Can I dispute my Calgary Family Matrimonial Property Valuation?
Calgary Family Matrimonial Property Valuation disputes can involve disputes over millions of dollars of lucrative business or professional practices, or books of business, commercial real estate, intellectual property and private art collections. Our Calgary Family Matrimonial Property Valuation know that the highest and best use analysis requires the identification of the “most profitable, competitive use to which a property can be put”. This approach requires an analysis of the reality of what the property’s realistic use is. As we will see it isn’t automatically the use the spouse is using it currently for nor is it a use that faces a legal impediment. Section 87(a) of the FLA provides that “the value of family property must be based on its fair market value”.
MacLean Law’s, Calgary Family Matrimonial Property Valuation and high net worth and grey divorce lawyers are adept in understanding valuation of family or matrimonial property including highest and best use and income tax issues. Our firm is a 4 time winner of Top Choice Best Family Law Firm and our firm has also been named a winner in the prestigious Globe and Mail’s Employee Recommended Workplace.Our Mandarin and Cantonese fluent Asian family law team is also the largest in British Columbia and Calgary.
Calgary Family Matrimonial Property Valuation New Appeal Decision
Our Calgary Family Matrimonial Property Valuation department knows you want to your family property valued and divided fairly. The more valuable and complex the family and matrimonial property the higher the stakes for how valuation is determined. Should the Calgary Family Matrimonial Property Valuation be based on liquidation value, going concern value and should there be a multiple of earning approach used.
The KUMAGAI v CAMPBELL ESTATE Calgary Family Matrimonial Property Valuation decision, provides critical guidance on expert valuation principles when it allowed an Appeal in a estate litigation case that is equally useful for family lawyers. The evidence did not support the judge’s discount of the appraised value of the deceased husband’s lands based on its highest and best use by the parties’ jointly retained expert. Evidence must be adduced to establish a legal impediment to the use of land that justifies rejecting the highest and best use valuation.
[33] Mr. Umlah determined the market value of the Campbell Lands based on their “highest and best use”. …….He relied on the accepted definition of “market value” from the Canadian Uniform Standards of Professional Appraisal Practice of the Appraisal Institute of Canada, which defines “market value” as “the most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming the price is not affected by undue stimulus.”In Southam Inc. (Pacific Newspaper Group Inc.) v. British Columbia (Assessor of Area No. 14 – Surrey/White Rock), 2004 BCCA 245, this Court accepted the definition of highest and best use as a market-driven concept that “identifies the most profitable, competitive use to which property can be put”:at para. 14, referring to comments in Ford Motor Co. v. Edison, 127 N.J. 290; 1992 N.J. Lexis 32 (New Jersey Sup. Ct.) at p. 6, citing Meyer v. Department of Revenue, Or.Tax, No. 3049, 1991 WL 244494 (Nov. 20, 1991) (underlining added in Southam).
[61] The highest and best use analysis requires the identification of the “most profitable, competitive use to which a property can be put”: see, Appraisal Institute and Appraisal Institute of Canada, The Appraisal of Real Estate, Canadian Edition (Illinois: Appraisal Institute, 1992), at p. 284. It is the reasonable expectation of the market potential for the property taking into account such factors as: whether the neighbourhood is in a state of transition; what can be legally built on the property; what is the supply and demand for various uses; what is the capacity of available services; and what alternatives are financially viable: see BC Real Property Assessment Manual, looseleaf (Vancouver: The Continuing Legal Education Society of British Columbia, 1990), §6.3.
[62] The Estate contends that “highest and best use” does not mean property must be valued only on the basis of some potential future best use without reference to its present use. However, in Gemex Developments Corp. v. British Columbia (Assessor of Area #12 – Coquitlam) (1998), 62 B.C.L.R. (3d) 354, Madam Justice Newbury, writing for the Court, rejected that position, stating (at para. 11):
… This position runs contrary …to most of the definitions of “actual” or “market” value that have been advanced by courts and learned authors in recent years. British Columbia courts on many occasions have held that provided a possible future use is not “speculative”, it may be considered in determining value and that if an owner’s present use is not consonant with a use that would affect the market price, the latter will govern: see, e.g., Lefeaux v. Corporation of the District of West Vancouver (1962) Stated Case 33 (B.C.S.C.); Jericho Tennis Club v. Assessor of Area 09 – Vancouver (1991) Stated Case 307 (B.C.S.C.); Assessor of Area 10 – Burnaby/New Westminster v. Sears Canada Inc. (1992) Stated Case 332 (B.C.S.C.); and Petro Canada Inc. (Gulf Canada Ltd.) v. Assessor of Area 12 – Coquitlam (1991) 61 B.C.L.R. (2d) 86 (B.C.C.A.), a decision of Proudfoot J.A. in Chambers.
Calgary Family Matrimonial Property Valuation lawyers founder Lorne N. MacLean, QC
Can I dispute my Calgary Family Matrimonial Property Valuation? Legal Impediments Make A Difference To Value
Realistic uses of a particular property matter. Factors such heritage designations, height restrictions, usage restrictions, and a reality check on financial viability all impact what is determined to be the highest and best use as the Court explained:
[63] With respect to First Nations lands, the majority in Musqueam Indian Band v. Glass, 2000 SCC 52, accepting guidance from The Appraisal of Real Estate text noted above, confirmed:
[47] Legal restrictions on land use, as opposed to restrictions found in the lease, may affect the market value of freehold property.…To determine land value, whether as vacant or as improved, the appraiser (unless otherwise instructed by the lease) considers the highest and best use that is “legally permissible, physically possible, financially feasible, and maximally productive”. Legal impediments include “[p]rivate restrictions, zoning, building codes, historic district or other non-zoning land use controls, and environmental regulations” (Appraisal Institute of Canada, The Appraisal of Real Estate (Canadian ed. 1999), at p. 270).
[64] The Court distinguished legal restrictions on the use of the land, which are relevant to determining highest and best use, from contractual restrictions imposed in a lease, which generally are not. This was also recognized in Victoria University (Board of Regents) v. GE Canada Real Estate Equity, 2016 ONCA 646, where that Court summarized Musqueam as follows:
[40] In conclusion, Musqueam establishes that, absent a contrary intention in the lease: (a) the word “land” refers to the freehold or fee simple interest in the lands at issue; (b) the word “value” means the exchange value of the land, calculated by determining the “highest and best use” possible; and (c) fair market value should reflect legal restrictions on the land but should ignore any particular restrictions imposed by the lease itself.
[65] In short, legal impediments are legal restrictions on the use of the land. They do not include an owner’s intentions or desires, which are irrelevant, or in this case an executrix’s inability to facilitate the highest and best use of the land, which may be rectified……..
[66] More significantly, there was no evidence that any of these issues raised by the Estate constituted legal impediments, to what Mr. Umlah determined to be the highest and best use of the Residential Lands. A professional appraisal must include any legal impediments and none were included in Mr. Umlah’s report….
So, how can you dispute your Calgary Family Matrimonial Property Valuation?
