Texas lawsuit update

Local Inspection Issues Texas/TPREIA Home Inspectors
1

According to a memo (see attached pdf file) from the mediator to the Harris County District Court the Fox Inspection Group –vs- Maze inspection lawsuit apparently has been settled through mediation. Details of the settlement have not yet been filed with the court as of 5/20/10. I’ll post that information if & when it is available. I assume the court has to agree to or approve of the mediation settlement but I suspect that’s a formality.

For more details of the lawsuit see [this thread from earlier](http://www.nachi.org/forum/f71/houston-inspection-lawsuit-43592/?highlight=maze).

Mediation.PDF (34.8 KB)

2

It will be interesting to hear the ultimate outcome. I hope it turned out well for Fox and Santillion. I think the plaintiff lost the premise of his argument when opinion letter from the Texas Board of Professional Engineers came out (great find John)

Also, those inspectors who predict dire consequences for making any kind of reference to model building codes because it may be construed as a code compliance inspection should read the affidavit from Fred Wilcox regarding the inspection report being contested and his comments regarding the code references.

This whole thing has been a real eye opener for me. I’m still trying to figure out what takeaways I can glean from it to try to minimize my own exposure to this type of action.

3

Chuck thanks for the Kudos, where can I find Fred’s affidavit?

4

I’ll send it to you John. It’s nothing of consequence in my opinion.

5

What I found most noteworthy was that Fred discussed the model code references in the context that they supported the requirement of the inspector to provide a reason that he felt there was a deficiency.

This runs contrary to the inspector urban myth that if you include any reference to model codes, you will be sued for not having called out all of other code compliance issues in the house. This is an example where references to model codes was actually used in an argument in the inspector’s favor.

6

I usually don’t post but I couldn’t pass up Chucks comment as Chuck is also a inspector for FIG (Fox) and is a very conscientious inspector. Chuck generally includes code sections as a reference in the report examples I’ve seen.

(IMO) I agree with Mr. Willcox in his affidavit (attached). I’ve always provided references (NEC, SBCCI, UBC, IRC, TDI, etc.) depending on the properties location) for many items I may encounter. Without a reference I could claim it is your “preference or personal opinion” for reporting an item in need of repair or of being deficient. The code book library I’ve collected goes back 34 years with almost every issue. There’s not that many changes I’ve seen based on commonly found inspection items (except NEC - GFCI & AFCI’s) over 22 years of home building and inspecting. Basically none in structure except for 110 m.p.h. or greater wind speeds.

No, not every home passed city inspection when it was built. A lot of homes are built in the county and then cities may annex those areas (at least where I am from) or, they are still in the county. I still check the tax records to see if the home is in the county or a city before I inspect it. So, if you are selling your home and claim it met city codes 24 years ago but you are the fourth owner of the home I guess my client wants to know how you know the home met city code.

This year I have been adding the TREC SoP “code” sections as much as possible to my reports as well. So, argue with the SoP; not with me. Even the TREC states that the newest SoP - “more accurately reflect current technology, codes, and practices that form the basis of many of the standards.”

I’m not posting to look for an argument of whether to add references or not.
I don’t care what others do or don’t do.

Mr. Willcox’s affidavit is attached (I hope it attached). The full documentation of the “Texas lawsuit” is available on the Harris County Court Clerks web site except the mediated settlement.

http://www.hcdistrictclerk.com/eDocs/Public/Search.aspx
Plaintiff - MAZE
Defendant - FIG

7

I usually don’t post but I couldn’t pass up Chucks comment as Chuck is also a inspector for FIG (Fox) and is a very conscientious inspector. Chuck generally includes code sections as a reference in the report examples I’ve seen as do the rest of the “figgies” and other inspectors I know.

(IMO) I agree with Mr. Willcox in his affidavit in providing documentation references. I’ve always provided references (NEC, SBCCI, UBC, IRC, TDI, etc.) depending on the properties location for many items I may encounter. No, it’s not a code inspection. (Read on) Without a reference I could claim it is your preference or personal opinion for reporting an item in need of repair or of being deficient. The code book library I’ve collected goes back 34 years with almost every issue. There’s not that many changes I’ve seen based on commonly found inspection items (except NEC - GFCI & AFCI’s) over 22 years of home building and inspecting. Basically none in structure except for 110 m.p.h. or greater wind speeds.

No, not every home passed city inspection or met code when it was built. A lot of homes are built in the county and then cities may annex those areas (at least where I am from) or, they are still in the county. I still check the tax records to see if the home is in the county or a city before I inspect. So, if you are selling your home and claim it met city codes 24 years ago but you are the fourth owner of the home I guess my client wants to know how you know the home met the code.

This year I have been adding the TREC SoP “code” sections as much as possible to my reports as well. So, argue with the SoP; not with me. Even the TREC states that the SoP - “more accurately reflect current technology, codes, and practices that form the basis of many of the standards.”

With each TREC code section I can cross reference the NEC, SBCCI, UBC, IRC, etc. collectively so… no, it’s not a code inspection. It’s a SoP inspection whereby the SoP has been based on the codes.

The IRC is usually the favorite because if a repair is warranted there is no “grand-fathering” under Texas SB 365. A repair has to meet the IRC.

I’m not posting to look for an argument of whether to add these references or not. I don’t care what others do or don’t do.

Mr. Willcox’s affidavit is available as well as the full documentation of the “Texas lawsuit” on the Harris County Court Clerks web site except the mediated settlement. I was going to upload the affidavit but it is 4.9MB PDF file and thought too much to store on the NACHI server.

http://www.hcdistrictclerk.com/eDocs/Public/Search.aspx
Plaintiff - MAZE
Defendant - FIG

8

Where does 535.228 require an inspector to provide a basis for the opinion regarding roof framing . . . . or anything? Show me the words.

9

John,

There are about a hundred different ways that you could have chosen to say that you have a different opinion or that you think I misspoke, any of which would have produced a constructive response. You managed to chose one of the few that wouldn’t so PISS-OFF!

I don’t usually respond to demands but here you go, as requested from RULE §535.228

Now the real point of my post was in reference to Fred’s affidavit and not the Texas Administrative Code. Specifically, I was referring to the paragraph below and others which were similar in essence.

10

Chuck, I think there was a misinterpretation of words. Your post #5 and James’ two subsequent posts seemed to be indicating that there is a requirement for Texas inspectors to cite supporting documents, codes, mfg instructions etc when calling out a deficiency and that FW’s affidavit supported that. As I thought more about it I came to the conclusion that the requirement you were speaking of was visual indications that are present (like you have explained) and not code references. I’m not sure though that was what James was getting at but that’s OK. I asked John for his opinion and that’s what prompted his post.

11

I was also referring to the Affidavit which quoted 535.228 as indicated under oath by Mr. Willcox (for FIG) and backed up, under oath, by the plaintiff’s expert witness (P.E.). Wow, in all my previous testimony the plaintiff and defendant experts never agree. In this case they did so now we have a precedent?

Maybe I should have uploaded the (4.9MB) Affidavit for others to read.

I’ll probably grab some heat but I am a believer that TREC should spend some time educating inspectors about the basic mechanics of the SoP and history thereof before a Commentary is attempted. If we don’t understand the basics of the SoP (and what to include into reports) how are we to graduate to a Commentary or even answer questions such as this one has brought? Dang it, I now have to agree with Mr. Willcox for the second time in 20 years. Texas is known to have the most advanced standards in the nation but it takes litigation to find out what they means? Who does that help?

(take a deep breath and squeeze your little finger tip)

12

I think the issue is that wording only pertains to foundations. No other section of the TREC SOP requires that yet FW’s affidavit seems to indicate otherwise. It is my opinion that an inspector’s reasonable judgment is enough to support items listed as deficient. A prudent inspector will dang well have some type of code, mfg instructions, generally accepted practice, etc to defend his position however, if need be though.

Chuck, I also think there was a misinterpretation of words. Your post #5 and James’ two subsequent posts seemed to be indicating that there is a requirement for Texas inspectors to cite supporting documents, codes, mfg instructions etc when calling out a deficiency and that FW’s affidavit supported that. As I thought more about it I came to the conclusion that the requirement you were speaking of was visual indications that are present (like you have explained) and not code references. I had asked John for his opinion and that’s what prompted his post. I think we are all close to being on the same page now :smiley:

13

The expert withness is a putz, plain and simple. His final statement where he states that failure to reference the building code would mean that the inspector failed to meet minimum standards is a load of crap.

We are home inspectors, and not code inspectors. One can render an opinion based on sound building practices. If I was an expert witness, I would have rendered a basic question, in that the inspector is NOT the AHJ of record, and that the municipal inspection perfomed for the purposes of issuing a CO is the SOLE recoed that counts.

I also fail to see anywhere that required that building codes be referenced.

14

I never believed or represented that they were.

My point is to refute this urban myth that if an inspector makes a reference to any building code in their report, they will be subject to being sued for not performing a complete code compliance inspection if they do not call out each and every code compliance issue, in spite of the fact that the inspection agreement clearly spells out that it is not a code compliance certification. No one, to my knowledge, has ever produced an instance where an inspector has been challenged and lost on this premise. Yet, like some zombie, this myth refuses to die.

What I was presenting was not an argument that code references were required, nor was I seeking a debate as to what is/is not required by the Texas Administrative code. What I did intend to do was to present an instance where appropriate references to model building codes, not only didn’t harm, but actually HELPED the inspector in his legal argument.

Inspectors should not confuse their role with that of the AHJ, but they also should not be fearful of model building codes.

15

Well… there is some precedent in this area, though it is State specific.

In NY, an upstate inspector was sued, and lost in court, due to his advertising that he was IBC certified and how he intimated in his advertising that he also based his inspections on the applicability of the building codes.

Turns out that the dwelling had a number of building code violations that he failed to report on, even though his agreement and SOP stated that he was not required to.

The advertising and practice worked against him, and the settlement was around $38k in the Plaintiff’s favor.

16

Same thing happened/happens in Texas.

A home inspector needs code knowledge. How does he/she know what to inspect without it?

The Texas Inspection Standards of Practice are fundamentally code based.

When the litigation hits no contract or disclaimer matters. It’s going to cost a bundle.

17

IMO you are correct and this did (greatly) help FIG in litigation. Generally, people that don’t use references don’t because it takes more time to write a report. I know multiple inspectors that do not own any code books. (same with building superintendents) One has to develop their own risk management policy and go with it. I have never seen problems where a reference was used. I have seen problems where not enough information was provided and the report was not clear. When a seller (or buyer) looks at a report he is reading your opinion. Your opinion backed up by a reference adds third-party credibility. I can argue with a opinion all day long because everyone has one. I can’t argue with a reference as long as it was in effect at the time of construction. Nevertheless, the buyer probably should have walked on this “Texas Lawsuit” house. A single female buyer can get taken advantage of real quick in real estate. I wonder why the inspection took place at the end of the 10-day option period and I don’t know if the buyer was even present. I always ask if dad, uncle or brother can attend as well.

A inspection report is not required to terminate a contract in Texas. No reason is needed as long as it is made during the option period. You can claim the grass was not green enough.

This “Texas Lawsuit” will be analyzed to death. The fact remains is that the seller was an attorney. Wait for the big “Figgie” to go on the talk circuit in Texas when the dust settles. Tip: One could also type in a name at the Harris County Court Clerks office and see if someone has a history of litigation.

A little history. You are not doing the urban myth code inspection -

TREC Advisor Vol. 5, No.1, 1994 - It should be understood that the state standards of practice establishes at a minimum what an inspector shall inspect and report, but does not limit what the inspector can inspect for. “Grandfathering” a condition is to allow a condition to continue to exist if it was in existence prior to the enactment of new standards or ordinance requiring (often more stringent) conditions.

Although some requirements have changed from time to time and may vary from community to community, the standards of practice are not intended to direct local code jurisdictions as to what they can and cannot do, but rather are statewide requirements for all inspections being performed to determine the “condition of real property…for a buyer or a seller of real property. In other words, it does not matter to the inspector what the requirements of the local jurisdictions are, but what the requirements of the standards of practice are for any given item as determined by the inspector, including the “existing or recognized hazards”. <end>

18

An insoector needs to understand what an insoection is and what it is not.

Fundamentally and in practice it is NOT a code inspection, nor is it code-based.

One may infer that it is, but the start reality is that it simply cannot be. Take the 150 year old home for example. There is simply no way for the inspector to know what codes may or may not have been applied through the years, or through different iterations of the dwelling.

Therefore, I reject the notion that the inspection is based on the building code, specifically. And specifics are what we are speaking of. When one quotes a building code, that person had better be sure that the correct code is referenced, that the correct interpretation of that code has been applied, and that the code is applicable and enforceable within the specific jurisdiction.

For instance, an inspector who calls out that AFCIs are required in a newly constructed home in New York would be WRONG, as they are NOT required in NY.

This is but a single example of when quoting code can backfire.

My inspections may be contributed to by the knowledge of minimum safety standards learned from consistent applicability of codes through the years, and I may even mention that something is required based on a code, but I will NEVER quote a code reference, or state that a situation is a violation of some code.

19

James,

Your logic is flawed. Let me ask you a simple question:

An inspector has an opinion as to what is a violation of an applicable buildng code and testifies as such on a witness stand. The AHJ is called as an expert witness; this is the AHJ for that municipality. The AHJ disputes the inspector’s interpretation of the applicability of the code referenced. Who’s opinion wins the day?

The code adds no credibility. The credibility could only come from the AHJ who either supports the inspector’s opinion or disagrees with it. The inspector has no standing as he is not the building inspector.

Unless called for in the confinesf the HI law (as in Chicago, I understand) the inspector should NOT be quoting codes. I dont give a rats *** how many books they own. Its poor practice.

Use the knowledge to convey why the observed defect may be an issue, in your opinion. NEVER quote the code.

20

You bring up something that has been nagging me for some time. I hear some talk of being an “expert” witness as a Home Inspector, but if they ever find themselves on the other side of the docket, they will most likely try and portray themselves as a “generalist” and not an “expert”. I can see this as a double edged sword that could be broken off in someone’s backside someday. I think once someone has put themselves out as an expert, taken money for it, it would be mighty hard to go back and then claim to be just a plain old home inspector ever again. I can also so a lawyer turning these words around on an “expert” witness if they have anywhere in their materials, website or writings that they are a “generalist” only.