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.

White-Washing Moldy Walls

Dear Barry: I recently had a flood problem in one of the apartments that I manage. The unit was vacant, and several weeks passed before the moisture condition was addressed. Now there is mold on much of the drywall. Everyone I ask has a different opinion about mold. Some say I should hire a contractor who specializes in flood damage. Others say I should get a professional mold inspection first. And one person says I should simply clean the mold with bleach and repaint the walls. What do you say?  Don

Dear Don: The problem with mold today is that is can no longer be viewed as purely pragmatic issue. The overriding consideration has become liability. The days when mold could be washed with bleach and covered with paint are over.  Mold is now a legal problem, as well as a health consideration.

At the same time, the health affects of mold cannot be dismissed. Some people have been severely harmed by mold exposure. On the other hand, there are cases where moldy walls could be washed and painted with no adverse health consequences to anyone. But much more is at stake than the likelihood of health problems. For example, what happens when a future occupant of the building learns that there once was mold in the building and demands documentation to verify that the mold was tested and that removal was done in accordance with environmental standards and with follow-up air-testing. In that case, you would wish that you had done more than apply bleach and paint.

This is the situation that now exists because of past lawsuits and widely publicized hysteria about the dangers of mold. It is from this standpoint that one must consider matters of mold, especially with rental property.

On this basis, a thorough mold evaluation by a qualified expert is recommended, prior to repairing and refinishing the interior of the apartment.

New Agent Seeks Disclosure Advice

The House Detective by Barry Stone, Certified Home Inspector

Dear Barry: I’ve been a Realtor for less than a year. As a new agent, my biggest concern is liability and lawsuits for undisclosed property defects. When I studied for my real estate license, much was said about the risks of nondisclosure. They taught us about disclosure forms, the kinds of things we should disclose, the importance of home inspections, and much more. What advice would you give a new agent regarding disclosure? Bob

Dear Bob: As they told you in real estate school, disclosure has become the central aspect of the realty profession. As you apply those teachings, remember that defect disclosure has two essential components; reducing liability (the legal component) and representing the interests of clients (the ethical component). Unfortunately, there is too much emphasis on the first of these principles, at the expense of the other. Many agents cover the legal bases and perform the recommended procedures for avoiding liability, but without a full commitment to the basic idea of maximizing disclosure to homebuyers.

Articles in Realtor magazines often address this important subject, but they focus primarily on the legal approach, rather than the ethical one. For example, articles encourage agents to recommend home inspections in general, but warn them not to suggest a particular inspector. The gist of this advice is to avoid liability for a faulty home inspection. Instead of choosing an inspector for their clients, agents are advised to provide a list of inspectors from which clients can make their own choice. In theory, this relieves the agent of liability if the inspector does a poor job. If a major defect is overlooked, it is the client, not the agent, who chose the inspector. From a legal perspective, there is some wisdom in this prescription, but an essential element is missing.

Absent from this approach is the suggestion that referral lists should contain only the most qualified, most experienced, most thorough home inspectors available. The emphasis is on the legal aspect of liability, rather than the ethics of promoting top-level disclosure. This is why novice home inspectors, regardless of inexperience, are often named on these referral lists.

Most agents are familiar with local home inspectors and know who among them are the most qualified and thorough. Agents who are truly ethical and prudent gravitate to the best home inspectors and bravely recommend them to their clients. Agents who are fearful of detailed inspections often mislabel the best home inspectors as “deal breakers” or “deal killers.” This is a grave ethical error. By withholding the names of those inspectors from their clients, they are as guilty of nondisclosure as someone who hides a cracked foundation or a leaky roof.

The full answer to disclosure liability is not contained in legal forms and procedures. It resides in a total commitment to inform homebuyers of every significant issue. Every known defect should be disclosed in writing, and the most thorough home inspectors should be seen as allies, not threats, in the disclosure process.

As you continue your real estate career, remember that the only property defects that create liability are the ones that are not disclosed. So be a proactive discloser, and affirm that commitment by recommending the best home inspectors to all of your clients.

Builder Refuses to Repair Faulty Doors

The House Detective by Barry Stone, Certified Home Inspector

Dear Barry: Our home is nearly a year old. Before we bought it, my husband pointed out to the builder that the french doors were poorly fitted and needed to be repaired. The builder said he would take care of it, but he never did. We’ve continued to ask, but the doors remain the same. Recently, we threatened him with legal action. He just got mad and said, “You just took the game to a new level!” Now he won’t even talk to us. Recently, we had a home inspection, and the inspector agreed that the doors were poorly installed. How can we resolve this situation? Victoria

Dear Victoria: The builder has declared his readiness to work with you on what he calls “the next level.” So let the next level begin. Step one is to document all future communications, the first of which is to send him a certified letter. Inform him that you have made repeated requests to have the door defects repaired and that this is your final demand. Let him know that he has 30 days to complete the necessary work; that if the work is not completed by that time you will hire another contractor to repair or replace the doors and will take legal action to hold him responsible for the costs of those repairs.

In the meantime, get written repair bids from reputable door contractors. If the builder fails to perform, take him to small claims court and get a judgment for the repair costs indicated on those bids. But before you proceed, spend an hour with an attorney who can advise you on the preparation and presentation of your case.

Good Idea Declined by Building Department

The House Detective by Barry Stone, Certified Home Inspector

Dear Barry: My house has street parking only, with no room for a driveway on either side. Most of my neighbors park on their front lawns, which is illegal and which downgrades the look of the neighborhood. In a nicer part of town, I saw a home with elegant front yard parking, paved with turf blocks and enclosed by an iron gate. I want to copy this parking arrangement, but the building department refuses to issue a permit, even though this would improve the appearance of the area. They say off-street parking is not allowed, even though everyone else is already doing it. I’ve decided to go ahead with the project without a permit. Could this cause a problem when I sell the property? Darin

Dear Darin: Lack of adequate parking in a residential neighborhood is a problem for property owners, tenants, and visitors. Failure of your local building department to recognize a practical solution is not a credit to their good judgment or their obligation to serve the needs of the community. They would do well to judge a permit request on its specific merits, rather than blindly impose the strict letter of the law, to the benefit of no one.

If you proceed with your parking project without a permit, you may or may not encounter problems with the building department. In most cases, work of this kind, where actual building construction is not involved, goes unnoticed, and many homeowners make such improvement without even considering a permit in the first place. However, the bureaucrats do have authority, and it is within their power to make you undo the improvement if they are so inclined. What’s more, they’ve already demonstrated an unwillingness to apply common sense to a reasonable proposal. In situations of this kind, the possibility of bureaucratic interference should not be dismissed, but the odds against it are probably in your favor.

As for potential problems when you sell the property, your only obligation is to disclose that the parking area was built without a permit. Most buyers willing accept such conditions, but some may not.