Small Claims Court

Today, for the first time in 62 years, I stood in small claims court as the defendant. :shock:

I am a InterNachi certified inspector and work hard to keep up other certifications and enhance my general knowledge base around housing and home inspections. When I go to an inspection I do so with the intent to help the client come away with a fairly complete mental picture and photo laced report about the home they are buying.

In my case, the complaint was an obvious attempt to recover funds, spent on repairs two or more years ago, some three years after the inspection date. The repairs were to mitigate mold said to have been found on a carpet tack strip in the basement family room by a mold technician who just happened to have a Mold Mitigator and Mold lawyer in the passenger seats of his getaway car.

I did recover the mold technicians report and will likely send it to pro-labs or a disinterested professional for their evaluation and interpretation.

I am encouraging anyone who is being sued, or has been sued to join in and offer up your experience and thoughts. Please keep it light, and remember that naming real names is usually not the best approach on the Internet.

So you know, Internachi and Nick helped me a great deal with this case. I plan to be active on this forum, in this thread. Hopefully the information and support that came from Internachi will be more available here, and in a more complete form for those of you who will search the net for weeks with out sleep to find an answer.

This is not a legal advice forum, and I am not a lawyer. Please do be carefull about spilling too much information about upcoming cases.

How about starting by telling us your story?

Why were you sued?

What did they claim?

What was your response, and what did you do to defend?

What was the final outcome?

Send Pro-Labs a mold report and they may come back saying you had termites. Is that the lab you normally use? Is there an EMSL near you?

Bryant, I hope you did a better job informing in court then you did with this post.

Thanks Bryant for the start ,I do hope I and others can add and keep this string alive .
I am sure we all can learn much from each other .
This could be the most important post on the NACHI site and just might keep many of us out of Court .
Please all add more information and thoughts .

  1. What was your reason for being sued?
  2. You stated that mold was found nearly 3 years after your Inspection is that correct?
  3. The location of the Mold was in the basement of the home on a carpet tack strip. Since when did inspectors have to remove carpet to perform a non-invasive inspection?
  4. Do you have a Mold Inspection Agreement with that customer?
  5. Did you have that customer sign a mold inspections waiver?

If somebody would have paid my travel expenses, I would have been glad to be a mold expert witness for this inspector could defend this case. I do not understand how this case could have been lost. What would make this case even better is if the testing was done with Prolab Z-5 cartridges (these cartridges will not hold up in court).

Bryant, I guess you never read Dr. Swift’s “Inspect and Protect”. If you have that book, you do not need to extend this thread.

http://www.nachi.org/gradingdrainagemold2005.htm

http://www.nachi.org/contracts2005.htm

http://www.nachi.org/inspectandprotectppt2007.htm

Please search NACHI.org for more articles and info about Dr. Swift.

Mark,

All great questions!

The basics.
I inspected the house and provided a Standard Report. In the report it states that this is a townhouse and subject to HOA rules that I am not privy to at the time of the inspection. And that the inspection is limited for that reason. Also in the report are statements that Mold, Radon, Lead Paint and Water were not tested or inspected.

The client called me three months later to complain that they had found out that the basement had been flooded prior to my inspection and that I had not “caught it” The client demanded their money back for the inspection, even though they denied me access to the property to verify the situation.

One month later the buyers Realtor called me to tell me that I had “F----D” up bad and that the client was going to sue. The Realtor stated that the client had hired a mold expert who then recommend a mold mitigation company and a lawyer specializing mold cases.

I sent said Realtor and client a fairly long letter outlining the terms of the contract, the purposes of the agreed upon inspecton, and noted the conversations we had had prior to this written response and update. I also pointed out the provisions in the contract about being able to view the property within fourteen days of the finding of any issues.

Nothing back from the client or the Realtor until two weeks ago, a process server showed up at my door with a claim and complaint for small claims court.

The inspection report shows no “flooding” or other water event. I did not find excess moisture in the home at the time of the inspection. I did see some signs of Effloresence at the one basement foundation wall that was exposed. But nothing more than one would expect in a 25 year old townhome.
I told the client to have the HOA fix a negative grade to the foundations, and some eaves troughs and down spouts that were damaged and draining into a bounded area at the foundation.
I also pointed out a leak at the water heater drain line and that the water heater was aged and that replacement should be considered.

I take plenty of photos, I do not use all of them in the report, but I take them for my records.

The complaint states that I am negligent because I did not warn the client of the signs of a three inch flood in the basement at a time prior to the inspection, and that I did not reccomend they get tested for mold.

Where would you go from here?

Gary, Thanks for the links, great info, but the purpose of this thread is to stimulate conversation about small claims courts and the effect is has on a home inspector who is blindsided with claims.

Bryant

Roy, Thanks for the encouragement. Your post is the exact purpose of this thread.

Hopefully we can condense this stuff so that future inspectors can learn from it.

Actually, the original mold sample report is from EMSL. My purpose in sending it to ProLabs is not that EMSL is suspect, it is that the way the “Mold mitigator” used it. My purpose in sending it off to someone is to get their honest input about what the numbers really mean.

I would be happy to share the total mold report with someone who is qualified to give a real evaluation for this group.

Best,

Bryant

Hmmmm. Nondescript flames from a non-member?
What is that about?

Gerald,

Actually, the alleged mold was found some three months after the inspection.

Your item number 3 goes to the heart of the case. Inspectors are not responsible for hidden defects.

Your item number 4 goes to the heart of the case. The inspecton does not include mold unless contracted for separately.

Anything else?

Also, I sent the Realtor a letter asking that I be removed from said Realtors list of inspectors.

James,

I have not stated the outcome of the case, as yet.

Bryant

Bryant,

Take a look at my speaker website here in MN on August 14th, 2010

Paul Ellringer, Owner of Airtamarack, Inc. will be giving a presentation on Mold & Air Quality. To learn more about Paul please log on to his website www.airtamarack.com

He may be able to give you some advice on your situation.

Feel like I’m being lead through another season of Lost where facts are revealed randomly and piecemeal.

Perhaps I’ll tune back after the drama has been revealed.

My point here is to stimulate discussion and thought about the litigation process.
The answers do not come to a person all at once, but in stages. It helps to review the stages of the case so as to try and understand what you would do in the same situation, and how you would analyze your own case.

First you need to understand the situation
Then you need to understand the complaint
Then you need to understand how that litigation will effect your presentation of known facts, and how all the tools that InterNACHI provides are instrumental in guiding the process.

But, it is a free world, tune in or out as you please.

you might want to have this discussion in the Members Only area…