclude the testimony provided by the government’s real estate expert witness. Claiming that their appraisal reports erroneously “compared the subject property to retail malls, even though it was zoned at the time of the taking as a business park.”. The Supreme Court of Kansas, however, was unconvinced. Upholding the testimony presented by the government’s real estate expert witnesses and affirming the district court’s judgment.

The Court found that the subject property’s zoning classification is not dispositive of its ultimate valuation. It is merely one factor. KC Mall had called its own appraisal experts who valued the property at closer to $16 million. However, the court was more convinced by the government’s real estate expert witnesses. They presented appraisal reports estimating the fair market value of the whole property at closer to $4 million.

Tax Litigation

Attorneys litigating tax issues can strengthen their case argument by hiring a real estate expert witness. In tax litigation where the federal or state government is disputing a property tax payment, a real estate expert witness specializing in property appraisals can help positively persuade a judge or jury. For example, an appraisal review can bolster an argument regarding the tax payment at issue. If the client based the property tax calculations on a certain property value, testimony by a real estate expert witness may support the client’s argument. Concluding that this value was proper for the scrutinized tax payment.

Family Law

A real estate expert witness is an important member of a trial team involved in a child custody or divorce proceeding. Real estate experts provide critical testimony in cases disputing marital property distribution, spousal maintenance, or child support. In many situations, parties in a family law proceeding will dispute the value of the family home. This figure may greatly impact the court’s determination of payments. A real estate expert witness testifies on the fair market value of a contested property and facilitates divorce negotiations and proceedings.

Case Example: In re Marriage of Orcutt, 360 Mont. 353 (2011)

In this marital dissolution case, the plaintiff-wife filed a motion contesting the valuation of the marital home. The sole evidence at trial was a property tax notice indicating a value of $22,423 submitted by the defendant-husband. A real estate expert provided the wife with a letter estimating the property’s value between $250,000 and $275,000. However, the wife’s attorney failed to disclose the real estate agent as an expert witness by the district court’s deadline. Thus the real estate expert witness was not allowed to testify and opine on the property’s valuation. The attorney failed to prepare any evidence of the marital property’s value. Consequently, the district court was forced to “reluctantly” rely on the husband’s strikingly low valuation.

The Supreme Court of Montana found that the wife’s attorney was negligent. Her failure to provide evidence about the martial property’s valuation prohibited the district court from fulfilling its obligation to “equitably apportion” the marital property. The failure to provide a real estate expert witness entitled the wife to have the district court’s marital dissolution decree set aside. Therefore, the Court remanded the case to be retried.

Real Estate Malpractice

Real estate malpractice action generally center on issues such as fraud, breach of contract or negligence. Such cases call for a real estate expert witness to discuss applicable issues concerning the real estate industry. For example, the real estate expert may discuss licensing requirements, ethical considerations, or standards of care. Importantly, they provide influential testimony on whether the case details indicate negligence. As well as whether the client’s losses were proximately caused by the alleged malpractice. In re Marriage of Orcutt, the Supreme Court of Montana found that failure to provide a real estate expert witness established the lawyer’s negligence.

Related: Real Estate Expert Witness Opines on Broker’s Breach of Good Faith Duty to Buyer

Breach of Contract

A real estate expert witness provides critical testimony in breach of contract cases. In situations where a contractor fails to finish a project in time, or a broker misleads buyers, a real estate expert witness is called to provide their insight and expertise. They will determine issues such as market value, reasonableness, industry standards, and damages.

Case Example: Kelley v. Widener Concrete Const., LLC, 401 S.W.3d 531 (Mo. Ct. App. 2013)

In a breach of contract lawsuit, the testimony of a real estate expert witness helped to convince the court to hold for the contractor in assessing the proper measure of damages. Property owners sued the contractor for the cost of repairing cracked concrete work in property owners’ driveway, patio, and sidewalk. They argued that cost of repair should be the measure of damages as the driveway was unique. Consequently, the cost of repair was not disproportionate to the diminution in value of the property. However, the trial found that such reconstruction would “involve unreasonable economic waste.”

The real estate expert witness, a local and highly experienced real estate broker, testified that approximately 60% of the homes in that subdivision had cracks in the driveways. He opined that the condition of the driveway did not affect the property’s market value. Based on the testimony of the real estate expert witness, the court found that diminution in value, rather than cost of repair, was the proper measure of damages.

Will Contest

In cases where a disgruntled heir or beneficiary files a will contest to prevent an inequitable or unjust distribution of property on a challenge based on an issue such as improper execution, or fraud, a real estate expert witness provides valuable testimony. They will testify as to the true value of the property in question. For example, in the case where a decedent’s property passes through intestate division, a real estate expert witness is called to opine on the appraisal of the decedent’s real property.

Trespass

Landowners involved in litigation disputes relating to trespass frequently seek the help of a real estate expert witness. To establish trespass to land, the plaintiff must show there has been a wrongful interference with one’s possessory rights in real property. As a real estate expert witness reviews deeds, property plans, and assesses and appraises property, they provide critical testimony in a trespass dispute.

Case Example: Caciopoli v. Lebowitz 131 Conn.App. 306 (2011)

A real estate expert witness helped a landowner win a trespass action against his neighbor. Mr. Caciopoli sued Mr. Lebowiz for removing trees on his property. Although Mr. Lebowiz claimed that Mr. Caciopoli’s real estate expert witness was not qualified to testify as an expert, the appellate court upheld her qualification and convincing testimony. The real estate expert witness was licensed to appraise commercial and residential real estate. Subsequently, she had performed approximately 1500 real estate appraisals. Moreover, she had performed approximately 3000 appraisals within the county at issue in the five year prior for her testimony. Accordingly, the Appellate Court of Connecticut found that Mr. Caciopoli’s real estate expert witness was adequately “qualified to testify as to the market value of the property… and to the value of the property before and after the removal of the trees.”