home inspection

Joe – Could we get a legal view on the use of thermal imaging devices during home inspections.  A number of guys are touting the relative blindness of those not using them in an effort to promote their new “x-ray vision.”

“My opinion? As with any extra-sensory equipment, from electronic induction moisture meters to gas sensors, this technology is subject to many variables such as quality, on-site conditions and, last but not least, the ability of the inspector to accurately interpret the data.  Further, I know of no precedent that requires a seller to act on these findings by allowing invasive follow up deconstruction to verify inside walls what was inferred by the inspector’s report.

“Lastly, what added dimension of legal liability does the use of these devices open up to the home inspector?”
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Whenever I read the Letters to the Editor of the New York Times or my local newspaper, the Philadelphia Inquirer, I often find myself wondering whether mathematics is still a requirement for graduation from high school. The overwhelming majority of those correspondents appear to truly believe with every fiber of their being that it is entirely possible for the government to provide massive new entitlement programs to tens of millions of previously unentitled individuals without increasing the size of government or affecting the national economy in any meaningful way.

Similarly, whenever a home inspector engages me to neutralize an unhappy client and I read the demand letter from the claimant’s attorney, I often find myself wondering whether the nation’s law schools are still teaching the Law of Damages. Consequently, I am continuously finding myself in the position of having to give short tutorials to professional colleagues on exactly what level of damages their clients might be entitled to in the altogether highly unlikely event that their claims have any merit in the first instance.
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When one has consulted on close to 600 home inspection claims, there is a powerful temptation to conclude that one has seen every goofy claim that there could possibly be and I was really beginning to think, back in the summer of 2009, that I had. Then I got a call from an inspector friend in a populous Mid-Atlantic state.

As sometimes happens, the first notice that the inspector had of the claim was when the county sheriff served him with the lawsuit. Now it is not impossible to persuade a lawyer to drop a claim against a home inspector once a lawsuit has been filed and I have succeeded in doing so a number of times but it is considerably more difficult once there has been a substantial calorie-burn on the part of the plaintiffs’ attorney, as there was in this particular case.
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To be an effective advocate for his clients, a lawyer often needs to call upon skills quite apart from a thorough working knowledge of the substantive and procedural law. And if he practices in the northeastern section of the country, as I do, one skill that he will find to be of inestimable utility is a working knowledge of Yiddish. And, particularly so, if he is an Irish-Catholic.

With that bit of information as background, let us return to the most recent post, briefly. Please recall that I had responded to a claim from a home inspector’s client by informing the client that he had no claim because the inspector had executed his duty to him in a professionally reasonable manner, that the client had acted unreasonably in light of the inspector’s findings and that, in any case, his damages were, at best, de minimis.
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A few months ago, I got a call from a home inspector in California about a claim some prior client had lodged against the inspection firm for whom he had previously worked and had conducted the inspection in question. This particular firm is exceedingly risk-averse and settled very quickly with the dissatisfied client rather than turn the claim into its E and O for home inspectors insurance, a posture toward claims that, according to the inspector, this firm enthusiastically embraces. And one, I might add, that I thoroughly discourage.

The firm was now seeking reimbursement of its $4,000 payment to the client from its former employee through Small Claims Court. It does not seek reimbursement from current employees for claims that it pays resulting from inspections that they perform. So there was an element of retribution contained in its action against the former employee.

I coached the inspector on the law and the appropriate deportment that he should exhibit in Small Claims Court, gave him dispositive state court case authority and he walked away a winner after advising the judge of the Voluntary Payment Doctrine that I discussed here last week.
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Since this website launched in early December 2010, I have received a steady stream of correspondence from home inspectors asking my opinion on a wide variety of topics related to home inspections. Frequently, these inquiries inspire an article. So keep them coming.

A while ago, I got an interesting question from a reader about an inspection conducted for a young couple.  The mother of one of them was financing the contemplated home purchase and was a looming presence during the home inspection and the inspector had heard her opine that she didn’t like the house because it was “too small.”  The couple was represented by a buyer’s agent and the inspector knew both the buyer’s agent and the seller’s agent professionally.

Afterward, the inspector discussed the findings in detail with the couple who seemed to find the discovered deficiencies manageable and were allowing how they would go about rectifying them. That was on Friday.
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If you read home inspection industry message boards with any level of fidelity, you cannot fail to notice a general lack of confidence in our legal system among home inspectors. They never expect to get a fair shake in court. And especially in Small Claims Court.

To someone who has spent most of his adult life upholding the legal system, I find this overarching despondency troubling. And quite unwarranted in my experience. Nevertheless, I completely understand why home inspectors feel that way.

In the overwhelming majority of cases against home inspectors that I have handled, claimants and their lawyers are not only constantly vastly overestimating the level of their damages, they do not even recognize that they do not have a case in the first place. While I am not surprised that home inspection claimants might make those mistakes, I am continuingly astonished that their attorneys do.
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