Real Estate

Lessons in litigation: How can real estate battles be won?

When appointed as expert witnesses, they work with lawyers to prepare and present reports in court or prepare documents and witness statements in support of pleadings in case of arbitration.

When appointed as expert witnesses, they work with lawyers to prepare and present reports in court or prepare documents and witness statements in support of pleadings in case of arbitration. | Photo Credit: Getty Images/iStockphoto

As real estate is a major component of asset portfolios of individuals or companies for investments. Disputes over property values are quite common. Accordingly, the need for real estate expert witness testimony for litigation and arbitration becomes vital to support any legal proceedings.

An expert witness testimony is included in a dispute hearing to provide a specialist’s perspective on a given fact or issue. It must be reliable, relevant, and based on facts. It is typically proffered by one of the parties in the dispute. An expert witness testimony is usually required to help a judge, jury, or arbitrator to understand a complicated issue or when a fact or claim has to be corroborated by a specialist.

Who is an expert witness?

An expert witness is a specialist whose knowledge in a particular field or discipline goes beyond what is expected of a layman by training, education, certification, experience, or skill. His/her opinion is, therefore, accepted by the judge as a fact. In a trial, the expert witness must provide an impartial opinion, irrespective of the party who calls for him/her. They are hence, seen as objective and not as an advocate for either party.

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However, their opinion is only relevant to their field of expertise. For instance, an expert in zoning laws cannot be considered an expert in inheritance law. Although an expert’s testimony is seen as final, it can be refuted by another expert, facts or other evidence.

Examples of litigation

In the context of real estate, litigations can involve individuals, families, financial institutions, businesses, real estate developers or even the government. Most common real estate litigations include fraud, title disputes, delay in possession, delay or non-payment of rent or mortgage or distribution of revenues or profits, and inheritance. Given the large sums of money usually involved, real estate cases can become extremely complex and fractious. An expert witness testimony can be crucial in explaining a legal or technical issue or in clarifying the subject.

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For example, an expert witness, such as a property consultant, can be asked to testify in a case of delay by a developer. In such cases, the expert witness will take into consideration the development and current scenario of the project, cash flow problems, labour issues as well as external macro and micro factors like fluctuations in Goods and Service Tax (GST), the impact of the Non-Banking Finance Companies (NBFC) crises and pandemic, construction cost inflation, change in building bye-laws and development control regulations, construction completion delays, etc. The witness will evaluate these factors’ impact on the development of the project without showing favour to either party. They can then offer an impartial opinion or a possible resolution.

In this case, the expert witness’ testimony holds weight because of two reasons. Firstly, as an impartial body, their testimony does not show bias to either party and shows the most honest view of the developments so far. Secondly, as experts in the field, they have the experience and the qualification to correctly evaluate the impact of various factors. In other words, the testimony is seen as both reliable and trustworthy.

International property consultant

International property consultants (IPC) are highly sought as expert witnesses, mediators and arbitrators in real estate and property-related disputes. They have rich experience in providing such services to high value & high-profile cases both in India and Internationally. With requisite qualifications and experience, they offer the expertise required to settle thorny real estate disputes. IPCs have the experience of working in different markets, conducting thorough cashflow assessments and valuations, loss and damage assessments and handling a wide range of disputes. When appointed as expert witnesses, they work with lawyers to prepare and present reports in court or prepare documents and witness statements in support of pleadings in case of arbitration.

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In addition, IPCs also have the benefit of a vast bank of documentation or research in the area that can help them in evaluating a given case, its possible outcomes and various alternatives that have been explored in similar cases. IPCs also have professionals who can offer the cross-functional expertise that is often called into question in such cases, offering a comprehensive and in-depth understanding of the subject. Litigation expert teams have some of the most highly-qualified and experienced professionals whose testimony can be upheld in India and international cases.

For instance, they can create a valuation report that goes beyond mere financial calculations to include the state of the market, future projections, and any legal aspects. With real estate disputes becoming quite common, IPCs are asked to provide independent professional valuation advice to solicitors and other clients. Since real estate is also seen as a major asset, IPCs can also be asked to provide valuation in terms of investment.

Expert witnesses play a vital role in legal cases, providing an impartial and expert view on disputed issues, thereby clearing any confusion. As arbitrators or mediators, they can also help in amicably resolving an issue and resolve problems before litigation, tribunals or arbitration are needed. In highly contested cases revolving around real estate, expert witnesses have a vital role in bringing clarity, establishing facts, and in ensuring an impartial view.

The writer is MD, Valuation & Professional Services, Savills India.


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Printable version | Jul 1, 2022 5:15:24 pm | https://www.thehindu.com/real-estate/lessons-in-litigation-how-can-real-estate-battles-be-won/article65585158.ece