We have now entered in to the new world where you can be taken to court and beaten for things you don’t do (even if you disclaim them) the New environmental reports are another one if more HI’s keep doing them they will become the norm and you will have to do them or take a chance of legal action. This is the new world of law.
Jim:
Currently there is some risk in being a home inspector and then standing in front of a Judge and saying “Yeah, I’m a home inspector… but I don’t do anything with mold, I say so in my contract, and it is beyond my SOP.” Most judges will buy that argument but many won’t. Like Michael says, despite what the SOP actually states, consumers CAN RELY on what is reasonable to expect from a home inspector and the change in times has lead many to reasonably expect that the inspector should look for and test for mold. I’m not saying there is great risk, but there is some risk in not offering mold services.
Where I see the great risk, is when you inspect for mold as part of you home inspection, don’t charge additionally for it (you see, when you charge extra for it as an ancillary service, you emphasize that it is outside your SOP and thus protect yourself some), and don’t do a lab test (which also emphasizes that it is an ancillary service and not part of a home inspection). Right or wrong… because most believe you should test for mold with laboratory results and because many of your competitors inspect for mold send a sample to a lab… you should take a sample when you inspect for mold… every time. The laboratory report protects you in many ways and also helps emphasize it as an additional service above and beyond your home inspection (which also protects you when you only do a home inspection).
In other words, taking a sample when you do a mold inspection helps protect you when you don’t do a mold inspection on just a regular home inspection.
If you want to know my secret to protecting yourself from lawsuits for failing to inspect for mold or inspecting for mold without a laboratory test… here it is:
Simply throw out all your home inspection brochures. Replace them with ones that offer mold inspection with laboratory analysis as an additional service to your home inspection. Make sure you price it additionally on your brochure (price it high if you don’t want to actually do the mold inspections).
Having mold as an additionally offered, additionally charged service that includes a laboratory report on ALL your brochures and your website protects you from any homeowner who chooses not to purchase it. And again, if you don’t actually want to do mold inspections or are not qualified to take samples… simply price this ancillary service outrageously high. If a consumer actually purchases the service regardless of the high price… sub it out to someone who is qualified.
Can anyone present a case that demonstrates this point (aside from “something I heard about”)?
While there is very little that would surprise me, regarding frivilous claims and suits, the idea that a ruling could be issued against an inspector for something both parties contracted and agreed, in advance, that he would not do - is impossible to comprehend.
If your hypothetical case is correct…it would be worse for the inspector who offered it than the one who did not.
One does not even offer mold sampling, tells his client up front in his SOP he does not offer mold sampling, and was hired to perform an inspection that did not include mold sampling.
What you are presenting as a safer alternative is to offer it, advertise you offer it, but argue that “the client never paid for it so I didn’t do it” as a defense. I think there is a better argument to nail the second guy than the first…but the best argument absolves both of them, IMO.
Some truth to that. I know this will make every $200/hour attorney squirm but as NACHI’s founder, I’m certainly involved indirectly in more inspection suits and threats of suits than any attorney. I get to hear about them all. And one thing I’ve learned is that Judges at this level (consumer vs. inspector)… put more weight on the marketing literature of the inspector than the written, signed, pre-inspection contract. I attend every court case I can get to and I’ve watched many Judges lean back in their chairs and read every word of an inspector’s brochure and never read a word of the pre-inspection contract. Reports I get from home inspectors who have been to court also reveal that much attention was given to “why the consumer chose that particular inspector” (marketing)… another reason not to bribe REALTORs via preferred vendor schemes. Again, Judges at this level often put more weight on the marketing literature than the contract.
And rightly so… the marketing is what caused the consumer to order the inspection… not the contract.
This is why inspectors who are ICC certified (with the exeption of those who charge additionally for code inspections) should not include this fact on any marketing literature.
I agree 100%. I think, to be more specific - when the advertising literature conflicts with the contract and the report (no matter how many disclaimers there may be) the advertising literature will prevail…for the very reason you mentioned.
When I limit my client to the scope of my inspection (SOP) in my contract, but advertise that I exceed it on my web site…then I have opened a Pandora’s box.
Correct. In law, when there is a discrepency in anything written (Brochure indicates Code Certification but contract says inspector does not check codes), the other party (not the author) gets to rely on what is most beneficial to his/her case. We already had a consumer sue one of our members for indicating in his marketing literature (through ICC Certification touting) that the inspector would be checking to make sure everything was up to code… it wasn’t.
The plaintiff argued that he particulary chose this home inspector because his marketing literature implied that the inspector would assure that everything would be up to code. Now mind you… all the inspector did was put ICC Certified on his brochure.
Like I said… an inspector’s marketing literature is more important than his pre-inspection agreement in a court of law.
We also have quite a few P.E.s at NACHI who don’t put that credential on their inspection brochures for the same reason. A client could later argue that they chose that particular inspector because they needed engineering services. Consumers have so many advantages if they are willing to play dumb.
It is never a good idea to exceed the SOP. Period. It is never a good idea to do an inspection without having a signed Pre-Inspection Agreement which clearly outlines the scope of the inspection. It is always a good idea to use a comprehensive report with lots of disclaimers.
Will those three things keep folks determined to sue from suing you? No. But they will provide affirmative defenses to a suit. And will stop most of the more frivolous suits that we see.
Use the HIF Agreement. It is excellent and may be downloaded here:
<http://www.iami.org/HIF/pdf/HomeInspectionAgreement_PrintOnly.pdf>
True of virtually every profession.
Would there be fewer without licensing?
And that lawyer will be tilting at windmills if your PIA specifically excludes mold testing as being part of the inspection.
That is not true. Doing things that exceed the SOP will far more easily increase your liability. If your contract states that you are not going to be inspecting for mold, there is no way that you can be held responsible for not finding it.
Again, the guy who is using devices that permit him to exceed his SOP had better not miss anything, even things that he is not using the high tech equipment to find. For example, he doesn’t walk the roof because it is a. dangerous and b. beyond the SOP in that instance. Well, so what if it’s beyond the SOP, Mr. Inspector, isn’t thermal imaging beyond the SOP, too?
A. Homina, homina.
Those lawyers will not defeat a good PIA, a followed SOP and good reporting.
Thank you Joe. But the point I was getting at is this if you don’t do Mold and say so in writing and 90% of all the other HI’s in your area do. The other lawyer will base his case on the fact that all of the HI’s he can find do mold, You did not do a good professional service for your client, He would then go on to claim that your client thought that all home inspectors do mold and if they were really truly aware that you didn’t do mold they would have used some one else. I have been told that if everyone is doing it that it is then believed to the public and can be expected by the public to be part of a normal service.
…and my lawyer will respond with “Why did your client not hire one of the inspectors who did mold? Instead, he sought out my client who specifically states in his advertising and in his agreement that he does not do mold? It is obvious that he chose not to have this as a part of his inspection. What proof do you have to the contrary?”
James lets wait for Joe to respond.
What I am getting at is a perception that the population in general would be given by the majority of HI’s doing something. The population can perceive something to be just because it is done by a majority of people, and can expect it then for normal service
Well, you need to come to my seminar where I cover all of these issues.
Can’t you please give all the other members some sort of a glimpse at this? I know the answer to this I have had it answered by 2 of the top lawyers in phoenix.
He will first have to defeat your contract. Do folks have freedom to contract in Arizona? [Rhetorical question.]
I agree with Michael Craig. I’m not an attorney but I have more access to inspector lawsuits than anyone on the planet earth. Every consumer’s attorney calls me. Every member’s attorney calls me. What Michael has been saying is what I’ve been seeing.
One of the problems is that most lawsuits against inspectors are under $10,000 (small claims). In Pennsylvania for instance (where Joe Ferry is an attorney)… the Justice of the Peace (Judge) doesn’t even have to have a law degree. All one has to do is take a 2 week course to be a Judge in PA at that level. So things like “rules of evidence” don’t even apply.
Come on now Joe this is something that all HI’s need to know. As time goes on there will be more things that are expected of home inspectors (they may not agree with them but may have to add them to there service)
Again, this is all covered in the seminar.