In this Summer 2018 Issue:

• Showdown at the BAA corral?
• Highest and Best Use Disagreement Didn't Matter
• Importance of administrative remedy stressed
• Dealing with a pending tax appeal
• Hartford may be out of the financial woods – for now!
• Appraiser’s limitation of liability to “intended user” means exactly that!

Showdown at the BAA corral? 

Consider this scenario: a property owner shows up at his appointed time and day to challenge his assessment before a public meeting of the Nutmeg Board of Assessment Appeals. During the course of his presentation, a fellow citizen attacks his petition and strongly suggests that the BAA should not reduce his assessment because to do so would not only be improper, but would tend to depreciate the value of other properties in the vicinity. The opponent also makes outrageous statements likely knowing they are false about the petitioner’s motives, intelligence and even his aesthetic judgment.

After the BAA hearing concluded, the petitioner, understandably aggrieved and aggravated by his opponent’s spewing, files a defamation action for slander. Can he maintain his claim?

In a decision involving similar kinds of obnoxious behavior which took place before the Greenwich Planning and Zoning Commission, a Superior Court judge granted a dismissal motion on the basis that the spewer had an absolute privilege (or immunity) to make what may have been defamatory statements during the hearing. As a member of the public opposed to the zoning application, he was entitled to challenge the credibility of the applicant even if his statements were not directly relevant to the proceeding because they may have been pertinent in “challenging the reliance which should be given to the petitioner's evidence for and support of the petition.”

 In that case, Judge Kenneth B. Povodator determined that the zoning hearing was a “judicial proceeding” even though not taking place in court. It seems likely, as a result, that the defendant in our hypothetical board of assessment appeals imbroglio will likely enjoy the same immunity.

Priore v. Haig, Superior Court, Judicial District of Stamford, Docket number CV 16-6030037 (January 13, 2018)

Highest and Best Use Disagreement Didn’t Matter

In a real estate assessment appeal challenging the market value of an 80,000 square foot building occupied by a printing company, the parties’ appraisers disagreed as to the building’s highest and best use (HBU). The owner’s expert landed on an industrial HBU. The town’s expert opted for its current printing use. Given the likely special features associated with an industrial building designed to support the weight of printing presses and the specialized needs associated with this type of operation, one might have thought that this disagreement would drive the experts’ valuation conclusions and methodologies significantly.

Interestingly, and surprisingly, the trial Court noted that “the (different) characterization of the highest and best use did not affect either of the appraisers’ valuation approaches or their choices of comparable sales and leases.” The Court went on to observe that “(a)s a practical matter, questions of whether the mechanical printing business was in decline and about the ‘super adequacy’ of the building did not seem to factor into the experts’ choices.”

What could have been a major issue in the case turned out to be irrelevant as the appraisers worked through their analyses. Because neither expert saw the characterization of HBU as significant in his appraisal, neither did the Court. As Judge Trial Referee Lois Tanzer concluded, “highest and best use of the property is the more generic and less restrictive continuation of light industrial use.” The Court then decided that the property was worth about a million dollars less than the assessor has assigned to it.

R.R. Donnelley & Sons Co., v. Town of Avon, Docket No. CV-14-6025599 (April 20, 2018)

Importance of administrative remedy stressed

A few recreational landowners asserted that the Seekonk assessor incorrectly determined their property values. Apparently forgetting about the fact that such cases must be initially filed with the Massachusetts Appellate Tax Board (MATB), the property owners went directly to the Superior Court asking for an injunction and a declaratory ruling that their assessments were illegal.

Without reaching the merits, a Superior Court judge granted the assessor’s motion to dismiss because of owners’ failure to go to the MATB first. Indeed, a Massachusetts statute requires this first step before a court case can be filed. The plaintiffs sought to rely on a line of judicial reasoning in Massachusetts which ruled that when an administrative remedy is “seriously inadequate,” such as where the assessor has engaged in a “pervasively unlawful assessment scheme,” going to the MATB first is not necessary. A 57 year old ruling by the highest Massachusetts appellate court held that if “every assessment has been made on a wrong basis, the defects in the scheme cannot be cured by the sporadic correction of individual assessments.”

The plaintiffs in the Seekonk case could not meet this test. It was the value of their properties which brought them to court, not the assessor’s approach to assessing the entire community or chunks of it. The administrative remedy offered before the MATB was quite adequate for their purposes and the trial judge’s decision was upheld.

320 Fall River, LLC v. Board of Assessors of Seekonk, 2018 WL 1526681 (March 29, 2018)

Dealing with a pending tax appeal

Members of Pullman & Comley's Property Tax and Valuation Department are occasionally advised by clients for whom they have filed tax appeals that the subject property is subject to a purchase and sale agreement (PSA). When we inquire as to how the pending tax appeal is addressed in the PSA, we receive a number of answers, many of which are disconcerting. For example, it is not unusual to learn that the tax appeal is not mentioned at all.

Sometimes we are told that the case is referred to in the “pending litigation section” of the PSA as a disclosure to the potential buyer - without anything more.

In only a minority of situations does the client retain the right to improve the sale price if the tax appeal is resolved prior to the closing of title. Similarly, too few clients protect their rights to tax refunds which may be due for tax years in which they paid taxes following the resolution of the case.

A take-away from these experiences for readers of Topics is that it may very well be worthwhile to consult with the member(s) of our department with whom you are working on your tax appeal before the PSA is signed to maximize your financial benefit from this litigation.

Hartford may be out of the financial woods – for now!

We recently commented on legislation which authorized the State of Connecticut to support the City of Hartford’s finances so as to avoid the bankruptcy filing threatened by the Mayor. Little did your editors know that the agreement entered into between the City and the State would be far more generous. In that recently inked pact, the State assumed responsibility for all of Hartford’s bonded indebtedness, a number in excess of $500,000,000. Not surprisingly, the City’s credit rating jumped after the announcement!         

In spite of this decision, it is fair to say that Hartford is still in for some rough financial sledding. It faces huge legacy pension and health care costs, flood control expenses in the tens of millions and other obligations which makes it critical for the City to grow its tax base so that the tax rate can be reduced to encourage more real estate and economic development and the “in migration” of businesses and tax paying residents.

Appraiser’s limitation of liability to “intended user” means exactly that!

Randy and Linda Tindell purchased what they thought was a modular home; it turned out to be a manufactured home. Prior to the purchase, their lender retained Christine Bradley, a residential real estate appraiser, to value the property. Ms. Bradley incorrectly described it as a modular home. When the Tindells tried to refinance their mortgage four years after the purchase, a second appraiser correctly characterized the structure’s provenance.

The Tindells’ negligence lawsuit against a number of parties to the transaction cratered. As for Ms. Bradley, the Court rested its decision on the fact that she had been retained by the mortgage company – not the Tindells. As a result, she owed no duty of care to Randy and Linda. Among other reasons, she had no way of knowing they would rely upon her work in deciding whether or not to buy the property, which in fact they did not. The California Appellate Court’s opinion makes it clear the Tindells did not really care whether the house was manufactured or modular. Obtaining a new mortgage was their sole objective.

While this litigation involved a residential transaction, the same concern applies to commercial appraisers and their work. Indeed, USPAP requires that an appraiser identifies her client and other intended users in the appraisal.

It almost seems laughable to the editors of Property Tax and Valuation Topics to think that a residential appraiser’s professional liability could be extended beyond his expressed intention, especially in view of the very modest fees paid by lenders for this sort of work product.

Tindell v. Murphy, Docket No. C0812424, California Court of Appeal, April 6, 2018.

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