The way I read it is. If I failed to disclose any defect, tough luck.
I agree with disclaimers, where it’s stated the item was not visable, or beyond our standards etc.
The customer already chose me to do an inspection due to info/ experience provided from my web site or another source.
To turn around and tell the customer , oh by the way, if I miss something, or fail to disclose a defect, it’s not my problem would raise a red flag to me.
As a consumer I sure would have 2nd thoughts about hiring someone with that disclaimer.
(Mark Cohen, InterNACHI General Counsel and Corporate Secr)
When a potential customer starts asking you to change your contract, a warning light should go off in your head that you may be dealing with a difficult person.
By and large, I believe these clauses hold up, though the laws vary from state to state. Better to have one than not have one.
After seeing a lawyers comment on this, I’m in the process of rewording my contract to include…
The customer agrees to not file a complaint against me with the state if I screwed up and missed something that I was required to report on .
The inspection is the same regardless of what they choose. It is simply an ADDITIONAL fee on top of the inspection fee, to remove the limit of liability. Strictly their choice. I don’t know how a judge would react to a contract that is signed, where the client made specific a choice, and initialed that choice.
They do in the Midwestern part of the United States. Just recently, the Kansas Association of Realtors purchased a law in Kansas at a hefty price to forbid inspectors from negotiating such agreements and require them to acknowledge not less than $10,000 of liability…which the real estate salesmen refer to as “the first $10,000 of liability”.
Hey Dale… How are you doing?
I understand liminting to fee paid has stood up here.
I sure don’t support it for the simple reason, if an inspector believes he can simply get off the hook by having simular disclosures, why would he feel it’s necessary to spend the extra time on the job, and $s to get the best CE he can to provide the customer the most thourgh and best report he or she can.
Heck with those disclosures standing up, why not do 4-5-6 inspections a day and take your chances of have to refund a couple inspection fees a month.
I want to an ASHI meeting about 4 or 5 years ago in Chicago and they had a lawyer speaking. Even though I informed him that it was unlikely that that part of the contract would hold not up in Indiana, the lawyer did inform me that it has held up in Illinois.
That is what he was telling everyone at the meeting.
So if the client has to buy a condenser, and the roof needs repair because the inspector missed it the buyer gets his 250 bucks back…I would be SO embarrassed to even show someone this statement I would find another line of work if it was required.
To those young inspectors in the crowd, that apparently have not been around very long or may be slow thinkers - the limitation of liability to a set amount (the fee paid, 2x the fee, $1,000, etc) is a standard part of most real estate inspectors contracts ANYWHERE I’ve ever been in the USA (Florida, Texas, Missouri, Kansas, Colorado, Arkansas, Illinois, etc). Whether a court **UPHOLDS **it is up to a Judge (its a precedent NOT a mandate). Sometimes a judge determines this suit is frivilous or without merit AND upholds the clause - sometimes he does not.
I’ve never looked at it as a “If I miss something, way to get out of paying”. I’ve always looked at A LIMIT of LIABILITY Clause as a way to help PROTECT some poor smuck home inspector from all the riff-raff, gutter-trash in the world that hired us to inspect a home for $250 - $300; then 6 months or 1 year later repaneled the family room / found hidden mold or termites INSIDE the wall cavity AND tried to sue us because we lacked X-ray vision AND couldn’t see inside the walls.
Going out without it, is like going into a gunfight without your bullet-proof vest - stupid to the Nth degree. Any questions!
I’m with you 100% on this, Dale. I feel the “waiver clause” is totally unprofessional. “Here, clients, …yes, I can inspect your new home but I’m not so sure I can do a good job…sign this so you can’t sue me when I f–k up!!”
Have been inspecting full or part-time for 27 years, have never had a waiver clause and have never been sued personally. The company had one suit against it in 1987 when I had a partner for an inspection he did. I went to court for the company as he had moved out of the area (so the guy who wasn’t even at the inspection, me, was the defense witness). The judge awarded the clients 10% of their claim, about $1150.00 for a basement leak even though his report mentioned he found water in the basement.
If you can’t do the job without the waiver clause, find another profession. You’ll sleep better!!
The attorney that wrote my agreement had a simple statement about the limitation of liability clause. “If it is in the agreement it may not hold up in court, but if it isn’t in the agreement it definitely will not hold up in court”.
He further stated some reasons to have it, including that if someone won’t sign the agreement with it in there it is a good way to weed out someone who wants you to guarantee everything in the home for as long as they live there.
Remember, it isn’t “if” you miss something, it’s “when” you’ll miss something. It may happen in your first year, your tenth or your thirty first…