So how is the loss of the truly hypothetical easement determined?

So far there are two appraisals that have been done:

·         The appraiser from Boise Idaho who I feel used false and misleading information first valued a ‘cost to cure’ with the easement from Cavedale and then subsequently compared the before and after value using the same  comps as $0.  He does not appear to have even been on the easement nor does it appear that he visited the comparable properties that he used - nor driven on Cavedale Road.

e   "We will take care of this project.  It’s similar to a DIV project I did in Aspen/Snowmass CO last fall.  A key issue for this type of project is not to over look the “Cost to Cure” for the noted defect in title.  If the estimated Cost to Cure is less than the difference of the “Before and After Value”, the Cost to cure is considered to be the appropriate measure of damages, in terms of this project we have valued numerous commercial vineyards within the Napa/Sonoma market over the past few years.”

c    I guess appraising commercial vineyards and properties in Aspen qualified him for this job?  Still have not heard from Fidelity National Title Insurance Company how they found him.

      

      The second appraisal I did myself.  I based it on these principles from Lee vs. Fidelity National Title Insurance Company.

      “[t]he ambiguity should be resolved in favor of the insured.”

“[t]he function of the title company is to ‘give the insured the protection which he reasonably had a right to expect’”

“[t]he risk of a proper description was assumed by the company, and it should bear the responsibility for the mistake.”

·         

       I valued the diminution as the value which we listed the property with all three easements which was determined by comparable properties and we felt was aggressive as the ‘before’ value (as that was clearly what I was led to expect by Fidelity) and compared that to the reality of having only the one deeded easement.  (XXXX just explained to me that unless I am doing the valuation for a lending institution – I can do an appraisal.  Even as an interested party this work should be considered.)

      Needless to say the value that I determined to be the diminution in value was not $0 like the appraiser from Boise Idaho.