Reuben's Home Inspection Blog

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Does A Better Home Inspection Increase Liability?

I've heard the same tired old argument from other home inspectors 342 times - the more testing and services you provide with your inspections, the better chance you have of being sued.  I think this whole argument is based on home inspector folklore, and it all comes down to proper communication with the client.  One of the most common arguments I hear for not doing ‘additional testing' is when the topic of carbon monoxide testing comes up - do or don't? 

Here's how the argument goes:   "I don't test for carbon monoxide on furnaces because as soon as I start doing that, the next thing you know someone is going to take me to court for not testing their gas water heater, gas dryer, gas oven, and whatever else!  The more you do, the more liability you have.  I like to keep it simple".   I've heard many home inspectors say something similar to this, and I even remember hearing one tell me (with pride) that he carries around a screwdriver and an outlet tester.  Nothing fancier than that. 

This isn't limited to carbon monoxide testing - I've heard the same argument used for reasons not to use a gas detector, infrared camera, borescope, and other tools that are not required by the minimum standards of the home inspection industry.   I don't feel like I should have to say this, but the minimum standards are minimum standards!  They're not set in place to prevent a home inspector from doing a better job than they're required to do.  

Ridgid See Snake - An Electronic BorescopeI thought of this topic while doing an inspection last week.  I took one look at the furnace and was pretty sure I was going to find a serious problem with it.  The furnace was about 25 years old, and designed in such a way that I couldn't see inside the heat exchanger to evaluate for cracks or rust holes.  While inspecting heat exchangers goes beyond the minimum standards of my industry, I still do the best job I can, and I make this clear to my client.  I ran out to my truck and grabbed my electronic borescope, and was able to quickly find a 1/4″ rust hole up inside the heat exchanger.

I reported the rust hole as a safety hazard and I told the buyer to replace the furnace - no need for a second opinion from an HVAC contractor.  Inspecting a furnace with a boroscope can be tedious, and I've only used my borescope on about half a dozen furnaces since I bought it two years ago.  The point of this story is that when I do use it, I make it clear to my client that my inspection of the heat exchanger is by no means exhaustive, I'm just peeking around to get a better look for any obvious problems.  Even if I don't find a problem, I don't give my client the impression that I saw every square inch of the furnace.

I've never heard of a single case where a home inspector was taken to court for providing a better service than they're required to perform.  I've heard many anecdotes about it happening, but I don't believe any of it.  The next time you hear someone say this, ask them to prove it.

Reuben Saltzman, Structure Tech Home Inspections - Email - Saint Paul Home Inspections

Reuben Saltzman, Structure Tech Home Inspections

        

Comment balloon 38 commentsReuben Saltzman • March 21 2009 06:13AM

Comments

While going above and beyond the industry standards can be a good thing, I choose not to get too technical as some of these things can turn around and bite you in the butt. A 25 YO furnace is bound to have issues which I tell my clients to have inspected by a licensed professional in the appropriate trade. This statement alone is enough to get you off the hook without spending a lot of time looking around with a borescope. Time is money especially if you are doing several inspections a day. The KISS approach has worked well for me and my inspectors for the past 8 years...

Your building consultant for life in the Nashville, TN area 

Posted by TeamCHI - Complete Home Inspections, Inc., Home Inspectons - Nashville, TN area - 615.661.029 (Complete Home Inspections, Inc.) about 9 years ago

One way to make sure that we'll never use a home inspector's services again is when/if the inspector doesn't inspect and give a written report but gives us a list of additional inspections recommended. 

That's not what our contract provides.  We have XXX number of days to inspect and notice the seller of defects found. If all we get is a recommendation for more inspections, it's worthless. 

If a serious defect is found, we can then notice the seller and if they want to get further inspections, they can do so. 

I've seen home inspection reports that recommend 3-4 additional inspections by hvac, plumb, elec, roof, etc.  GEEZ!  Isn't the original home inspector supposed to inspect these components??? 

Not a problem.  The home inspector I use covers the entire house, structure, systems, etc. and tells lists defects so we can notice the seller or my buyers decides to kill the contract or take the house as is. 

Good for you for doing what we expect a home inspector to do.

 

Posted by Lenn Harley, Real Estate Broker - Virginia & Maryland (Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate) about 9 years ago

Michael - you're not alone with the KISS stance, and I've heard it said many times.  You're right, I'm sure you're able to do more inspections than I am - I won't do more than two in one day. 

How could these things come back and bite you in the butt?  This is exactly the 'folklore' that I'm referring to!

I do whatever I possibly can to get to the bottom of an issue, rather than recommend additional inspections from "a licensed blah blah blah".  I know that recommending additional services will get me off the hook, but my intention is not to keep myself off the hook.  This just happens naturally by doing the best job I possibly can.

Lenn - Thanks, that's exactly my point.

Posted by Reuben Saltzman, Delivering the Unbiased Truth. (Structure Tech Home Inspections) about 9 years ago

Reuben, I'll have to agree with MIchael on this one, but with the difference of that I myself give the buyer some times room to ask for addional inspections when I know the seller is going to question what I have called out, which is rare.

                                                                    ~ Life is Good

Posted by Roy A. Peterson, P.R.E.I. (Domicile Analysis of Texas) about 9 years ago

Interesting.  The home inspector I recommend charges more than the average.  However, he inspects everything and doesn't recommend additional inspections.  In the end, it saves my buyers money.  His inspections usually take about 3-4 hours, we get a comprehensive report and that's the end of inspection.  The rest is up to me but he's given me the ammunition to get repairs or the buyer reason to kill the contract.

 

Posted by Lenn Harley, Real Estate Broker - Virginia & Maryland (Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate) about 9 years ago

Reuben, really good post----and one you will collect a lot of grief for I am afraid----perhaps not so much here on AR, but by many inspectors.  One of the great hidden agendas of the "SOP's" is to enable the inspector to get in and out of the house as quickly as possible----to get on to the next inspection.  There are a great many inspectors that think that the SOP's "define" "specifically" what we are to do and not do-----a "blue-print" not an "outline."  I kind of like the LIMMS approach:  "Less Inspections More Money & Service":)

Posted by Charles Buell, Seattle Home Inspector (Charles Buell Inspections Inc.) about 9 years ago

It's clearly a matter of opinion and how comfortable the inspector is with his or her knowledge and their ability to use and understand the equipment they have. Fancy gadgets are a great marketing tool. A potential client may hire the inspector for this reason. I feel that inspectors that go the extra mile are gaining the edge on their competition. I use a CO detector and moisture meter when I feel the need and it always has a positive response.

Posted by Tad Petersen / Home Inspector, Mpls (Safeguard Home Inspections, Inc.) about 9 years ago

Speak my friend.  Well put.   I compared the less is more "sour grapes," to a code built home in one of my previous posts.

Why would a home that is built well above and beyond code suffer more liability?  If you do a better job, aren't you doing a better job and therefore suffer less?

Sorry for answering your questions with questions (at least they are rhetorical)

Posted by Jim Allhiser, Salem, Oregon Home Inspector (Perfection Inspection, Inc.) about 9 years ago

Good post Reuben, I completely agree. I prefer to perform no more than 2 inspections in one day and give the proper amount of attention to each property. The last two inspections I performed took nearly 4 hours but I knew when I walked away from the home the client and the house got the inspection they deserved.

Posted by Randy King (Prokore Inspections) about 9 years ago

Charles - Thanks!  I know a lot of inspectors in my area that would give me grief about this... but I don't think they read my blogs anyways.  I've never heard of LIMMS, but I guess that's exactly what I'm after.  I like it!

Tad - I agree.  I'm not just talking about equipment though, I'm also talking about doing more than the minimum, such as walking on roofs, moving personal items, lighting pilot lights (we talked about this at the inspection we did together, right?), pulling back carpet, etc. 

Jim - no apology needed, you're right.

Randy - we're on the same page.

Posted by Reuben Saltzman, Delivering the Unbiased Truth. (Structure Tech Home Inspections) about 9 years ago

I made it up----but feel free to use it----perhaps we can start a revolution:)

Posted by Charles Buell, Seattle Home Inspector (Charles Buell Inspections Inc.) about 9 years ago

Reuben,

I agree with your approach. I myself do not do more than 2 inspections a day. This allows me to give enough time and care to the client and the job at hand. I believe the home inspectors who wrap themselves in SOPs do so to limit the amount of work they do. I also feel that it is a mind set in the industry to complete the inspection quickly for the fear that referrals will cease to come from the realtors. The other reason to be fast is more money in a day.

And who is the ultimate loser in this scenario? The home buyer. The very person for who we are there to protect. When you added it all up it all totals out to the same thing $$$$. More money for less work.

Posted by James Quarello, Connecticut Home Inspector (JRV Home Inspection Services, LLC) about 9 years ago

Hi: Reuben I myself have and use all those tools gas detector, infrared camera, borescope, and other tools that are not required by the minimum standards of the home inspection industry in my tool bag and use them when needed for the inspections that I do. I feel that my clients really apperciate my services more when see me using those special tools to inspect the properties they are considering to buy. Hey by the way great post.

Posted by Frank Torre (Torre Inspection Service, LLC 888-202-8869) about 9 years ago

Reuben,

Here is your single case. Happened to a good friend of mine in CA. This was many years ago, so some of the details are fuzzy.

During the inspection, MC used a gas sniffer and found a gas leak. At some point the client found another leak (after they moved in). He was sued, and lost the case. In a nutshell, since he used a gas sniffer to find the one leak, he should have used it on all the gas pipes and fittings to find more.

I can't argue his case, or reason why he lost. However, I do know he was sued, and he lost, and it cost him money.

One thing that is very important for an inspector that is going to use special tools, is to make sure their insurance company is on board with their use, and will cover it. Infrared cameras and mold testing are two examples of things my insurance company will not cover without an additional writer.

You mentioned a couple things that touched a nerve with me. Moving personal items, and lighting pilots. I have had problems with both of those issues.

1. Moving personal items. A)I had to get into a closet attic hatch. So I very carefully took the owners clothes out, put them on the bed, then put them back after I was done in the attic. I got a formal complaint from the BBB about how I damaged her clothes. I ended up settling for about $25 cleaning fee. She was asking for $hundreds. B) I moved some stuff out of a bath tub so I could check it. Left it on the floor because I didn't want to put it back in a wet tub. Got a call from the seller saying that I had damaged her belongings when I moved them, AND some things were missing.

If you are going to move personal items, where do you stop? Do you move the stuff on a closet shelf? How about taking all the things out of a china cabinet so you can get to the return register? Or, like someone I know, slide a baby grand piano a bit to get to a floor outlet, only to have it crash to the floor?

2. I used to light pilots. Did hundreds of them. Then I was in a 4 year old condo and the WH pilot was out. So I went to light it. Apparently it had a faulty gas valve, because when I attempted to light it, a huge flame shot out and I got pretty severe burns on my hand, arm and side of my face. My glasses saved my eyes, and I had my mouth shut, and that protected my throat and windpipe. But I lost a fair amount of facial hair that made it pretty clear that without glasses, I would have had some big problems, same for my windpipe. MY hand and arm healed fine - after a while.

At several of the past ASHI Inspection Worlds there have been mock trials. It is very interesting how a trial can affect how you do business. I know acting as an expert witness has helped me sharpen my reporting and inspecting skills.

 

Posted by Jack Feldmann (Clayton Inspection Service, Inc.) about 9 years ago

Jack, it sounds to me like they just didn't go far enough with their recommendation.  My primary gas detector is my nose.  If I smell gas I do my best to pinpoint its location with my gas detector and then recommend proper repairs by the licensed plumber, evaluation of the piping system in general, notification of seller, sellers agent that there is a leak and that it needs to be fixed IMEDIATELY, and if bad enough will shut the system down all together.  But that is just me.  I do not routinely check every gas pipe connection for leaks if I don't smell something first.

Posted by Charles Buell, Seattle Home Inspector (Charles Buell Inspections Inc.) about 9 years ago

Jack - thanks for sharing.  I think that communication is a big part of the home inspection.  If I use my gas sniffer, I tell my client that I'm not attempting to check every gas line in the house, I'm just checking a suspect connection. Good point on the insurance.

Your stories about moving the personal items must have been frustrating experiences - but you didn't do anything wrong.  Sellers will sometimes complain about nonsense crap if they're not happy with the problems you found at their house, but I don't think it means that you should do your job any differently.  I had a client last month complain that I left fingerprints everywhere! 

As far as moving personal items, I handle each case differently.  If there's a crawl space I want to get at, I'll move just about anything... but certainly not china.  The photos below show a crawl space that I recently decided not to try to access.  If there is a desk blocking an outlet or register, I certainly wouldn't bother... and I especially would never try moving a piano to get at an outlet.  If a basement if filled with stuff, I write up that it was filled with stuff.

Scary story about the pilot light.  Someone was looking for a story exactly like yours on the ASHI forums for a book they're writing.  You should share!

Shelf blocking access to a crawl spacecontents of shelf

 

Posted by Reuben Saltzman, Delivering the Unbiased Truth. (Structure Tech Home Inspections) about 9 years ago

Charles,

Like I said I don't know all the details, I just know it cost my friend money and he lost. 

Reuben,

Im pretty sure your flash cracked one of the wedding cups. You need to replace the entire set.

Posted by Jack Feldmann (Clayton Inspection Service, Inc.) about 9 years ago

Ha!  If it was one of your customers I bet I would!

Posted by Reuben Saltzman, Delivering the Unbiased Truth. (Structure Tech Home Inspections) about 9 years ago

Just one of the many reasons why I wish California would license the home inspection profession. Until it does, though, I'll rely on my business advisors to help me create appropriate business and inspection protocols for my company. Those advisors include various attorneys (business, contract, real estate, human resources, etc.) and insurance companies.

All big companies have attorneys either on staff or on retainer who track various laws and court cases to advise those companies. That was probably the biggest advantage I had when I bought a home inspection franchise rather than starting out on my own. I knew marketing and I knew real estate, but I didn't know legal/insurance/court issues relating to the home inspection industry. There's nothing like a few good attorneys to keep you current. Although I don't have access to the HomeTeam corporate attorneys anymore, I do keep a gaggle of various attorneys handy and consult with them when necessary.

Out of all the comments above mine, Jack Feldman's and Michael Thornton's strike closest to home for me, mainly because I live and work in California and my attorneys send me quarterly reports on various lawsuits against home inspectors that make their way through the city, county, state, and federal courts. 99% of them get settled out of court, so we never really get to see the end result since out-of-court settlements typically result in everyone signing documents that everyone agrees that no one did anything wrong but that in the interest of saving money, everyone agrees that everyone who was sued is going to give lots of money to the person who sued, as well as his attorneys.

Ah, the great American legal system. Notice that I didn't say justice system. It's just a legal system that specializes in the redistribution of wealth.

For the last quarter of 2008, there were 184 lawsuits in the San Diego courts that included home inspectors. That doesn't mean that the home inspector was specifically sued, only that he got involved in the lawsuit, usually one of those infamous broadcast lawsuits where the plaintiff sues anyone and everyone to see who has the best insurance. I know a home inspector who is now out of business due to a broadcast lawsuit. He used to live a couple of blocks from me and we occasionally would carpool to the ASHI/CREIA dinner meetings. When he was served, he asked me for help, and all I could do was give him the name of my attorney, whom he used. He still settled out of court for $33,500, and everything that I saw indicated that he should never have been included in the lawsuit in the first place. But when you're sued, you have to defend yourself. And if it's a broadcast lawsuit that gets settled out of court, everyone has to agree to all of the other settlements. So there could have been a Realtor who said no to his $33,500 settlement which would have caused him to keep defending himself and spending more money.

It's vicious if you ever get involved in one. I've been served twice, both human resources related, once in Texas and once in California. I won both times, but I also spent $257,000 on legal expenses. Many court cases, including those against home inspectors, involve gross negligence and professional negligence, and perhaps misrepresentation and fraud. All of those can be subject to punitive damages, and you don't ever want to actually go to trial as a business person in a case that involves punitive damages. Settle out of court as quickly as possible, your own ego and principle be damned. That's why E&O companies insuring home inspectors settle as quickly as possible.

If you ever get an opportunity, stop by your local law library and read through some of the real estate lawsuits that get covered each week in the law reviews. Or, alternatively, subscribe to Real Law Central. It's not about real law, but real estate law. Reading through what they cover on a weekly basis will really open your eyes to lawsuits in the real estate industry, including those against home inspectors that actually do go to trial.

If you get in court, you've already lost. Do everything you can to resolve any complaints as quickly as possible.

I work as both a property consultant and a home inspector. As a home inspector, I adhere to "generally accepted standards of practice" for my service area. "Just the facts, ma'am."

As a property consultant, I can do just about anything I darn well please. "You asked for my opinion; here it is."

Posted by Russel Ray, San Diego Business & Marketing Consultant & Photographer (Russel Ray) about 9 years ago

Reuben;

This topic is teriffic. How deep does an inspector go? That is tough to answer.

Like Jack, I don't move personal items (I did until I moved a bed in a master bedroom and it fell apart, took more than a hour to put it back together). I don't light pilots anymore (burned the hair off my arm once); now, if the seller is home, I'll ask them to light the gas logs.

It's all about comfort; most importantly how comfortable you sleep at night after an inspection; asking yourself did I do the very best for my client today?

As far as recommending further review by a licensed professional; I must admit, I do that alot.

I don't know, maybe it's me but I find all kinds of problems with venting of fuel fired equipment. Rust on the vent connector, staining on the vent connector when there is a fan assisted unit and a natural draft WH. The off-set in the attic exceeds what is allowed. Many, many instances with venting that I am qualified to call out, but the repairs call for engineering that my state SOP says I cannot do (my brain says so too!).

How far an inspector goes and how thorough of a job he does is the difference between $250.00 inspection and a $500.00 Inspection.

 

Posted by Darren Miller (About The House) about 9 years ago

Darren - thanks.  I've heard of three people in the last week that have been burned while lighting water heater pilots, so I'm going to be very cautious of this the next time I do it.  What about gas logs?  Have you ever heard of someone getting burned by one of those?

You need engineers to repair venting?  WHAT?  That's crazy.  In that case, why not just change your report?  Put something at the beginning saying that all of the repairs recommended in your report should be completed by licensed, competent, qualified specialists in their field.  If you see a problem with a vent, say it's wrong, say what could happen because it wrong (vs. what code section it violates), and tell the buyer to get it fixed.  I'm not saying to not include the code section, I'm just saying don't make 'code' the reason for recommending a repair... I'm digressing.  If the repair requires an engineer, the person doing the repair should get an engineer.  If they don't, it's not your problem.  It's not your job to see the repairs through, just to identify defects and recommend repair.

 

Posted by Reuben Saltzman, Delivering the Unbiased Truth. (Structure Tech Home Inspections) about 9 years ago

Reuben,

 

Not to repair it, an enginer is needed to size and design it. Most are improperly sized or designed.

Posted by Darren Miller (About The House) about 9 years ago

I am with Charles. I use my eyes, nose and then confirm with my detectors. If I think theres a faulty furnace or gas fireplace the CO detector comes out. I use them to confirm a suspicion not as a general practice. After all we doing vision inspections not a scientific investigation (ala CSI).

 

I would prefer not to turn on valves or light pilots but with the number of bank owned properties and trying to get utilities turned on by the "owner" this has been a major pain. Lighting water heaters are a pain and I always keep my face away from the opening until the lighter been in there a while...

 

//Rick

Posted by Rick Bunzel (Pacific Crest Inspections) about 9 years ago

Many very good points raised in this posting.

Let me add a comment that optional or additional services should be identified in your home inspection contract or pre-inspection agreement.

The licensed States as well as Professional Home Inpsector Organizations have done a good job describing what is included as well as what is excluded from the inspection.  Home Inspectors that conduct business with respect to meeting the minimum standards have good documentation for the responsibility or liability of their inspection.

When a home inspector provides an additional or optional service, then the home inspector should provide documentation (and contract) for the scope of the service provided as well as the exclusions of the additional or optional service.

As I read your posting, it sounds like you give your client a verbal description and exclusion list.  It might be a good idea to also provide a statement in your contract or pre-inspection agreement.

Posted by Jim Mushinsky (Centsable Inspection) about 9 years ago

Just a quick side note to comment on Lenn Harley's comment above (you know I just cant help myself). I would really like to know how her inspector does inspections without ever recommending a "further review" mark?? As it states in so many contracts, we as home inspectors are generalists, not specialists. Sometimes we do have to recommend a second opinion from a licensed contractor in that particular field. Contrary to what some on AR would have you believe, we are not supermen and we do not have x-ray vision. If Lenns inspector never recommends further review on items, he is only setting himself up for early retirement.

A lot of agents seem to think that our job is to just walk into a home and say everything is working as it should, period. Sorry guys, our job is waaaay more involved than just saying yay or nay. Our job is to focus on everything in the home (working or not) and to have the clients best interest at heart, PERIOD. If something doesn't look right to us, it is our duty to recommend further evaluation. If your deal gets delayed another week or two, well that is just part of the business and you really should be used to that by now. You really should be thinking about your clients Lenn, and not so much whether you can close on time.

Posted by MC2 Home Inspections (MC2 Home Inspections LLC) about 9 years ago

MC2 - If something doesn't look right to us, why not figure out where it is right or not, and make a call?  "The water heater is backdrafting.  This could be caused by blah blah blah. Have this corrected."  See?  I don't know why the water heater is backdrafting, but I'm also not recommending further evaluation.  I'm calling out a problem and I'm saying it should be fixed.  I'm not saying I never recommend further evaluation of anything - I certainly do - but I've really made an effort to do it as little as possible. 

You're making some big assumptions about what Lenn said.  I also happen to agree with her.

Posted by Reuben Saltzman, Delivering the Unbiased Truth. (Structure Tech Home Inspections) about 9 years ago

Thats cool you agree with Lenn Reuben, I mean we are all entitled to our opinions. Okay so you are saying to make a call and say that the water heater needs to be repaired. Who is going to repair it? I call things out exactly like that also, but with the added statement of "recommend a full evaluation of the unit by a qualified licensed contractor"

So you see there really isn't too much difference in calling something out saying that it needs to be repaired and recommending further evaluation. Either way you word it, it is going to require someone else to come out and look at it.

 

Posted by MC2 Home Inspections (MC2 Home Inspections LLC) about 9 years ago

Reuben;

While I take as much pride in informing my clients about the condition of their purhase, there are just some times when further review is needed.

One example is quite simple. Let's say you find wood rot or termite damage in the basement/crawl. You know it there and you are going to recommend repairs BUT; you have no idea the extent of the damage. In such a case I tell my client something to the effect 'further review is needed prior to expiration of inspection period by a qualified carpenter to determine the extent of the damage so he can present an accurate cost to properly repair all the damage.'

Another example is a wood burning fireplace that has a heavy creostote build-up. My recommendation would be to have the flue cleaning then conduct further review of the liner. (of course this would be separate from my level II recommendations.

As far as recommending further review for a poorly installed deck, well, that is an area where an HI should be able to point out all the problems. I've already told clients they may want to get a cost estimate to repair, but I recommend total replacement of the deck.

Recommending further review is needed but should be limited. It shouldn't be used as a conformation of what the HI found, but a tool to determine the extent or cost to repair.

Like I posted earlier, venting issues are a big problem that most HVAC companies screw up the repairs (they don't size the vent properly) or, like what's on my example report on my web site, the HVAC company replaced a single wall vent connecter that was rusted out (because it was in an unconditioned space) and they replaced it with the same single wall pipe.

Posted by Darren Miller (About The House) about 9 years ago

Excellent post Reuben,

Many good responses, most of them saying the same thing with slightly different words. I have heard of the inspectors who religiously adhere to the less is more philosophy, but I believe that the vast majority are constantly looking for the little extras that separate them from the rest of the crowd. I do tend to agree with MC2's generalist approach over Lenn's expert of everything inspector. When I go to my family doctor for my annual physical, I trust him to give me an overall assessment, but if exploratory surgery is needed, he sure as hell better recommend an expert. When I take my car in for it's annual inspection, I expect the attendant to inform me of what needs to be fixed, but not necessarily to fix it, I would much rather have an expert do it. Same thing with your home inspector. I would not be comfortable with an inspector who is an expert on structural issues, water infiltration and drainage, HVAC systems, electrical, plumbing systems, solid fuel stoves, WDO's, insulation & ventilation, etc. No one can devote enough time to be an expert on everything, they should be willing to suggest a second opinion when needed and other involved parties need to be willing to accept that as part of the process. Your inspector should be a trusted advisor, but he may not know everything about everything.

Sorry for the rant, keep up the good work.

Kevin

Posted by Kevin Welch (American Bulldog Home Inspection Inc.) about 9 years ago

What you are speaking of is known as "exceeding the Standard of Practice" and believe me, without documented process and consistency, you are opening up a can of worms. This is not folklore. There are Standards of Practice for home inspectors for a reason. There is a reason that most HI association SOPs are relatively close. There is also a reason that E&O carriers want to know which SOP you follow. The problem does come down to why you tested one thing and not another. With today's litigious society, judges, and juries, it is a crap shoot which way the wind will blow. And remember, if you carry E&O insurance, your carrier may simply want to settle to the amount of your deductible, and even if you prevail in court, you have still lost time and money.

Posted by Joe Farsetta almost 9 years ago

Joe - you say this isn't folklore... do you have any proof?  Any court cases where a home inspector exceeded their standards of practice and got nailed for it?

You say there is a reason that most HI associations are relatively close; what is this reason?  If you ask me, it's to protect home inspectors that are only comfortable doing the bare minimum. 

My E&O carrier has never asked me which SOP I follow. 

I think you're spreading more folklore.  If you can give me a few solid court cases, I'll tell you you're right and I was wrong... but I'll keep exceeding the standards.

Posted by Reuben Saltzman, Delivering the Unbiased Truth. (Structure Tech Home Inspections) almost 9 years ago

Reuben,

Contact Ben Garrison or Nigel Bonny at FREA for particulars. Get sued and see which is the first question asked of you by the adjustor; "which Standard do you follow, and was it made known to your client ?"....   Folklore? Nope. Not even close.   And when it comes to the reality of a savvy attorney ripping you a new hiney on the stand... while gettng you to admit that you follow no true standard, and follow no true process when deciding where and how you "exceeded the Standard of Practice" on one house, but FAILED to find a defect in his client's home.... well maybe its time you reconsider your position.   As to actual case law, the insurance industry is fairly tight lipped. Remember, they will first offer to settle a claim on your dime (deductible). Either way, you lose.   So I don't suggest you keep exceeding the SOP.  If you think things are so very cut and dry, perhaps you should start reading the T's and C's of your own Inspection Agreement. Do you name a SOP? Do you say you follow it, or exceed it? If you exceed it, do you spell out how?  If you don't believe that your contract can be made to work against you by a smart attorney, perhaps you should read my most recent analysis and article (http://inspectionarbitrationservice.com/Case-Studies.php). In it, another inspector believed his contract protected him as well...

Posted by Joe Farsetta almost 9 years ago

Joe - Who are Ben Garrison and Nigel Bonny?  Would you be interested in emailing them to get details for me, as I don't know them?

I am an ASHI Certified Inspector, so I am required to follow the ASHI Standards of Practice.  The Standards of Practice state:

2.3   These Standards of Practice are not intended to limit inspectors from:

  1.  
    1. including other inspection services or systems and components in addition to those required In Section 2.2.B.

By following the ASHI Standards of Practice, I only need to comply with the minimum standards.  When I exceed the minimum standards, I am still following the standards of practice

I have a zero deductible, so thankfully I don't have to worry about my insurance company settling a claim on my deductible, and they haven't settled a claim with my name on it... yet.  I say yet, because I'll probably get some big complaint as soon as I'm done writing this!

I don't rely on my contract to keep me out of court.  If someone wants to sue me, they'll sue me, no matter what my contract says.  I rely on my inspection report to keep me out of court.

Again, can you provide some type of proof that a home inspector has done a better job for their client than they should have, and been punished by doing so?  

Posted by Reuben Saltzman, Delivering the Unbiased Truth. (Structure Tech Home Inspections) almost 9 years ago

Reuben, excellent comment----all of these SOP's sure better be minimum standards or there is little point in contiuning education is there:)

Posted by Charles Buell, Seattle Home Inspector (Charles Buell Inspections Inc.) almost 9 years ago

reuben,

Ben Garrison and Nigel Bonny work for FREA, one of the largest providers of E&O insurance to inspectors and appraisers. While I agree that a Standard of Practice may not technically limit you from doing more, the question remains as to whether you comply or do not comply.   Typically, an inspector is sued for professional negligence. A limit of liability clause won't stop the lawsuit, so the actions of the inspector now come into question. A standard of practice provides the over-arching framework by which the inspection is generally goverend. "Exceeding the Standards of Practice" is a nice tag line, but what does it mean, exactly?   When you "exceed", it is automatic? On every house? The same way, always? When do you decide to "exceed"? Do you use special tools? Are those tools subject to breakage or re-calibration? Do you require a professional license to do what you do when you "exceed" the standard? Do your actions require special training? Will an expert in that field be brought to rebuke your findings? Did what you do fit within the framework of the Standard? How far outside the standard did you venture? What is your process, and it is recorded and followed consistently?   In the end, the question the plaintiff will undoubtedly ask will be something like "Why did you find it in that house but not in mine?"  Once you throw the SOP out the window, the larger question becomes which portion of the SOP, which is intended to also protect the inspector, should be applied? One may find it harder to defend why you didn't do something, as the SOP said you didnt have to...   Although I canoot pour through thousands of cases won or lost looking for specific examples or an outcome or portion of an outcome, the fact still remains that prima fascia defense evidence is the SOP and whether you notified the client as to which one you follow, and if you followed it.

Posted by joe farsetta (Inspection Arbitration Services) over 8 years ago

Joe - I think that many of the questions you raised were meant as rhetorical questions, but I think they're also very easy questions that I'd be happy to answer for any attorney or judge.

Ben Garrison and Nigel Bonny work for FREA, one of the largest providers of E&O insurance to inspectors and appraisers. While I agree that a Standard of Practice may not technically limit you from doing more, the question remains as to whether you comply or do not comply.

Comply with what?  The Standards of Practice?  If I follow the minimum requirements, I comply.  If I exceed the minimum requirements, I still comply.  If I fall below the minimum requirements, I don't comply.  

Typically, an inspector is sued for professional negligence. A limit of liability clause won't stop the lawsuit, so the actions of the inspector now come into question. A standard of practice provides the over-arching framework by which the inspection is generally goverend. "Exceeding the Standards of Practice" is a nice tag line, but what does it mean, exactly?   When you "exceed", it is automatic?  On every house?

It's not MY tag line.  Advertising that you exceed the minimum standards of practice is just a different way of saying "I don't do the worst job possible!"  That's really what it means.  Yes, I automatically exceed the minimum standards on every house I inspect.

 The same way, always?

No.  Why would it be the same way, always?  Every house is different.  I get paid to know the difference.

When do you decide to "exceed"?

It depends on the house.  I use my professional judgement.

Do you use special tools?

Yes.

Are those tools subject to breakage or re-calibration?

Yes.

Do you require a professional license to do what you do when you "exceed" the standard?

No.

Do your actions require special training?

Yes, and I have received it.

Will an expert in that field be brought to rebuke your findings?

They can try, but I don't report my findings as 'facts' if they're not 'facts'.   

Did what you do fit within the framework of the Standard?

As long as I met the minimum standards, yes.  If I went ten times beyond the minimum standards, I'm still within the standards.

How far outside the standard did you venture?

As far as I feel neccessary.  Every house is different, and I use my professional judgement at every house.  For example, if I inspect a brand new furnace, I might test the carbon monoxide and check all the other standard stuff required by my standards of practice, and be done with it.  If I inspect a 25 year old furnace, I might want to pull the blower and crawl under the furnace to look for a cracked heat exchanger.  I might even use special tools to get a better look.

What is your process, and it is recorded and followed consistently?  

No. There is no requirement for me to do this.  The only requirement is that I follow the minimum standards of practice.

In the end, the question the plaintiff will undoubtedly ask will be something like "Why did you find it in that house but not in mine?"

What I found on another house has absolutely no bearing on the next house.  If part of my contract says "I will completely disassemble the furnace at every inspection" and I don't do that, I'm at fault.  If my contract says that I will follow the ASHI SOP, and I follow the SOP, I've done my job.  As you said at the beginning, inspectors are typically sued for professional negligence; I'm assuming this means NOT meeting the minimum standards of their SOP.

Once you throw the SOP out the window, the larger question becomes which portion of the SOP, which is intended to also protect the inspector, should be applied?

Throwing the SOP out the window would be foolish.  Why would anyone do that?  

One may find it harder to defend why you didn't do something, as the SOP said you didnt have to...   Although I canoot pour through thousands of cases won or lost looking for specific examples or an outcome or portion of an outcome, the fact still remains that prima fascia defense evidence is the SOP and whether you notified the client as to which one you follow, and if you followed it.

I'm having a hard time following that last paragraph.  I'm not asking for thousands of examples of a home inspector getting sued for exceeding their SOP... just one.  I'm sure there are TONS of examples where customers had a problem with the inspection, only to find out that the SOP protected the inspector... but my goal is to avoid even those problem if I can.  

The part that you seem to not be getting is that I am still following my standards of practice when I exceed them.  I'm not tossing them out the window.  I have a contractual obligation with my client to meet the minimum standards, and I always do. 

By your logic, any builder that exceeded the minimum building code would be exposing themselves to a lawsuit by not following the code.  By your logic, anyone that does a better job of anything than they're required to would put them at risk of being sued... but this isn't the way things work.  

This is purely home inspector folklore, unless someone can provide solid evidence that it isn't.  I've heard many people talk about it, never seen any evidence.

Posted by Reuben Saltzman, Delivering the Unbiased Truth. (Structure Tech Home Inspections) over 8 years ago

Reuben, you just said everything I was going to say:)  Thanks for doing it way better than I could have, or would have had the patience to do.  The whole argument about going beyond the sop's being a bad idea does seem to be inspector lore to me too :)

Posted by Charles Buell, Seattle Home Inspector (Charles Buell Inspections Inc.) over 8 years ago

Charles - Once again, I'm glad we see eye to eye on this matter.  "inspector iore" - I like it :)

Posted by Reuben Saltzman, Delivering the Unbiased Truth. (Structure Tech Home Inspections) over 8 years ago

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