REAL ESTATE
AHWATUKEE FOOTHILLS NEWS | MAY 18, 2022
Address legal damages up front with an attorney BY PATRICK MACQUEEN AFN Guest Writer
A
n often-overlooked aspect of evaluating one’s legal case by clients assessing legal damages, it is not always as straightforward as it seems. Let’s suppose you live in a homeowner’s association and your neighbor begins construction in June of a second-story addition without your consent or approval while away in your summer cabin. When you arrive home a few months later, you are very upset to learn of the new structure because you no longer have the mountainous views you previously had serving as a backdrop to your backyard. Instead, all you can see is your neighbor’s
close-up second story structure. You took great pride in your backyard views and guests routinely admired the views when over. You review the governing documents applicable to your HOA and learn that your neighbor and the HOA are in violation of the governing documents. Without hesitation, you hire a lawyer and file a lawsuit. Since the structure was completed or substantially completed over the summer months while you were away, it is unlikely that the court will force the neighbor to take down and demolish the structure. That leaves you with a case for legal damages. Up to this point, you have not put much thought into legal damages and just assumed they exist and for a lot of money – after all, you’ve lost your mountain views in your backyard! Even your friends have
commented on the loss of view. As part of the litigation process, after consulting with appraisal experts, you learn that no appraiser is comfortable testifying to a diminution in value of your property because the “data” does not support damages. In other words, the appraisal experts inform you that while they personally and subjectively believe you have suffered damages, there is not sufficient data (in the form of comparable sales) to prove that the loss of your mountain view means your property is worth less. While you may be able to present diminution in value evidence through your own testimony, it could prove difficult to make out a case for legal damages. And, while there may be other legal damages you can assert in this case, the lack of an
Let these stories serve as a hard lesson about the need to temper expectations in a hot market. And, in case you list your home with high hopes yet hear nothing but crickets, we also have some advice on how to deal with it and what you can do to turn this state of real estate paralysis around into something positive. Nancy Stern lived in a former commercial building on Long Island, NY, that had been lovingly renovated into a unique living space. It had even been featured in a magazine or two. Yet despite its design pedigree, when she decided to list the home two years ago, the house sat for months, and her frustration grew. “There were houses [selling] that were so ugly—on a tenth of our property at our price point,” she laments. “I hated when people asked, ‘So, did your house sell yet?’” Finally, after several months on the market and a price reduction, her house
got an offer below list price—which she grudgingly accepted. And now that her home-selling saga is over, Stern has some perspective on how her expectations were off-base. “My mistake was thinking people moving from the city would appreciate a home that was architecturally interesting,” she says. “But unless you have a Colonial or standard new construction, many prospective buyers can’t imagine living there.” Jessica Clark, a gluten-free eating expert in Lincoln, Nebraska,, had a similar experience late in 2020, only it was intensified by the fact that she’d already made an offer on a new house. She needed to sell her old home to finance her purchase. “We had a contingent acceptance on our dream home,” she says. Told they were in a seller’s market, she and he husband were optimistic about their prospects and had the home shown like crazy. But there were no offers. It was a painful time, she says: “We felt defeated and so worried.” Despite hearing of homes selling within days, her house sat for well over a month—which felt like an eternity with their dream home hanging in the balance. Finally, one buyer lowballed them an offer. “It wasn’t the best,” she admits. “But we felt forced to accept.”
re3
appraisal expert is a setback. Of course, this is just a hypothetical example, and there are many cases where appraisal experts would testify to damages in the above example. But the point is, it should not be assumed you have legal damages. Among other things, it is vitally important to address legal damages upfront with an attorney in a litigation case.
Ahwatukee attorney Patrick MacQueen and Chandler attorney Benjamin Gottlieb created a different kind of law firm using state of the art legal software and technology combined with awardwinning legal minds to provide the best real estate representation available. Ben can be reached at ben@mandglawgroup.com or 602-533-2840. ■
Handling homes that won’t sell in hot market BY JANET SIROTO AFN Guest Writer
I
t’s a hot seller’s market, says, oh, just about everyone: Housing inventory is down, prices are up, and even modest abodes ignite bidding wars within days (or hours) of going up on listing sites. But what if, amid this frenzy, you have a perfectly respectable house that just won’t sell? It happens. Certain homes will almost seem cursed in that they sit and sit. And these real estate wallflowers can really mess with a home seller, both logistically (if they’re hoping to move soon) and emotionally. After all, most people love their homes and assume someone else will, too. So when no offers come a-calling, it can plunge sellers into a spiral of questions, from “What’s wrong with my house?” to “Will I ever get to leave?” Denial, anger, embarrassment—all these emotions and more fill a home seller’s long days as they wait for their real estate agent to text or call with good news. Curious to hear more about what it’s like to be stuck in selling limbo, we spoke to some home sellers who struggled to land a buyer. (Spoiler: All of their homes did sell eventually, although that doesn’t make their pain feel any less real.)
Buying and selling properties at the same time is just one of many predicaments that can ratchet up the pressure sellers feel to unload their home quickly. Matthew Hart, an automotive expert near New York City, was going through a divorce when he put his home on the market in 2019. The hopes were high for a quick and profitable sale, given that the sunny, cuteas-a-button Colonial was in a desirable neighborhood. At first, all seemed well as a gaggle of buyers called to schedule a tour. The reason, he surmises, is that although the home was in good shape, his disclosures alerted buyers to an oil tank buried in the backyard. He and his wife had known it was there when they bought the place, but it had never caused any problems. They knew that was a negative, so they priced the home appropriately. But it made no difference. No one put in bids. Matt refers to it as one of the hardest moments he’s ever faced. “Bills were piling up, and I was close to giving up and turning the house over to the bank,” he admits. “It felt as if I was stuck in another dimension, and things would never, ever get better.” Finally, after six months, a couple made an offer, which Matt and his wife gratefully accepted, even though it was under the
see HOT MARKET page RE5