Negotiating discussion

Originally Posted By: jcahill
This post was automatically imported from our archived forum.



Hi,


Just some words to stimulate discussion. You stated:

"Nevertheless, some courts may uphold limitation of liability clauses where the parties are of equal sophistication and the limitation of liability clause is actually bargained for between the parties. "

I believe that the most important concept I communicate is that I will not find all the problems or pay for misses with a cursory home inspection. I simply tell the truth very plainly and guarantee if they are unhappy at the conclusion they owe me nothing.

I have offered a comprehensive inspection as an option. It comes with a guarantee that if I miss anything in the SoP they can file a claim with my E&O provider. The buyer initials:

--- I want the less expensive inspection understanding it will not find all problems or pay for errors.
--- I want the more expensive inspection understanding it is protected by an E&O policy.

Of course there is more to it than this (such as NACHI dispute resolution to determine violation of the SoP) but my main question is:

Does offering a clearly defined alternate product for a clearly defined alternate price constitute reasonable negotiation?

I see a problem in this industry to be the expectation that inspectors will find it all or pay for what they miss. This unrealistic belief is subscribed to by inspectors, trade associations, realtors and consumers. If every inspector simply tells the truth then perhaps the expectation of the consumer will be tempered.

I have more good discussion questions forthcoming.


Originally Posted By: rwand1
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John


Offering two levels of inspections is still the same risk in my eye. You could offer to tear the house down and rebuild in order to find problems, even then you and the purchaser don't own it. But you still have the risk of being sued by a moron who has perceived a wrong.
Such a service may reduce your risk, but it doesn't eliminate it.


Reasonable negotiation by the contracting parties is the ability to change and define terms of the contract to the liking of the person retaining the service. If the client wants a contract term or limitation changed to clients advantage you can either agree to change it, or leave it. Thus risking losing the inspection. Would you change your contract to accomodate a client who wants to change the terms? I wouldn't.

What does your E&O provider have to say about the two levels of inspections?

Raymond Wand
Alton, ON


Originally Posted By: jferry
This post was automatically imported from our archived forum.



jcahill wrote:
Hi

Just some words to stimulate discussion. You stated:

"Nevertheless, some courts may uphold limitation of liability clauses where the parties are of equal sophistication and the limitation of liability clause is actually bargained for between the parties. "

I believe that the most important concept I communicate is that I will not find all the problems or pay for misses with a cursory home inspection. I simply tell the truth very plainly and guarantee if they are unhappy at the conclusion they owe me nothing.


I think it is a bad idea to give your client the idea that the inspection for which he is paying is going to be 'cursory'. Not only is it bad for marketing - ever hear a huckster yell "rotten tomatoes"? - but from a liability standpoint you are essentially telegraphing that you are most likely going to be negligent in carrying out your inspection duties.

jcahill wrote:
I have offered a comprehensive inspection as an option. It comes with a guarantee that if I miss anything in the SoP they can file a claim with my E&O provider. The buyer initials:

--- I want the less expensive inspection understanding it will not find all problems or pay for errors.
--- I want the more expensive inspection understanding it is protected by an E&O policy.


If I were your E & O carrier, I would cancel your insurance immediately. You are guaranteeing that you will "find all problems or pay for errors". That, my friend, is an express warranty.

jcahill wrote:
Of course there is more to it than this (such as NACHI dispute resolution to determine violation of the SoP) but my main question is:

Does offering a clearly defined alternate product for a clearly defined alternate price constitute reasonable negotiation?


I wouldn't rely on that.

jcahill wrote:
I see a problem in this industry to be the expectation that inspectors will find it all or pay for what they miss. This unrealistic belief is subscribed to by inspectors, trade associations, realtors and consumers. If every inspector simply tells the truth then perhaps the expectation of the consumer will be tempered..


It certainly is unrealistic to believe that a non-invasive inspection of only observable conditions is going to "find it all". If inspectors are promoting this belief, they are asking for trouble and have only themselves to blame for it.

What you have to do is take your client by the hand and advise him that the inspection is limited by what you have reasonable access to inspect. You are not going to find latent defects hidden behind drywall, for instance. No one not born on Krypton is.

If you adequately educate your client and bring his expectations into the realm of reason, you may very well still be sued. But you will win the suit.


Originally Posted By: jhagarty
This post was automatically imported from our archived forum.



Response moved to Legal Forum.