We became intrigued with this question after reading the Amici Curiae brief of Owner’s Counsel of America written by renowned legal scholar Robert H. Thomas in an appeal pending in the United States Court of Appeals for the 11th Circuit, Sabal Trial Transmission, LLC v 3.921 Acres of Land in Lake County, Florida. I am the New York State representative of Owner’s Counsel of America.
The brief makes two main points. First, the Fifth Amendment requires that an owner recover the “full and perfect equivalent for the property taken.” And that one of the fundamental rights is that Florida owners possess the ability to recover attorneys’ fees and costs so an award of compensation under the Fifth Amendment must compensate for that right. The second point was that an owner has a fundamental personal right to testify about the value of the property taken.
It was the second issue which intrigued me. Robert includes within his brief a list of the many State Court decisions which allow an owner’s testimony. But, what about New York?
There are no New York eminent domain cases directly on point. In my experience, I have never seen a judge not allow an owner to testify as to value. All condemnation cases are tried in New York without a jury, so a trial judge is not often subject to emotional appeal. But the fact remains that an owner usually is very knowledgeable of the value of his or her real property. A co-op owner can tell you very quickly what similar units in the building have recently sold for. An owner of a residence knows what comparables on the blocks have sold for as well.
While there are no reported condemnation cases on the subject, there are other examples. Certainly the witness must show the amount of knowledge in order to qualify to testify as to value. The degree of such is within the discretion of the court. Put another way, a witness must be shown to be competent to speak about the subject.
In a fairly recent case, Tulin v Bostic, 152 AD2d 887 (3d Dept 1989), it was stated, “What the value of a certain piece of property may be is not necessarily a subject for expert testimony (see, Richardson, Evidence Sec. 364 (Prince 10th ed.). As it has been noted ‘New York Courts *** have permitted qualified lay witnesses to present their opinions as to the value of property *** before and after the act complained of.’” 152 AD2d 887 at 888.
So, it seems clear in New York that while an owner testifying as to value must have some acquaintance with the particular property at issue, as well as knowledge of its market value, that does not mean the owner must qualify as an expert to testify.
To read Robert Thomas’s brief in full, go to his blog: inversecondemnation.com.