I agree with you.
Sure. First I do not think you will get sued unless you really screwed up and / or you have assets / insurance. The FREA guy mentioned lawsuits were about 1 - 3000 range now. I remember when they were 1 - 1000. That means lawsuits are down. The average inspector only gets sued once every 10 years if they do 300 inspections a year. Still as Mr Swift states you already lost when you get sued.
We need to debate imminent safety, potential safety, old code compared to new code safety, safety relative to use (kids and elderly for example), risk to property, risk to persons. Its complicated. I only have time to toss a few examples here.
Water heater safety pan: minor risk of damage to property. No need to call it out if missing. I think not required by NACHI (not time to look up but NACHI does not address property damage risk, only risk to persons)
GFCI not to current code: Code not required by NACHI SoP
Arc Fault: Not required by NACHI SoP
Pools: Not required by NACHI SoP
Lawn irrigation back flow devices: No required by NACHI SoP
Faucet does not have anti scald protection. Unsafe for kids and elderly. Not required by NACHI SoP. Priority is less than imminent.
A stairway that meets code 100%. Proper installation and unsafe by its mere presence. Number 1 cause of in home injury. No safety comment required.
A 1990 overhead dor opener without a reverse sensing beam. Unsafe for kids. Priority possibly imminent depending on occupancy. presence not required by NACHI SoP.
Blind cords. Imminet risk if toddler present. Not required by SoP.
Presence of a toilet. #2 cause of in home drowning of toddlers (bathtub #1). Imminent risk depending on occupancy. Not required by SoP.
Here are some that are required
Disconnected Type B flue pipe. Improper installation and unsafe (priority is debateable
Charred hot wire in panel. Improper condition. Imminentlyunsafe depending on application. A reporting requirement of the SoP IF you took off the panel cover.
A smoking receptacle. Improper condition, imminent safety. Required by SoP.
I could write thousands of these.
I like the title.
Nifty Swifty
wrote a book
to keep inspectors off the hook
We are inspecting, by our SOP for material defects. Safety as a word is not in the definition of a material defect, but the lawyer in me is smart enough to know that i can meld it there and convince a judge or jury that it is in two seconds.
" A Material defect is a condition with a residential real property or any portion of it that would have a significant adverse impact on the value of the real property or that involves an unreasonable risk to people on the property."
It doesn’t say safety, but boy, does it say safety LOUD.
The SOP is the minimum standard. if you want/need more protection that is where your contract, scope, and inspection report disclaimers come in to play.
I agree in some respect. Its safety LOUD but your letting the attorney do the shouting. Your SoP whispers.
Actually this section of the SoP says two things that can hang a NACHI member easily.
1 - “that would have a significant adverse impact on the value of the real property” can mean noise pollution, location, market forces, lifespan of equipment. Home inspection does not address “value”. That is an appraisal function. A smoldering wire is a material defect that has very little impact on value. A railroad track the buyer did not know about can have significant impact on value and by NACHI defintion is a material defect".
2 - You do not define “defect” therefor leave it open to an attorney to define it for you. You do not define “unreasonable” and that opens you to any interpretation. You do not address safety clearly and the ambiguity opens you to interpretation. You do not address safety clearly so members will be inconsistent.
I think we all agree inspection is about property condition. I think we agree that property condition discoveries can be unsafe. We are not in agreement regarding safety that is code or improvement related. Usage is not addressed. Priority of repair is not addressed.
So I ask someone to define some words
Unreasonable
Defect
Material
Imminent risk to persons relative to any usage
Less than imminent risk to persons relative to any usage
Lets provide an example. The SoP say nothing about knob / tube. The scope says
“The fact that a structural element, system or subsystem is near, at or beyond the end of the normal useful life of such a structural element, system or subsystem is not by itself a material defect.”
So, it is reasonable to state that knob and tube is not a material defect and does not pose risk to occupants therefore the inverse applies . . .knob and tube is safe?
Yes
Yes that too is correct and of course a good inspection and well written report help immensely.
The concept of “protection” is very valid but try selling it a different way. The SoP is what you will do / not do for a consumer. It an agreement of expected performance. It defines the requirement. It is vital the document be concise and loop hole free. That is possible however concise writting is difficult. I am NOT a concise writer. However my NACHI friend Mr. Strahan is. He can take this paragraph and cut it to half it size with better choice of words.
Instead of saying the SoP protect me say the SoP protect the consumer. And they do!
The SOP is a minimum set of guidelines, my contract, scope, disclaimers and contract, define in no uncertain terms what I do. 
John,
You say that we should only go by the SoP… and omit some
safety issues.
Then you turn around and say the same SoP are vague and
can be used against us.
You have proven my point. This is why I enhance my protection
by pointing out various safety issues I see and educate the
client to take responsibility for their well being. Why? Because
just like you said… the SoP are vague in some respects… and
Lawyers can make a rabbit stand up and quack like a duck.
If the SoP are vague, then they can make it say anything, in order
to get the money they are seeking.
1 - Yes, comply with the SoP and avoid exceeding them unless it is offered as an additional service the client is offered and either accepts or declines.
2 - I do not recommend omitting some safety issues. IF the SoP clearly require certain safety reporting then do it. Avoid however assuming increased reporting requirements that are implied. One might counter implied arguments with the optional product concept.
I presume your point is you enhance your protection by pointing out various safety issues. That is GREAT as long as you create an enhanced NACHI SoP for your business and tie that into the contract and scope of service (use revision numbers). You must also consider a protocol that assures compliance with your stated service (field notes or a check sheet for example).
An example is: We perform our inspection to NACHI SoP. We exceed NACHI SoP by inspecting for the presence of arc fault protectors.
Take the NACHI SoP and edit your additional services and clarify vague wording. Emphasize the variation with italic font and explain what is going on in the scope. Tie it all together in your contract and report preamble. NOW you are protecting yourself and adding value to your product for the consumer.
If you just insert undocumented “this and that” into your report then the attorney will add “them and those” for you.
The NACHI SoP are good but can be improved (no offense to anyone; any one of my reports is subject to improvement).
I respect lawyers but I know some expert witnesses that can confound many lawyers. The word Lawyer is not synonomous with genius. Some are actually stupid when it comes to our business. Don’t fear them; respect them and know they can often be beat at their own game. There are a lot of GOOD DECENT lawyers out there that can kick *** on a plantiff lawyer . . . . . for $300 an hour of course.
And you can make them say what you want in your revised SoP, contract and report. It is a two way street.
I do not endorse a vague SoP. I endorse a clear concise SoP. That does not mean it has to be prescriptive.
Here is an example. NACHI says
I. The inspectors are not required to determine: J. The presence of mold, mildew or fungus.
K. The presence of air-borne hazards.
N. The air quality.
O. The existence of asbestos.
P. The existence of environmental hazards.
Q. The existence of electro-magnetic fields.
R. The presence of hazardous materials including, but not limited to, the presence of lead in paint.
S. Any hazardous waste conditions.
The same can be simply stated:
The inspectors are not required to determine the presence, absence or risk of any environmental pathogen, carcinogen, toxin or poison.
You could expand with the NACHI list of exemplars:
Examples of excluded items include but are not limited to mold, mildew or fungus; air-borne hazards; air quality; asbestos; electro-magnetic fields; lead in paint; hazardous waste conditions.
Your contract could offer
We are licensed to inspect and test for mold by the TDH. We can provide this service for $xxx
Client accepts_________ Clients declines _________
We do not provide air quality studies. If interested you may research such experts by contact TDH at 555 - 1111.
We do not inspect for asbestos. If interested you may research such experts by contact TDH at 555 - 1111.
An optional 128 item limited safety inspection that compares the home to modern construction standards is available for $xxx. We recommend you consider this optional service. If you decline this option we will provide a check list that will help youdo some of it yourself at no charge. You may hire us later to perfrom this important optional inspection. Prior to closing is best.
Client accepts_________ Clients declines _________
And so on.
Well guys and gals. I think that’s it for this thread for me. Thank you for the replies. Its just food for thought. You can control your destiny to some extent.
Three men fell into a river. One gave up and went with the current over the falls. Another swam but still went over the falls. The last swam also but made it to shore.
This industry needs to start swimming.
This is not legal advice. Its only an opinion subject to revision when I become sober. Think about it and make up your own mind. You are responsible for yourself.
Thank you John, it’s always a pleasure to banter with you.
It is my opinion that where our industry needs uniformity, where we must work the hardest to redefine our industry (establishing in our SOP and educate the public) is that home inspectors are not an insurance policy against personal injury or loss nor can we insure that a property is safe and they (client and/or property) will never incur loss, injury, or damage (to do so would be impossible, even with intrusive testing and total deconstruction of a system or property, because everything eventually atrophies), but educators or consultants.
Distancing ourselves from the “trades” industries and establishing ourselves with the “service” industries would aid us in this redefinition.
Trades, by nature do or perform –bringing about, fixing, building, and/or repairing to current standards. And as home inspectors, we do not (and cannot) act in such a role. The service we provide is one of information: the condition of the property at the time of the inspection; items and issues which need immediate attention; items and issues which need further evaluation; conditions that the homeowner need be aware of that could contribute negatively to life, limb, or property; common maintenance requirements or recommendations; elements, products or practices which have been proven to be problematic; etc.
As of now, Home Inspections is considered a “blue collar” or “trade” profession, and to all of us with deep blue collar roots- we see this as a complement. But if the industry is to grow, mature, and stabilize (again, just my opinion) it will need to adopt a “white collar” or “service” status.
Joe,
Do you have case law I can research where this has been applied, successfully?
How about Verify. As in the inspector is not required to verify the use of of safety glass thru out the structure,or is not required to verify compliance of when performing a standard home inspection. A safety inspection can be performed for the client if requested for in writing for a seperate fee at the time of the inspection or…?
Good point. IMO a SoP should avoid the use of the word verify unless it is contained in general exclusion and limitations. The definition is very binding. “to establish the truth, accuracy, or reality of”.
YES and you know what? Optional services or service recommendations are a great consumer service . . . . and they reduce your risk. . . . . and you can make more money.
As I said, if you want to inspect for safety beyond the SoP then copy the NACHI SoP to a Word document and modify it with your specific company policies. Tie that into your report and contract. I am not saying “don’t go beyond”. I am saying “don’t go beyond unless you carefully document how far you go.”
Example. Carbon monoxide testing. The inspector hears a war story about a death and law suit. He goes out and buys a tester and starts doing the service for free. He is “protecting” his client. That’s good . . . . but he is exceeding the SoP and doing it at his expense.
Another inspector hears the same story. He buys the same tester. He offers the added service for $xx dollars. Client accepts or declines in contract. If client declines the report says. “We offere an option carbon monoxide inspection. This is an improtant safety inspection that you have chosen to to do at this time. We recommend you install carbon monoxide detectors regardless. You may hire us to return to perfrom this test if you change your mind.”
Blah blah blah. It can be shortened but you get the drift. AND if the gas appliance is old always recommend it be serviced.
This scenario can be applied to every specialty tool used.
Protect the consumer; protect yourself; get paid for what you do.
About carbon monoxide testing: I do not do it. I have not researched the calibration requirements. IF you ever get a complaint the lawyer will want to see your maintenance schedule and calibration records.
No, not exactly, but it happened here in Florida and Jeff Hooper was probably involved in the case, my guess was it happened in Palm Beach County, that should narrow down the search.
Leave it to Hoopy.:roll:
I started out life protecting my client. About 10 years into home inspecting when lawsuits became more plentiful, I thought long and hard and decided that my NUMBER 1 PRIORITY was ME!!!
My inspection is designed to #1 protect me, my assets and my future.
Having said that I’ve discovered that protecting ME - gives my clients more protection than they had before.
Well said. Thank you.
Would it be better to mention some safey advise that could
protect a person?
Or would it be better to not say anything, and when I get sued,
when a child dies from some condition I could have mentioned…
I should trust that the lawyers will only see my side of the SoP?
… and be understanding and merciful to me, instead of the greaving
Mother?
Should I trust that the jury will ignore the emotional pull of the
weeping mother and rule in my favor?
Please remember that our laws are being tweaked by new rulings all
the time and how we see a law today may be wrong in a year
from now.
Why would a little safety advise in my report for others, hurt me?
I am not living in the world of fantasy and how the perfect
SoP could save the world… I am living in the jungle today and
need to survive. What works best to survive?