Antecedentes en el estudio social de la muerte encefálica

The year 1984 marked the origin of the literature on the effects of contamination on real property in USA when Campanalla (1984) paper was published. Though this initial paper was designed to help the legal community identify potential weaknesses in reports

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generated for or against their clients who suffer losses from contamination of their properties, he stated that the job of a valuer is to predict how people will react to the presence of contamination and justify that prediction with some verifiable evidence. He stated that the traditional approach was to value the property as though the contaminant never existed and then revalue in its contaminated state. The difference in value is the damage suffered by the property as a result of the contamination. In reviewing the techniques of valuation that may be used including the sales comparison, income approach and cost-to-cure approach, he cautioned that the valuation of contaminated properties may become very subjective as there was hardly any comparable data available. While accepting that toxic contamination has a major impact and reduces property value, Patchin (1988), stated that seriously contaminated properties are unmarketable but properties that are mildly or suspected to be contaminated have limited marketability. He noted that the amount of loss in market value varies according to the nature and extent of the contamination. He identified the causes of market-value loss to be due to:

1. Costs of clean up; 2. Liability to the Public; 3. Stigma after Clean up.

While discussing the effect of “Stigma after Clean Up”, Patchin stated that “a physical clean-up does not usually eliminate the value loss resulting from stigma….I have observed several cases in which….potential buyers remained reluctant. The reluctance has to do with all the risk and financing problems and the result is that even a cleaned up property may suffer from reduced marketability”. He recommended the mortgage-equity capitalization technique as the preferred valuation method, noting that the capitalization rate was dependent on factors like:

1. The equity yield rate;

2. Mortgage terms available; and

3. Anticipated future appreciation or depreciation.

He suggested that the capitalization rate for contaminated properties can be adjusted to reflect the particular situation on hand like:

 Extent and nature of contamination-resulting in unmarketability or reduced marketability;

 Type of property involved-industrial, commercial, office, special purpose, etc.;

A Framework for Determining the Compensable Value of Damages due to Contamination on Wetlands Page | 115  Demand for alternative uses.

Patchin painted three scenarios thus:- Scenario 1

The risk of future liabilities after remediation is such that contamination is serious enough to render the property unmarketable, with only a “value in use”.

Scenario 2

This assumes that the property has limited marketability, with a major difference in value due to the nature and extent of the contamination.

Scenario 3

The implications of contamination are such that the effect on value arises out of a change in the highest and best use of the land subject to the presence of contamination.

In determining the loss due to contamination in these scenarios, Patchin adopted the “before and after” contamination approach, increasing the capitalization rate used for the “after” valuation in the first two scenarios to reflect stigma. All the scenarios require a high degree of accuracy in remedial cost estimates in order to inform the valuation process, but these costs are hardly available in practice. He cautioned about the virtual lack of market sales transactions data for contaminated properties, noting that the results are very dependent on individual circumstances and suggested that more precise valuation techniques would be developed as more market data become available.

In discussing the certainty of remediation cost estimates, Wilson (1996) introduced the need to use probability estimates in determining the range of probable cost of remediation. He stated that buyers had a tendency of normally deducting twice the estimate of “most likely” remedial cost due to the historically proven uncertainty of these estimates, as they attempt to cover unforeseen increases in the estimated costs. Mundy (1992a) described the total loss in value resulting from contamination as often being more than the “cost to cure”, since property that is affected by contamination may suffer from diminution in value from either real risks and/or perceived risks. He defined perceived risk as the risk seen by the public in the market place and stated that for income producing properties, the effect of contamination is twofold. The first is the income effect, which is the difference between the property values as if uncontaminated and the property value as if contaminated and is related to lost income. The damage is estimated by discounting the present value of lost income over the duration of the effect, at a market rate of interest in the uncontaminated condition, and at a risk rate in the contaminated condition. The second is the marketability effect which is the inability to market the

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property because of the perceived risks attached to it by the market. The damage here is related to lost opportunity and this cost is measured by the present value of the diminished value over the duration of the effect at market rate. He cautioned that care must be taken to avoid double counting while quantifying these effects and that the analyst should quantify them independently. Chalmers and Roehr (1993) cautioned that using a method of valuation of contaminated properties which measures the difference between value of the property as uncontaminated and the value as contaminated, is only useful when the various costs can be predicted accurately, in terms of the timing and cost of remediation, indemnification required and increased financing costs associated with the contaminated property. They identified the reasons for loss in value after contamination as resulting from direct costs and stigma. Direct costs was defined as any effect of the contamination on direct cash flow stemming from lowered income flows, remediation costs and insurance costs, while stigma refers to impacts on value stemming from the increased risk associated with the property and the effect of this on the marketability and financeability. They concluded that the valuation of contaminated properties poses a challenge to scientific and engineering knowledge, economic analysis, appraisal methods, and to the very definition of value. They suggested a cash flow method of valuation.

Bell (1998) stated that determining the diminution in property value caused by a detrimental condition like pollution or any other form of contamination requires the application of specialised methods, procedures, and formulas and proceeded to discuss theory and technique, while noting that special care should be taken in the review of remediation cost as original cost estimates are frequently exceeded. While suggesting the Detrimental Condition Model as a technique of valuation, gave six elements which must be considered in every analysis. The six elements are:-

A. Unimpaired Value;

B. Detrimental Condition Occurs or Discovered;

C. Assessment Stage, noting (Cost and Responsibility, Use, Uncertainty Factor i.e. Risk);

D. Repair Stage, noting (Cost and Responsibility, Use, Project Incentive i.e. Risk); E. Ongoing Stage (Cost and Responsibility, Use);

F. Market Resistance (Risk).

According to Bell, the cost may require the addition of a contingency factor, “to reflect a complete and reasonable cost estimate, so that the real estate market is reasonably assured

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that all reasonable remediation costs are accounted for in the estimates provided”. He suggested that this contingency factor relates to the “hard costs of remediation and should not be confused with intangible losses, such as onus or stigma”. Bell’s view on stigma differed from the opinion of others. He was of the view that remedial cost overruns should not be added as part of stigma calculation, unlike Wilson and Mundy’s calculation of stigma which included remedial cost overruns in the definition of perceived risk. Patchin accounted for stigma by adjusting the capitalization rate without specifically providing for cost overruns.