Sometimes patience is a virtue.
I have a client who owns an apartment, on the next-to-top floor of a small building. Her upstairs neighbor has a penthouse — and a greenhouse.
One day, the greenhouse started to leak. The client complained to the upstairs neighbor and nothing was done to improve the situation, so we sued them. After making contact with the defendant’s attorney, we entered into an agreement that would put the suit on hold while the upstairs neighbor rebuilt the greenhouse and roof. We included provisions that stated that any work on the greenhouse would have to be approved by our architect (to make it more likely that the work was done better than the leaking original).
Years went by and the repairs dragged on, so we had the space inspected again and not surprisingly, mold was found. That started a lengthy remediation process, further pushing out my client’s move back to her apartment. The upstairs neighbor through his insurance company was paying a monthly amount to subsidize the alternative apartment in which the plaintiff was living, but we were concerned how the defendant would fully compensate the client for the damage of waiting, waiting, waiting to move in again.
Two things happened:
- We separately reached an agreement with the condo association’s insurance company, for “half” the damages. They wanted to stop hemorrhaging attorneys’ fees and an uncertain lawsuit.
- We put together a spreadsheet itemizing the approximate rental value of the client’s apartment, which is quite high because it’s a very small, exclusive building in a very desirable neighborhood.
Despite the settlement with the associations’ insurance company, the case against the upstairs neighbor was still pending — until the repairs were completed. It was time to talk about how to make my client whole again; she still could not move in because she was forced to get her water-damaged apartment renovated.
Our analysis accounted for the money that defendant had contributed toward subsidizing the plaintiff’s housing, a lesser apartment compared to the very fine apartment that had become unlivable because of the mold and the delayed repairs to the greenhouse/rooftop.
Not surprisingly, the consultant whom the defendant hired came back to us with a rental appraisal that was for half the value that we had calculated. Our rental appraiser reviewed the expert’s report that defendant had purchased. He gave a lot of reasons why their appraisal was inaccurate in the extreme, starting with the fact that they based their comparison on buildings that had hundreds of units. Our client’s building has less than ten units; each resident has a floor. Plus, defendant’s guy looked for comps that were relatively far away, ignoring more appropriate — and expensive — rentals nearby.
I wrote back to the attorney for the defendant/insurance company, and laid out all the reasons why we were not going to “split the difference” between their report and ours — neither in settlement nor litigation — and that plaintiff was entitled to a substantial sum after all these years.
He came back with an offer for slightly less than what we demanded, and we settled.
It was a long time in coming, and my client has gone through a lot of grief. She asked about collecting for pain and suffering, but that’s not possible in this kind of dispute, unless she could show that she suffered special mental anguish because of being out of the apartment (which would be difficult to prove).
In my estimation the settlement was very close to the actual value of the dispute, and we got it without incurring the expense of going through discovery or going to trial. So: it took a while; it took some attorneys’ fees; but it was resolved for an amount that accounted for how long the client had to wait for closure.
