Dear Barry: I hope you don’t mind another asbestos question. As a general contractor, I was bidding on the remodel of an old home. The ceilings had acoustic texture, sometimes known as “popcorn,” so I included the costs of testing and possible asbestos removal in my bid. The homeowners complained that two other contractors had also bid on the job and that neither contractor had mentioned asbestos. Because my bid included the additional costs, I did not get the job. What do you think of this? Bob
Dear Bob: Contractors who did not consider the possibility of asbestos in their bids may not realize that they are exposing themselves to financial liability and potential lawsuits.
Most of the acoustic ceilings installed from the 1950’s through the 1970’s contain asbestos. If the texture material is intact, it is not regarded as a significant health hazard. When removal or demolition takes place, the law requires that the material be tested and that handling, removal, and disposal be done by a licensed asbestos abatement contractor.
The homeowners who received your bid were informed by you of a potential problem, but chose to overlook it, supposedly for financial reasons. In so doing, they made a serious misjudgment, exposing themselves and others to a possible health hazard.
In a similar situation, several years ago, a remodeling contractor removed acoustic ceiling texture from a home without advising the owner of possible asbestos. Fabrics throughout the house, including carpets, drapes, upholstery, and clothing, were later found to be contaminated with asbestos fibers. All of these had to be sent to a toxic waste site, and the contractor was held to be financially liable for the losses.
The homeowners in your recent situation were not prudent in their decision. Hopefully, they will not come to regret that choice.
Dear Barry: When I purchased my home, I hired a home inspector. The only electrical problem he found was a charred wire in the fuse box. After moving in, I noticed that the lights kept dimming, so I called an electrician. He said that the panel was very old, that the charred wire was actually burnt through, and that some of the fuses were connected to more than one circuit, a condition he called “double-tapping.” Now I need to install a new breaker panel for a whole lot of money. So I called the home inspector. He said that he does not take things apart and inspect the inner workings. If that’s so, then how did he see the charred wire? What do you think I should do? Ryan
Dear Ryan: The home inspector is apparently giving you double-talk. It is the standard of practice for home inspectors to remove the inside cover on every electrical panel to enable inspection of the internal components. As you pointed out, your inspector apparently did this, or he would not have disclosed the charred wire. Therefore, he was in a position to see the other electrical defects and should have disclosed them. Even if he only disclosed the charred wire, his recommendation should have been evaluation and repair by a licensed electrician, prior to close of escrow, especially since this was an outdated fuse panel, rather than a breaker panel. Had he given you that advice, the remaining defects could have been discovered by the electrician before you took possession of the property. If he did not provide full disclosure of the panel defects and did not make the proper recommendation for the charred wire, then he should take some responsibility for lack of disclosure
On the other hand, if he did disclose further evaluation by a licensed electrician, it would have been your responsibility to follow that recommendation. In that case, failure to have followed the inspector’s advice would place the liability back in your court
If by these standards the home inspector remains liable, be sure to take photos of the electrical defects before having them repaired. This will enable you to prove your cased if you file a claim against the inspector
Dear Barry: We bought our home about 6 months ago, and now we are stuck with a bundle of problems that were concealed by the sellers, dismissed by the agent, and overlooked by our home inspector. Unfortunately, our agent was also the listing agent for the sellers, who happen to be her personal friends, and she also selected the person who did our home inspection. The main problem with the house is ground water seepage into the basement. The seller disclosed that there used to be a drainage problem that was corrected, but they provided no documentary proof of the alleged repairs. When we first looked at the property, we noticed a musty smell and pointed this out to the agent. She said, “I’ve been an agent for a long time. This just smells like an old basement, not a moldy one, and I know the difference….” She also persuaded us to buy the property “as-is” so that the sellers would accept our offer. After moving in, we discovered that the basement carpet was wet. When we removed it, we found mold and rot on the baseboards. We have also learned that the sellers hired a contractor to dry out the carpet and repaint the basement before we bought it. The costs to correct the drainage, repair the water damage, and eliminate the mold are very high. What can we do? Patrick
Dear Patrick: If you had written to me during the course of the transaction and said, “Dear Barry, We are buying a home that has musty odors, the dual agent (who is a friend of the sellers) says this is not a problem, the agent has chosen our home inspector, and the agent is persuading us to buy the home as-is,” I would have told you the following: “The agent is representing the interests of the sellers only. You need someone to represent you, which means find an agent of your own to help you negotiate.” I would also have advised you to hire your own home inspector, not an inspector who was chosen by an agent with an apparent bias.
Agents know which home inspectors are the most qualified and thorough. An agent who is more interested in the commission check than doing what is right will recommend inspectors who disclose fewer defects. To those agents, the best inspectors are known as “deal killers.”
My advice is two-fold. First, have your home re-inspected by a qualified professional who has many years of experience and a reputation for thoroughness as an inspector. Whether the agent’s home inspector is liable depends on whether there were visible defects that were within the scope of a home inspection, as defined by industry standards. Call several real estate offices and ask who are the most nit-picky inspectors in the area.
Second, get some advice from a real estate attorney regarding your available options for redress against the sellers and the agent for nondisclosure, and against the home inspector for professional negligence. Certified letters on legal stationary should alert all parties that you are very serious about this matter.
Dear Barry: We just moved from the big city to the country. So for the first time ever, we have a septic system and have to think about what goes down the drain. The contractor who inspected the septic tank advised us to flush an additive down the toilet once a month to maintain the bacteria level in the tank. Our new next-door neighbor says he’s never used the stuff and insists that it’s a waste of money. What’s your advice for the care and maintenance of a septic system? Jeffrey
Dear Jeffrey: Bacterial additives are often advised by septic contractors, but the need for this is debatable because micro-organisms are added to the tank every time solid waste is flushed down the toilet. In fact, more attention should be given to things that should not be flushed than things that should be.
Several studies have been conducted to determine the effectiveness of septic additives, including one that was published in the Journal of Environmental Health in 2008 and another that was conducted at the University of Ottawa in 2012. In each case, the additives did not significantly increase the bacterial level in the septic systems that were tested. Many septic contractors will no doubt disagree with these findings.
Rather than adding bacteria to your septic system, it is important to protect the bacterial environment that is already present. Here are some do’s and don’ts for maintaining the effectiveness of your septic system:
1) Avoid putting insoluble solids such as grease, fats, and oils down the drain because these can clog the leach lines that convey water from the septic tank into the ground. Keep this in mind when washing pots and pans.
2) Don’t put chemicals such as paint, paint thinner, bleach, etc. down the drain. People sometimes clean their paint brushes in sinks and toilets. This is definitely a no-no.
3) Minimize the use of your garbage disposal to avoid the accumulation of undigested organic solids in the tank. These can take a long time to decompose.
4) Do not let the salt brine from a water softener drain into your septic system. Instead, the discharge pipe from the softener should terminate in a ground sump or leach field designated for this purpose.
5) Minimize the amount of extra water that goes into the septic system. For example, rain gutters from the roof and yard drains should not drain to the septic tank or the leach field.
6) Do not park vehicles on ground surfaces above the leach field, as this can compact the subsurface absorption system.
7) Have your tank pumped and inspected in a timely manner, usually about every five years.
Laundry drains are often diverted to a ground sump or garden area to prevent detergents and other laundry additives from damaging the bacteria in the septic tank. The need for this precaution is often unwarranted because newer types of detergents and bleaches do not adversely affect the microbial environment in a septic tank when used in moderation. I can attest that my own septic system has consumed detergents for the past 10 years with no apparent ill-affects. This particular advice, however, is likely to draw active debate from some septic contractors.
The House Detective: by Barry Stone, Certified Building Inspector
Dear Barry: We are buying a brand-new home and were not planning to have a home inspection because the house was just approved by the county building department. Then we read your recent article about inspecting new homes, so we hired a home inspector and got some big surprises. He found two plumbing problems in the crawlspace under the house, three ungrounded outlets in the living room, and a safety violation concerning the furnace in the attic. What I want to know is, how could these defects have been overlooked when the county did their final inspection? Jason
Dear Jason: Whenever I begin to inspect a brand-new home, I wonder if this will be the first one where I find no faulty conditions of any kind. So far, no cigar.
So the question is, how do so many defects escape discovery by municipal inspectors? In most cases, incompetency is not the problem. In your situation, involving undiscovered defects in the crawlspace and attic, as well as three ungrounded outlets, the problem does not necessarily involve ineptitude on the part of the county inspector. More likely, it is due to endemic shortcomings with the municipal building inspection process.
Some municipalities may be exceptions to this, but in general, building inspectors do not crawl under houses or through attics. They are not even equipped with ladders or with crawl suits. This means that faulty conditions in those areas of a house are never subject to the final inspection. As a result, any problems with plumbing, wiring, heating, framing, insulation, etc. in those places are never seen during the final inspection and remain as-is when the construction is signed off by the inspector. That is why further inspection by a qualified home inspector is always a good investment.
As for the ungrounded outlets, here is why those were not discovered by the municipal inspector. The power company does not turn on the electrical service to the property until the final inspection has been officially approved. Therefore, the power is off during the final inspection. Without power, there is no way to determine whether outlets are grounded, whether they have correct polarity, or whether any of the electrical fixtures are actually operative.
Home inspections, on the other hand, take place after the utilities are turned on, and unlike municipal inspectors, home inspectors test the functional condition of fixtures and use test devices to determine whether outlets are properly wired.
The main differences between municipal inspections and home inspections are these: Municipal inspections are for code compliance only, and they are limited locations that are accessible by pedestrian means only. Home inspections involve not only compliance with building standards but with quality of workmanship and with functional and safety-related conditions that are outside the scope of the building code. What’s more, home inspectors go where most municipal inspectors are unlikely to go in an entire career: to places that entail crawling in the dirt or through narrow cavernous recesses.
Municipal inspections should be regarded as a preliminary final inspection. Home inspections, when done by a qualified inspector, should be regarded as a “final” final inspection.
The House Detective: by Barry Stone, Certified Home Inspector
Dear Barry: As an expert witness in construction defect lawsuits, I see many cases involving home inspectors who fail to disclose defects or who minimize the findings in their reports. In most cases, these inspectors are members of the American Society of Home Inspectors (ASHI) or similar associations. One inspector confided that too many problems in his report might “kill” a sale and the agent would no longer recommend him to buyers. Another inspector said he was expected to “work with the agents;” not to raise red flags or be too “nit-picky.” This is disturbing because home inspector referrals come mainly from agents. It also indicates that inspector organizations are not policing the industry very well. Perhaps ASHI or their insurance carriers could maintain a database of court rulings against inspectors and agents. The industry needs to do its job before the government steps in. Ray
Dear Ben: Your position as an expert witness exposes you to the worst examples of home inspectors and real estate agents. Without doubt, there are ethical disparities and conflicts of interest among some agents and home inspectors, and it is these unprincipled relationships that engender so many of the courtroom dramas in which you testify. But fortunately, there is a brighter side to the world of real estate and home inspection; one whose characters rarely stand in the shadow of a judge’s bench. So let’s examine the darker and lighter sides of disclosure practices, beginning with those professionals who recommend home inspectors to their clients.
Basically, there are two kinds of real estate agents: Advocates and Hucksters. Advocates are the honorable standard bearers of an often unfairly maligned profession. Advocates are those who truly represent the very best interests of their clients; who actively promote the defect disclosure process, and who recommend only the most qualified home inspectors. Advocates would rather kill a sale and find a better property for their client than to have the client be unhappy after the sale. Advocates know that doing the right thing attracts future business.
Unfortunately, there are also the huckster agents, those who keep attorneys busily employed, who denigrate the hard-earned reputations of the honorable advocates, and who boycott the most qualified home inspectors. Hucksters represent their own financial avarice at the expense of their clients. They compromise the disclosure process by seeking those inspectors who are less likely to provide full defect disclosure. They recommend inspectors who are less experienced, less capable, or who are willing to exchange principal for increased business. A huckster would rather close the sale than jeopardize the immediate flow of commission checks. To a huckster, top-notch home inspectors are known as “Deal Killers.”
Among home inspectors there are also two basic varieties: experienced practitioners and developing practitioners. But even within these divisions, we find the same ethical contrasts that define agents: either a total commitment to the client’s interests or a general disregard for same. Adversely affecting this situation is the reliance of most home inspectors upon agent referrals for the majority of their business. Agents understand this, and some have learned to exert subtle pressure. Nothing overt; just a simple hint such as, “We just want to know that everything is structurally sound, so please don’t be nit-picky.” Another favorite is, “This deal is important; so we need a really good report.” Inspectors who do not accede to these coded messages, who are fully committed to the buyers’ interests, needn’t expect future referrals from those agents. The choice then is well defined: either become a “street walker” for unscrupulous agents, or rely strictly upon the referrals of advocates.
As to the consumer advocacy of ASHI and similar organizations, professional integrity among member inspectors can be influenced and encouraged, but it cannot be forced. Honesty can only derive from a willingness to be honest. A database of inspectors and agents who have been successfully sued could be published, but would this truly be a reliable determinant? We live in the age of frivolous lawsuits, a surreal business world in which McDonalds must serve tepid coffee, lest we victims burn our litigious laps. If the seller of a home fails to disclose a defect that was unknown to the agent and concealed from the home inspector, the attorneys still name the agent and the inspector as defendants in the suit. And sometimes the juries rule against them, regardless of innocence of guilt.
In an imperfect world, “buyer beware” remains the essential caveat for those who purchase a home. The best way a buyer can beware is to find an “Advocate” for an agent and a home inspector with a reputation for thorough, accurate, unbiased inspections.
The House Detective: by Barry Stone, Certified Home Inspector
Dear Barry: I installed new smoke alarms in my home about a year ago. Now that I’m selling the property, the buyer’s home inspector says these are not the best kind of smoke alarms. He recommends replacing them with the “photoelectric” kind. As long as the smoke alarms work when tested, what difference does it make if they’re one kind or another? Ben
Dear Ben: The purpose of a smoke alarm is to detect minute particles in the air and to make a loud noise when particles are present. There are currently three kinds of detectors on the market: ionization detectors, photoelectric detectors, and combinations of both.
When smoke alarms came into common use in the 1970’s, the only kind available was the ionization type. Ionization smoke detectors contain a small amount of a radioactive substance known as americium-241. This material creates a small electrical current between two metal plates. When smoke particles pass between these plates, the current is interrupted, and the alarm is activated. The problem with ionization detectors is that they respond best when there is a flaming fire but are slow to respond when there is smoke from a smoldering fire.
Photoelectric smoke detectors were developed in more recent years and have a different means for sensing the presence of particles in the air. In a photoelectric detector, there is a light source and a light-sensitive electric sensor. The light, however, is not directed toward the sensor. When smoke particles are present, the light strikes these particles and is reflected against the sensor, and this activates the alarm. The advantage with this type of smoke alarm is that it senses fires that are in their early stages of smoldering, before they burst into flames. This can make a life-saving time difference in many fire situations.
For maximum fire protection, dual alarms are available. These contain ionization and photoelectric sensors in a single unit. Unfortunately, there are no industry standards for the sensitivity of sensors in dual sensor alarms. Because of this, the ionization sensors in some dual alarms are not reliable. However, as long as the photoelectric sensor is functional, the alarm meets national standards established by Underwriters Laboratories.
Photoelectric smoke alarms are recommended by the International Association of Fire Fighters (IAFF) because they are the most reliable and give the most advanced warnings when a fire begins to occur. The IAFF regards ionization alarms and dual alarms as unacceptable. This is why your buyer’s home inspector recommended that you upgrade to photoelectric smoke alarms.
Upgrading your smoke alarms may not be a legal requirement in your local area or in your purchase contract, but it is still advisable. It is also recommended that you get combination alarms: the kind that detect carbon monoxide (CO) as well as smoke because CO alarms can save lives and are now required near bedroom entrances and in other interior locations. If you do replace the current smoke alarms with combo alarms, find the ones that have a voice recording, indicating whether smoke or CO has been detected.
The House Detective: by Barry Stone, Certified Home Inspector
Dear Barry: Before buying my home, I hired a home inspector, and he reported no problems with the electrical subpanel in the bedroom closet. After moving in, I hired an electrician to install some light fixtures in the kitchen. He said the breaker panel was made by Federal Pacific, a brand that has been recalled as a fire hazard. He also said the panel had burn marks on the inside. At his urging, I let him replace the panel at a cost of $2880. After this, I called my home inspector to demand that he pay for the repair, since he failed to report these problems. The old panel had been thrown in the trash, but the inspector came over and showed me photos that he had taken of the panel during his inspection. The panel was actually a General Electric, not a Federal Pacific, and it had no perceptible burn marks. It now seems that my electrician was lying, and I’m wondering what to do. What do you think about this mess? Karen
Dear Karen: This situation has a number of complications and uncertainties. Here are the main issues:
1) You are faced with opposing testimonies from the home inspector and the electrician. The electrician says the panel was a Federal Pacific and had burn marks. The home inspector says the panel was a General Electric and did not have burn marks. Unfortunately, the old panel is no longer available as evidence. The home inspector, however, has presented photos to support his position. Apparently, someone is not telling the truth. Therefore, it is necessary to ask the question, “Does the home inspector’s photo depict your breaker panel or a panel from another property?” It may or may not be possible to answer that question conclusively.
2) Competent home inspectors routinely disclose Federal Pacific breaker panels as potential fire hazards, especially if evidence of overheating is apparent. Failure to make such disclosures is a matter of professional negligence. If your electrician’s claim is correct, then your home inspector was at fault. If his photos are authentic, the electrician is at fault.
3) Another issue involves your initial demand that the home inspector pay for the new breaker panel. When you were told that the panel needed replacement, you should have notified your inspector before having the panel replaced. A home inspector should have the opportunity to review a contested situation, to answer for what may or may not have been an error in the course of the inspection. Some home inspection contracts actually specify the right to see a claimed defect before it is repaired. The fact that the inspector was not given a chance to see the problem may absolve him of liability, regardless of whether he was at fault.
4) A cost of $2880 to replace a breaker panel is excessive. The panel itself probably cost less than two hundred dollars and probably took less than a day to install. When you weigh these numbers, how much was your electrician charging as an hourly wage? From this perspective, the electrician appears to lose credibility.
In view of the inexplicable cost for the new panel and the photo evidence provided by the home inspector, it appears that the electrician may owe you a refund and a humble apology. Otherwise, he should provide a convincing explanation.
The House Detective: by Barry Stone, Certified Home Inspector
Dear Barry: Our house does not have a foundation problem, but the living room furniture used to shake when we would do our morning aerobic exercises. So we installed some steel posts under the joists to make the floor more rigid. Unfortunately, this is a problem now that we are selling the home. When the buyers’ home inspector saw the posts, he reported that they need concrete footings and permanent attachment to the framing. If we had never added these posts, there would be no problem. What should we do, add footings, take the posts out, or what? Belinda
Dear Belinda: Removing the posts after the home inspector made his recommendations will probably raise suspicions with the buyers. Adding concrete piers may or may not be necessary, but it may be the path of least resistance for selling your home. The only other approach is to get an opinion from a structural engineer.
The home inspector, when faced with an unusual installation of this kind, had reason for concern, but he should not have drawn conclusions that exceed his professional expertise. Unless he is a licensed structural engineer, he was exceeding the scope of his inspection by prescribing specific types of structural repairs. Instead, he should have recommended further evaluation by a licensed structural engineer. That would be the proper course of action for a home inspector.
If the living room floor used to flex when you did your aerobic exercises, the joists may have been over-spanned when the house was built. In that case, the posts that you added may have been necessary, and having them secured in a proper manner may now be an appropriate upgrade.
The House Detective: by Barry Stone, Certified Home Inspector
Dear Barry: You’ve written before about additions that are not permitted, and now we’ve bought a house that has that problem. No one told us about this before we bought the property, and now we’re stuck. Realistically, what can we do? Should we tear down the addition and rebuilt is with a permit? If so, who is liable for the costs, the seller, the agent, or home inspector, or all of the above? Joanna
Dear Joanna: If the quality of the unpermitted construction is reasonably good, an as-built permit is probably the best course. An as-built permit can be obtained from the building department. A municipal inspector will come to your home to evaluate the work. If the additions are approved, you can try to recover the permit costs from the sellers. If the work is not approved, the inspector will provide a list of improvements to be made to obtain approval. Worst case scenario would be that the work is so substandard that the building authority orders demolition of the addition.
Regardless of the outcome, the sellers should have disclosed that the additions were not permitted. However, it is also possible that the additions were built before the sellers owned the property and that they were unaware of the lack of permits. Therefore, it is important to determine when the additions were built. If the sellers were aware of the unpermitted additions, they should be liable for the costs to remedy the situation. Unfortunately, you might have to hire an attorney to enforce that liability.
In most cases, Realtors are not qualified to identify which portions of a building are original and which are added, unless they are given that information by the sellers.
Whether your home inspector is liable for professional negligence depends on whether pertinent defects involving the additions were visible and accessible at the time of the inspection.