The Role of an Expert Witness in Real Estate

There are a variety of different roles for an Expert Witness in real estate matters.

The first question would be: what’s the problem?

The next question would be: who’s the expert in that  field?

Nature of the Problem

This is the primary issue. What happened? What went wrong? Whose fault was it? Should anyone else share the blame?

A house is placed in the wrong location on a lot. Was this the fault of the Architect, Engineer, Surveyor, Lawyer, or the Builder or anyone else? Sure, it could be any one or more of them.

Let’s say everyone did a perfect job until the fellow who laid out the footings. He moved them one foot to the east. That meant that the footings are now too close to the lot line. The next problem is that the basement foundation is going to be constructed upon it. If the contractor installing the foundation doesn’t notice, we will have both a basement wall and footings too close.

In the usual course of events, a Builder will have a survey undertaken at this point. This is to determine if the setbacks are sufficient. Better to know now than later.

The subcontractor framer just finishes his previous job and arrives at the site a little early. He starts to frame the house. He never asks to see the survey which has not yet been undertaken. He finishes off the framing.

Other trades arrive the week later, the roofer, the plumber and the electrician. The surveyor arrives, but because the building is now well under construction thinks that someone else from his office must have handled the assignment.

A month goes by, drywallers, railing installers, flooring trades and furnace and air-condition trades all arrive. The Builder wonders: “what have I done with the survey? He calls the Surveying company, they say it was never done and they rush out, only to find that the building has indeed been placed too close to the lot line.

Naturally, the home owner is upset. He calls the Architect who secured the tenders from 8 local builders and recommended the selection of the successful contractor.

So, whose fault is this? There seems to be plenty of mistakes so far to go around.

When it comes to suing each one of the parties, the issue is whether or not the individual professional completed his task in the manner that a reasonable person in that trade or profession would have in similar circumstances.

How would a Judge know that? The best way would be to employ an Expert Witness to write a report, attend and testify at Trial.

The Expert Witness would be qualified as an “expert” by reason of “education” and/or “experience”.

The Role of the Expert Witness

The Expert Witness is to be an “advisor” to the Judge, not an “advocate” on behalf of the parties. In the “pure sense” this Witness is engaged as a “confidant” of the judicial system. The evidence and the opinion are to be provided from an independent or neutral perspective.

What does the Trial Judge need to know about my profession? What does the Trial Judge need to know about the facts? How would a reasonable profession have acted in these circumstances? These are all questions to be addressed in the Report.

Just looking at the issues presented in this scenario, numerous expert witnesses could be called upon to offer their opinions. This is not an inexpensive undertaking!

Brian Madigan LL.B., Broker

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