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Julie Weishaar
09-20-2009, 02:42 PM
“I exceed the Standard of Practice”. Many inspectors make this statement all the time. Many put it in their brochures and on their website. But, what exactly do they mean? What measure can anyone apply, with any degree of certainty, to gauge what can be expected of an inspector who “exceeds the standard of practice”?

I suppose it can mean that whatever the SOP dictates is a minimum inspection standard is enhanced. Okay, I’ll buy that. But, now comes the next logical question: is everything in the SOP exceeded, or only certain things and how far will the inspector go beyond the minimum? Am I guaranteed that what the inspector did on his last two inspections will also be done on mine? How can one guarantee that the inspector exceeds the SOP in all cases, uniformly, and on every property?

The problem is that you can’t. A Standard of Practice is called a Standard of Practice for a reason; it creates a standard. Once that standard is “exceeded”, the dynamics and expectations between Client and Inspector are automatically changed. Beyond that, the inspector needs to be careful that he or she has not raised the expectations of the client beyond what can be reasonably delivered. Where the specter of professional liability becomes an issue, these expectations, in conjunction with the inspector’s process, can come back to haunt you.

Let’s say you “exceed” the SOP during the inspection of a forced warm-air heating system. Instead of simply removing the panel covers, you decide to unscrew the flame shield to get a better view of the burners and heat exchanger. You tell the client you are doing this for a specific reason. You use your mirror, flashlight, and boroscope. You find nothing. The client moves into the home and on the first cold night, their carbon monoxide detectors starting to wail. The fire company and gas company come to the home, and discover that the home is filled with carbon monoxide, apparently emanating from the heating system. A specialist is called and discovers a crack in the exchanger. The system requires replacement, and the client wants to know what you are going to do about it. You feel that you are in the clear. You get sued. Now, your inspection process gets called into question, because you claim to have exceeded the standard of practice. In fact, you were specifically chosen over all other inspectors in your area, because you boast that you exceed the SOP. Your processes have no parameters. Your processes have not been revealed to the client. All they know is that you unscrewed something, claiming to be able to get a better view. You used a "whatchamacallit" to enable you to see things that other inspectors can’t see. Yet, you still didn’t find the problem. It’s going to be a tough call to go back to the very standard you ignored as a defense, by saying “I didn’t have to do what I did, because the standard says so”. The fact of the matter is that you chose to throw the SOP out the window as a means of marketing; remember, you tell everyone how you “exceed” the standards.

The problem becomes one of undefined boundaries. How far are you expected to go? You have failed to accurately set the client’s expectations. They now expect you to exceed. So, please exceed…

Think of the former co-worker that told tales of weekend conquests; whether it be hiking, or a date, or some massive project around the house. Then think about what you thought when it was discovered that the conquest wasn’t exactly as real as depicted. Or the sale at the local department store, where the words “while supplies last” is in the fine print. You go to purchase the item only to find out that there were two in stock that sold out as soon as the store opened. The person or organization claiming something that, while technically correct, turns out to be a load of bunk quickly gets the reputation of being a liar.

For home inspectors, this can be the difference between losing and prevailing in a lawsuit. When determining professional liability, one needs to examine the benchmark, or parameters, by which the inspection was performed; that benchmark is the SOP. When you veer too far outside of those parameters, you are in undiscovered territory. Instead of being black and white, shades of gray become areas for close examination. Where process becomes the issue, it becomes vital that those processes are documented and available. Process needs to be defensible, consistent, and expectations need to be correctly set.

By Joe Farsetta
Inspection Arbitration Services (IAS) (http://www.inspectionarbitrationservice.com)

Jerry Peck
09-20-2009, 02:48 PM
By Joe Farsetta

That explains it all right there. Joe Farce-etta :rolleyes:

Ted Menelly
09-20-2009, 03:12 PM
Way to much thinking going on here.

All that matters is the the SOPs are met. Anything beyond that matters not.

The only time it becomes of any consequence is when someone tries to make something of it.

Your signiture tells it all and why you are questioning it.

Do the standards get exceeeded...I am sure they do buy everytime somewhere in the SOPS by all inspectors.

It would not be your duty to question anything beyond because beyond has no standard. You duty would be making sure that the standards are met on the particular complaint against the inspector....not the entire standards. What is the complaint of the client? The inspection of the service equipment panel. Did the inspector inspect the panel to the strandards they work under? Yes he did but he did not inspect the chimney to the standards. IS there anything wrong with the chimney? Well, no there isn't. Well there is nothing wrong with the panel and the other question at hand is the chimney which has nothing to do with the complaint so everyone have a nice day and pay the nice inspector for wasting his time.

To many questions. Determine if the inspector inspected the items in question to the standards. Nothing else has anything to do with the complaint. There has to be specifics in a complaint. There is no proving or disproving that the standards were exceeded only that they were met and in this world....that is exceeding the standards of most.

Ron Bibler
09-20-2009, 03:35 PM
gRAY IS gRAY is gRAY...

Its all in the hands of the one looking into the glass. If he is looking for something to put in his pocket It may be half full if he is try to keep some one from taking the only things he has then the glass is half empty...

All this because some one was trying to do a good job...

Best

Ron

Raymond Wand
09-20-2009, 03:36 PM
Can you really believe anything Fartsetta says given his reputation as a rube, who quite frankly has no understanding of law as it relates to some of his seminar teachings and in his his roll as ESOP Chair? The boy hasn't a clue and it appears his vocal chords needed exercising.

Ron Bibler
09-20-2009, 03:40 PM
Lets play this another way. What if you have no standards. and only the information in the report is the standard.

In other words a report is limited to the finding listed in the report. If its not in the report its not part of the inspection.:D

Best

Ron

Michael Larson
09-20-2009, 03:40 PM
That explains it all right there. Joe Farce-etta :rolleyes::rolleyes::rolleyes::rolleyes::rolleyes:

Michael Larson
09-20-2009, 03:41 PM
Can you really believe anything Fartsetta says given his reputation as a rube, who quite frankly has no understanding of law as it relates to some of his seminar teachings and in his his roll as ESOP Chair? The boy hasn't a clue and it appears his vocal chords needed exercising.Joe can spot an idiot a mile off.:p

Jerry Peck
09-20-2009, 03:49 PM
Joe can spot an idiot a mile off.:p

I imagine he can also spot one in the mirror too. :p

I don't have anything against the man, ... other than you cannot believe a word he says (from my experience).

Raymond Wand
09-20-2009, 03:55 PM
You can't trust Michael for the truth either. After all he likes to be judged by the company he keeps.

A.D. Miller
09-20-2009, 03:59 PM
Joe can spot an idiot a mile off.:p

ML: Closer yet - his mirror.

Raymond Wand
09-20-2009, 04:02 PM
Has anyone any specific case law specifically faulting a respondent for exceeding the SOP? I doubt very much you will find any regardless what the inspector did beyond the SOP of record.

A.D. Miller
09-20-2009, 04:14 PM
Has anyone any specific case law specifically faulting a respondent for exceeding the SOP? I doubt very much you will find any regardless what the inspector did beyond the SOP of record.

RW: I am certain that you will find the proscription for exceeding the SOP in every E&O insurance provider's play book.:D

Raymond Wand
09-20-2009, 04:23 PM
AD

Good point. But again do you know of any cases where the E&O provider disclaimed coverage for exceeding SOP?

Curious.

Michael Larson
09-20-2009, 04:24 PM
I imagine he can also spot one in the mirror too. :p

I don't have anything against the man, ... other than you cannot believe a word he says (from my experience).I would trust Joe's sie of the story before yours Jerry.

Jerry Peck
09-20-2009, 04:35 PM
I would trust Joe's sie of the story before yours Jerry.


Michael,

I have no doubt about that. :eek:

Truly, I have no doubt that you would believe whatever Joe states. :rolleyes:

I'm not sure why you think that is a "good thing", but you do. :confused:

A.D. Miller
09-20-2009, 04:38 PM
AD

Good point. But again do you know of any cases where the E&O provider disclaimed coverage for exceeding SOP?

Curious.

RW: There are none of which I am aware. The TREC started down that road with me 6 or 7 years ago, got as far as my attorney, and promptly changed their minds.:D

Raymond Wand
09-20-2009, 04:43 PM
AD

Thanks. It would seem to me that the plaintiff would have to prove negligence in the performance of the contracted services whether they be the SOP or some standard beyond the SOP.

Thanks.

Scott Patterson
09-20-2009, 05:24 PM
I see no problem with exceeding an SOP as long as you are working to a "Standard of Care" and then an SOP is really a moot point. I almost confused myself with that statement! :)

Joseph Farsetta
09-20-2009, 05:42 PM
Notwithstanding the comments of the disgraced R Wand, I do respect many of the comments of one, Jerry Peck.

But, I'll leave you all with this ditty: If any of you have been sued, and have tendered the complaint to your carrier, invariably one of the first questions the adjuster will ask you is which SOP do you inspect to. They then ask if you informed your client which one it was, and where you informed the client. You may also be asked if you provided the SOP to the client or told them where to find them. Why does anyone think that the carrier cares?

The question is not one of wanting to do a better job; the question becomes one of consistency. So, if you perform an inspection one way for Client X, and another way for Client Y, and you miss something during Client Y's inspection, your process may be called into question. If your process was not as comprehensive for Client Y, for whatever reason, then that client's attorney may ask the next logical question: "Mr. Inspector... why didn't you find this problem during my client's inspection? You found it at Client X's house. What was different?"

Now you find yourself defending what you did differently, and why you did it one way as opposed to the other.

Standards are there for a reason: they serve as a benchmark. When you exceed it, you need to do so in a consistent manner, and be able to justify why you did it for one versus another. This is the same philosophy that manufacturers and service providers adapt to when they go through ISO9000 certification.

If process and consistency didn't matter, industry wouldn't have invested multiple millions of dollars in process documentation and gap analysis.

Ask yourselves if you inspect the same way today, as compared to the way you inspected on the day you started. Inspectors learn and adjust their processes accordingly. The concept of Lean Process Evolution comes to mind. During this evolution, inspectors get better and do more in less time. Where the SOPs get exceeded in this process, without rhyme or reason, and in an inconsistent manner, the inspector can wind up in trouble.

Inspectors regularly state the following: "I exceed the Standards of Practice". So, when comparing inspectors, including what helps to determine professional negligence, where does the line begin and end?

Think about it.

Ted Menelly
09-20-2009, 05:49 PM
AD

Thanks. It would seem to me that the plaintiff would have to prove negligence in the performance of the contracted services whether they be the SOP or some standard beyond the SOP.

Thanks.

Forget about contracted services. If you screw up as a home inspector and miss something you are going to pay for it. The only exception may be in an unlicensed state. As far as state minimum standards, that is what you have to go by. Again, miss some obvious foundation concerns and you are paying. Of course the proof is in the pudding. You for one always talk of contracted services. The only contract in a licensed state is the state contract of sorts and the states standards. Those that have contracts signed in a licensed state are just putting a bully clause in place that they hope to scare possible actions off with.

Dan Harris
09-20-2009, 05:58 PM
Inspectors regularly state the following: "I exceed the Standards of Practice". So, when comparing inspectors, including what helps to determine professional negligence, where does the line begin and end?

Think about it.

Professional negligence starts with inspectors that don't have a clue what the SOP means, advertize they exceed ASHI's SOP, and than claim they are a "Certified Inspector" or a "Certfied Master Inspector" with absolutely no verificiation of their experience or home inspector knowlege .
Where does that line begin and end?

Jerry Peck
09-20-2009, 06:08 PM
Notwithstanding the comments of the disgraced R Wand, I do respect many of the comments of one, Jerry Peck.

But, I'll leave you all with this ditty: If any of you have been sued, and have tendered the complaint to your carrier, invariably one of the first questions the adjuster will ask you is which SOP do you inspect to. They then ask if you informed your client which one it was, and where you informed the client. You may also be asked if you provided the SOP to the client or told them where to find them. Why does anyone think that the carrier cares?

The question is not one of wanting to do a better job; the question becomes one of consistency. So, if you perform an inspection one way for Client X, and another way for Client Y, and you miss something during Client Y's inspection, your process may be called into question. If your process was not as comprehensive for Client Y, for whatever reason, then that client's attorney may ask the next logical question: "Mr. Inspector... why didn't you find this problem during my client's inspection? You found it at Client X's house. What was different?"

Now you find yourself defending what you did differently, and why you did it one way as opposed to the other.

Standards are there for a reason: they serve as a benchmark. When you exceed it, you need to do so in a consistent manner, and be able to justify why you did it for one versus another. This is the same philosophy that manufacturers and service providers adapt to when they go through ISO9000 certification.

If process and consistency didn't matter, industry wouldn't have invested multiple millions of dollars in process documentation and gap analysis.

Ask yourselves if you inspect the same way today, as compared to the way you inspected on the day you started. Inspectors learn and adjust their processes accordingly. The concept of Lean Process Evolution comes to mind. During this evolution, inspectors get better and do more in less time. Where the SOPs get exceeded in this process, without rhyme or reason, and in an inconsistent manner, the inspector can wind up in trouble.

Inspectors regularly state the following: "I exceed the Standards of Practice". So, when comparing inspectors, including what helps to determine professional negligence, where does the line begin and end?

Think about it.


Joe,

I will acknowledge that the above post was quite good, although flawed.

"Ask yourselves if you inspect the same way today, as compared to the way you inspected on the day you started. Inspectors learn and adjust their processes accordingly. The concept of Lean Process Evolution comes to mind. During this evolution, inspectors get better and do more in less time."

As inspectors, even following an SoP, the simple facts you stated above means that your 1,000th inspection was made with more knowledge than your 1st inspection, and, as such, your inspection and report should represent that increased knowledge.

Thus, when you miss something which you now know about (but did not know about at your 1st inspection), and yet you ignore it see it and do not include it in your report, THAT is where the inspector gets into trouble.

Additionally, another flaw in your post above is your presumption and repeated stating that the SoP is exceeded willy-nilly, on an as "just because I feel like it" basis. I sincerely doubt that any inspector does things willy-nilly or "just because they feel like it" on one inspection and not another. When knowledge is gained, methods change, otherwise knowledge is not gained - only "information" is gained, and such "information" is useless unless one turns it into knowledge. And with knowledge comes the ability and knowing when, where, what, and how to change your method, which, yes, is consistently changing with your gained knowledge.

The only people who are inspecting their 1,000th or 10,000th house the same as they did their 1st or 100th house are people who are not gaining knowledge.

To show you the extent that it is LEGALLY REQUIRED TO GAIN KNOWLEDGE, just review ANY licensing in any state regarding any licensed occupation and you will see a REQUIREMENT for CONTINUED EDUCATION, which is there solely for the purpose of keeping inspectors knowledgeable and as current in their knowledge as the state can require.

Don't use that yearly REQUIRED GAINED KNOWLEDGE and it just becomes more "information", which is not what "continuing EDUCATION" - note the emphasis on the word "education" - is for. Continuing education is to "educate" with "knowledge", not just pass along "information" which is ignored and not learned.

Raymond Wand
09-20-2009, 06:09 PM
Joe, you drunken disgraced hack who applies the rules to suit your ego - you are out of your league here. The only disgrace is your ignorance in calling someone in a drunken stupor and threatening them and acting on those threats. That is called premeditated bias. You have nothing on me and the Nachi lawyer backed that up so don't try and paint a different story.

Your theory is wet. Practicing beyond the SOP has not been proven to be a detriment. As I already pointed out the basis and merits of the case revolve around negligence. The plaintiff would have to prove beyond doubt that the inspector erred in inspecting to a SOP not commonly found in the profession.

The points which must be proven are, there must be a duty of care based on a special relationship between the parties; the representation made by one party to the other must be false, inaccurate or misleading, the representation must be made negligently, the person to whom the representation is made must have reasonably relied on the representation and, the reliance must have been detrimental to that person with the consequence of his suffering damages.

Further the general legal principle that applies is that the standard of care applicable to a professional in the performance of his or her duties is one of reasonable skill, care and knowledge. The SOP's are not going to protect anyone from negligent misrepresentation, nor will practicing above that standard protect anyone from negligence so the point is moot. There are occasions where the courts are willing to find that professionals have acted negligently even though they followed the accepted practice of the day but not based on the fact they exceeded the standards.

And if you want to sell this theory of yours I challenge you to provide case law or documentation to back up the claims.

Jerry Peck
09-20-2009, 06:21 PM
Further the general legal principle that applies is that the standard of care applicable to a professional in the performance of his or her duties is one of reasonable skill, care and knowledge.

The "standard of care" is more binding than an SoP as an SoP is a "minimum requirements" document, whereas the "standard of care" for the profession in the local area is what 50% plus 1 of the inspectors do and know in that area.

When 50% plus 1 of the inspectors in the area you are in do blah-blah-blah, you will be held to doing the same blah-blah-blah and be asked to explain why you did not, if you did not, and your answer that the SoP minimum requirement document does not call for that will fall on deaf ears as you are, first and foremost, admitting and stating that the SoP is a "minimum requirement" document and that your intention was "to do the minimum", which will not come out in your favor.

Anyone who testifies that they are only doing the minimum and nothing more has no shot at winning anything.

Remember, the "standard of care" is of far greater importance and bearing on any legal dispute than a "minimum requirement" document SoP.

Bruce Ramsey
09-20-2009, 06:31 PM
How does one determine what is the standard of care for a given area?

I asked a flavor of this question several years ago. How do I know, how do I quantify I am a better inspector than any inspector in my area of operation?

I know several regular posters perform litigation services. How do you determine the standard of care in the area the defendant is plying his trade?

Raymond Wand
09-20-2009, 06:33 PM
Jerry good points thanks for picking up on that.

Also further points for discussion...

The ASHI SOP as an example do not dictate that an inspector must walk a roof, or do not state that bathtubs and sinks be filled. So if an inspector walks the roof and fills the bathtub and sink he is exceeding SOP. As stated many times before by you and others the SOP are a minimum anyway and from the courts pov the minimum is the acceptable standard.

As to a standard of care, I would argue that the standard of care is still going to come down to a question of - did the inspector conduct the inspection negligently? If there is no intent to conduct or relay information negligently the point is moot. However the question as to a standard of care would come down to the contractual terms, limitations, and what the inspection will include or not include as compared to your peers services.

Other factors as to the standard of care would be for example;

The report identifies a problem condition, but NOT its significance or
meaning.

The report understates the significance or meaning of a problem condition.

The inspector verbally dilutes the significance or meaning of a problem
condition identified in the report.

The report fails to suggest that the client retain an expert to more fully
evaluate a problem condition.

The report fails to identify a limitation which prevents or hinders a more
thorough inspection of an area or system.

The inspector does not obtain a signed contract from the client.

The inspector presents the contract for the first time immediately before
the actual inspection.

The contract does not contain a limit of liability provision.

The contract does not identify what services are being offered and excluded.

Raymond Wand
09-20-2009, 06:36 PM
Bruce

This may help:

Standard of care - Wikipedia, the free encyclopedia (http://en.wikipedia.org/wiki/Standard_of_care)

Joseph Farsetta
09-20-2009, 06:40 PM
"Standard of Care"

Scott.... you have summed it up. Thank you.

A standard of care eludes to a true process. PROCESS and consistency is key. Sure, you exceed the SOP. So what? What does it MEAN?

My point is one of documentation and consistency. The SOP is a benchmark. When you exceed it, is it mamby-pamby, or executed with dilligence and dependent upon a number of factors. Do you disassemble or not. If so, when and why.

As to Dan, I do see your point. And, after performing thousands of inspections, there s validity to your comment. But, you also elude to PROCESS. A process of certification for your argument.

And, your discussion point goes directly to my question as to whether you inspect the same way today as you did when you started.

Jerry,

Thank you. Nice discourse.

And, you are correct in what you are stating, except for the fact that you assume that I am stating that the experience one has learned through the years cannot or should not be leveraged, where observations should not be documented in a report. I can assure you that I support what you have just stated... to a T.

However, I insist that what you have described does not necessarily translate into exceeding the SOP.

Also, I disagree with your argument that many inspectors do not exceed the SOP willy-nilly. My contention is that many inspectors do just that, without thought as to what it means for professional inspectors who have developed their craft and inspection styles over the years, as opposed to a crafty marketing point.

When Jerry Peck shows up to inspect a dwelling, I suspect that you stay for quite a while. At least that's what I can remember about your style and service. Your inspections differ from many others, and you clearly used to go way beyond the SOP. (are your inspections still like this?).

The other thing I remember is that your techniques were CONSISTENT. Within the context of a JP inspection, the client's expectations were set. Your methods were known and documented in a consistent manner from dwelling to dwelling.

But, can you honestly say that every inspector who regularly "exceeds the standard of practice" does so consistently.

After all, when you insert the word "Regularly", couldn't the word "Irregularly" be just as relevent?

Think about it. We all evolve, Jerry.

Raymond - This is not the place for name callling and false accusations - it is a place for professionals to share ideas and experiences. I have nothing further to add to your comment.

Ted Menelly
09-20-2009, 06:40 PM
The "standard of care" is more binding than an SoP as an SoP is a "minimum requirements" document, whereas the "standard of care" for the profession in the local area is what 50% plus 1 of the inspectors do and know in that area.

When 50% plus 1 of the inspectors in the area you are in do blah-blah-blah, you will be held to doing the same blah-blah-blah and be asked to explain why you did not, if you did not, and your answer that the SoP minimum requirement document does not call for that will fall on deaf ears as you are, first and foremost, admitting and stating that the SoP is a "minimum requirement" document and that your intention was "to do the minimum", which will not come out in your favor.

Anyone who testifies that they are only doing the minimum and nothing more has no shot at winning anything.

Remember, the "standard of care" is of far greater importance and bearing on any legal dispute than a "minimum requirement" document SoP.

Jerry

I am not an advocate of minimum satndards at all but in a licensed stte no one can hold you accountable for anything more than the SOPs.

Standard of care becomes a crock. The standard of care is the SOPs.

Yes there will be come backs from both sides but that is what state SOPs are all about. That is all any client can hold you to. period. There are no ifs, ands or buts about it. They are there not only to protect your client but you as well. Standard of care is just ass lawyers trying to get something fo nothing. Hate to repeat myself but the standards are the standards of care.

Joseph Farsetta
09-20-2009, 06:45 PM
Bruce,

This is a tough question and one that is not easily answered. I suppose that a place to start is with regard to local, state, and national associations. Then, applicable laws would come into play.

A voluntary SOP can translate into a standard of care. These vary by geographic location and by trade.

For a trade, it can be a bit easier, as warranties and craftsmanship are benchmarks. For inspectors, trying to determine the condition of a 50 year old dwelling in a three-hour time period is a bit tougher to nail down.

Joseph Farsetta
09-20-2009, 06:46 PM
Jerry,

You stated the following:

"Remember, the "standard of care" is of far greater importance and bearing on any legal dispute than a "minimum requirement" document SoP."

This logic is flawed. as licensed states rely on a mandated SOP to determine professional adherance to inspection standards. Where a duty of care is referenced within a HI licensing law, that duty tracks back to the SOP. If my state's SOP states that I am not required to lift ceiling tiles, and am not responsible for the discovery of mold in a home, then it matters not what my "standard of care" is, unless I decide to advertise and offer these actions as a part of the inspection.

A standard of care is not necessarily dictated by the local market. I suspect that price still drives many inspector-selection criteria. To deny this fact is looking through our professional practices with rose-colored glasses.

Raymond Wand
09-20-2009, 06:47 PM
¶ 20 While I suggest there are obvious limitations to what one can expect from home inspections of the type undertaken in this case, one also needs to be mindful of the responsibility which is taken on by the home inspector. Persons who hold themselves out to the community as professionals prepared to provide advice for a fee -- accountants, lawyers, engineers, architects, physicians, and other professionals immediately come to mind -- must know that in marketing and providing their services, they invite reliance upon their advice and, in doing so, they create a risk that their client will suffer harm if the professional falls short of the standard of care which reasonably may be expected of that category of professional in the particular circumstances, and their advice is wrong.

Joseph Farsetta
09-20-2009, 07:04 PM
Raymond,

"if the professional falls short of the standard of care which reasonably may be expected of that category of professional in the particular circumstances"

Standard of Care...
Reasonably may be expected...
Professional in the particular circumstance...

Nothing may be reasonably expected, except as dictated by a Standard of Practice. The logic here is intended to track in a sort of linear fashion, I suppose. However, the variable comes down to what "reasonably" may be expected, from professionals with varying degrees of education and experience (in the arts of inspecting and communication), in particular circumstances.

All from those who may claim to "exceed the standards of practice".

Raymond Wand
09-20-2009, 07:18 PM
The standard of care owed is that of a reasonable visual inspection done in accordance with ASHI standards but, I would add, what is reasonable is to be determined most always by the court reviewing the case and the particulars, as well, by the cost of the inspection and the known level of expertise of the inspector. Needless to say the SOP may or may not play a role in the SOC and the two do not always relate to each other fwiw.

Joseph Farsetta
09-20-2009, 07:41 PM
Raymond,

You wrote: "...reasonable visual inspection done in accordance with ASHI standards... to be determined most always by the court .... by the cost of the inspection and the known level of expertise of the inspector..."

Okay.. I'll bite. You mention the ASHI standards. Fine, if those are the standards you follow. However, I submit that if the Client was indeed damaged due to the professional negligence of the inspector, the cost of the inspection and the "known" (what is known, anyway) level of expertise of the inspector are the last things to consider except in evaluating how much of a rip-off artist the inspector was in addition to being professionally negligent. This translates into the question of what the client expected for their money. No client will ever admit looking for a cheap and crappy inspector. If they do, get it in writing!

I submit that cheap, inexperienced inspectors do not fair any better than an expensive, inexperienced inspector... and that a cheap but brilliant inspector may find him/herself in much more defensible situations in court.

Bottom line is that all situations still use the SOP as a benchmark. Claiming you exceed these, and failing to do so absent of logic and consistency, is a recipe for problems.

Guys and Gals... exceeding the SOP is an exercise in process engineering... as opposed to a marketing strategy.

Get it?

Jerry Peck
09-20-2009, 07:54 PM
The other thing I remember is that your techniques were CONSISTENT. Within the context of a JP inspection, the client's expectations were set. Your methods were known and documented in a consistent manner from dwelling to dwelling.

But, can you honestly say that every inspector who regularly "exceeds the standard of practice" does so consistently.

Joe,

In this day and age, the answer would be a resounding "Yes, most, if not every, inspectors who exceed the standard of practice does so consistently."

The reason is that, in years gone by, the methods of the inspectors changed from house to house, inspection to inspection, until they developed their own reporting system, whether that be paper and narrative off a work sheet checklist list or paper on a check list report, which made their inspection "consistent" as regards to what they do, and how they do it.

Now, in this day and age, most inspectors are working with computer reporting systems, which greatly enhances and increases "consistency" from house to house and inspection to inspection. The report asks for certain information on certain items, systems and components, and the inspector tweaks the reporting system to their likes and wants and then basically (reduced to the basic concept for this discussion) "fills in the blanks", blanks which they have created or at least edited to fit closer to what they want.


After all, when you insert the word "Regularly", couldn't the word "Irregularly" be just as relevent?

No, "irregularly" indicates the opposite of "regularly", like "untimely" indicates the opposite of "timely". Just because one is "timely" does not therefore mean that "untimely" is relevant to those people. Possibly to others who are "untimely", but then, being "untimely" or "irregularly" becomes in itself "regular", i.e., if you *always* show up 30 minutes late, your timing becomes known and you are regularly schedule by the receiving end "30 minutes early" so that you are your regular 30 minutes later, you are actually "timely" and on time.


Think about it. We all evolve, Jerry.

Yes, Joe, think about it. Anything someone consistently does differently becomes their 'consistently done' way.

With today's common computer inspection systems and programs, "consistency" becomes a way of life and is built into each inspection, and when one varies from that and forms a new method or way, that new method or way becomes their newly consistent method or way.

The only time that does not happen is, hopefully anyway, with new inspectors who are trying to figure out "their way", and they have not established any consistency until they first flounder through their inconsistency to arrive at "their way".

Regarding the SoP and standard of care, no ... I repeat, absolutely *no* standard of practice *REQUIRES* an inspector to go up on a roof and walk it. At most, the standard of practice may "encourage" the inspector to do so "if it is deemed safe to do so" and is so deemed "by the inspector" and only by "the inspector". Thus, the inspector may be afraid of heights, and thus NO ROOF is "safe" for them to walk, or they may have a bad leg, making NO ROOF "safe" for them to walk.

Thus, the SoP they are following minimally requires the roof to be "inspected", and "inspecting from the ground" is acceptable.

Now take another inspector, that other inspector feels safe on 9/12 slope roofs, thus they are "exceeding the standard of practice" and do so all the time, each and every inspection. And there is nothing wrong with that inspector 'exceeding the standard of practice".

Now let's take a local group of inspectors who meet monthly for a dinner meeting, there are 20 of them, and 15 of those inspectors climb on and walk roofs up to 6/12 slope, 1 goes on roofs to 9/12 slope, 2 go up on roofs to 4/12 slope, 1 looks at the roof from a ladder at the overhang, and 1 inspects from the ground as he is afraid of heights.

Those 4 inspectors who do not go up on and walk roofs up to 6/12 are not working at a level with the standard of care for that area. And 1 inspector is exceeding that standard of care. ALL 20 of the inspectors are meeting or exceeding the standard of practice.

~~~~~~~~~~~~~~~

Let's look at it the same way but from a different point of view: contractors.

The "code" is their minimum legally required standard.

How many ONLY meet "the code" and do not go beyond the code in any way?

I am going to guess the answer is *0*, for even those contractors who seem incapable of meeting the code on "some things" actually exceed the code on other things. There is nothing wrong with any contractor "exceeding" code, and "code" is the legally required "minimum standard".

Raymond Wand
09-20-2009, 07:59 PM
The broad purpose of securing a residential home inspection is to provide to a lay purchaser expert advice about any substantial deficiencies in the property which can be discerned upon a visual inspection, and which are of a type or magnitude that reasonably can be expected to have some bearing upon the purchaser's decision-making regarding whether they wish to purchase the property at all, or whether there is some basis upon which they should negotiate a variation in price. Broadly speaking, it is a risk-assessment tool.

¶¶ 18 In Seltzer-Soberano v. Kogut, [1999] O.J. No. 1871 (Ont. Superior Court of Justice), Justice Wright said (at paragraph 6):

The usual house inspection is general in nature and is performed by a visual inspection. A house inspector cannot be held responsible for a problem which is not readily apparent by a reasonable visual inspection. A house inspector would be held to a different standard of responsibility if requested to respond to a specific question, i.e., "we want to know if there is any evidence of termites in this house?" If that specific question was asked of a house inspector, the inspector, unless expert in that area, would probably tell the proposed purchaser to consult a pest control company.

¶¶ 19 In Drever v. Eaton, unreported, November 14, 2000, Victoria Registry No. 28199 (Provincial Court), my colleague Judge Filmer dealt with a claim against a home inspector, and mentioned in passing:

(The home inspection) was not being used as an assurance of the structural integrity of this building. To do that for $200 would be a fool's errand, in my view.

It would be great if you could back up your arguements with factual info rather then speculative comments based on opinion if you please.

Jerry Peck
09-20-2009, 08:04 PM
Joe,

A separate post for this.

It all comes down to what a "reasonable and prudent" home inspector would do, and to what a "reasonable and prudent" client thinks the home inspector has stated they would do.

The above gets back to something I have repeated many times before, and I am sure you remember it too: When home inspectors advertise "Complete", "Comprehensive", "Thorough", "All Inclusive", and other of the other words or phrases which are intended to make a reader think that inspector is doing what is stated, no standard of practice, no amount of calling it a "visual inspection", no amount of back-pedaling, etc., will relieve that inspector from *being expected to fulfill* what they promised in their advertisements.

When an inspector advertises that "they inspect it all", "over 1,500 items", blah, blah, blah (you have seen those advertisements, web sites, etc.), that inspector's INTENT is to set himself/herself up on a pedestal above all other home inspectors in that area. That same pedestal of INTENT is where they will be placed with defending against some legal action taken against them.

Dan Harris
09-20-2009, 08:05 PM
"


As to Dan, I do see your point. And, after performing thousands of inspections, there s validity to your comment. But, you also elude to PROCESS. A process of certification for your argument.

.

From a recent post on Wash State licensing, and from what I've seen locally, the process that seems to work pretty well is, state licensing, this certificiation process has exposed lack of inspectors [ old and new] understanding the SOP's.

Raymond Wand
09-20-2009, 08:09 PM
Jerry

One need not look very far to see exaggerated claims being advertised by inspectors. They had better hope that if they do face litigation that they are able to back up those exaggerated claims, because a good lawyer will make mince meat out of them and make the inspector look like a fool. After all such claims will undoubtedly increase the purchasers expectations, and that is not a good thing.

A good example is the claim that P2P inspects 1600 items, we all know that is not a true statement.


All Pillar To Post home inspectors are trained to inspect up to 1,600 points on a home as part of a standard inspection. For the convenience of our customers, many Pillar To Post inspectors also offer a wide range of additional services (http://www.pillartopost.com/additional-inspection-services.aspx), which include Radon (http://pillartopost.com/environmental-inspection-radon.aspx), well water quality, mold, wood destroying organism, asbestos, and lead testing, as well as septic, swimming pool, and condominium inspections.

Raymond Wand
09-20-2009, 08:29 PM
Rather interesting that the original post was posted by a marketing person who just happens to represent Joe F, and here is Joe's home page as listed in his profile.

Inspection Arbitration Services (IAS) (http://www.inspectionarbitrationservice.com/)

Lovely.

Dan Harris
09-20-2009, 08:39 PM
Rather interesting that the original post was posted by a marketing person who just happens to represent Joe F, and here is Joe's home page as listed in his profile.


Lovely.

Ray. I noticed that.
On positive thing is, I give him credit on his other posts for not using this forum as a free marketing tool. YET :)

Raymond Wand
09-20-2009, 08:52 PM
Ray. I noticed that.
On positive thing is, I give him credit on his other posts for not using this forum as a free marketing tool. YET :)

No but he had his marketing agent introduce the topic and if that is not a plug I don't know what is. :) I knew there had to be more to this than meets the eye, even more so that the same topic about inspecting to SOP is being discussed on the Nacho site and I didn't see the marketing rep making use of that forum.

A.D. Miller
09-21-2009, 04:02 AM
I see no problem with exceeding an SOP as long as you are working to a "Standard of Care" and then an SOP is really a moot point. I almost confused myself with that statement! :)

SP: Worked on me! Besides the term "standard of care" will only lead you back to "accepted industry practices" which in turn, if the HI is in a licensed state or a member of an HI organization with an SOP, will bring us full circle back to the prevailing standard of practice.:D

Scott Patterson
09-21-2009, 06:35 AM
OK, let me give you a case study of a home inspector "Standard of Care";

A case that I finished a few months ago working for a plaintiff who was suing a home inspector for missing a rotted out subfloor, joist and a few other things. Fast forward......... The inspector did not own a moisture meter and we were able to prove in part through this website, Inspectors Journal and even the INACHI site that it is a standard of care for a home inspector to own and know how to use a moisture meter.

If this inspector had used a meter he/she would have found the problem around the toilet in this 65 year old home. They would have been able to tell that the entire subfloor was wet from seepage of the toilet. Then even though they could not access this area from the crawlspace they would have known that their was a major water problem and could have reported on it. Instead they simply said they could not access this area of the crawlspace. That statement did not work very well for them, and it is part of an SOP.

Owning and using a moisture meter is a Standard of Care in our profession.

Joseph Farsetta
09-21-2009, 06:46 AM
Raymond,

You make a point to discredit me, which is understandable for a person with your record, but I will not discuss that here. In this forum, and as it pertains to this particular topic, our marketeer chose to share a recent article I penned. The issue of SOPs which happen to be in the throws of discussion on the InterNACHI website have nothing to do with me. The question was raised by Ben Gromicko, and I will argue in the same manner over there as I do over here. Ben wants to wrap exceeding the SOP with his training courses. I look at it quite differently.

However, and back to the point of exceeding the SOP, Jerry Peck does bring it into context. To his credit, and to my point, your intent and your marketing combined with a number of factors including your skillset will protect you or fail you. Combine this with "we exceed the standards of practice" and it becomes the wild west.

If you'd like an example of case law, my suggestion is that you look to a case here in Utica NY a year or so back, with the ICC certified HI who advertised his certification and combined it with "I exceed the SOP". He was sued, and settled for $30k +, for failing to point out code violatations, although it was never part of his inspection standard.

Not conjecture. Not legend. Not hyperbole. Just fact, Raymond

As I wrote in my article, the only thing guaranteed is that NOTHING is guaranteed.

Raymond Wand
09-21-2009, 06:52 AM
Scott

Was this matter heard in court or settled out of court?

Raymond Wand
09-21-2009, 07:01 AM
Joe

My record? You have been caught repeatedly exerting your authority without so much as any consideration to the rules. You are also the one who came up here to Ontario and taught a water quality course and well inspection and told the students they were certified upon completion of your course that they were certified to inspect wells. When I challenged that aspect of certification it was clear you had not done your home work and refused to accept the legalities as per provincial law with respect to well inspectors requiring licencing.

Again as usual you offer no substantiation of your claims by way of documentation. Unlike you I am able to supply supportive documents. When you can muster the documents come forward..

By Joe, try and do your own research and stop using me as your sounding board for your preposterous opinions. And you don't give orders around here, this is not your domain to do so.

Scott Patterson
09-21-2009, 07:04 AM
Scott

Was this matter heard in court or settled out of court?

Court with jury for a day and a half and then settled after the noon break.

A.D. Miller
09-21-2009, 07:10 AM
The inspector did not own a moisture meter and we were able to prove in part through this website, Inspectors Journal and even the INACHI site that it is a standard of care for a home inspector to own and know how to use a moisture meter.


SP: Be that as it may, your impromptu poll would be unbelieveably inaccurate based upon its scope. Additionally, at least in Texas where an SOP exists, there is not only no requirement to utilize "specialized tools", the SOP goes so far as to explcitly exclude the use of "specialized tools".

(b) Scope.

(1) These standards of practice define the minimum levels of inspection required for substantially completed residential improvements to real property up to four dwelling units. A real estate inspection is a limited visual survey and basic operation of the systems and components of a building using normal controls and does not require the use of specialized tools or procedures. The purpose of the inspection is to provide the client with information regarding the general condition of the residence at the time of inspection. The inspector may provide a higher level of inspection performance than required by these standards of practice and may inspect parts, components, and systems in addition to those described by the standards of practice.


(9) Specialized tools--Tools such as thermal imaging equipment, moisture meters, gas leak detection equipment, environmental testing equipment and devices, elevation determination devices, and ladders capable of reaching surfaces over one story above ground surfaces.




Owning and using a moisture meter is a Standard of Care in our profession.


SP: That is just plain BS. Next you'll want to add crystal balls.:D

Raymond Wand
09-21-2009, 07:18 AM
For your edification and delectation.

An appeal from Small Claims Court to Divisional Court re use of moisture meter.

R E A S O N S F O R J U D G M E N T


LANE J.:


[1] The appellant appeals from the judgment of Freeman D.J. of the Toronto Small Claims Court dated May 8, 2006, whereby he awarded damages of $9,148.58 to the plaintiffs for negligence of the defendant in carrying out a home inspection. The appellant seeks dismissal of the action or a new trial on the ground that the trial judge misapprehended the evidence and failed to give effect to the limitation of liability clause in the contract.


[2] Prior to closing their agreement to purchase a home in Nobleton in July 2003, the respondents engaged the appellants to perform a home inspection. The inspection failed to disclose a latent defect, being water leakage from outside the house into the basement and consequent deterioration of wood structures in the basement. Relying on the inspection report, which did not note any damage or problem in the basement, the respondents closed. It turned out that there was actually a very large problem and the foundation needed to be dug up, the exterior wall tarred and the weeping tile replaced. At least one rotted piece of the wood was put in evidence. Mrs. Celebre described the problem as a long-standing one which had been ongoing for some years. The respondents say that the defects would have been revealed by ordinary care and that the limiting provisions in the agreement cannot assist the appellant.


[3] The appellant contends that as the basement wall was dry-walled, it was not intended that the inspection be any more than visual and non-intrusive. What was behind the drywall was not the subject of inspection unless there were stains on the dry wall. As there were no visible stains, the inspector did not see the need to employ the moisture meter with which he was equipped.


[4] The evidence of the inspector was that he first inspected the exterior. He found that the water management was “fairly poor”[1] (http://canlii.org/en/on/onscdc/doc/2007/2007canlii65609/2007canlii65609.html#_ftn1). He found that the gutters needed to be cleaned; the downspouts were too short to direct the water away from the foundation, the grading sloped toward the house. All of these matters needed to be repaired to ensure that water could not enter through the foundation walls.


[5] The interior inspection disclosed that the walls were completely dry-walled so that inspection of the interior of the foundation wall was not possible. As noted, he said he did not use the moisture meter because there were no stains. The judge asked at this point:
Now if you see problems on the outside, such as the eaves or the – basically the drainage, because of the slopes, would you not use a moisture meter in the basement in that case?
A. I would if I see signs of the –of water in the area and as I said there were no signs at all. The drywall were dry; there’s no stains. If the owner of the house went to the extent of hiding the damage and I cannot – I cannot be a detective looking for, for hidden – for someone trying to hide – to hide the problems from my eyes.
BY MS. CELEBRE: You just said that you would use a moisture detector if you saw that there was some evidence of moisture in the area. Now you had given us some suggestions, so that moisture wouldn’t go into the exterior or into the basement foundation, by changing eavestroughs, which we did and the grading. So did you notice that there were some moisture problems in the area…
A. Yeah, I …
Q. …to the exterior.
A. Yeah, I thought that there would be potential problems in the area, yes.
Q. So why wasn’t the moisture meter used?
A. As I said, I did not see any signs on the outside - on the inside- as I went inside that tells me that I should use my moisture meter and these areas were covered by furniture Your Honour, and household items.

[6] In rebuttal, Mr. Celebre testified that the area behind which the leak existed was furnished only with a small TV stand.


[7] In his report on the inspection of the basement, the inspector wrote:
704 Walls Poured concrete.
Normal moisture levels were observed at the time of inspection.

[8] In reporting on the joists, columns, insulation and beams in the basement, the inspector referred in each case to his inability to report because the ceiling and walls were finished. He testified the walls were dry, but he reported that he saw “normal” levels of moisture. Counsel for the appellant submitted that a report of “normal” moisture cannot be a signal of a moisture problem. Therefore the evidence did not support this finding. But dry wall does not normally have moisture on it; moisture does serious damage to drywall. The trial judge picked up on this in his reasons:
The defence witness testified that he did not observe any moisture on the walls. However, the inspection report, Exhibit number 4, which I rely on, indicates there was moisture on the walls. I find that, having observed moisture on the walls, the inspector should have proceeded further by either using a moisture meter or some other means and consequently there was gross negligence on behalf of the defendant. Exhibit 1 indicates the water damage was four to five years old.

[9] Accordingly, the judge gave judgment for the costs of repair.


[10] The standard by which this court reviews the findings of fact made at trial is one of deference to the judge who saw and heard the witnesses. This means that we do not interfere unless the trial judge made a palpable and overriding error; an error that is plainly seen.[2] (http://canlii.org/en/on/onscdc/doc/2007/2007canlii65609/2007canlii65609.html#_ftn2) One such error would be reaching a conclusion of fact when there was no evidence to support it. The appeal does not involve my re-weighing the evidence and choosing what to believe. Rather I look to see if there is evidence in support of the finding. If there is such evidence I cannot interfere.



[11] In my opinion, the evidence I have referred to is plainly capable of supporting the finding of the judge. The inspector observed conditions outside the house such that water was being directed toward the foundation and not away from it, making it more probable that water problems would occur. The presence of moisture on the walls is reported in the report and the judge was entitled to prefer the report to the inspector’s oral evidence and to find gross negligence in failing to follow up. The appeal from the finding of negligence is dismissed.


[12] Regrettably, the trial judge did not give any reasons except for the passage quoted above. He did not deal with the debate about when the contract was signed and under what circumstances. The inspector testified that the contract was signed after he had examined the exterior and when they went inside to examine the interior. They stopped and he explained the contract and the fee and the limitation of liability clause to Mr. Celebre and obtained his signature. The respondent testified that there was no such discussion and no signature until after all the inspection was completed. He acknowledged that he was then told of the limitation of liability clause, what the fee would be and he signed. I cannot resolve this issue as I did not see the witnesses. However, I can resolve the appeal without resolving this particular issue, because, even assuming that the contract was signed as described by the appellant, there is a legal issue relating to the enforceability of the limitation of liability clause in the circumstances.


[13] While it is the case that the contract was signed, it does not follow that the limitation of liability clause is enforceable. The contract is one of adhesion, a consumer standard-form, and not the result of negotiation and the circumstances typically are that there is a limited time allowed in the contract of purchase and sale for the buyer to have a home inspection done. The buyer is not normally in the position of being able to have a second inspection done; there simply is not time. At its best for the appellant, this contract was not presented for signature and was not explained until the entire inspection of the exterior had been completed. At that point the buyer is not, in practical terms, able to reject the contract and engage another inspector. The inspector has done much of the work and will expect to be paid for it. There is thus a pressure applied by the practice of delaying the explanation and signature until after much work has been done. This was described by the inspector as his usual practice. It seems to me that this practice is not a fair one. If there are particularly onerous terms in a contract of adhesion, the duty of the inspector is to explain the term at a time and in a manner that gives the customer a real opportunity to refuse and to find an alternate inspector.


[14] Counsel for the appellant drew my attention to another case[3] (http://canlii.org/en/on/onscdc/doc/2007/2007canlii65609/2007canlii65609.html#_ftn3) involving the appellant company, in which Coo J. of this court at trial enforced the limitation of liability clause and reduced the damages to the amount of the fee. That case, however, was not the same as this one. The court rejected the plaintiff’s claim that there had been a prior oral agreement that governed the relationship. Significantly, the trial judge found that the contract was “…signed by the plaintiff before any real work was done by the inspector and as a clear and unequivocal condition of there being any inspection at all.” That is not our case, and the emphasis placed by the judge in the quoted passage reinforces the importance of a timely explanation and execution of the contract.


[15] A contract is fundamentally breached when the result of the breach is to deprive the innocent party of all or substantially all of the benefit contracted for[4] (http://canlii.org/en/on/onscdc/doc/2007/2007canlii65609/2007canlii65609.html#_ftn4). The respondents did not contract for or expect to receive a warranty that the house was well built, or a form of insurance. They contracted for a competent inspection of the house so that they could decide to accept the purchase as written, bargain for a price reduction if defects were found, or abandon the purchase altogether. The trial judge has found gross negligence in the manner of inspection. The respondents did not receive the only thing they bargained for.



[16] The leading case on the effects of fundamental breach is Syncrude[5] (http://canlii.org/en/on/onscdc/doc/2007/2007canlii65609/2007canlii65609.html#_ftn5) where the Court decided that an exclusion of liability could be enforceable even in the face of a fundamental breach. As Wilson J. said, the court must consider whether:
“… in the context of the particular breach which had occurred it was fair and reasonable to enforce the clause in favour of the party who had committed that breach even if the exclusion clause was clear and unambiguous.” Later, she continued: “In particular, the circumstances surrounding the making of a consumer standard-form contract could permit the purchaser to argue that it would be unconscionable to enforce an exclusion clause.” And: “I believe however, that there is some virtue in a residual power residing in the court, to withhold its assistance on policy grounds in appropriate circumstances.”

[17] The finding that the breach is fundamental is not in itself a basis for refusing to enforce the limitation clause. It opens the door to a consideration of whether to enforce the exclusion of liability clause not only in respect of the circumstances of the making of the contract containing the clause, but also in the light of the subsequent breach.[6] (http://canlii.org/en/on/onscdc/doc/2007/2007canlii65609/2007canlii65609.html#_ftn6) The contract may be enforced as written unless the circumstances are such that it would be unconscionable, unfair, unreasonable or contrary to public policy to do so.


[18] The limitation of liability clause is clear and applicable to the work done. However, in my view it would be unfair to enforce it in the circumstances. The explanation of the limitation of liability clause was delayed until much work had already been done, placing the respondents in an unfair position, and the breach deprived them of the entire benefit of the contract.
[19] For these reasons, the appeal is dismissed. Submissions as to costs may be made in writing but only after the parties have attempted to settle them.







___________________________


Lane J.



DATE: July 17, 2007

A.D. Miller
09-21-2009, 07:22 AM
For your edification and delectation.

An appeal from Small Claims Court to Divisional Court re use of moisture meter.

R E A S O N S F O R J U D G M E N T


LANE J.:


[1] The appellant appeals from the judgment of Freeman D.J. of the Toronto Small Claims Court dated May 8, 2006, whereby he awarded damages of $9,148.58 to the plaintiffs for negligence of the defendant in carrying out a home inspection. The appellant seeks dismissal of the action or a new trial on the ground that the trial judge misapprehended the evidence and failed to give effect to the limitation of liability clause in the contract.


[2] Prior to closing their agreement to purchase a home in Nobleton in July 2003, the respondents engaged the appellants to perform a home inspection. The inspection failed to disclose a latent defect, being water leakage from outside the house into the basement and consequent deterioration of wood structures in the basement. Relying on the inspection report, which did not note any damage or problem in the basement, the respondents closed. It turned out that there was actually a very large problem and the foundation needed to be dug up, the exterior wall tarred and the weeping tile replaced. At least one rotted piece of the wood was put in evidence. Mrs. Celebre described the problem as a long-standing one which had been ongoing for some years. The respondents say that the defects would have been revealed by ordinary care and that the limiting provisions in the agreement cannot assist the appellant.


[3] The appellant contends that as the basement wall was dry-walled, it was not intended that the inspection be any more than visual and non-intrusive. What was behind the drywall was not the subject of inspection unless there were stains on the dry wall. As there were no visible stains, the inspector did not see the need to employ the moisture meter with which he was equipped.


[4] The evidence of the inspector was that he first inspected the exterior. He found that the water management was “fairly poor”[1] (http://canlii.org/en/on/onscdc/doc/2007/2007canlii65609/2007canlii65609.html#_ftn1). He found that the gutters needed to be cleaned; the downspouts were too short to direct the water away from the foundation, the grading sloped toward the house. All of these matters needed to be repaired to ensure that water could not enter through the foundation walls.


[5] The interior inspection disclosed that the walls were completely dry-walled so that inspection of the interior of the foundation wall was not possible. As noted, he said he did not use the moisture meter because there were no stains. The judge asked at this point:
Now if you see problems on the outside, such as the eaves or the – basically the drainage, because of the slopes, would you not use a moisture meter in the basement in that case?
A. I would if I see signs of the –of water in the area and as I said there were no signs at all. The drywall were dry; there’s no stains. If the owner of the house went to the extent of hiding the damage and I cannot – I cannot be a detective looking for, for hidden – for someone trying to hide – to hide the problems from my eyes.
BY MS. CELEBRE: You just said that you would use a moisture detector if you saw that there was some evidence of moisture in the area. Now you had given us some suggestions, so that moisture wouldn’t go into the exterior or into the basement foundation, by changing eavestroughs, which we did and the grading. So did you notice that there were some moisture problems in the area…
A. Yeah, I …
Q. …to the exterior.
A. Yeah, I thought that there would be potential problems in the area, yes.
Q. So why wasn’t the moisture meter used?
A. As I said, I did not see any signs on the outside - on the inside- as I went inside that tells me that I should use my moisture meter and these areas were covered by furniture Your Honour, and household items.

[6] In rebuttal, Mr. Celebre testified that the area behind which the leak existed was furnished only with a small TV stand.


[7] In his report on the inspection of the basement, the inspector wrote:
704 Walls Poured concrete.
Normal moisture levels were observed at the time of inspection.

[8] In reporting on the joists, columns, insulation and beams in the basement, the inspector referred in each case to his inability to report because the ceiling and walls were finished. He testified the walls were dry, but he reported that he saw “normal” levels of moisture. Counsel for the appellant submitted that a report of “normal” moisture cannot be a signal of a moisture problem. Therefore the evidence did not support this finding. But dry wall does not normally have moisture on it; moisture does serious damage to drywall. The trial judge picked up on this in his reasons:
The defence witness testified that he did not observe any moisture on the walls. However, the inspection report, Exhibit number 4, which I rely on, indicates there was moisture on the walls. I find that, having observed moisture on the walls, the inspector should have proceeded further by either using a moisture meter or some other means and consequently there was gross negligence on behalf of the defendant. Exhibit 1 indicates the water damage was four to five years old.

[9] Accordingly, the judge gave judgment for the costs of repair.


[10] The standard by which this court reviews the findings of fact made at trial is one of deference to the judge who saw and heard the witnesses. This means that we do not interfere unless the trial judge made a palpable and overriding error; an error that is plainly seen.[2] (http://canlii.org/en/on/onscdc/doc/2007/2007canlii65609/2007canlii65609.html#_ftn2) One such error would be reaching a conclusion of fact when there was no evidence to support it. The appeal does not involve my re-weighing the evidence and choosing what to believe. Rather I look to see if there is evidence in support of the finding. If there is such evidence I cannot interfere.



[11] In my opinion, the evidence I have referred to is plainly capable of supporting the finding of the judge. The inspector observed conditions outside the house such that water was being directed toward the foundation and not away from it, making it more probable that water problems would occur. The presence of moisture on the walls is reported in the report and the judge was entitled to prefer the report to the inspector’s oral evidence and to find gross negligence in failing to follow up. The appeal from the finding of negligence is dismissed.


[12] Regrettably, the trial judge did not give any reasons except for the passage quoted above. He did not deal with the debate about when the contract was signed and under what circumstances. The inspector testified that the contract was signed after he had examined the exterior and when they went inside to examine the interior. They stopped and he explained the contract and the fee and the limitation of liability clause to Mr. Celebre and obtained his signature. The respondent testified that there was no such discussion and no signature until after all the inspection was completed. He acknowledged that he was then told of the limitation of liability clause, what the fee would be and he signed. I cannot resolve this issue as I did not see the witnesses. However, I can resolve the appeal without resolving this particular issue, because, even assuming that the contract was signed as described by the appellant, there is a legal issue relating to the enforceability of the limitation of liability clause in the circumstances.


[13] While it is the case that the contract was signed, it does not follow that the limitation of liability clause is enforceable. The contract is one of adhesion, a consumer standard-form, and not the result of negotiation and the circumstances typically are that there is a limited time allowed in the contract of purchase and sale for the buyer to have a home inspection done. The buyer is not normally in the position of being able to have a second inspection done; there simply is not time. At its best for the appellant, this contract was not presented for signature and was not explained until the entire inspection of the exterior had been completed. At that point the buyer is not, in practical terms, able to reject the contract and engage another inspector. The inspector has done much of the work and will expect to be paid for it. There is thus a pressure applied by the practice of delaying the explanation and signature until after much work has been done. This was described by the inspector as his usual practice. It seems to me that this practice is not a fair one. If there are particularly onerous terms in a contract of adhesion, the duty of the inspector is to explain the term at a time and in a manner that gives the customer a real opportunity to refuse and to find an alternate inspector.


[14] Counsel for the appellant drew my attention to another case[3] (http://canlii.org/en/on/onscdc/doc/2007/2007canlii65609/2007canlii65609.html#_ftn3) involving the appellant company, in which Coo J. of this court at trial enforced the limitation of liability clause and reduced the damages to the amount of the fee. That case, however, was not the same as this one. The court rejected the plaintiff’s claim that there had been a prior oral agreement that governed the relationship. Significantly, the trial judge found that the contract was “…signed by the plaintiff before any real work was done by the inspector and as a clear and unequivocal condition of there being any inspection at all.” That is not our case, and the emphasis placed by the judge in the quoted passage reinforces the importance of a timely explanation and execution of the contract.


[15] A contract is fundamentally breached when the result of the breach is to deprive the innocent party of all or substantially all of the benefit contracted for[4] (http://canlii.org/en/on/onscdc/doc/2007/2007canlii65609/2007canlii65609.html#_ftn4). The respondents did not contract for or expect to receive a warranty that the house was well built, or a form of insurance. They contracted for a competent inspection of the house so that they could decide to accept the purchase as written, bargain for a price reduction if defects were found, or abandon the purchase altogether. The trial judge has found gross negligence in the manner of inspection. The respondents did not receive the only thing they bargained for.



[16] The leading case on the effects of fundamental breach is Syncrude[5] (http://canlii.org/en/on/onscdc/doc/2007/2007canlii65609/2007canlii65609.html#_ftn5) where the Court decided that an exclusion of liability could be enforceable even in the face of a fundamental breach. As Wilson J. said, the court must consider whether:
“… in the context of the particular breach which had occurred it was fair and reasonable to enforce the clause in favour of the party who had committed that breach even if the exclusion clause was clear and unambiguous.” Later, she continued: “In particular, the circumstances surrounding the making of a consumer standard-form contract could permit the purchaser to argue that it would be unconscionable to enforce an exclusion clause.” And: “I believe however, that there is some virtue in a residual power residing in the court, to withhold its assistance on policy grounds in appropriate circumstances.”

[17] The finding that the breach is fundamental is not in itself a basis for refusing to enforce the limitation clause. It opens the door to a consideration of whether to enforce the exclusion of liability clause not only in respect of the circumstances of the making of the contract containing the clause, but also in the light of the subsequent breach.[6] (http://canlii.org/en/on/onscdc/doc/2007/2007canlii65609/2007canlii65609.html#_ftn6) The contract may be enforced as written unless the circumstances are such that it would be unconscionable, unfair, unreasonable or contrary to public policy to do so.


[18] The limitation of liability clause is clear and applicable to the work done. However, in my view it would be unfair to enforce it in the circumstances. The explanation of the limitation of liability clause was delayed until much work had already been done, placing the respondents in an unfair position, and the breach deprived them of the entire benefit of the contract.
[19] For these reasons, the appeal is dismissed. Submissions as to costs may be made in writing but only after the parties have attempted to settle them.








___________________________




Lane J.






DATE: July 17, 2007



RW: While Toronto and Tennessee both start with a "T", they still are not in Texas making both your and SP's points moot.

Jerry Peck
09-21-2009, 07:23 AM
OK, let me give you a case study of a home inspector "Standard of Care";

A case that I finished a few months ago working for a plaintiff who was suing a home inspector for missing a rotted out subfloor, joist and a few other things. Fast forward......... The inspector did not own a moisture meter and we were able to prove in part through this website, Inspectors Journal and even the INACHI site that it is a standard of care for a home inspector to own and know how to use a moisture meter.

Scott,

Years ago Norm Sage and I worked on a case in South Florida where an inspector was being sued for something he had not done/not found because he had not done something (similar to your case).

Norm and I were able to show, based on published and distributed advertisements (those brochures everyone dropped off at real estate offices back then before the internet took hold) that 50% plus 1 of the area inspectors did such-and-such and and that this inspector had not done such-and-such, and in fact disclosed that he did not even know about such-and-such (I forgot what it was now, it was so long ago).

We established what the "standard of care" was for area inspectors, which exceeded the standards of practice, and that this inspectors actions, knowledge, and actions on behalf of and for his client were far below that standard of care - that inspector paid dearly as he went out of business due to his losing that case. He was one of those inspectors who charged something like $99 (back then) for a "full comprehensive home inspection" and which took him an average of 45 minutes to an hour to do. He was always bragging about how many inspections he did each day (I recall it being something like 10 per day) and that he was the only inspector who knew what they were doing.

What he failed to understand, though, was that he was not meeting the standard of care for the area.

A.D. Miller
09-21-2009, 07:24 AM
RW: I might also add from the Texas SOP:

(3) General limitations. The inspector is not required to:

(A) inspect:

(i) items other than those listed herein;

(ii) elevators;

(iii) detached structures, decks, docks, fences, or waterfront structures or equipment;

(iv) anything buried, hidden, latent, or concealed; or

Raymond Wand
09-21-2009, 07:26 AM
AD

Still waiting for you to actually provide some proof to back up your gum flapping. Tick, tick, tick..... All talk as usual.

A.D. Miller
09-21-2009, 07:34 AM
Norm and I were able to show, based on published and distributed advertisements (those brochures everyone dropped off at real estate offices back then before the internet took hold) that 50% plus 1 of the area inspectors did such-and-such and and that this inspector had not done such-and-such, and in fact disclosed that he did not even know about such-and-such

JP: It seems to me that any competent attorney would have to expend little effort in showing this to be an unofficial and inaccurate polling technique.


(I forgot what it was now, it was so long ago).

JP: Pre- or post Watergate?


We established what the "standard of care" was for area inspectors, which exceeded the standards of practice,

JP: I was unaware that Florida even had an SOP.



He was one of those inspectors who charged something like $99 (back then) for a "full comprehensive home inspection" and which took him an average of 45 minutes to an hour to do. He was always bragging about how many inspections he did each day (I recall it being something like 10 per day) and that he was the only inspector who knew what they were doing.


JP: So then, whatever he got he deserved it.



What he failed to understand, though, was that he was not meeting the standard of care for the area.


JP: It has been my experience - which is admittedly less than yours - that "standard of care", "fraud", "deception", "intent", et al. are very difficult indeed to prove up in a court of law, especially in the presence of a prescriptive SOP.

A.D. Miller
09-21-2009, 07:37 AM
AD

Still waiting for you to actually provide some proof to back up your gum flapping. Tick, tick, tick..... All talk as usual.

RW: Actually the burden of proof lies with you. You are pontificating about the law in a place where you do not reside, conduct business, or work in the judicial system. Your examples from other places, while perhaps cogent when taken in context, are meaningless in places with different laws.

Jerry Peck
09-21-2009, 07:41 AM
JP: I was unaware that Florida even had an SOP.

JP: It has been my experience - which is admittedly less than yours - that "standard of care", "fraud", "deception", "intent", et al. are very difficult indeed to prove up in a court of law, especially in the presence of a prescriptive SOP.


Florida does not, as yet, have an SoP, however, every inspector advertises that they meet or exceed blank-SoP (fill in the "blank" with whatever association you want).

Again, the legal prescriptive SoP is MINIMUM, and if an inspector advertise and professes to "do more and know more", and if 50% plus 1 of the inspectors in the area advertise and professes the same, than that "do more and know more" raises the area standard of car to a higher level than the minimum SoP establishes.

If an inspector does not meet the MINIMUM SoP, they not only have not met the area standard of car (which is this case will not matter) but they have also not met their legally required MINIMUM REQUIREMENTS - and THAT is what they will get hung on.

Ted Menelly
09-21-2009, 07:44 AM
OK, let me give you a case study of a home inspector "Standard of Care";

A case that I finished a few months ago working for a plaintiff who was suing a home inspector for missing a rotted out subfloor, joist and a few other things. Fast forward......... The inspector did not own a moisture meter and we were able to prove in part through this website, Inspectors Journal and even the INACHI site that it is a standard of care for a home inspector to own and know how to use a moisture meter.

If this inspector had used a meter he/she would have found the problem around the toilet in this 65 year old home. They would have been able to tell that the entire subfloor was wet from seepage of the toilet. Then even though they could not access this area from the crawlspace they would have known that their was a major water problem and could have reported on it. Instead they simply said they could not access this area of the crawlspace. That statement did not work very well for them, and it is part of an SOP.

Owning and using a moisture meter is a Standard of Care in our profession.


Used a moisture meter on what. Crawling the entire floor of the home checking every square foot with the moisture meter of the inaccessible crawl area.

Not digging on you but there is obviously a serious amount more to the facts that we are not hearing. No obvious signs at all around the toilet or soft, wet and or spongy floors. Did the man state that the area in the crawl was not accessible??? And that there should be access made and further evaluation done blah blah blah. If he put the matter off to a particular contractor or even just further eval and or access made then I just don't see it. If all that is the case and it was just pursued that he should own and use a moisture meter I call absolute bull. One has nothing to do with the other. Even if moisture were found further eval would have been needed. This sounds like a matter of *prove him guilty so the home owner can get paid no matter what,

Again, I am sorry for being so *on the side of the inspector* and if there is a lot more to it then I apologize. From what I see in your very very brief story is utter bull on the behalf of head hunting.

If the crawl was inaccessible in that area and then the crawl should be made assessable for further eval because if moisture were found with his moisture meter someone would have to have crawled under there or access made to further evaluate.

No matter which side you want to take further eval was needed and you made the lawyers case with the fact that the inspector did not have a moisture meter.

Instead of the buyer or client following thru with the further eval it sounds like they bought the home, found rot later and then wanted to put it in someone elses pocket instead of paying on their own faults.

Yeah yeah. I know. If they new there was moisture then they would have followed it up.......Bull. They should have followed it up anyway.

I don't think I even want to know all the details of the case. He said no access. They decided not to follow up. Inspector loses because he informed, they did not follow up, he loses because he did not own a moisture meter.

Raymond Wand
09-21-2009, 07:44 AM
RW: Actually the burden of proof lies with you. You are pontificating about the law in a place where you do not reside, conduct business, or work in the judicial system. Your examples from other places, while perhaps cogent when taken in context, are meaningless in places with different laws.

AD

Pontificating? I am providing info to show how the courts come to the conclusions they do, and the thinking of the courts seem to be pretty much the same. I did not add any commentary therefore can't be pontificating. You are no more able to comment on state law in TN then in Texas.

What is your problem anyway?

Scott Patterson
09-21-2009, 07:48 AM
SP: Be that as it may, your impromptu poll would be unbelieveably inaccurate based upon its scope. Additionally, at least in Texas where an SOP exists, there is not only no requirement to utilize "specialized tools", the SOP goes so far as to explcitly exclude the use of "specialized tools".

(b) Scope.

(1) These standards of practice define the minimum levels of inspection required for substantially completed residential improvements to real property up to four dwelling units. A real estate inspection is a limited visual survey and basic operation of the systems and components of a building using normal controls and does not require the use of specialized tools or procedures. The purpose of the inspection is to provide the client with information regarding the general condition of the residence at the time of inspection. The inspector may provide a higher level of inspection performance than required by these standards of practice and may inspect parts, components, and systems in addition to those described by the standards of practice.


(9) Specialized tools--Tools such as thermal imaging equipment, moisture meters, gas leak detection equipment, environmental testing equipment and devices, elevation determination devices, and ladders capable of reaching surfaces over one story above ground surfaces.

SP: That is just plain BS. Next you'll want to add crystal balls.:D

Arron, I'm not trying to convince you or change your opinion. Lord, I don't think anyone could ever do that! :D

As for TX, it really makes no difference what State you are in or what the SOP's say. SOP's are only a guideline and are not the Standard of Care. Standards of Care will trump SOP's every time if it can be shown that if the Standard of Care had been excercised it would have prevented or shown that a problem was imminent or was present.

A.D. Miller
09-21-2009, 07:51 AM
AD

Pontificating? I am providing info to show how the courts come to the conclusions they do, and the thinking of the courts seem to be pretty much the same. I did not add any commentary therefore can't be pontificating. You are no more able to comment on state law in TN then in Texas.

What is your problem anyway?

RW: I simply do not give a rodent's derrière about the laws in Tennessee or Toronto. They do not apply where I live. Why should I?

Your problem, well at least one of the many you exhibit and whine about constantly, is that you seem nearly crippled when confronted with someone who not only does not swallow your blather, but is not cowed down by your pathetic bravado.

Save it for someone who flinches.

Again: dfwairport.com - Home (http://www.dfwairport.com/) Ya'll come.:D

Scott Patterson
09-21-2009, 07:54 AM
Scott,

Years ago Norm Sage and I worked on a case in South Florida where an inspector was being sued for something he had not done/not found because he had not done something (similar to your case).

Norm and I were able to show, based on published and distributed advertisements (those brochures everyone dropped off at real estate offices back then before the internet took hold) that 50% plus 1 of the area inspectors did such-and-such and and that this inspector had not done such-and-such, and in fact disclosed that he did not even know about such-and-such (I forgot what it was now, it was so long ago).

We established what the "standard of care" was for area inspectors, which exceeded the standards of practice, and that this inspectors actions, knowledge, and actions on behalf of and for his client were far below that standard of care - that inspector paid dearly as he went out of business due to his losing that case. He was one of those inspectors who charged something like $99 (back then) for a "full comprehensive home inspection" and which took him an average of 45 minutes to an hour to do. He was always bragging about how many inspections he did each day (I recall it being something like 10 per day) and that he was the only inspector who knew what they were doing.

What he failed to understand, though, was that he was not meeting the standard of care for the area.

Norm, was the one who got me into investigating the Standard of Care with EW work. I recall the case you are talking about, he used it as an example. Not a day goes by that I don't use something I learned from that man, sure do miss him...

Scott Patterson
09-21-2009, 07:57 AM
RW: I simply do not give a rodent's derrière about the laws in Tennessee or Toronto. They do not apply where I live. Why should I?

Your problem, well at least one of the many you exhibit and whine about constantly, is that you seem nearly crippled when confronted with someone who not only does not swallow your blather, but is not cowed down by your pathetic bravado.

Save it for someone who flinches.

Again: dfwairport.com - Home (http://www.dfwairport.com/) Ya'll come.:D

Arron, if you do EW work it should matter. Case law can be used regardless of your location, especially if it is in Federal court.

A.D. Miller
09-21-2009, 07:58 AM
Arron, I'm not trying to convince you or change your opinion. Lord, I don't think anyone could ever do that!


SP: Actually it is spelled "A-A-R-O-N" and not Arron. That is why I use initials when addressing folks here, so as not to inadvertently piss them off by misspelling their names.



As for TX, it really makes no difference what State you are in or what the SOP's say. SOP's are only a guideline and are not the Standard of Care. Standards of Care will trump SOP's every time if it can be shown that if the Standard of Care had been excercised it would have prevented or shown that a problem was imminent or was present.


SP: OK then a scenario for you: A manufacturer makes a building material that one builds houses from. He publishes precise installation instructions that appease his attorneys. A contractor installs the manufacturer's product in strict accordance with the published installation instructions. How, in your opinion, has the contractor not met the "standard of care"?

A.D. Miller
09-21-2009, 08:00 AM
Arron, if you do EW work it should matter. Case law can be used regardless of your location, especially if it is in Federal court.

SP: It is still spelled "AARON" and not Arron. I do hope that you are a bit more observant when working as an EW.

Raymond Wand
09-21-2009, 08:00 AM
RW: I simply do not give a rodent's derrière about the laws in Tennessee or Toronto. They do not apply where I live. Why should I?

Your problem, well at least one of the many you exhibit and whine about constantly, is that you seem nearly crippled when confronted with someone who not only does not swallow your blather, but is not cowed down by your pathetic bravado.

Save it for someone who flinches.

Again: dfwairport.com - Home (http://www.dfwairport.com/) Ya'll come.:D

So now you change the basis of your original arguement. Didn't think you could support your arguements for long without another veiled threat that is some manly bravado given your need for attention you fake. :p

Scott Patterson
09-21-2009, 08:07 AM
SP: Actually it is spelled "A-A-R-O-N" and not Arron. That is why I use initials when addressing folks here, so as not to inadvertently piss them off by misspelling their names.



SP: OK then a scenario for you: A manufacturer makes a building material that one builds houses from. He publishes precise installation instructions that appease his attorneys. A contractor installs the manufacturer's product in strict accordance with the published installation instructions. How, in your opinion, has the contractor not met the "standard of care"?

OK A-A-R-O-N (never seen a name spelled with hyphens like that, but it is TX :D),

Well, that is a wide open scenario.
Did the contractor educate his workers?
Did the contractor sub out work?

Outside of the items that are within control of that contractor and if that contractor followed the instructions and took into account other aspects that might impact the installation I would say that he did meet the standard of care. But, this is not enough information to really decide on anything.

Jerry Peck
09-21-2009, 08:09 AM
SP: OK then a scenario for you: A manufacturer makes a building material that one builds houses from. He publishes precise installation instructions that appease his attorneys. A contractor installs the manufacturer's product in strict accordance with the published installation instructions. How, in your opinion, has the contractor not met the "standard of care"?

Aaron,

Not Scott, but here is an example for you.

HardiePlank siding allowed two options for installation:

1) putting flashing behind each end joint

2) caulking each end joint

Builder A installs HardiePlank using Option 2), caulking.

Builders B, C, and D install HardiePlank using Option 1), flashing.

Builders E and F install HardiePlank using Option 2) some of the time, but use Option 1) the rest of the time.

The standard of care is to use Option 1), flashing.

Builder A is sued because over his installation of the HardiePlank siding, for various reasons, including that the caulking keep falling out.

While Option 2) *WAS* a specified option by the manufacturer, Option 1) was used by more builders more often, and HardiePlank recommends the use of Option 1), but allows the use of Option 2).

Option 1), flashing is the standard of care.

Ted Menelly
09-21-2009, 08:12 AM
Arron, I'm not trying to convince you or change your opinion. Lord, I don't think anyone could ever do that! :D

As for TX, it really makes no difference what State you are in or what the SOP's say. SOP's are only a guideline and are not the Standard of Care. Standards of Care will trump SOP's every time if it can be shown that if the Standard of Care had been excercised it would have prevented or shown that a problem was imminent or was present.

Sorry Scott

I said it before and I will state it again.

The SOPs in a licensed state is no only to protect the client but also to protect the inspector.

You cannot have it both ways. You cannot set guidelines in place that the inspector has to adhere to for the protection of the client and use another standard that the inspector has to adhere to or he is not protected.

What is the saying. What is good for the goose is good for the gander. You can use all the legal jargon you want it will not change anything. I challenge you to go to a licensed stater in front of a judge and jury and tell them that what is good enough for protection of the client is not good enough for the protection of the inspector. That my friend is just a serious amount of legal bull.

That is like saying that anyone with a Cadillac can run red lights but anyone with a ranger pick up cannot. Sound stupid ??? sure does. So doesn't your reasoning about what is good for one party is not good for the other in a home inspection case.

Sorry....Standard of care....just legal bull waiting to be squashed.

Everyone in these united states have the same legal rights as another. Hold one accountable for one standard and another for another standard having to do with the same subject matter. I think not.

You have been playing both sides of the fence for to long. Time to step back and look at the defense council one day and the prosecuting the next. I have big respect for you Scott because you appear to be a decent intelligent man with a lot of back ground but I cannot agree with this either side of the fence crap.

I'll do anything for anyone as long as it puts money in my pocket. Sorry. That is one standard of care I could never have anything to do with. I have never been able to work like that and could never do such. I have a particular standard in life that I will not waiver from.

A.D. Miller
09-21-2009, 08:25 AM
OK A-A-R-O-N (never seen a name spelled with hyphens like that, but it is TX :D),

Well, that is a wide open scenario.
Did the contractor educate his workers?
Did the contractor sub out work?

Outside of the items that are within control of that contractor and if that contractor followed the instructions and took into account other aspects that might impact the installation I would say that he did meet the standard of care. But, this is not enough information to really decide on anything.

SP: The hyphens symbolize the b-r-o-a-d expanses of Texas . . .

The contractor is a sole proprietor. He does the installation himself with no subcontractors.

So then, if he was compliant with the manufacturer's minimal installation instructions, he is also meeting the standard of care? If that is the case, then an HI in Texas who meets the minimal SOP is also meeting the standard of care, right?

A.D. Miller
09-21-2009, 08:26 AM
Aaron,

Not Scott, but here is an example for you.

HardiePlank siding allowed two options for installation:

1) putting flashing behind each end joint

2) caulking each end joint

Builder A installs HardiePlank using Option 2), caulking.

Builders B, C, and D install HardiePlank using Option 1), flashing.

Builders E and F install HardiePlank using Option 2) some of the time, but use Option 1) the rest of the time.

The standard of care is to use Option 1), flashing.

Builder A is sued because over his installation of the HardiePlank siding, for various reasons, including that the caulking keep falling out.

While Option 2) *WAS* a specified option by the manufacturer, Option 1) was used by more builders more often, and HardiePlank recommends the use of Option 1), but allows the use of Option 2).

Option 1), flashing is the standard of care.

JP: That would all depend on when Builder A installed the siding: before or after the publication of the requirement for flashing and the disallowment for caulking the butt joints.

Scott Patterson
09-21-2009, 08:32 AM
You have been playing both sides of the fence for to long. Time to step back and look at the defense council one day and the prosecuting the next. I have big respect for you Scott because you appear to be a decent intelligent man with a lot of back ground but I cannot agree with this either side of the fence crap.

I'll do anything for anyone as long as it puts money in my pocket. Sorry. That is one standard of care I could never have anything to do with. I have never been able to work like that and could never do such. I have a particular standard in life that I will not waiver from.

Hi Ted, and Thank you! Yes, I do as you say play both sides of the fence. I try to balance out working for plaintiffs and defendants; as any good EW knows this is what you must do. I'm not a "hired gun" and by working for either side of a case keeps it this way. Just this past Friday I was retained as a litigation consultant to help defend a home inspector. Actually for this year I have 7 cases working for the Defendant and 4 cases working for the Plaintiff and this is a pretty consistent average.

Not everyone can do litigation work, but for those of us that have entered into this realm of the profession we find it very rewarding in many ways.

A.D. Miller
09-21-2009, 08:36 AM
Not everyone can do litigation work, but for those of us that have entered into this realm of the profession we find it very rewarding in many ways.


SP: I have found it to have just the opposite effect. In my pre-EW life I actually had (naively) allowed myself to believe in the concept of justice and that, though perhaps somewhat flawed, our legal system was functional. Nothing could be further from the truth.

Scott Patterson
09-21-2009, 08:36 AM
SP: The hyphens symbolize the b-r-o-a-d expanses of Texas . . .

The contractor is a sole proprietor. He does the installation himself with no subcontractors.

So then, if he was compliant with the manufacturer's minimal installation instructions, he is also meeting the standard of care? If that is the case, then an HI in Texas who meets the minimal SOP is also meeting the standard of care, right?

Aaron, wish I had the time, patience and desire to go head to head with you on this but I don't. Time to put the boots on and go sloshing through a job site for a client. Y'all keep it up and let me know the results. :)

A.D. Miller
09-21-2009, 08:37 AM
Aaron, wish I had the time, patience and desire to go head to head with you on this but I don't. Time to put the boots on and go sloshing through a job site for a client. Y'all keep it up and let me know the results. :)

SP: Me too. Perhaps another time.

Joseph Farsetta
09-21-2009, 08:46 AM
Raymond, For clarification, I am the author and instructor for a course called "Certified Well Sampler". Within the content of this course, I cover a variety of things, including well types, aquifer, water table, installation practices, well construction, well equipment, water quality, test definitions, and how to collect, care for, and transport water samples. We even discuss labs and quality assurance.

It is one of the few courses of its type available. This particular course is designed specifically for those in our profession. I believe it to be an excellent course. It is approved in many states. I am quite proud of it, and am proud to have taught many inspectors in many locations, and from many different associations.

With regard to your erroneous statements, or downright misconceptions regarding what the course is (or isn't), I remind you that you have not attended it, and therefore are not in a position to judge it.

With regard to your erroneous statement with regard to Ontario law, need I remind you that the sole regulations regarding well licensing pertains to those who construct them or work on them. Your provincial government recommends testing private well water for quality, and does not license those who take samples or sell the service. Ontario Well Regulation 903 spells it out, if you need a point of reference.

As to the course, and more specifically the Ontario version of it, I incorporated Ontario's own listing of contaminents and maximum contaminent levels.

We certify people on the proper methodologies needed to ensure an accurate test result. Although it covers a broad range of topics relative to wells and water quality, it is called Certified Well Sampler for a reason.

If the states do not have a problem with the title or the certification process (the exam has been characterized as tedious, thorough, and generally difficult), why should you?

For those of you reading this, my apologies for this rather long explanation regarding a course I teach. It is NOT intended to be a marketing ploy - I am not selling the course. I have posted this in response to innacurate comments made by Ray Wand regarding this subject.

Jerry Peck
09-21-2009, 08:51 AM
You cannot have it both ways. You cannot set guidelines in place that the inspector has to adhere to for the protection of the client and use another standard that the inspector has to adhere to or he is not protected.


Ted,

I see the crack in your thinking, and why you are thinking that way ...

"You cannot set guidelines in place that the inspector has to adhere to "

The inspector does not have to "adhere to" those standards.

The inspector does, however, have to "meet the minimum requirements of" those standards.

BIG DIFFERENCE between those two statements as there is a big difference between "adhere to" and "meet".

As I recall from you Texas inspectors, the inspector IS ALLOWED to go beyond the TREC standards as long as you meet the TREC standards, correct?

Raymond Wand
09-21-2009, 08:54 AM
Joe

Save your pleadings on regulation 903 I am very familiar with it. And your course is not recognized by anyone up here other than you. Sure anyone can take a water sample that is not what 903 was legislated to do.

I have had to contact the Ministry several times with inspectors who openly stated on their sites and who attended your course that they were certified to inspect wells. Where would they get that idea?

And to further clarify when you challenged me sometime ago when this topic came up on your home board you hadn't a clue about the law per 903 and at the time refused to accept any opinion or input as to what you were instilling in your students.

Pleased to see you finally did your homework after me having to point it out to you.

Take care Joe.

Julie Weishaar
09-21-2009, 09:05 AM
For the record, this article is industry-related, relevant and thought-provoking. I have not, nor will I use Brian's forum in any way other than it is intended which is as an industry platform for the open exchange of ideas. BTW - let's all wish Brian the best - he is getting married on October 2nd. :)

A.D. Miller
09-21-2009, 09:20 AM
BIG DIFFERENCE between those two statements as there is a big difference between "adhere to" and "meet".


JP: So then, if it does not meet your face, how does that stuff adhere to it?



As I recall from you Texas inspectors, the inspector IS ALLOWED to go beyond the TREC standards as long as you meet the TREC standards, correct?


JP: Correct, the operative term here being "allowed to", and not "required to", or "expected to", or "obliged to" . . . in order to meet someone's hypothetical "standard of care".

Joseph Farsetta
09-21-2009, 09:28 AM
Ray,

The course is called Certified Well Sampler; not Certifed Well Inspector.

Please point out where the content or presentation runs contrary to any Ontario law in what the inspector performs during the course of a home inspection, or during the course of gathering water samples and explaining to a client what can happen to their well water. In fact, please point out where any of the material presented was either incorrect or not pertinent to our industry or to the public's safety. Educating a homeowner with a well to the things that can go terribly wrong with wells and water is, in my, opinion... a good thing.

Your spin was that, somehow, a license was needed to teach the course or draw a water sample for testing. I am quite familiar with Regulation 903, and mention it to illustrate that this is the sole area regarding wells that is regulated by your Ministry.

A.D. Miller
09-21-2009, 09:45 AM
JP, et al.:

Although the idea of a general duty of care is now widely accepted, there are significant differences among the common law jurisdictions concerning the specific circumstances under which that duty of care exists. Obviously, courts cannot impose unlimited liability and hold everyone liable for everyone else's problems, so there must be some reasonable limit to the duty of care. The problem is where to set that limit.

Because each of the 50 U.S. states is a separate sovereign free to develop its own tort law under the Tenth Amendment, and because Erie Railroad Co. v. Tompkins (1938) ruled that there is no general federal common law (thus implying no general federal tort law), there are several tests for finding a duty of care in United States tort law.

http://en.wikipedia.org/wiki/Duty_of_care (http://en.wikipedia.org/wiki/Duty_of_care)

Read the article and see that the difference between the duty or standard of care in California and Florida alone is nerely as wide as the physical space between them.

Dan Harris
09-21-2009, 11:35 AM
For the record, this article is industry-related, relevant and thought-provoking.

You did a good job at getting some thoughts and provoking, especially after ole lightning rod joe got involved in the topic :D

Ted Menelly
09-21-2009, 01:28 PM
Ted,

I see the crack in your thinking, and why you are thinking that way ...

"You cannot set guidelines in place that the inspector has to adhere to "

The inspector does not have to "adhere to" those standards.

The inspector does, however, have to "meet the minimum requirements of" those standards.

BIG DIFFERENCE between those two statements as there is a big difference between "adhere to" and "meet".

As I recall from you Texas inspectors, the inspector IS ALLOWED to go beyond the TREC standards as long as you meet the TREC standards, correct?

Adhere, as I am sure you new what I was referring to, as in these are the standards that must be met, stick to as a minimum, go by, at the minimum in accordance with the Texas Real Estate Commissions SOPs for home inspection to protect the client. And as far as adhering to, pertaining to, some arbitrary Standard of care that a pole says 50 plu 1% of inspectors in your area inspect to and all other inspectors must adhere to that very vague Standard of care, at a minimum or OH MY GOODNESS, YOU ARE IN TROUBLE where if not met by home inspectors, Aunt Maybel may sue you.

There is no fixed figure that anyone can name or put a fingure on for how much the majority of home inspectors exceed standards. There are no written standard of care standards for anyone to go by other than the SOPs that person is licensed thru.

You can pick 100 inspectors in the area that inspect a particular item a certain way buy a split of 49% to 51%. That is not going to cut it for a hard and fast fixed standard of care. If you ask a different hundred inspectors, again..randomly, how they inspect an item then that standard could be 25 to 75 or 75 to 25.

I know everyone wants to say that performing an inspection to the standards is a shmuck loser inspector. My point is that even if you do inspect over the standards....what ever that means...... then the reality is you are still just inspecting to at least the standards because that is all you should be judged by in any arbitration or court of law. Anything after that is just which lawyer talks what point up best. If lawyers were only allowed to bring claims against standards as in SOPs, not some make believe SOC alone, then Scotts example where the inspector simply said that that portion of the crawl was not accessible, the inspector should have walked free and clear because the client did not follow up and have the crawl made accessible and someone gone under to evaluate.

Jerry Peck
09-21-2009, 03:02 PM
then Scotts example where the inspector simply said that that portion of the crawl was not accessible, the inspector should have walked free and clear because the client did not follow up and have the crawl made accessible and someone gone under to evaluate.

Ted,

You are not reading again, and, even worse, adding things into what you read which were not stated.

Unless I missed it (show me where it is), Scott did not state anywhere in his post that the inspector wrote up that the inaccessible area should be inspected, the inspector only stated that he could not access the area.

Had that inspector recommended to his client to have someone inspect the area he could not get to, and then, as you said, not followed through, I am sure the result from the judge would have been different.

Ted Menelly
09-21-2009, 03:23 PM
Ted,

You are not reading again, and, even worse, adding things into what you read which were not stated.

Unless I missed it (show me where it is), Scott did not state anywhere in his post that the inspector wrote up that the inaccessible area should be inspected, the inspector only stated that he could not access the area.

Had that inspector recommended to his client to have someone inspect the area he could not get to, and then, as you said, not followed through, I am sure the result from the judge would have been different.

Only using Scotts post as an example.

But as you wished

""If this inspector had used a meter he/she would have found the problem around the toilet in this 65 year old home. They would have been able to tell that the entire subfloor was wet from seepage of the toilet. Then even though they could not access this area from the crawlspace they would have known that their was a major water problem and could have reported on it. Instead they simply said they could not access this area of the crawlspace. That statement did not work very well for them, and it is part of an SOP."

As I said. From what I am taking of Scotts post is the area under the bath or an entire area of the crawl could not be accessed. That sets the bell off to have access made and have it inspected. Should he have used a moisture meter around the toilet area and, who knows...the entire inaccessible crawl area...I guess so. Why limit it to the toilet area. The area under the bath could not be accessed to evaluate what moisture that may have been found. I do not know the entire story of course and there may be a lot more to it as I said to Scott.

As far as not being able to read ???? Seriously...You have to cut that statement out of your things to say.

The highlighted red area of Scotts post tells me that the area could not be accessed. If someone chose to buy a home not knowing what was going on under there then so be it but keep their stinking hands out of other peoples pockets and own up to there God awful blunder of not investigating further before they bought the home. What if a mpoisture meter read nothing and there was a leak under the home that went on un noticed, or a sewer gas leak slowly sickening the home owners? Then what? When the sewage leak and sewer gas leak was notice way down the road would it then still bethe darn home inspectors fault because the home buyers did n ot follow up on the comment that that area could not be accessed.

This can go on forever. From the very minute piece of Scotts post I chose to use it as somewhat of an example and put my own twist on it. And round and round we go.

It was only an example. I told Scott I was sorry if there was more to it. I even commended him on himself.

Again Jerry please take the "you cannot read" thingy you have going there and do yourself a favor and delete it from your automatic things to say.

Jerry Peck
09-21-2009, 05:26 PM
As far as not being able to read ???? Seriously...You have to cut that statement out of your things to say.

Ted,

I'll make you a deal.

I will work on that and YOU work on what was actually said, not what you imagined what was said or thought - deal?

Scott Patterson
09-22-2009, 07:31 AM
OK, bottom line is that you should use a moisture meter on just about every bathroom floor if you have anything that might be throwing up a Red Flag that the subfloor could be wet.

What is a Red Flag:
Age of house
Type of foundation
Visible conditions
Unable to access a crawlspace
A home that has been recently remodeled

I think that most will agree with this...

Raymond Wand
09-22-2009, 07:53 AM
Scott

I understand your reasoning, but there are times when there are:

1. No visible signs
2. No access
3. Age is a subjective caveat
4. Patent vs. latent defect
5. The SOP are an minimal standard, and many courts have at least up here recognized the standard. That case demonstrated that access if not available and if brought to the attention of the purchaser absolves the inspector from negligence.


And from a Canadian POV where an attic access hatch was not opened by the inspector due to it being sealed with caulk.


In Seltzer-Soberano v. Kogut, [1999] O.J. No. 1871, a decision of B. Wright J., states at paragraph 6: The usual house inspection is general in nature and is performed by a visual inspection. A house inspector cannot be held responsible for a problem which is not readily apparent by a reasonable visual inspection.


Sited with approval by Gillese J. in Biggs v. Harris (c.o.b. Harris Homes Inspections), [1999] O.J. No. 4831, she went on to say at paragraph 33 of her decision:

33. The standard of care owed is that of a reasonable visual inspection done in accordance with ASHI standards but, I would add, what is reasonable is to be determined, as well, by the cost of the inspection and the known level of expertise of the inspector.
And I point this legal renderings for any Canadian member who is reading this as it would appear there are vast differences between what an American court would consider reasonable and what a Canadian court would find reasonable. Not to mention in my opinion it was a latent defect not discoverable by visual inspection method.

Fwiw.

A.D. Miller
09-22-2009, 08:15 AM
As I mentioned way up there:

http://www.inspectionnews.net/home_inspection/102132-post84.html

There is no such thing as what "an American court" would consider this or that. There is a very large dispairty between how things are viewed and dealt with from jurisdiciton to jurisdiction.

Raymond Wand
09-22-2009, 08:28 AM
Not to belabour the point but it is the courts who decide the fates of the respondents no one else regardless of jurisdiction, unless of course the issues went to arbitration.

A.D. Miller
09-22-2009, 08:41 AM
Not to belabour the point but it is the courts who decide the fates of the respondents no one else regardless of jurisdiction, unless of course the issues went to arbitration.

RW: "Jurisdiction", according to Black's Law Dictionary, means, among other things:

"A court's power to decide a case or issue a decree."

It is that definition that I was referring to. And, believe it or not, my last post was neither addressed to you nor intended solely for you.

Raymond Wand
09-22-2009, 08:48 AM
Too bad. :p