Featuring America's Home Inspector: Nationally Syndicated Columnist, Barry Stone

Sellers Refuse to Repair New Damage

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: We are in escrow to buy a home. When we made our offer, there was an attractive concrete walkway in the front yard. Since then, the sellers hired a contractor to inspect the septic tank. The contractor had to cut out two sections of the walkway, but when he replaced the pieces, he set them in a way that is uneven, unsightly, and could cause someone to trip. Now the sellers and their agent say it is up to us to replace the damaged pavement because temporary removal was required to meet the terms of the sale. Do we really have to fix this ourselves, or is it the responsibility of the sellers?  Misty

Dear Misty: The sellers and their agent are entirely out of bounds. You made an offer to purchase a property in the condition that existed when it was marketed. Since the offer was accepted, that condition was adversely altered by contractors who were hired by the sellers.

The excuse offered by the sellers and their agent is entirely unacceptable. Suppose the sellers’ chimney sweep had damaged the roof? Would that also be your problem? What if the sellers’ painter had cracked a window? Would you be required to replace the glass? In this case, the sellers had to hire a septic contractor. The performance of that obligation did not license them to denigrate the property at your expense. Either the sellers or their septic contractor should restore the property to the conditions that existed when you made your offer. Your agent, not theirs, should step up to the plate and demand that this be done. Hopefully, you have your own agent in this transaction.

Dear Barry: When we bought our house, the home inspector said he could not open the damper in the fireplace and suggested we have it checked further. We probably should have taken his advice but did not. Recently, we used the fireplace for the first time, and our teenage son had no problem opening the damper. The fireplace worked okay, but on a rainy day the brick firebox became wet. Now we’re wondering why the home inspector was unable to open the damper and whether leak repairs are covered by the home warranty policy.  Mike

Dear Mike: Your son would most likely prevail against the home inspector in an arm wrestling match. Be that as it may, leaking at the chimney top apparently caused rusting of the damper hardware, causing the damper to stick. The resistance was too much for the home inspector but not for your son. To prevent further water intrusion and rust, a chimney cap should be installed. It is unfortunate that caps are not required on all masonry chimneys.

You should also follow the home inspector’s original recommendation and have the fireplace system fully evaluated by a qualified professional, such as a certified chimney sweep. And make sure the chimney cap is the type with a four-sided spark arrestor.

As for home warranty coverage, that will depend upon the fine print in the policy. Warranty companies typically exclude pre-existing conditions.

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.

Broker Angry About Home Inspection Forms

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: I am the broker of a large real estate company. In my area, most home inspectors use computerized reports, with photos of the defects they disclose. Very few still use the old fashioned, hand-written forms, and I seldom give my business to those backward dinosaurs. One of those technophobes is the most experienced home inspector in my area. He usually finds defects that are missed by other home inspectors. In fact, he even finds problems that are missed by the termite inspectors. But I can’t stand his lousy 1990 carbon copy reports. They’re hard to read and harder to email. So I never refer this Neanderthal to my clients. But when other agents refer him, his reports make me so mad I could pull out my hair. What is it that keeps these closed-minded idiots from getting with today’s high tech program?  Yuli

Dear Yuli: Sit down and cool off. Businesses today are in technological transition, including home inspection and real estate companies. Most home inspectors have made the change to electronic reporting, but a few remain stuck in their old ways. Some are part-time inspectors, without a major commitment to the business. Others are comfortable in their routines and have little interest in state-of-the-art innovations. And there are some professionals who recognize the need to modernize but have been too busy inspecting homes to invest in change.

Old style reports are not as user-friendly as the new electronic versions that include photographs of defects. On the other hand, not all computer reports are as easy to read as they ought to be.  In some reports, the defect disclosures are obscured by paragraphs of “boiler plate” verbiage. In others, the disclosures are so vague that the defects cannot be readily understood. But all of these issues are eclipsed by the essential purpose of home inspection: to disclose property defects.

You admit that the “Neanderthal”, “dinosaur”, “technophobe”, “idiot” who does not get your business is the most thorough home inspector available; that he finds problems that other home inspectors miss. This means that the “high tech” reports that your clients receive from other home inspectors do not provide complete disclosure of all significant defects. It means that you prefer those incomplete reports to the out-dated, carbon copy reports that contain more actual disclosures. The question, therefore, has shifted. Instead of old report forms vs. new electronic reports, the issue has become partial disclosure vs. full disclosure of property defects. In other words, form vs. substance.

If this is the choice, which do you suppose is more important to your home-buying clients? Would they prefer full disclosure or fancy disclosure? And what about your liability as a broker? How would you defend yourself if sued for incomplete disclosure? Would you tell the jury that you avoid thorough home inspectors who don’t print fancy reports? That would hardly invite a favorable verdict.

So here is the bottom line: Home inspectors who take their business seriously should find a comprehensive electronic report system to maintain viability in the marketplace. Meanwhile, Realtors should recommend the most thorough home inspectors available, regardless of the style of reports they generate. In either business, it’s all about representing the best interests of clients, while limiting liability.

Seller and Agent Fail to Disclose Defects

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: When we bought our home, the agent was selling it for his mother, and they told us that it was a maintenance-free home, in perfect condition. That was five years ago, and now the undisclosed problems have surfaced. First, we began to have septic problems, but no one could find the access to the septic tank. According to our neighbors, the garage was built over the tank. Another problem was lack of access to the crawlspace beneath the house. The seller had installed a forced air heating system, and the new air ducts blocked the access opening on the side of the building. Our home inspector pointed this out before we bought the property, but nothing was done about it at the time. Well last week, we made a new access hole and got a very unpleasant surprise. The crawlspace is filled with black, smelly, stagnant water from the laundry drain, and mold is growing on the underside of the floor. The seller simply ran a drain hose under the building and never told anyone. After this many years, do we have any recourse?  Leslie

Dear Leslie: If the agent was representing you, as well as his mother, that was not a good arrangement. You should have had your own agent to represent your interests. A good agent, working on your behalf, would have negotiated to have the seller provide a septic inspection report. The septic inspector would have found the septic access or would have discovered that the system was not accessible. In that case, an access would have been created to enable inspection and servicing of the system. If other septic repairs had been needed, that could have been negotiated before you bought the property.

If access to the crawlspace was obstructed, your home inspector should have recommended that access be provided before the close of escrow. If that had been done, the faulty laundry drain, the excessive moisture condition, and possibly the mold would have been discovered.

If these problems had come to light sooner, you might have held the seller, the agent, and the home inspector liable for faulty disclosure. After five years, you may no longer have recourse. However, you should check with a real estate attorney for clarification on that point.

Agent Withheld Disclosure of Damage

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: I am a Realtor and recently closed escrow on a bank-owned property. The bank insisted on an “as is” sale, which is customary with foreclosed homes. My buyers hired a home inspector but decided to forego a termite inspection. After moving in, they found termite damage in the kitchen and dining room. We’ve also learned that the listing agent knew about this damage but withheld disclosure because it was an “as-is” deal and because the seller (the bank) was not required to disclose defects. Do you think my buyers have recourse?  Karen

Dear Karen: People often misconstrue the term “as is” to mean a release from the requirements of real estate disclosure laws. In the case of lenders who foreclose on delinquent mortgages, there is, in fact, an exclusion from the requirement to disclose. But this exclusion does not excuse Realtors who withhold disclosure of known defects. The requirement to disclose all known defects is an ethical and legal imperative for all real estate agents. Withholding knowledge of a defect, such as termite damage, is not acceptable for an agent, even when the seller of the property is a bank.

In the situation at hand, the listing agent should pay to repair the undisclosed damages. If the agent does not accept that responsibility, the matter should be reported to the state agency that licenses real estate professionals. The complaint, however, should be filed by the buyers, not by another agent.