Good points Russ. Perhaps the distinction is between what people expect versus what do they expect for the fee. I would guess they expect perfection but are unwilling in many cases to pay the fee. Therefore cheap inspectors proliferate.
Good points. My knowledge of the case is the buyer did not understand the ramification of the report. I have not seen the report but hear it did report many leaks and checked the roof deficient; it was briefly stated however.
It seems to be an argument of making the inspector responsible for determining client expectation, experience and comprehension. Most of that is excluded by the Standards.
It’s an interesting case.
Here is the ruling: Ruling
The problem I see for the inspector is that 1)he gave a diagnosis which was incorrect, and 2) the fact that he gave that diagnosis indicates he didn’t know what he was looking at as far as the cause of what he saw.
Roofs do not require replacement 6 months to a year after an inspection under normal conditions. All of the issue that were noted by the other inspector/roofer were not noted by the inspector as it pertains to the roof covering.
Instead of saying what he did on the report, something along the lines of “there was evidence of a high moisture condition observed in the attic. Possible sources could be ventilation, roof leaks, et. Recommend calling licensed tradesmen…bla bla bla.”
Granted, that is the lazy way to do it, but it might meet the minimum standards. If the inspector failed to meet the minimum standards, then again, he is in trouble.
The issue that bothers me is that some think that this is a great ruling as stated in the title. What the ruling does now is lets the lawyers know that taking this route isn’t going to work. There are plenty of other ways to get sued and lose. I am sure the lawyer in this case will find one or two…
Good points Jim. It is interesting how the court interpreted aspects of DTPA. There remains exposure to the points you make.
I am not sure if insurance was involved. I suspect they would have settled.
The $300 I introduced was just a figure of speech. I did not intend to divert the topic.
It would be interesting if the contract was required to say "The inspector agrees to be liable for $xxxxxx regarding errors and omissions for the fee of $xxxxx. Can you guess how an inspector would fill it out and then the home buyer? Therein lies a problem. Managing expectations.
Para 1 - I think the ruling was based on the consideration of opinion versus fact. It was an opinion.
Para 2 - True but oddly Texas excludes remaining life statements.
Para 3 - Texas has a mandatory form. It instructs the buyer to have all items indicated deficient inspected by a specialist. The form states “When a deficiency is reported, it is the client’s responsibility to obtain further evaluations and/or cost estimates from qualified service professionals. Any such follow-up should take place prior to the expiration of any time limitations such as option periods. Evaluations by qualified tradesmen may lead to the discovery of additional deficiencies which may involve additional repair costs. Failure to address deficiencies or comments noted in this report may lead to further damage of the structure or systems and add to the original repair costs”. I suppose “had the buyer done that would the problem have been fully revealed?”
Para 4 - The Standard is grossly flawed. It can be argued every which way. Hmmm, maybe that is not a flaw?
Para 5 - You are right “lots of ways to get sued”.
I think the ruling was based on the consideration of opinion versus fact. It was an opinion.
The “Opinion” is part of the legal document and is part of the ruling. Generally in law, things get worded like this “It is the opinion of the Court that due to the circumstances of the case…”. The opinion lays out the reasoning for the ruling.
Para 2 - True but oddly Texas excludes remaining life statements.
This has nothing to do with life expectancy. It has to do with following the Texas SoP and inspecting the roof properly. Any roof I have ever failed never had anything to do with age.
Para 3 - Texas has a mandatory form. It instructs the buyer to have all items indicated deficient inspected by a specialist. The form states “When a deficiency is reported, it is the client’s responsibility to obtain further evaluations and/or cost estimates from qualified service professionals. Any such follow-up should take place prior to the expiration of any time limitations such as option periods. Evaluations by qualified tradesmen may lead to the discovery of additional deficiencies which may involve additional repair costs. Failure to address deficiencies or comments noted in this report may lead to further damage of the structure or systems and add to the original repair costs”. I suppose “had the buyer done that would the problem have been fully revealed?”
The problem in this case is that the inspector noted a problem and said it was caused by something other than what it was. It may be the Clients responsibility, however, if the Client wasn’t given factual information, what is the Client supposed to do?
Para 4 - The Standard is grossly flawed. It can be argued every which way. Hmmm, maybe that is not a flaw?
I think Texas has one of the best SoPs out there. At least you guys have one;-)
Para 5 - You are right “lots of ways to get sued”.
And the best thing to do is to eliminate as many of those ways as possible.
Doing a cheap inspection or even a free inspection does not relieve one of the duty and responsibility encumbered upon a real estate inspector in Texas to follow the SoP (which is a whole other topic in itself). That report needs to stand on its own merits for at least 4 years and some cases more. The cheap inspection/inspector will eventually get snake bit by the next inspector. What he/she loses even more is the loss of a referral from that buyer as the interest to serve the agent in order to stay of the short list out-weighs the legal responsibility to serve the buyer.
The “leaking roof” buyer may have been better off to file a complaint and list the SoP violation(s) based on the help of the second guy and roofer, have the inspector go through the “matrix” and if credible take the disciplinary action ruled against him and then sue. There is no better witness than having a ruling from a state commission that holds your license stating you “failed”. The E&O carrier will never let that one go far without settlement. That buyer threw away a lot of money on a lawyer that should have known the exceptions to DPTA and the inspectors lawyer spent his money instead of stopping it (DPTA) from the beginning. Lack of legal knowledge by lawyers or, who got the pay day?
Fairly good article informing sales agents to do their job and let inspectors do theirs.
Great article Jim.
I think its really cool that the 2nd inspector could tell the screws had been loose for over 12 months NOT 10 months. NOW thats a top notch inspector OR maybe a TOP NOTCH expert witness … Mr Attorney HOW LONG do I need to say they’ve been loose … NEATO
… Mr Attorney HOW LONG do I need to say they’ve been loose …
Exactly. Give me a break…these screws have been loose for over 12 months - WTF? Your Honor, a sstl screw, 2.5 inches long, will erode the shaft exactly .000593mm per month, that is , taking into account the number of times (7) that it has been exposed to NE winds exceeding 55mph, E winds over 71.3mph (3), a recent earthquake measuring 4.3 Richter and an avg temperature of 79.8 deg F.
All this is:
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HI made a bad call in delineating a moisture issue instead of a roof leak - he is and will always be wrong.
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Expert Witness, HI, will do and say anything to support his attorney client. Is and always will be wrong.
Only thing that establishes the 12 mo reference is the location of the leak.
The inspector missed a roof problem.
The owner knew it leaked and probably did not disclose the issue.
Never tell anyone why you THINK something is happening, just report the condition.
The buyer should have had an evaluation by a roofing contractor after the home inspection.
Just my $300 dollars worth.
PS: seems like there is a perfect inspector in FL.
There is no such thing as a perfect inspector, in Florida or anywhere else.
On the other hand,
This is what hung this inspector, or will: