Dear Barry,

I’ve read several of your columns where readers ask if they have grounds for suing a home inspector. Your answer always seems to be “no.” Could it be that you’re providing cover for fellow inspectors? –Jock

Dear Jock,

You have apparently read some, but not many, of my columns on home inspector liability and suability. Many readers have written to complain about their home inspectors and to inquire about inspector liability. When asked if a home inspector can be justifiably sued, my answer has sometimes been yes and sometimes no, depending on the situation. If you’ve read only the “no” columns, you’ve gotten the wrong impression.

Most home inspectors will be sued at some time during their careers. To quote a common saying in the business: “There are two kinds of home inspectors — those who have been sued and those who will be.” There are, however, specific circumstances that determine whether a home inspector is truly liable for a disputed claim.

When property defects are not reported during home inspection, the inspector is liable if the defects are within the scope of the inspection and were 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 damaged roof would also be within the scope, and with some exceptions would be visible and accessible. An inspector who fails to report defects such as these could be subject to a lawsuit. However, if the bathroom was filled with storage so that the inspector could not inspect below the sink, or if weather conditions on the day of the inspection prevented the inspector from walking on the roof, the inspector would not be liable, if (and this is a big if) the inspection report clearly states that these areas were not inspected and that further inspection is 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 conditions that are not visible or accessible because they are underground or contained within the construction of the building. Other exclusions include structural and geological engineering, infestation by wood-destroying organisms (such as termites), low-voltage electrical systems, septic systems, water wells and more.

Home inspectors typically include language in their contracts that limit the chances of being sued. These include mediation and arbitration clauses (not enforceable in all states). They also may include specific monetary limits on liability (also not enforceable in all states).

Home buyers, however, can undermine a valid claim against a home inspector by repairing the defect before the inspector has been notified about the problem. Home inspectors should have the opportunity to view disputed defects, to discuss whether they are was within the scope of the inspection, whether they were visible on the day of the inspection, and whether they existed on the day of the inspection. Inspectors who are liable should be allowed to hire a repair contractor, to make repairs themselves, or simply to pay the costs of repairs.

If a home inspector is notified by the home buyer but fails to respond or to accept reasonable liability, pressure should be brought to bear, 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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