Delince Litus v. Board of Assessors of the City of Brockton (April 15, 2015)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


DELINCE LITUS	  		     v.	      BOARD OF ASSESSORS OF   
							      THE CITY OF BROCKTON
					
	         
Docket No. F318580				      Promulgated:
								 April 15, 2015


	This is an appeal filed under the formal procedure, pursuant to G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65, from the refusal of the Board of Assessors of the City of Brockton ("appellee" or "assessors") to abate a tax on certain real estate in Brockton, owned by and assessed to Delince Litus ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2013 ("fiscal year at issue").  
	Commissioner Rose ("Presiding Commissioner") heard this appeal. Pursuant to G.L. c. 58A, § 1A and 831 CMR 1.20, he issued a single-member decision for the appellee. 
	These findings of fact and report are made pursuant to a request by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32. 

	Delince Litus, pro se, for the appellant.
	
Paul Sullivan, member of the Board of Assessors of the City of Brockton, for the appellee.



 			Findings of Fact and Report

On the basis of the evidence presented, including the testimony and exhibits entered into the record, the Presiding Commissioner made the following findings of fact.   
Introduction and jurisdiction.  
On January 1, 2012, the relevant assessment date for the fiscal year at issue, the appellant, together with Guerditte Theodore Litus, was the assessed owner of an improved 0.188-acre parcel of land, identified on the assessors' Map 41, Lot 76 as Parcel 13 and with an address of 126 Battles Street in Brockton ("subject property").  
For the fiscal year at issue, the assessors valued the subject property at $217,500 and assessed a tax thereon, at the rate of $16.88 per thousand, in the total amount of $3,671.40.  In accordance with G.L. c. 59, § 57C, the appellant paid the tax due for the fiscal year at issue without incurring interest.  On January 9, 2013, in accordance with G.L. c. 59, § 59, the appellant timely filed an Application for Abatement with the assessors, which they denied on January 17, 2013.  However, on February 8, 2013, the appellee reconsidered its decision and granted a partial abatement, reducing the subject property's assessment to $199,400, which resulted in an abatement of tax of $305.53.  On February 19, 2013, in accordance with G.L. c. 59, §§ 64 and 65, the appellant seasonably filed her petition with the Appellate Tax Board ("Board").  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.
Valuation evidence.
The subject property is improved with a single-family, two-story, Cape-style residence built in 1961 with an aluminum/vinyl exterior and asphalt roof ("subject residence").  According to the property record card on file with the assessors, the subject residence has 1,998 square feet of living area, including the 800-square-foot basement living area, and is comprised of ten rooms, including seven bedrooms, as well as three full bathrooms.  The subject residence is fueled by oil and also includes central air conditioning.  Additional amenities include: one fireplace; a twenty-square-foot enclosed farm porch; a one-hundred-twenty-square-foot open farm porch; and a twenty-one-square-foot wooden deck.  The property record card on file with the appellee rates the subject residence as in overall good condition with a quality grade of C. 
The appellant contended that the assessed value of the subject property exceeded its fair cash value; her opinion of the subject property's fair market value was $170,100.  In support of her contention, the appellant submitted, without objection from the assessors, the following documents: an appraisal of the subject property performed for a bank by appraiser Mary Jane Cotter, who was not presented as a witness at the hearing; a copy of a Statement of Credit Denial, Termination or Change ("Credit Denial") from the bank denying the appellant's mortgage loan application for a refinance on the subject property; and an assessment history printed from the appellee's website.  The Credit Denial stated that the reason for denial was that the "Value or Type of Collateral not Sufficient," but the Credit Denial did not reveal the loan amount which the appellant had requested.  
In the appraisal report which Ms. Cotter performed for the bank, she valued the subject property using a sales-comparison approach and a cost approach.  Based on a reconciliation of these approaches, Ms. Cotter opined that the subject property had a fair market value of $170,100 as of October 24, 2012.  However, because Ms. Cotter was not presented as a witness at the hearing of this appeal and thus was not available for cross-examination by the appellee or questioning by the Presiding Commissioner, her opinions contained in the appraisal report were unsubstantiated hearsay.  Therefore, the Presiding Commissioner credited the appraisal report solely with respect to its undisputed descriptions of the subject property.
The appellee presented its case-in-chief through the testimony of Assessor Paul Sullivan and the submission of documents, including: the requisite jurisdictional documents; a copy of the property record card for the subject property; a copy of Ms. Cotter's appraisal report; and copies of Multiple List Service ("MLS") listings and property record cards for five purportedly comparable properties that had sold in Brockton.  The sales occurred between February 2, 2011 and December 28, 2011 and the sale prices ranged from $200,000 to $217,000.  Mr. Sullivan also testified, and the appraisal report revealed, that two of the three sales utilized by Ms. Cotter in her comparable-sales analysis were "short sales," or sales in which the proceeds were not sufficient to pay off the mortgage, and therefore, under the circumstances here, were not reliable indicators of the properties' fair cash values.  
Valuation findings.
On the basis of the evidence submitted, and to the extent that it is a finding of fact, the Presiding Commissioner found that, because Ms. Cotter was not presented as a witness at this hearing and thus not available for questioning by the appellee or by the Presiding Commissioner, her opinions contained in the appraisal report were unsubstantiated hearsay and therefore could not be used to support an opinion of value.  Moreover, the appellant did not rebut Mr. Sullivan's testimony that two of the three sales upon which Ms. Cotter based her final opinion of value were short sales.  Because the appellant did not offer any evidence to overcome the suggestion that these sales did not reflect fair cash value, the Presiding Commissioner did not accord them weight.  As a result, because the appellant offered no other evidence of value other than the opinion hearsay from the appraisal report, the Presiding Commissioner found and ruled that the appellant failed to meet her burden of proving a value for the subject property that was less than its assessed value as abated.  
Accordingly, the Presiding Commissioner issued a single-member decision for the appellee.

OPINION
The assessors are required to assess real estate at its fair cash value.  G.L. c. 59, § 38.  Fair cash value is defined as the price at which a willing seller and a willing buyer in a free and open market will agree if both of them are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
	The appellant has the burden of proving that the property has a lower value than that assessed.  "'The burden of proof is upon the petitioner to make out [her] right as [a] matter of law to [an] abatement of the tax.'"  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974) (quoting Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)).  "[T]he board is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayers . . . prov[e] the contrary.'"  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 365 Mass. at 245)).
In appeals before the Board, a taxpayer "'may present persuasive evidence of overvaluation either by exposing flaws or errors in the assessors' method of valuation, or by introducing affirmative evidence of value which undermines the assessors' valuation.'"  General Electric Co., 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
In the present appeal, the appellant contended that the subject property was overvalued.  In support of her case, she presented the appraisal report of Ms. Cotter, prepared at the request of a bank in connection with a mortgage application for the subject property, which included a cost-approach and a sales-comparison valuation analysis of the subject property.  However, Ms. Cotter did not testify at the hearing and was thus unavailable for cross-examination by the appellee or for questioning by the Presiding Commissioner.  The Presiding Commissioner therefore considered her opinions contained in the appraisal report to be unsubstantiated hearsay.  Ward Brothers Realty Trust v. Assessors of Hingham, Mass. ATB Findings of Fact and Reports 2012-515, 525 (rejecting opinion of value contained in an appraisal report as hearsay where author of the report did not testify at hearing).  
Moreover, the appraiser's opinion of value was based in large part upon two short sales, which suggest compulsion on the part of the sellers.  See Glowacki v. Assessors of Upton, Mass. ATB Findings of Fact and Reports 2013-685, 694 ("Like foreclosure sales, these circumstances [of a short sale] suggest compulsion and should not be considered absent rebuttal of that suggestion, which was absent in these appeals.") (citing DSM Realty, Inc. v. Assessors of Andover, 391 Mass. 1014 (1984)).  The appellant did not present any evidence to rebut this presumption of compulsion. Therefore, the Presiding Commissioner did not consider those sales, and the opinion of value based upon those sales as detailed in the appraisal report, to be reliable evidence of the subject property's fair market value. 

Conclusion
Based on the evidence presented, the Presiding Commissioner found and ruled that the appellant failed to meet her burden of proving that the subject property was overvalued for the fiscal year at issue.  Accordingly, the Presiding Commissioner issued a single-member decision for the appellee.
             			    
                             THE APPELLATE TAX BOARD

				  	By: _______________________________
					    James D. Rose, Commissioner



A true copy,

Attest: _____________________________
           Clerk of the Board

ATB 2015-164