Uniform Appraisal Standards for Federal Land Acquisitions

Transcription

1 Uniform Appraisal Standards for Federal Land Acquisitions

2 The Interagency Land Acquisition Conference has developed, promulgated, and adopted the Uniform Appraisal Standards for Federal Land Acquisitions and is solely responsible for their content. The Appraisal Institute s contribution to the Uniform Standards consisted of editorial and production assistance unrelated to the substance of the Uniform Standards, and the Appraisal Institute assumes no responsibility for the content of the Uniform Standards. The Appraisal Institute has published the Uniform Standards for the Interagency Land Acquisition Conference to help make them available in hard copy form to interested parties. Printed in the United States of America ISBN: X

3 INTERAGENCY LAND ACQUISITION CONFERENCE Uniform Appraisal Standards for Federal Land Acquisitions WASHINGTON, D.C APPRAISAL INSTITUTE Published by the Appraisal Institute 875 North Michigan Ave., Suite 2400, Chicago, IL in cooperation with the U.S. Department of Justice

9 Foreword This is the fifth edition of the Uniform Appraisal Standards for Federal Land Acquisitions. The Standards were originally published in 1971 with the most recent revision published in The existing Standards have earned a prestigious position. They are frequently cited by Congress in legislation relating to the valuation of federal land acquisitions and have guided the appraisal process in these matters since their original issuance by the Interagency Land Acquisition Conference. The Interagency Land Acquisition Conference, established on November 27, 1968, by invitation of the Attorney General, is a voluntary organization composed of representatives from the many federal agencies engaged in the acquisition of real estate for public uses. The Conference adopted and continues to adhere to several goals with respect to land acquisition, including the promulgation of uniform appraisal standards and guidelines for appraisal reports. The broad experience of the member representatives of the Interagency Land Acquisition Conference assures that the federal appraisal standards developed for land acquisitions are uniform, fair, and efficient. The Interagency Land Acquisition Conference is chaired by the Assistant Attorney General for the Environment and Natural Resources Division, Department of Justice. Its activities are conducted by ad hoc committees composed of member representatives. The Interagency Land Acquisition Conference Executive is Virginia P. Butler, Chief of the Land Acquisition Section of the Environment and Natural Resources Division, Department of Justice. James D. Eaton, MAI, of the Appraisal Unit, Department of Justice, authored this 2000 revision of the Uniform Appraisal Standards for Federal Land Acquisitions. He was assisted in this effort by Appraisal Unit Chief Brian Holly, MAI; trial attorney Marc Gordon; and Ms. Butler. These Standards were submitted to the Appraisal Institute for editorial review and the Department of Justice gratefully acknowledges the editorial assistance of the Appraisal Institute in their preparation. While the vast majority of federal land acquisition is achieved through voluntary means, sometimes litigation is necessary. With this in mind, Mr. Eaton has done an admirable job of updating the case law, expanding the treatment of novel or difficult valuation questions, and recognizing the vast changes that have recently characterized the real estate appraisal profession. The various departments and agencies of the Interagency Land Acquisition Conference commented upon a draft of these Standards. Their comments and suggestions were taken into account in a modified final revision that the Conference approved. Under a cooperative agreement between the Appraisal Institute and the Department of Justice, the Appraisal Institute will publish this 2000 edition of the Uniform Appraisal Standards for Federal Land Acquisitions. Publication of these Standards will ensure that the Yellow Book is available in hard copy to all potential users. The Standards are also available on the Department of Justice s Internet Web site. Lois J. Schiffer, Chair Interagency Land Acquisition Conference Dated: December 20, 2000

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11 Purpose These Standards have been prepared for use by appraisers to promote uniformity in the appraisal of real property among the various agencies acquiring property on behalf of the United States. It should make no difference to the landowner, whose property is being acquired, which agency is acquiring the land, or what method of acquisition it uses. Uniformity and fairness in the treatment of property owners are also the goals of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, P.L , as amended, 42 U.S.C 4601, et seq. Portions of this Act deal with the appraisal of real property and are cited and discussed herein in the appropriate sections. These Standards presume full compliance with the pertinent provisions of the Act. The appraisal of property for purposes of direct voluntary purchase, exchange, or eminent domain by the United States presents unique problems not ordinarily encountered in appraisals for sale, tax, mortgage, rate-making, insurance, and other purposes. This results naturally from the fact that the method of appraisal, the elements and factors to be considered and the weight given them, and the standards of valuation are determined to a great extent by law. Therefore, the judgment or opinion of the individual appraiser should be governed by proper legal standards, whether land is being acquired by voluntary purchase, exchange, or condemnation. These Standards have been prepared in recognition of the fact that the vast majority of federal land acquisitions are accomplished by voluntary means. However, the utmost objectivity, accuracy, and thoroughness of appraisals, upon which those acquisitions are based, is essential regardless of the government s method of acquisition. The federal appraisal standards are the same for voluntary acquisitions as they are for acquisitions by condemnation. Therefore, the purpose of these Standards is to set forth the general principles applicable to the appraisal of property for federal land acquisitions by both voluntary means and condemnation.

12 2 Purpose Uniform Appraisal Standards for Federal Land Acquisitions The rules stated herein are subject to modification under the varying circumstances of particular agency programs or cases. 1 Of course, the application of the general rules can reveal wide differences of opinion, some of which must ultimately be resolved in court. Because the amount of compensation to be paid to property owners when their property is acquired by the government for public use is a matter of constitutional law, appraisers are cautioned to confer with counsel for the acquiring agency on legal questions affecting the valuation and, if condemnation is instituted or appears necessary, with the representatives of the Department of Justice who will be charged with the responsibility of preparing the case for trial. In this manner, specific written legal instructions can resolve doubt about the proper method of valuation or the application of particular rules to specific factual situations. Appraisers and other users should also recognize that these Standards may require modification in certain specific cases prompted by special legislation or court order, by stipulations made between an agency and a property owner in a voluntary acquisition, or by stipulations entered into between litigants in a condemnation action. Such modifications, however, should not be undertaken without specific written instructions from the acquiring agency or its legal counsel. 1. Many of the land acquisition agencies have adopted appraisal and/or review handbooks or manuals which, in some instances, modify these Standards to meet their specific acquisition programs. Examples of such manuals/handbooks include U.S. Fish and Wildlife Service (342 FW 1, Appraisal Handbook; 342 FW 2, Appraisal Review Handbook); U.S. Forest Service (Manual FSM 5410; Handbook FSH 5409); U.S. Army Corps of Engineers Real Estate Engineer Regulations (ER ); Bureau of Land Management Manual (9310).

13 Scope These Standards will cover the following areas: A. Data documentation and appraisal reporting standards B. Legal basis for appraisal standards for federal land acquisitions C. Standards for the review of appraisals D. Standards for unique and miscellaneous appraisal problems Section A of these Standards derives from generally accepted professional appraisal standards and appraisal reporting standards. However, these have occasionally been modified to meet the overriding standards created by federal law, as described in Section B of these Standards. The standards for appraisal report content and documentation presented in this section must be met. However, the appraisal report formatting presented here is merely recommended rather than mandatory. 2 Section B of these Standards is based on federal case law, which is cited throughout the section. The U.S. Constitution provides that private property will not be taken and converted to public use by the government without payment to the landowner of just compensation. The federal courts have adopted the working rule that, in general, the just compensation due for the acquisition of property by the government is equivalent to the property s market value. It is, therefore, incumbent upon appraisers who make market value appraisals for federal land acquisitions to understand the federal case law relating to proper application of the appraisal process as applied to federal land acquisitions. In addition to the case law that supports and, in some instances, dictates the standards set out in Section A, Section B includes a discussion of the legal standards established for treatment of many recurring valuation problems. Therefore, Section B of the Standards is intended for use not only by appraisers, but also by agency and Department of Justice attorneys whose legal practice includes matters relating to real estate valuation. Section C of the Standards is derived from generally accepted appraisal review standards, as well as from federal regulations requiring such reviews. The purpose of Section C is to insure that appraisals used by the government in its land acquisitions have been 2. Nonetheless, appraisers should review their appraisal contracts or assignment letters in this regard. Some agencies may specify in their contracts/assignment letters that the use of Section A formatting is mandatory.

14 4 Scope Uniform Appraisal Standards for Federal Land Acquisitions conducted in an unbiased, accurate, and thorough manner in accordance with these Standards and applicable law. Section D addresses the proper treatment of specialized or unique but frequently encountered appraisal problems. While these Standards aim both to encourage uniform approaches to appraisal problems and to prescribe requirements for adequate supporting data and other factual information used to develop market value estimates, the materials are not in any degree presented to limit the scope of appraisal investigations or to bias the independent judgment of value estimates of appraisers employed by federal agencies. Also, to insure maximum flexibility to agencies in accomplishing their program goals, provisions have been made, under certain circumstances, for the modification of the Section A Data Documentation and Appraisal Reporting Standards. (See Section A, Introduction.)

15 Policy In acquiring real property, or any interest therein, it is United States policy to impartially protect the interests of all concerned. The Fifth Amendment of the United States Constitution asserts: nor shall private property be taken for public use, without just compensation. Since the courts early adopted, and have retained, the concept of market value 3 as the measure of just compensation, the United States, as a matter of general policy, bases its land acquisitions on market value appraisals: [I]t is the duty of the state, in the conduct of the inquest by which the compensation is ascertained, to see that it is just, not merely to the individual whose property is taken, but to the public which is to pay for it United States v. Miller, 317 U.S. 369, 374 (1943). 4. Searl v. School District, Lake County, 133 U.S. 553, 562 (1890); Bauman v. Ross, 167 U.S. 548, 574 (1897).

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17 A Data Documentation and Appraisal Reporting Standards Introduction. Appraisal preparation, documentation and reporting shall be in conformity with these Standards, which are compatible with standards and practices of both the appraisal industry and the current edition of the Uniform Standards of Professional Appraisal Practice (USPAP). 5 It has been necessary, however, to invoke USPAP s Jurisdictional Exception Rule in certain instances, so as to conform these Standards with overriding federal law relating to the valuation of real estate for government acquisition purposes. 6 Appraisals prepared in accordance with these Standards will be considered for the purpose of these Standards to constitute a complete appraisal, as defined by USPAP. 7 It should be recognized that the government s needs for private property for public purposes are quite varied and have a tendency to create unique valuation problems. These Standards do not cover all of the valuation problems that might be encountered in the appraisal of property for government acquisition, and so should not be considered as rigid rules which must be applied in every instance. The appraiser may sometimes encounter unique appraisal problems that require modification of the appraisal process and the appraisal report to ensure that the specific appraisal problem is adequately addressed and that the appraiser s final conclusion of value is accurate, and has been developed in accordance with controlling federal law. With written agency concurrence, appraisers should feel free to deviate from the Standards in those unique cases that require deviation to properly solve appraisal problems so long as such deviation is in accord with federal law and can be adequately justified. Such justification must be included in the appraisal report. The Standards set out below have been developed in recognition that government acquisition of private land can create difficult and complex valuation problems, the solutions to which must be developed with the utmost care. Therefore, these standards are especially appropriate when proposed acquisitions are complex, high value, sensitive, or 5. The Appraisal Foundation, Uniform Standards of Professional Appraisal Practice (USPAP), 2000 ed. 6. Section D-1 of these Standards describes the instances in which the Jurisdictional Exception Rule is invoked. The comparison of these Standards and USPAP utilized, for purposes of comparison, the 2000 edition of USPAP. Appraisers should be aware that future changes in USPAP may require additional jurisdictional exceptions. 7. Complete Appraisal: the act or process of developing an opinion of value or an opinion of value developed without invoking the DEPARTURE RULE. USPAP, Definitions. USPAP s Departure Rule relates to the acceptance of an appraisal assignment in which the appraiser s scope of work is less than, or different from, the work that would be required by USPAP s specific requirements.

18 8 Introduction Uniform Appraisal Standards for Federal Land Acquisitions controversial, or when they must be referred to the Department of Justice for litigation. However, economic considerations and unique program requirements may require modification to these Standards. It is recognized that not all government acquisitions result in complex valuation problems, thus not all appraisal reports will require the degree of information, support and documentation cited herein. 8 Therefore, agencies and valuation managers should modify these Standards as necessary or required to meet their specific agency or program requirements. In making such modifications, the comparative cost of the appraisal services and the anticipated cost of the property to be acquired, as well as the anticipated complexity of the valuation problem, should be considered. Appraisers should recognize that if these Standards are modified by an agency or program manager for the reasons noted above, the appraiser s assignment may result in a limited appraisal as defined by USPAP 9 and the appraiser should identify the appraisal as such. Under no circumstances, however, may appraisal standards be set at a level below the minimum required under 49 C.F.R These appraisal Standards are intended to establish a required standard for appraisal report content and documentation, subject to the above exceptions. For easy reference by appraisers and reviewers, a checklist of report content and documentation required under these Standards has been included in the addenda of the Standards marked as Appendix A. 10 In addition, supplemental content and documentation standards for appraisal reports to be used by appraisers who will testify as expert witnesses in federal court are required by Federal Rule of Civil Procedure 26(a)(2)(B). These supplemental standards are explained in Section D-2 of these Standards. These appraisal Standards are not, however, intended to establish an absolute requirement for appraisal report formatting. The report formatting described in these standards, which consists of a four-part appraisal report for total acquisition appraisals and a sevenpart appraisal report for partial acquisition appraisals, should be considered only as a recommended guideline for report format. Appraisers are nonetheless cautioned to closely examine their appraisal contract or assignment letter for report formatting requirements, as some agencies may mandate report formatting in accordance with the recommendations herein. For ease of reference by appraisers, the recommended formatting for appraisal reports is shown in the addenda of these Standards, marked as Appendix B. 11 USPAP provides for three types of appraisal reports: self-contained, summary, and restricted use. Appraisers are required by USPAP to specifically identify the type of appraisal report prepared. 12 For a number of reasons, the restricted use report, as defined by USPAP, is 8. For instance, the Uniform Relocation and Real Property Acquisition Act of 1970 implementing regulations provide for less than detailed appraisals for those acquisitions which, by virtue of their low value or simplicity, do not require the in-depth analysis and presentation necessary in a detailed appraisal 49 C.F.R (a). For a discussion of these appraisal requirements, see The Appraisal Guide (Washington D.C.: U.S. Department of Transportation, Federal Highway Administration, Pub. No. FHWA-RE , 1990). 9. Limited Appraisal: the act or process of developing an opinion of value or an opinion of value developed under and resulting from invoking the DEPARTURE RULE. USPAP, Definitions. USPAP s Departure Rule relates to the acceptance of an appraisal assignment in which the appraiser s scope of work is less than, or different from, the work that would be required by USPAP s specific requirements. 10. This checklist is not an integral part of these Standards, nor is it intended to be used as part of a formal appraisal review, but has been included merely for easy reference by appraisers and reviewers. 11. This Table is not an integral part of these Standards, but has been included merely for easy reference by appraisers and reviewers. 12. USPAP, Standards Rule 2-2.

19 Uniform Appraisal Standards for Federal Land Acquisitions Sections A-1 through A-4 9 unacceptable for government land acquisition purposes. 13 Much confusion exists in the appraisal industry regarding what constitutes a self-contained report as opposed to a summary report, and the terminology used by appraisers varies on a regional basis. However, for the purpose of these Standards any appraisal report, whether identified by the appraiser as a self-contained report or a summary report, will be considered as meeting the USPAP requirements for a self-contained report if it has been prepared in accordance with these Standards. Part I Introduction A-1. Title Page. This should include (a) the name, street address and agency assigned tract, or parcel, number (if any), of the property appraised, (b) the name and address of the individual(s) making the report, and (c) the effective date of the appraisal. A-2. Letter of Transmittal. This should include the date of the letter; identification of the property and property rights appraised; a reference that the letter is accompanied by a self-contained (or summary) appraisal report; a statement of the effective date of the appraisal; identification of any hypothetical conditions, extraordinary assumptions, limiting conditions, or legal instructions; the value estimate, or estimates, in the case of a partial acquisition, of the value of the whole property before the acquisition and the remainder property after the acquisition; and the appraiser s signature. A-3. Table of Contents. The major parts of the appraisal report and their subheadings should be listed. Items in the addenda of any report shall be listed individually in the table of contents. A-4. Appraiser s Certification. The appraisal report shall include an appraiser s signed statement certifying that: the statements of fact contained in the report are true and correct; the reported analyses, opinions, and conclusions are limited only by the reported assumptions, limiting conditions, and legal instructions, and are the personal, unbiased professional analysis, opinions, and conclusions of the appraiser; the appraiser has no present or prospective interest in the property appraised and no personal interest or bias with respect to the parties involved; the compensation received by the appraiser for the appraisal is not contingent on the analyses, opinions, or conclusions reached or reported; the appraisal was made and the appraisal report prepared in conformity with the Uniform Appraisal Standards for Federal Land Acquisitions; the appraisal was made and the appraisal report prepared in conformity with the Appraisal Foundation s Uniform Standards for Professional Appraisal Practice, except to the extent that the Uniform Appraisal Standards for Federal Land Acquisitions required invocation of USPAP s Jurisdictional Exception Rule, as described in Section D-1 14 of the Uniform Appraisal Standards for Federal Land Acquisitions; 13. E.g., a restricted use report cannot reliably be reviewed, as is required for government land acquisition appraisals, due to the limited information provided (USPAP Standards Rule 2-2(c)(ix)); the intended user of the report is restricted to the client only (USPAP Advisory Opinion 12), a condition that cannot be met for government land acquisition appraisals because it should be anticipated that others, such as a land owner, legislators, or the court, will be asked to use and rely on the appraisal report. 14. Appraisers should recognize that USPAP changes frequently and that future changes may require additional jurisdictional exceptions which are not noted in Section D-1 of these Standards. In such an instance, appraisers will have to identify and report such additional jurisdictional exceptions.

20 10 Sections A-4 through A-6 Uniform Appraisal Standards for Federal Land Acquisitions the appraiser has made a personal inspection of the property appraised and that the property owner, or his/her designated representative, was given the opportunity to accompany the appraiser on the property inspection; no one provided significant professional assistance to the appraiser. (If professional assistance was provided the appraiser, the name of the individual(s) providing such assistance must be stated and their professional qualifications should be included in the addenda of the appraisal report. This requirement includes both professional appraisal assistance and providers of subsidiary assistance, e.g., planning and permitting consultants, engineers, cost estimators, marketing consultants.) The appraiser s certification shall also include the appraiser s opinion of the market value of the property appraised as of the effective date of the appraisal. If the government s acquisition comprises only a portion of the whole property, or property rights, appraised, the certification shall include both the appraiser s opinion of the market value of the whole property as of the effective date of the appraisal and the appraiser s opinion of the remainder property s market value after the government s acquisition, as of the effective date of the appraisal. Appraisers may also add to their certifications certain items that may be required by law, the USPAP, and the appraiser s professional organization(s). However, appraisers should avoid adding certifications that are not pertinent to the specific appraisal (e.g., that the report was prepared in accordance with the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA)) or that are beyond the scope of the appraisers assignment (e.g., certifying an opinion of just compensation). The appraiser s certification may alternately follow the appraiser s final estimate of value in the appraisal report. A-5. Summary of Salient Facts and Conclusions. The appraiser shall report the major facts and conclusions that led to the final estimate(s) of value. This summary should include an identification of the property appraised; the highest and best use of the property (both before and after the acquisition if a partial acquisition); brief description of improvements (both before and after the acquisition if a partial acquisition); the indicated value of the property by each approach to value employed (both before and after the acquisition if a partial acquisition); the final estimate of value (both before and after the acquisition if a partial acquisition); and any hypothetical conditions, extraordinary assumptions, limiting conditions or instruction; and the effective date of the appraisal. A-6. Photographs of Subject Property. Pictures shall show the front elevation of the major improvements, any unusual features, views of the abutting properties on either side and that property directly opposite, and interior photographs of any unique features. When a large number of buildings are involved, including duplicates, one picture may be used for each type. Except for an overall view, photographs may be bound as pages facing the discussion or description of the photographs content, or may be placed in the addenda of the report. Each photograph should be numbered, and show the identification of the property, the date taken, and the name of the person taking the photograph. The location from which each photograph was taken and the direction the camera lens was facing should be shown on the plot plan of the property in the report s addenda. In selecting photographs for inclusion in their reports, appraisers should bear in mind that some government appraisal reviewers and other readers of the report may never have an opportunity to personally view the property. Therefore, they must rely on the photographs and the narrative description of the property provided by the appraiser to gain an adequate understanding of the physical characteristics of the property to judge the accu-

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