Featuring America's Home Inspector: Nationally Syndicated Columnist, Barry Stone
Home Inspector Goes To Small Claims Court

Home Inspector Goes To Small Claims Court

The House Detective: by Barry Stone, Certified Home Inspector

Dear Barry:  I’ve been a home inspector for about two years, so I’m still learning. Unfortunately, I just learned a very hard lesson after doing a free walk-through inspection as a favor for a real estate agent who was buying a high-rise condo. Eight months later, he is suing me because he found fogging between the panes of a large dual-pane window. The controversial window is on the 15th floor, and the cost to replace it is $2,500. The agent had the window replaced before notifying me of the problem, and now he expects me to pay for it. We’re scheduled for small claims court next month, and I’d like some advice in presenting my side of the story to the judge.  Tim

Dear Tim:  Welcome to the enervating world of home inspection and real estate disclosure. Good deeds, as they say, may not go unpunished.

As this is not a legal advice column, I can only counsel you as a layman and a home inspector. Additional advice from an attorney is strongly advised before representing your side of the story in court.

Since you did the inspection as a favor, you probably do not have a signed contract to specify the scope of the inspection or the limits of liability. Nevertheless, here are some effective points that can make a positive difference when presenting your case to the judge:

1)    This was not a paid home inspection but merely a casual walk through, performed as a personal favor, and therefore is not subject to the same standards as a full home inspection.

2)    You inspected the windows, and no evidence of a faulty dual-pane seal was apparent at that time.

3)    The agent also did not see the window defect prior to purchasing the property, indicating that the defect was not apparent or was nonexistent at that time.

4)    The agent is alleging that the window defect pre-existed the purchase of the property, but there is no way for him to prove that such was the case.

5)    It is common knowledge in the home inspection business that fogging between window panes is not always visible, depending upon variations in lighting and temperature.

6)    The eight-month time lapse between purchase of the property and discovery of the window defect indicates that the window seal may have failed after the property was purchased.

7)    You were never given an opportunity to re-inspect the failed window prior to its being replaced. It is common knowledge among real estate agents that home inspectors should be called to re-inspect a defect prior to making repairs.

8)    If the agent appears in court without an expert witness who is a professional home inspector, be sure to point out to the judge that the plaintiff has no expert witness who is qualified to testify regarding the standard of care for a home inspection.

Be sure to practice your presentation of these points, use notes in court so you won’t leave anything out, and spend an hour with an attorney for additional advice on presenting your case.

Aftermath of an As-Is Sale

The House Detective: by Barry Stone, Certified Home Inspector

Dear Barry:  We just purchased a home “as is.” The previous owner signed a mold disclosure statement that says there is no known mold. After moving in, we found that one entire bathroom wall is rotted with mold, and the roof has mold as well. Isn’t the seller liable for withholding this information?  Klemmy

Dear Klemmy:  Your question raises more than one issue. To begin, sellers are required to disclose all known defects, even when the sale is “as-is.” If the bathroom walls were covered with apparent mold, that should have been disclosed. However, mold does not cause walls to rot. The primary concern with mold is the release of airborne spores that can be harmful to breathe. If the walls seem rotted, there is probably some moisture damage that should also have been disclosed.

Before closing escrow on a property, it is customary for the buyers to do a final walk-through inspection. If you had done this, the defective bathroom wall would probably have been seen. Therefore, you may not have been exercising sufficient due diligence as buyers.

As for mold on the roof, that would be highly unusual and should be confirmed by a qualified mold professional. What you see on the roof may actually be lichen, a combination of algae and fungus that commonly grows on the north sides of trees and the north slopes of roofs. Lichen is not mold and is not known to be harmful to people or to roofs.

The final issue is whether you hired a home inspector as part of your due diligence. Failure to have a professional home inspection is a common mistake among buyers making an as-is purchase. Buying a house as-is means that the seller will not make repairs. It does not mean that you buy the property with blindfolds on: without finding out what you are buying in as-is condition.

If you bought the house without a home inspection, now is the time to find a highly qualified inspector to see what other defects were not disclosed. After you get the inspection report, you can consider whether to hold the seller liable for non-disclosure.

Undisclosed Septic Problem

The House Detective: by Barry Stone, Certified Home Inspector

Dear Barry:  Two days after we moved into our home, the septic system backed up into the tub and toilet. This was a big surprise because the septic had been inspected and approved by a septic contractor before the close of escrow. We called a different septic contractor, and he said the leach field needs to be replaced for thousands of dollars. We called two other contractors for additional quotes. One of them told us that he had inspected the system a few months ago and had told the previous owners about the failed leach field, but the sellers never disclosed this to us. Another contractor told us that the Realtor was liable for recommending a septic contractor who is not licensed. The sellers have moved out of state, so we can’t hold them liable. What can we do to recoup this unexpected expense?  Jason

Dear Jason:  Sellers who conceal known defects from buyers are worthy of public disgrace. Unfortunately, your sellers seem to be out of harm’s way, having moved out of state, which leaves their agent and the agent’s septic contractor as the potentially liable parties. The agent is at fault for recommending an unqualified contractor. The contractor is culpable for issuing false findings, especially if this was done without a license.

To verify whether the septic contractor was, in fact, operating without a license, you should contact the state agency that issues licenses to contractors. Even if the contractor is licensed, there is the issue of the false septic report.

The agent, broker, and septic inspector should be notified by certified mail of the current situation. If no one is willing to pay for a new leach field, you probably have a strong case for small claims court. In any event, you should get some advice from a real estate attorney regarding your available remedies under law.

Home Inspector’s Halloween

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry:  You never do columns that recognize holidays. Even at Christmas time and the 4th of July, your articles are always about property defects, real estate disclosure, and home inspections. Now that Halloween is here, how about a spooky house story? Something in keeping with the season. Surely you’ve inspected a few creaky old houses. How about it?  Bram

Dear Bram:  Home inspections tend to be business-as-usual events: checking the foundations, roofing, plumbing, electrical wiring, etc. But there was one inspection that I recall with dread and discomfort; an inspection where property defects ceased to be of concern, where routine was over-shadowed by fear, where disclosures were eclipsed by a frenzied struggle to flee the premises. And it just so happened that this inspection occurred on the eve of Halloween.

The house was an old, neglected, two-story Victorian, with leaning fences, tangled vegetation, and dense vines engulfing the walls, windows, and roof. The property, in escrow as a probate sale, had been the subject of headlines when the owner was found hanging from the rafters of the foyer. The police investigation had not determined whether death was from suicide or foul play, and the body’s subsequent disappearance from the local mortuary had unsettled the community.

The buyers and agent were unable to attend the inspection, but the agent had left a key under the mat. Bracing myself in the cold gloom of the dilapidated porch, I pressed open the massive door, entered slowly, and commenced what I had hoped would be a routine inspection. But then, beneath the lofty ceiling of the dark interior, I beheld the silhouette of the noosed rope, still attached to a high, dusty beam. A foul odor of decay permeated the stagnant air, and I recalled reading that the previous owner had spent many days at the end of that rope before the neighbors had found him. The prospect of working alone in those dim, silent rooms unsettled me, and my foremost thought was to complete the job and get out of that ominous place.

A steep, ladder-like stairway descended to the unpaved basement floor, where I proceeded to inspect the moss-covered stone foundation walls, but the sounds of creaking timbers echoed throughout the building, disrupting my attention. In spite of this distraction, I busied myself and tried to dismiss my uneasiness. But then there seemed to be a different sound, somewhere at the far end of the upstairs hallway. At first, it blended with the incessant creaking of the structure, but the difference was unmistakable. This was not the sound of old rafters. It was the slow but steady cadence of footsteps. Someone was in the house.

Hoping to hear the voice of the real estate agent, I called out, “Hello, is someone upstairs?” No one answered, but the footsteps continued toward the basement entrance and suddenly stopped at the top of the stairwell. I called again, “Hello, who’s there?” Again, no answer. Then, a shadow appeared on the stairs and moved slowly, silently downward.

A dark, disfigured form gradually took shape, the head laid awkwardly against the left shoulder. Yet my attention was drawn from this to some shadowy, indistinct object that dangled from his left hand. As he reached the basement floor, a putrid foulness filled the room, so that breathing became forced and repugnant. Gripped with horror and disbelief, I was unable to move. But then, the eyes of that disjointed head found me, the lips formed a sardonic grin, dripping with thick gray saliva, and my mobility was wakened by a wave of terror. Grasping the top of the nearest foundation wall, I squeezed into the narrow space between the ground and the floor framing, seeking desperately for any path of escape. But as I looked back, the advancing form appeared atop the foundation wall and steadily pursued me into the dark crawlspace.

I scrambled breathlessly past rows of old stone piers, reaching a dead-end corner where the foundation walls joined, and realized with desperate finality that I could flee no further. Somewhere is the nearby darkness, I could hear that half dead form crawling toward me. Clutching at my flashlight, I pressed the switch and was startled by the impending nearness of the face: the glare of cold eyes, the glint of gray teeth, the viscous fluid that dripped from grimacing lips — and that mysterious object gripped in his left hand and dragging on the ground as he approached.

Terror pounded in my chest as I faced those final, hopeless, remaining seconds. The feet between us became inches. His right hand gripped my ankle with frightful force as he drew forward. Then his left hand extended the old gunny sack that he held, and the acrid smell of cold breath filled my face, as he cried, “Trick or Treat!!”

Home Inspector Afraid To Get Camera Dirty

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry:I’m selling my home, and the buyers’ inspection report was hideous!  According to the home inspector, the toilets are loose, but I’ve pushed against them and they don’t budge. The worst part of the inspection report was the list of supposed defects under the building. According to the home inspector, some of the framing is rotted, and dead rats need to be removed. I asked him for photos of these conditions, but he said he didn’t want to get his camera dirty in the crawlspace.  Making matters worse, the buyers’ agent said it was illegal for me to be present during the inspection. And one more thing: the inspector said that debris in the spider webs might be dead carpenter ants. Who knows, maybe I have a cobra living down there, too!  Randy 

Dear Randy:  If the home inspector’s findings are questionable, you should state this in writing to the buyers, and the inspector should have to verify his findings with photos. If he doesn’t want to get his camera dirty, he should place it inside a plastic bag, or perhaps he could borrow your camera. In any event, he should have to show exactly what he saw regarding the foundation, dead rats, carpenter ants, etc. It would also be wise to hire your own home inspector to provide a second opinion of the property’s condition. If the buyers back out of the deal, a second inspection will help to provide disclosure to future buyers.

As for the agent: The idea that it is illegal for you to be in your own home during a home inspection is preposterous. It is your home. You own it, and you have the right to be there any time you want, regardless of home inspections, cobras, or any other circumstances.