Dear Barry,

When people write to you regarding negligent home inspectors, you always seem to advise against suing the inspectors. This was the case in one of your recent columns and in others I’ve read. Whenever the question involves suing an inspector, the answer always seems to be “no.” Could you please explain this? –Jock

Dear Jock,

A large number of e-mails I receive involve dissatisfaction with various home inspectors. When asked whether these inspectors should be held accountable for alleged acts of negligence, the answer is sometimes yes and sometimes no, depending upon the circumstances. If you’ve read only columns where the answer was no, you’ve gotten the wrong impression.

A common saying in the home inspection business holds that there are two kinds of home inspectors: those who have been sued and those who will be. The fact is, most home inspectors will be sued at some time in their careers. There are, however, specific circumstances that determine whether a home inspector is truly liable.

When property defects are overlooked by a home inspector, liability ensues if the defect is: (1) within the scope of the inspection; and (2) visible and accessible at the time of the inspection. For example, a leaking drain below a sink would be within the scope, and in most cases would be visible and accessible. A deteriorated roof would also be within the scope and, with rare exceptions, would also be visible and accessible. An inspector who fails to report such defects could be subject to a lawsuit. However, if the bathroom was filled with storage, barring access below the sink, or if weather conditions prevented the inspector from walking on the roof, the inspector would not be liable, if — and this is critical — the inspection report clearly stated that these areas were not inspected and that further inspection was recommended prior to close of escrow.

Conditions not within the scope of a home inspection are typically itemized in the inspector’s contract and in the report. These include portions of the property that are concealed within the construction, buried in the ground, or hidden behind personal property. Other exclusions include structural and geological engineering deficiencies, infestation by wood-destroying organisms (such as termites), low-voltage electrical systems (such as intercoms), septic systems, water wells, and more.

Home inspection contracts typically include language that limits the likelihood of being sued. These include requirements to mediate or arbitrate disputes, rather than filing suit, but these clauses are not enforceable in all states. Additionally, contracts may include specific monetary limits on liability, but these also are not enforceable in all states.

One of the ways that home buyers can undermine a good case against a home inspector is to have a defect repaired before notifying the home inspector about the problem. Inspectors should be given the opportunity to view defects and to discuss whether they are within the scope and were accessible at the time of inspection. If the inspector is liable, he should have the opportunity to repair the defect or pay for repairs. If repairs are completed before the inspector can take a second look, the validity of the claim is subject to argument and uncertainty.

If a home inspector is given fair notice of the problem but fails to respond, he should be held liable, even if that means being sued. This has been my recommendation in many past columns and will continue to be my advice to home buyers whose inspectors are professionally negligent.

To write to Barry Stone, please visit him on the Web at www.housedetective.com.

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