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.