Texas lawsuit update

A home inspector’s knowledge of building codes is as definitive and as “authoritative” as a home inspector’s knowledge of law.

In neither case is anyone compelled to comply, agree or abide by them. Both are nothing more than his own limited opinion that should never find their way in writing where they could be misconstrued by anyone as being anything more than a personal opinion and not fact.

In fact, a prudent inspector would express any reference to a building code in the following manner: *“Any references made to building codes or standards in this report should not be construed by anyone as authoritative or as anything more than the inspector’s personal opinion regarding the reference and what it means to him. No official action or decision regarding the purchase of the home or professional contracts to remedy should be made without additional research with the local code authorities (AHJs) to ensure that responses are appropriate and based upon a valid interpretation…other than the mere opinion of the home inspector writing this report.”

*In the real world, as a bottom line, even a contractor who modifies his work to comply with a code official’s interpretation of the building code…is still legally responsible should there be damage to property or injury to person as a result of his modification. As a professional in his field, he…not the AHJ (who is immune from any action taken, civilly or criminally for his interpretation—right or wrong) is the one accountable to the public for the quality of his work.

Now…long after the fact…along comes a home inspector who wants to disagree with the original AHJ and the contractor? He want his interpretation of what should have been done to prevail? Yea, right. Where a contractor and an AHJ compromised a particular code issue to ensure there was a sufficient amount of air in the home, a home inspector with a code book comes along twenty years later and recommends the “code violation” be remedied to “tighten up the house” and reduce energy loss ---- creating a backdraft in the gas appliances that kill his client. Think his “knowledge” of the model building codes are going to be of any help to him, then?

I disagree with you, Chuck.

Home inspectors need to understand that, when all is said and done, they are simply providing an opinion. The value and the weight carried by that opinion is to be determined by his client. The more extra BS he throws into the report to affect a decision that his client makes from his report will be used to bury him if his opinions lead to damages.

You insist on making this a referendum on whether HIs should report items as “code violations”. You are debating an item which is not under debate. Do not characterize what I have said as reporting “code violations” it is not.

So tell me, when you find a 40,000BTUH gas fired water heater in a room measuring A.) 6x8x8; B.) 8x10x8 what do you report? What support do you provide for your opinion, or is it just arbitrary? Or, do you not report anything at all because you don’t concern yourself with code related issues or because you are unaware of such things?

If you find a gas fired water heater in a 2x2 enclosed closet off of a bedroom and the builder tells your client that it’s fine, it passed the city inspection, what do you say - OK? By your own argument, the AHJ inspector who spent a total of 10 minutes inspecting the house is immune from prosecution for gross negligence and incompetence, but you my friend, are not. If you think that arguing that the house had a green tag will get you off the hook for performing a substandard inspection, especially if you let go an issue that harms someone, you may be in for a rude awakening.

I frankly don’t give a flying rats arse if an AHJ inspector passed something or not, if it’s not done properly, I’ll advise my client as such and may refer to model building codes to support my statements. This is not usurping the role of the AHJ. The AHJ works for the authority issuing the CO. The HI on the other hand is a professional consultant working on behalf of the client. The AHJ can and does direct specific changes to be made to a house to permit occupancy. The HI advises the client what is wrong with the house and why, regardless of whether a CO has been issued or not, but does not direct that specific changes be made. The client may choose to ask for changes or not. The seller/builder (at least in Texas) is under no compulsion to make changes requested as a result of a private home inspection, although the buyer is not compelled to purchase the house either…

The AHJ inspector and HI are two distinct and separate roles, as you well know. The HI is typically done at a much more detailed level (I typically do only one vs. the 10 inspections the AHJ may do in a day). A few years back, I inspected a new construction home for the mayor of one of the more well known cities near Houston. The AHJ inspector sought me out and asked me to tell him what I had found, so that he wouldn’t miss anything in his boss’ new home. I have never found myself at conflict with an AHJ inspector. To the contrary, those I have talked to were always willing to collaborate.

No I don’t.

You said:

I responded:

When an inspector does as you insist he should…that being to reference code as an authoritative source…he is making a serious mistake.

No matter how you wish to re-define the manner in which you insist that I respond to you…I still believe you to be grossly mistaken.

A home inspector is a fool when he does as you suggest and, in his report, references the model building codes as an authoritative source for his opinion(s).

I report that there is insufficient combustion air for the water heater and that it is in danger of providing an incomplete combustion which could produce harmful and deadly gases. I would recommend that a contractor be hired to provide additional sources of combustion air.

I cannot control what the builder might tell my client. If my client were to repeat the builder’s story to me, I would tell my client that I am sticking by my recommendation…reminding him that a “building code” reflects only a minimum standard, and that those who are employed to look at things from the “least safe” it could possibly be often miss important and deadly issues.

…and in neither case do I or would I use “code” as an authoritative source. It is totally unnecessary, unrelated to my inspection, and a disservice to my client.

I don’t make his choices for him, but simply provide him with my opinions of what I observe so that he can make his own choices. This takes a little bit of extra knowledge than simply reciting the code…for it requires that I explain to him what makes it wrong and how it might directly affect him or his property.

Must I recite “the code” to simply inform my client that the contractor’s decision to remove the collar ties from the attic to make room to move in the new furnace has jeopardized the integrity of the roof? All I need to do is let him know it is wrong and needs to be fixed. Period.

That goes for the shoddy work that “meets code”, as well.

I see both points of the argument but lean towards James. I believe the confusion might be caused by the (any) inspectors desire to substantiate their opinions. Perhaps this is done to 1) help the seller and buyer understand the source of the opinion 2) give accreditation to the inspectors opinion thus avoiding follow-up calls 3) possibly to provide improved value perception (lots of words with pictures in the report).

In the example regarding combustion air.

  1. The inspector might: cite a reference code as supporting evidence; explain the ramification; suggest a repair method; provide pictures. All of which can be problematic.
  2. Do as James did with his language. I see this; have it checked out.

Some of the best reports I have seen were written on toilet paper.

Water heater – Shot. Replace
Furnace – Poor combustion air. Rusty burner. Appears unsafe. Replace
Roof – I am amazed it is not leaking. Replace it.
Foundation – Movement throughout. Get an engineer

$400 due on receipt.

On the other hand others spend 2 hours typing up 20 pages of baloney to justify the $400 they received. There is a balance in between. Find your path Jedi.

You arguments are at conflict with one another. It seems you are now arguing with yourself. At one point the contractor is accountable for the changes that he makes to a house and in the next paragraph you make the home inspector responsible for the incompetent work of a contractor, just because the inspector recommended making the house more energy efficient. You’re really, really are overreaching with this line of logic.

Sounds like in your opinion it’s best to not do home inspections at all or keep it as generic as possible

Is this what your report looks like?

In one of these instances you would be wrong and perhaps get sued for tortuous interference with a contract after you decided to stick to you opinion after the builder told the client it was acceptable.

This statement is simply untrue.

How do you know? Prove it.

LOL…

Prove your statement, first.

The client paid for my opinion about the conditions within the home, which I provided. He did not pay for me to provide opinions that were approved or condoned by the builder.

If the builder made an error and the AHJ approved it…so what? I am not a code inspector. I have been paid by my client to observe and to report to him my opinions of what I observed. I will stand by my opinions in full disagreement with the builder.

The worst thing for me to do, however, is to abandon my correct position as a home inspector providing a report of his personal observations…and replace it by providing my own interpretation of “the code” and the decision that should have been previously made by the AHJ. That is the position for which I can be sued, for I was neither paid nor am I authorized by law to provide anyone with such an interpretation.

I would agree with Mr. Cahill in the sense that many home inspectors will try to use their knowledge of building standards in such a way as to impress someone with it…which can backfire. All we need to know and to report to our clients is that a certain condition is wrong and recommend to them that they have it corrected. That is what they get for $400.

The section you reference as a requirement to provide basis of opinion applies ONLY to foundations and not any other part of the Standards.

I can find no requirement, other than the foundation section, to provide a basis for the opinion. Mr. Willcox is discussing framing and not foundations in the section 22 that you posted. I believe he is wrong. That will make a good RFI question. Read the Standards once more and tell me if I am wrong. Feel free to tell me to piss off anytime.

The section you reference as a requirement to provide basis of opinion applies ONLY to foundations and not any other part of the Standards. My question applied to framing.

I can find no requirement, other than the foundation section, to provide a basis for the opinion. Mr. Willcox is discussing framing and not foundations in the section 22 that you posted. I believe he is wrong. That will make a good RFI question. Read the Standards once more and tell me if I am wrong. Feel free to tell me to piss off anytime.

This was the challenge you issued.

You might also note that I stated I was discussing what was in the affidavit not making an argument as to what was/was not in the SOP. The subject of discussion was the affidavit, not the SOP. If you want to say that the affidavit was incorrect in its assertion that the inspector was required to supply a reason, go for it.

If you wanted me to show you where the SOP requires that the inspector provide a reason for their opinion for “anything” which is what you demanded. I have done so.

So you agree then that the SoP do not require the inspector to provide a basis of opinion except in the foundation section and that regarding paragraph 22 Willcox is wrong?

If so thanks for the education.

Chuck,

Would you care to add your name to this RFI? I am sending it in soon.

The Standards state in the foundation section:

(3) generally report present and visible indications used to render the opinion of adverse performance, such as:

  • Does the SoP wording above serve to provide a basis for the opinion of adverse foundation performance?
  • Is the inspector required to provide a basis for their opinion anywhere else in the Standards other than the foundation section?

Until notice by TREC, the inspector is not required to provide a basis for their opinion other than as specified in the foundation section. If it is considered a required reporting item please provide the source used to make the determination.

Back to my original premise:

Making references to model building codes is not essential to documenting a home inspection, nor should it be considered taboo. There is no magic juju that suddenly puts the home inspector into the role of the AHJ or makes them implicitly responsible for any and all non-disclosed actual code violations in a home, simply because he/she used a reference to a model code as further explanation or as an authoritative source to support their expressed opinion.

I still have not seen any example of an instance where someone has been sued and lost for making appropriate reference to a model building code to support their expressed opinion (this does not include calling out “code violations”). Joe F makes an anecdotal reference to a situation in NY state, but hasn’t provided any specifics which would allow for verification that the situation was comparable or is merely rumor. We have seen a real example, where appropriate references to model building codes were effectively used to SUPPORT the home inspector’s case in a lawsuit (though John C. would contend that the premise of the supporting argument is flawed).

I contend that:

  • Any inspector should, at minimum have a foundational knowledge of model codes and the ability to research them. What do you think makes the advice offered by folks like Paul Abernathy and Jeff Pope so readily accepted, if not because of their grasp of the applicable standards and codes associated with the various topics about which they post?
  • Though not essential, there should be no fear in making appropriate use of model building codes, manufacturer’s installation documents, industry standards documents (e.g., APA, Air Diffusion Council, Texas Lath and Plaster Association, Masonry Veneer Manufacturers Association, etc.), ASTM standards or other authoritative sources in research or as references to support the opinions expressed in their reports.
  • I agree with Jim B in his argument that the HI is not the AHJ and should not be reporting “code violations” or “requiring” changes to a house.

Please note that I have consistently used the phrase “model building codes” which are broadly known and published, but may not represent the specific codes being enforced in any jurisdiction. It is the job of the AHJ to define the actual building codes to be applied and the method of verification and enforcement in their jurisdiction.

Without pouring over the SOP to verify, I think the answer is Yes (though I think it’s good practice in many instances).

Great. My only problem with Willcox 22 is that it could trend to that interpretation. I think its just a typo however.

Onward