Featuring America's Home Inspector: Nationally Syndicated Columnist, Barry Stone
Alleged Collusion Among Agents and Home Inspectors

Alleged Collusion Among Agents and Home Inspectors

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.

New Home Inspector Feels His Oats

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: In one of your articles, you said, “The essential purpose of home inspection is to disclose property defects.” If that is true, why don’t home inspectors use the top tools of the trade, such as thermal cameras, borescopes, and moisture meters? In my opinion, most home inspectors are retired general contractors with a lock on Realtor referrals. I am a new home inspector, but I provide a far more thorough inspection than my competitors who don’t use specialized testing equipment. The problem, however, it getting real estate agents to refer me to their clients They all seem to use the same few home inspectors who have been here forever. Can you offer any help on this?  Mark

Dear Mark: When I said that the essential purpose of a home inspection is “to disclose property defects,” I did not mean that the purpose is to disclose every possible property defect. If home inspectors intended to disclose every possible defect, thermal cameras, borescopes, and moisture meters would definitely be needed, as you suggest. But even then, the inspections would not be complete. To provide disclosure of all possible defects, inspectors would need to take air samples for mold, to place test canisters for radon gas, and to sample various materials for possible asbestos fiber and lead content. But that’s not all. Home inspections would not be complete without a structural analysis of the foundations, which would require that the inspectors be licensed structural engineers or that they subcontract with a structural engineer on every inspection. Inspectors would also need to take core samples of property sites to ensure geological stability and to evaluate subsurface water drainage characteristics based upon soil composition. This, of course, would require credentials as a licensed geotechnical engineer. Homes would also need to be tested for electromagnetic fields, for soil contamination, and for off-gassing of synthetic compounds such as urea formaldehyde.

This list could be expanded almost indefinitely if the essential purpose of a home inspection was to disclose all possible property defects.  In truth, home inspections are preliminary visual inspections, not techically exhaustive evaluations. A home inspection is analogous to the routine annual phyical that you receive from your doctor. Family physicians don’t do EKGs or CATSCANs as part of an annual exam. Instead, they look for indications that such tests might be necessary.  If critical symptoms are observed, they refer you to specialists. In the same way, a competent home inspector is looking for conditions that might warrant further evaluation by specialists such as plumbers, electricians, geotechnical engineers, or registered environmental assessors.

It might surprise you to know how very thorough many home inspectors are in their forensic duties; how able competent home inspectors are to find significant defects without the use of sophisticated testing devices.

As for referrals by real estate agents, there are many reasons why agents recommend particular home inspectors. Some refer the inspectors they believe will provide the most thorough disclosure, while others refer inspectors who are not so thorough and are perceived as less likely to scare away their buyers. Either way, it takes persistent marketing to develop a base of agents who will routinely recommend you to their clients.

Home Inspector Minimized Major Problems

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: When we bought our home, we hired a home inspector who was recommended by our real estate agent. The inspection report contained what appeared to be two minor disclosures: “minor lean to the home” and “some minor seepage in the basement during heavy rain.” The only recommendation was “monitor for further movement.” After we moved in, the rains came, and none of this turned out to be “minor.” For nearly three months, we had a foot of water in the basement. The contractor we hired found that the house is leaning nearly 9 inches. Leveling the home and fixing the drainage will cost many thousands of dollars. We do not believe our home inspector did a competent job. Instead, he portrayed major defects as no big deal. Who is liable for the repairs, and what can we do about it?  Tim

Dear Tim: There are two problems with the disclosures in the home inspection report: 1) Conditions such as leaning of a building and water intrusion in a basement should not be presumed to be minor; and 2) Such conditions warrant further evaluation by qualified experts. Faulty drainage should have been reviewed by a geotechnical engineer. Leaning of the building called for analysis by a structural engineer. What you needed was someone who is licensed in both fields of engineering.

Instead of recommending that you “monitor for further movement,” the inspection report should have said, “Further evaluation by a qualified, licensed engineer is recommended prior to close of transaction.” Your home inspector’s job was to point out significant defects and to make appropriate recommendations. Building settlement is obviously a major concern, as is water intrusion into the building. Determining the extent of these issues was not something to be done by monitoring movement after you purchased the property. You were in the process of making an important purchase decision. That was why you hired a home inspector. He should have considered this when making his recommendation.

Your home inspector may be liable for faulty disclosure, depending on the inspection contract that you signed and pertinent laws in your state. An attorney should evaluate those issues.

The sellers of the property may also share some liability. If they lived in the home for more than a year, they were probably aware of the drainage problem in the basement and should have disclosed it. And here’s a question for your real estate agent: Was this the most qualified inspector the agent knew? Some agents recommend the best home inspectors; some do not.

Phone Book Referrals for Inspectors

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: In one of your columns, a buyer was annoyed that her agent would not recommend a home inspector by name. I’m a Realtor, and our company has a policy against recommending any service providers, and that includes termite inspectors and home inspectors. We simply hand our clients the yellow pages and point out the section where inspectors are listed. Past experience has shown us that this is the safest way to do business. If a home inspector that we recommend makes a mistake, we could be sued for making that referral. We’d like to provide the kind of personal service that includes a list of reliable contractors and inspectors, but our hands are tied by fears of litigation; much to our dismay and disappointment. How do you view this position?  Jennifer

Dear Jennifer: Your fear of litigation is understandable and is shared by many; not just in the real estate profession, but by nearly everyone in business; from grocers to doctors; from plumbers to engineers; from teachers to musicians. Trial attorneys, for whatever reasons, good or bad, have removed from our society the trust that was once communicated by a promise and a handshake. Instead, we have pages of fine-print legalese that no ordinary person can understand. Yet none of these documents eliminates the likelihood of lawsuits: They merely provide talking points for that dreaded day in court. But there are still ways of operating in this defensive business environment, without abandoning the kind of personal service that we prefer to offer in good faith to our customers.

The phone book approach to home inspector referrals may not provide the liability protection that Realtors seek. In fact, it may pose a higher level of exposure to tort liability. The problem with a yellow page selection is that a buyer may randomly hire a home inspector who has very limited experience; someone who is not very thorough or qualified and who may fail to disclose significant property defects. If a buyer chooses a mediocre home inspector from the phone book and the agent fails to give warning — to point out that there are better home inspectors — that agent could be vulnerable to a lawsuit, without having made a referral.

Fortunately, there is a safer middle ground between recommending a home inspector or supplying a phone book. Instead, you can provide a list of the most qualified home inspectors in the area and let your buyers choose an inspector from that list. In fact, you could ask a number of local home inspectors to submit a one-page flier outlining their professional credentials and their levels of experience in the inspection business. A packet of these fliers could then be given to every homebuyer. Buyers could select their own inspector, but their choice would be an educated one, based on information that would facilitate a more thorough inspection and, therefore, less liability. Run that idea up the flagpole at your next staff meeting and see if anyone salutes it.

Buyer Disillusioned With Home Inspectors

The House Detective by Barry Stone, Certified Home Inspector

Dear Barry: The last time I bought a home, the inspector missed an unbelievable number of problems. He was strongly recommended by my agent, so I expected a much more thorough inspection. Now that I’m buying another home, I don’t want to make the same mistake. Rather than depending on an agent’s referral, how can I know whether a home inspector is truly qualified? Monica

Dear Monica: Complaints about unsatisfactory home inspections are common subjects in my daily email. Unfortunately, there are more than a few unqualified and inexperienced home inspectors in the marketplace, and the problem is compounded by the many real estate agents who routinely recommend these inspectors to their buyers. If you are unfamiliar with the home inspectors in your area, tell your agent you want the most thorough home inspector available. Say you want the one the agents call “the deal killer.” And make sure that the home inspector has been in business for many years, has inspected thousands of homes, and has a reputation for thoroughness. In truth, home inspectors of this caliber are rarely deal killers. Unfortunately, the degree of thoroughness they apply to their work may engender such fears among some agents.

Once you find a qualified inspector, be sure to attend the inspection. A good home inspector will point out defects and will fully explain the report at the end of the inspection.