Misuse of regulation prevents us from doing our jobs

On another note I also understand Len’s concern as another level of potential liability based on the assumption that the “AHJ” approved what we inspect. After all the last “person” in syndrome often puts blame on the home inspector and not fairly on those that know the history and condition of a home. - as they say - just another brick in the wall!

All very good points here. Lets throw one more thing in the mix. What if something in our opinion passed code and we clearly see the approval by the AHJ is wrong. Do we overstep our boundary by protecting our client that such issue has been changed in the code? No!!! Best we can do is point out that the standards have changed and what was OK then has changed.
Let the weight fall on our training about what is acceptable by InterNachi standards and we can’t be held liable when someone asks the “Does it pass code.”

I have inspected row houses where the “fire separation” was not installed in the attic. I have inspected where cross bridging was missing, and floor joists improperly notched into a main steel beam. - Just a few quick examples. I’m sure others have witnessed equally more.

The point being - we still need code as a guide, but also realize even in new construction a code review even by the AHJ can often leave much to be desired. It’s tough going back and getting the AHJ to admit they missed something like that.

The permit check - while I see the issue about “personal privacy”, it makes you wonder if it’s best left to the lawyers to verify, and we just note it as another point to the client to get a response on.

Robert, Very nice, well thought out response, and I appreciate the time you’ve taken to come up with this, as it does show one side of the debate in great clarity.

My original post was based upon the premise that people hide behind paperwork (regulatory or otherwise) in order to inhibit good service.

Although your response is off that track I think you make a relevant point that as Home Inspectors we are guided by our Standards of Practice.

The important point here is that the SOP is a Guide. It has hard and fast rules stating what we must do, but it has no hard and fast rules about what we should not.

In order to make this point clearer, I refer to RFC2119. This was a standard developed back in 1997 at Harvard University which applied to Internet best practices but has since been adopted by many other professions and the legal world as Industry standard best practices.

RFC2119 defines in great detail what terms like MUST, MUST NOT, SHOULD, SHOULD NOT and MAY. Unfortunately the only term not referred to in this document is “NOT REQUIRED”.

In many Thesaurus entries the term “NOT REQUIRED” is listed as equivalent to Optional, elective, discretional, voluntary or otherwise “up to the individual”.

Our SoP has many many items of inspection that are “NOT REQUIRED” and therefore fall under those terms. Nowhere does it say in our SoP “MUST NOT”, and therefore nothing is restricted in the SoP.

For the purposes of clarity, where these words appear in our SoP or CoE and I quote them, I will embolden and italicise them to explain better their effect on what the documents are saying.

Then you mention the Code of Ethics. Now here we have a lot of SHALL NOT clauses. These clauses are primary based around conflicts of interest, fraudulent claims, privacy protection of the client and anti-discriminatory performance, which in most have no relevance to the OP.

Two of the clauses do have relevance however. The first I would like to bring to the attention or readers (although not the first you come to in the SoP) falls under section III Duty to the Profession and to InterNACHI. Paragraph 1. specifically states "The InterNACHI member ***SHALL ***strive to improve the home inspection industry by sharing his/her lessons and/or experiences for the benefit of all. "

I believe my OP does adhere to this, as it shares my experiences for the benefit of all. The second clause falls under section I. Duty to the Public.

Here in Paragraph 8 it states “The InterNACHI member ***SHALL ***always act in the interests of the client unless doing so violates a law, statute, or this Code of Ethics”

Nothing of what I said in my OP, or the actions I carry out on behalf of my client, contravenes either of these clauses in the CoE, or any other for that matter.

So going back to the SoP, lets look a little deeper.

Right at the top of the SoP Section 1.1 it states (paraphrased for brevity) “A general home inspection is a non-invasive, visual examination … designed to identify defects … that are both observed and deemed material by the inspector” and material defect is defines in section 1.2 including as “a specific issue with a system or component of a residential property that may have a significant, adverse impact on the value of the property”

In the same general area it also states " The scope of work may be modified by the Client and Inspector prior to the inspection process"

In section 2.2 Exclusion it states “I. The inspector is not required to determine: … H. compliance with codes or regulations.” and there it is.

The term refers to NOT REQUIRED. It doesn’t say SHALL NOT. Therefore it is up to the particular Inspector as to whether they choose to perform this function or not. In our SoP in is neither mandated nor is it prohibited. It is a personal preference.

It is my preference that where I am qualified to do so, safe to do so, within my legal right to do so, and it is in the benefit of the client for me to do so, as part of my home inspection services I will do, where I see fit, items in the NOT REQUIRED to list.

Why? because I believe it falls into line with the CoE statement Paragraph 8 *"The InterNACHI member **SHALL *always act in the interests of the client"

This is no different from goin into an attic space seeing rodent detritis and mentioning it on a report. We are NOT REQUIRED to by our SoP to determine “2.2, I. I. the presence of evidence of rodents, birds, animals, insects or other pests.”
I suspect every professional home inspector does however not just determine this, bust mentions it to their clients.

I also believe those who do not would likely find themselve liable if a Mouse inferstation visibly identifiable from mouse poop found at the time of the inspection and showing up on photographs but not mentioned by the inspector subsequently ate through electrical wiring.

Not doing your moral and ethical best just because a clause in your SoP stated you were NOT REQUIRED to, is no excuse either in my eyes or in many cases the eyes of the clients who employ us or indeed more often than not in the eyes of the law.

To tell me I make mistakes that you feel you need to correct by telling me of my errors is welcome as it provides me with an education by one of my respected peers…when you are right.

In this case Robert I feel that is not the case, and no flowery wording or prose on your part will make it so.

We, as inspectors, need to think about what makes people want to continue to use Home Inspectors. Are we just glorified general practitioners that refer this, refer that, tell the client that it is their responsibility to educatie themselves in everything we have paid to do so, or are we going to go out of our way to help them in ways that provides a real service? We should not rely on “the other profession” to do the “job”, but where we can we should do what our CoE state we MUST, and that is work to improve the profession and always in the interest of the client. Let’s not hide behind the NOT REQUIRED clause in the SoP and where you are qualified to and it is feasible, safe, and sensible to do, actually do some of that OPTIONAL stuff that makes you stand out as the go to Inspector of choice.

As a final example of how hiding behind the SoP to justify NOT doing what’s best for the client, is the now infamous case of Salgado v. Toth. The inspector tried to defend himself, among other ways, by using the SoP clause “Representative Sample”. He chose to apply it literaly to everything, and found himeself $193,000 plus change out of pocket.

I also think that if you failed to inspect under a 6’x2’ throw rug and there was a mterial defect hiding there just because it said you were not required to (Section 2.2., III. A) you’d get laughed out of the profession.

My recommendation to homies, if it feels right, you are qualified to do it, you are legally enitled to do but is is optional, identify any real limitations that stop you from doing it otherwise do it, document it, and CYA.

Which brings me right back to my OP. I perform the permit request to identify if any work has been done “by the book” before I look. If I find visible signs of modifications and either there were or were not permits issued in the past, I write, for my clients benefit, suitable verbage that indicates my findngs and tells of the repercussions if permits are not issued.

When a jurisdiction will not even tell me if a permit has been issued it prohibits me from offering that service. I write that I tried, but failed. I should not have to do that latter. This is the real point I’m trying to make, but everyone is missing it even though the other comments being made are really great indications of other issues we face for the paltry sum we are paid.

This is great input Kevin.

I think we are all on the same page about the Building inspectors missing stuff, I think we’ve all seen that, but when a Building Inspector has not even been in becasue a permit was not issued, then the likelihood for further problems down the line are greater.

What I’m trying to get at is that with no permits issued, there has been no chance of a code inspection by a building inspector.

With no ability to check if permits have been issued, there is no chance to identify if there is no chance of a code inspection having taken place.

I don’t want to do a code inspection, but I’d like to be able to tell my clients that someone has at least done so in the past. That’s what the permit system does. Not having access to it is frustrating the ability to be able to advise our clients one way or the other.

The reasons for not releasing that information on the part of the AHJ, i.e. hiding behind Privacy regulations is just pure B.S.

Claude you make and excellent point, but the way the AHJ hides behind the Privacy regulations stops the client from obtaining that information too. This means the only way they can get the information is to buy the house, and then issue a request to the AHJ under the Freedom of information Act. By then, any information they get is too late to save them from purchasing a “pig in a poke”, it can only identify, in the best case, that a permit was issued, and that it was code inspected. In the worst case it tells the client no permits were issued and any work was likely done without proper oversight. If you were buying a home when would you like that information, before or after parting with you money?

When the reasons for not realesing the information on the part of the AHJ is privacy, and there is no Private or Personal information contained in the request, then the only things I can think of for the refusal to release is either laziness or something way more nefarious. Both are unacceptable given that the government is making public statements about how they are trying to do the best for home buyers, starting by regulating Home Inspectors.

If the Government stopped AHJ’s from making it difficult to do our job right, and the realtors stoppped avoiding good, professional, thorough inspectors, and inspectors stepped out from behind the optional clauses of our SoPs once in a while, then many of the issues we seen displayed for eveyones gratification on HGTV would, in my opion, pretty much dissapear.

We then would have less need for formal regulation, and self-regulation might even have a chance of working, saving money all round.

This is called “representative sampling” Claude. :smiley:

That goes on in projects Claude.
I approached the RBQ about this very topic Claude.
I expressed an opinion of how InterNACHI home inspectors can be given small code compliance courses for the mundane observations during phase inspections. This would help alleviate the burden the AHJ are under.

NOTE: A condo development in its first phase of 4 phases was found to be breaking fire code for commercial buildings. The sheet/gypsum board did not comply including the sealing of penetrations and protrusion.
Everyone had to be moved out floor by floor as they rectified the deficiency.
The second building phase to suffered a setback as well.
Everyone had to be moved out.

I must be spoiled here in London, as the city has an online permit review by address. I am able to search by house and find any permits in the modern era there.
It helped me out today, to tell my client that the semi-finished basement had a permit still opened. Sometime the seller has completed the work but the city hasn’t dotted all it’s “i” yet.
I have also had the original building permit not close because of outstanding issues, with the house being over 7 years old and lived in.

I don’t see it as the lawyers job because it will be to late for the client to adjust pricing or back out of deals.

The permit also shows when a grow op has been properly assessed and cleared by the city.

If I were to buy a house or help a family member during their purchasing, I would do the same for them, why would I not do it for my clients?

Thanks Jeff, I was hoping I wasn’t the only one who felt that way.