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  1. #66
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Raymond Wand View Post
    This case is a cautionary tale for home inspectors and other professionals who attempt to rely upon exclusionary clauses to limit their liability for negligence. Professionals cannot limit their liability for negligence in connection with the very services they are providing. To limit liability to the fees charged would defeat the purpose of retaining the professional, which is reliance upon the professional’s advice.
    A few weeks ago I attended a class given by a real estate attorney who is also one of the principle authors of the Colorado real estate purchase contract. He told us a story about a suit brought by a seller against a buyer, the buyer's agent and the HI. The judge said the Limitation of Liability clause in the HI's contract limited his exposure to the inspection fee. The HI quickly reimbursed his fee and was out of the suit.

    Every case, every judge, every state, and every country is different, but here is a situation where a clause limiting liability protected a HI.

    Inspection Referral SOC
    If you choose not to decide, you still have made a choice.

  2. #67
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Ian Page View Post
    Jeff
    I assume you have read all the previous posts regarding this issue. First, it is not 'theft'.
    .
    .
    .
    unless some specific State legislation which may be the case in Oregon,
    .
    .
    .
    Please quote the Oregon State Law you referred to making the report exchange, illegal.
    Actually, there may not have to be specific legislation making it illegal ... smart money is on the states which do not have specific legislation making it legal. So far, as I recall the posts below, one state (yours - California) makes it legal to share reports and the inspector is on the hook, and another state (forget which post it was) made it illegal and the inspector was off the hook.

    Ian, you really do need to stop trying to apply your specific California laws to all other states or to presume that the same results would be in all other states - face it, CA is a bit flaky, and sometimes that is good, sometimes that is not good ... just saying ...

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  3. #68

    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Ian Page View Post
    Jeff
    I assume you have read all the previous posts regarding this issue. First, it is not 'theft'. You will have a very hard time convincing any Law Enforcement agency (Police/Sheriff. District Attorney /Prosecutor) that there is a 'Theft' of the report and those are the agencies who would pursue the matter on your behalf in criminal proceedings (Theft is a crime dealt with in Criminal Court and not Civil Court). If you hope to file an allegation of some misuse of your report in Civil Court, you have to stipulate, by filing an affidavit, how you were harmed, request compensation for your loss or whatever is necessary to make you whole. The fact that you have already been paid for completing both Inspection and subsequent report means you have no loss to be compensated for. You can't sue for something you have already received. There is no guarantee that your services would have been used again for a second inspection on the same property. So if there is a 'loser' it's the unknown Inspector who didn't get to perform that Inspection because the property purchaser used the report completed by yourself for which you were compensated by the original client (with whom you had a contract).

    The report is a 'work product' and you were contracted by the client to perform both an Inspection and Report. You, if fact, sold the report to them for a fee. It's their report, you just created it. Nevertheless, because you performed an Inspection you could still be held liable if there were some glaring omission later discovered by the 'new' purchaser. That's a primary reason for E&O insurance. The Realtor may be trying to be a 'hero' and use the report you completed to make them look good and sell the property but your reports should contain some bold paragraph indicating the condition of the property was reported for the day of the Inspection only and should not be substituted for a new inspection. If the new clients like your report, maybe the will use you instead of someone else. It will not necessarily prevent any law suit against you but it'll help.

    Please read the Lisa's link - Nowhere in that Inter-Nachi recommendation does it state or infer that the Realtor has committed any violation (Criminal or Civil) - unless some specific State legislation which may be the case in Oregon, but does provide information on how you can, perhaps, avoid some liability yourself. Reporting the realtor to their Board may be the only serious recourse.

    Please quote the Oregon State Law you referred to making the report exchange, illegal.

    - - - Updated - - -



    Jeff
    I assume you have read all the previous posts regarding this issue. First, it is not 'theft'. You will have a very hard time convincing any Law Enforcement agency (Police/Sheriff. District Attorney /Prosecutor) that there is a 'Theft' of the report and those are the agencies who would pursue the matter on your behalf in criminal proceedings (Theft is a crime dealt with in Criminal Court and not Civil Court). If you hope to file an allegation of some misuse of your report in Civil Court, you have to stipulate, by filing an affidavit, how you were harmed, request compensation for your loss or whatever is necessary to make you whole. The fact that you have already been paid for completing both Inspection and subsequent report means you have no loss to be compensated for. You can't sue for something you have already received. There is no guarantee that your services would have been used again for a second inspection on the same property. So if there is a 'loser' it's the unknown Inspector who didn't get to perform that Inspection because the property purchaser used the report completed by yourself for which you were compensated by the original client (with whom you had a contract).

    The report is a 'work product' and you were contracted by the client to perform both an Inspection and Report. You, if fact, sold the report to them for a fee. It's their report, you just created it. Nevertheless, because you performed an Inspection you could still be held liable if there were some glaring omission later discovered by the 'new' purchaser. That's a primary reason for E&O insurance. The Realtor may be trying to be a 'hero' and use the report you completed to make them look good and sell the property but your reports should contain some bold paragraph indicating the condition of the property was reported for the day of the Inspection only and should not be substituted for a new inspection. If the new clients like your report, maybe the will use you instead of someone else. It will not necessarily prevent any law suit against you but it'll help.

    Please read the Lisa's link - Nowhere in that Inter-Nachi recommendation does it state or infer that the Realtor has committed any violation (Criminal or Civil) - unless some specific State legislation which may be the case in Oregon, but does provide information on how you can, perhaps, avoid some liability yourself. Reporting the realtor to their Board may be the only serious recourse.

    Please quote the Oregon State Law you referred to making the report exchange, illegal.

    Here you go Ian-

    Oregon (OAR 812-008-0202(2)(d) states: "Home inspections are performed for the individual who contracted for the inspection. They may not be used or relied on by others."


  4. #69
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    Default Re: Rules on Agents passing out report to 4th parties

    Jeff
    I've pasted this directly from the OAR regulations governing Home Inspectors/Inspections:
    .................................................. .................................................. .................
    OAR 212-008-0202 (2)

    "...(F) Include on the first page of the contract and on the first page of the report, in bold-faced, capitalized type and in at least 12 point font, the following statement:

    “THIS REPORT IS INTENDED ONLY FOR THE USE OF THE PERSON PURCHASING THE HOME INSPECTION SERVICES. NO OTHER PERSON, INCLUDING A PURCHASER OF THE INSPECTED PROPERTY WHO DID NOT PURCHASE THE HOME INSPECTION SERVICES, MAY RELY UPON ANY REPRESENTATION MADE IN THE REPORT.” ( original in bold typeface)

    (d) Submit to each customer at the time the contract is signed a copy of “Home Inspection Consumer Notice.”

    .................................................. .................................................. ..................

    Direct quote from The State Of Oregon, using the reference 812-008-0202 (2) (d) you provided.

    The wording is significantly different from that which you inferred in your original post, addressing an alleged illegality (Theft) if the report is used by others. The above regulation does not preclude anyone from reading or even 'using' the report as long as they do not rely upon its content when purchasing the property. It's really a safety net for the Inspector to help prevent law suits arising by a Third Party, not party to the original inspection contract, from suing the Inspector.

    No where in the regulations (and I've read it thoroughly) does it preclude sharing the report or make it illegal to do so . It just basically states the report can not be relied on past the Inspection date by any other (non-contracted) person. Furthermore, no penalty is attached to anyone 'in violation' and the above quote in caps. is only an advisory/warning.

    The State requires that posting on all Oregon Inspection reports. Also, the Realtor, who 'duped' the new buyer by trying to save them $400, may be guilty of fraud, certainly misrepresentation if they followed his advise. The 'victim' or plaintiff in that case would be the new buyer, not yourself, should issue arise at the property and a new inspection was not performed for their benefit.

    Last edited by Ian Page; 12-29-2013 at 12:35 AM.

  5. #70
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    Default Re: Rules on Agents passing out report to 4th parties

    Jerry

    This is NOT an issue of California Law Vs any other State. It's an issue of the basic understanding of the definition of THEFT, which is consistent in all 50 States, and as it applies (or doesn't apply) to sharing Inspection Reports. You originally brought up the issue, in your first post, that sharing the report with a Third party was a criminal act of 'THEFT' and multiple 'sharings' could elevate those actions to a Felony. I have taken steps to disprove that with reasoning, fact and knowledge. You were/are simply wrong.

    I will accept, however, that some States could (but I'm not aware of any) make 'sharing' the report a crime, but it would likely be specific to Inspection Reports and not a generalized statute in State's Penal Codes as it simply does not fit ANY definition of THEFT in any State, that I'm aware of.

    You, yourself, used the Ca. Penal Code in an attempt to support your earlier position. At no time have I referenced any CA code or Regulation other than in rebuttal to your misguided belief. Now if you wish to debate that further, stick to the 'Theft' issue - eat a little humble pie - and we'll have a meaningful discussion for the benefit of other readers.


  6. #71
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Ian Page View Post
    The wording is significantly different from that which you inferred in your original post, addressing an alleged illegality (Theft) if the report is used by others. The above regulation does not preclude anyone from reading or even 'using' the report as long as they do not rely upon its content when purchasing the property. It's really a safety net for the Inspector to help prevent law suits arising by a Third Party, not party to the original inspection contract, from suing the Inspector.
    Ian,

    Read what theft of services is in Oregon: ORS 164.125 - Theft of services - 2011 Oregon Revised Statutes

    (1)A person commits the crime of theft of services if:
    (a)With intent to avoid payment therefor, the person obtains services that are available only for compensation, by force, threat, deception or other means to avoid payment for the services; or
    (b)Having control over the disposition of labor or of business, commercial or industrial equipment or facilities of another, the person uses or diverts to the use of the person or a third person such labor, equipment or facilities with intent to derive for the person or the third person a commercial benefit to which the person or the third person is not entitled.
    (2)As used in this section, services includes, but is not limited to, labor, professional services, toll facilities, transportation, communications service, entertainment, the supplying of food, lodging or other accommodations in hotels, restaurants or elsewhere, the supplying of equipment for use, and the supplying of commodities of a public utility nature such as gas, electricity, steam and water. Communication service includes, but is not limited to, use of telephone, computer and cable television systems.

    Sounds like theft of services to me based on that statute. Meets (1) a) for the second purchaser, and meets (1) b) for the real estate agent, and (2) includes "professional services", which is what the home inspector is providing (look up definition of "professional" Definition of professional - Oregon Legal Glossary - you will find that home inspectors meet 1. (n), and "professional services" Definition of professional service - Oregon Legal Glossary - you will find that home inspections meet 1. and 2., and Construction Contractors Board Home Inspectors - you will find that home inspectors or "professionals" who provide "professional services").

    Ian, you really need to stay within the things you know about ... seems to me like you said that to someone ... maybe you need to follow it ... just sayin'

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
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  7. #72
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Jerry Peck View Post
    Ian,

    Read what theft of services is in Oregon: ORS 164.125 - Theft of services - 2011 Oregon Revised Statutes

    (1)A person commits the crime of theft of services if:
    (a)With intent to avoid payment therefor, the person obtains services that are available only for compensation, by force, threat, deception or other means to avoid payment for the services; or
    (b)Having control over the disposition of labor or of business, commercial or industrial equipment or facilities of another, the person uses or diverts to the use of the person or a third person such labor, equipment or facilities with intent to derive for the person or the third person a commercial benefit to which the person or the third person is not entitled.
    (2)As used in this section, services includes, but is not limited to, labor, professional services, toll facilities, transportation, communications service, entertainment, the supplying of food, lodging or other accommodations in hotels, restaurants or elsewhere, the supplying of equipment for use, and the supplying of commodities of a public utility nature such as gas, electricity, steam and water. Communication service includes, but is not limited to, use of telephone, computer and cable television systems.

    Sounds like theft of services to me based on that statute. Meets (1) a) for the second purchaser, and meets (1) b) for the real estate agent, and (2) includes "professional services", which is what the home inspector is providing (look up definition of "professional" Definition of professional - Oregon Legal Glossary - you will find that home inspectors meet 1. (n), and "professional services" Definition of professional service - Oregon Legal Glossary - you will find that home inspections meet 1. and 2., and Construction Contractors Board Home Inspectors - you will find that home inspectors or "professionals" who provide "professional services").

    Ian, you really need to stay within the things you know about ... seems to me like you said that to someone ... maybe you need to follow it ... just sayin'
    I'm not seeing theft of services in there, mainly because there have been no services rendered to the third party. Instead, the third party is simply reading a report for which services were provided and paid for by the original client. The third party has obtained no services from anyone. He has obtained a report, but no services.


  8. #73
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Russel Ray View Post
    I'm not seeing theft of services in there, mainly because there have been no services rendered to the third party. Instead, the third party is simply reading a report for which services were provided and paid for by the original client. The third party has obtained no services from anyone. He has obtained a report, but no services.
    The third party received the services required to produce the report that they were using, i.e., theft of services as they did not pay for the services used which produced the report they relied on.

    The follow-up buyer received the report and did not pay for the services required to produce that report ... can't get much simpler than that ... unless you and Ian need to file a lawsuit in Oregon to have them explain it to you in complicated legal terms. But, hey, go for it if you need to.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
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  9. #74
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Jerry Peck View Post
    The third party received the services required to produce the report that they were using, i.e., theft of services as they did not pay for the services used which produced the report they relied on.

    The follow-up buyer received the report and did not pay for the services required to produce that report ... can't get much simpler than that ... unless you and Ian need to file a lawsuit in Oregon to have them explain it to you in complicated legal terms. But, hey, go for it if you need to.
    Actually, it can get simpler, but it can also get more complicated, especially when the law gets involved. It's very difficult to steal services that have not been provided to you, although some areas do come to mind, like stealing electricity via tapping in before the meter (done often in my home state of Texas), stealing cable services, etc.

    Stealing a report that has already been produced, well, I just don't see theft of services there. I can't see any theft of services required to produce the report because the report has already been paid for, and the original client paid for those services. So no services were stolen.


  10. #75
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    Default Re: Rules on Agents passing out report to 4th parties

    Russel,

    When you or Ian provide the complicated legal explanation from an Oregon court stating why that is not "theft of services", please provide that information here.

    Thank you, I look forward to you doing so. Until then, however, what those statutes clearly state that theft of services is a crime and clearly define theft of services as being from a professional and that a professional is licensed and that home inspectors are licensed professionals in Oregon - stealing a home inspection report is therefore theft of services.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  11. #76
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    Default Re: Rules on Agents passing out report to 4th parties

    Granted the passing of a report may lead to someone not obtaining/purchasing a report for themselves and therefore a HI not making a fee.

    But is it not the general concern that the HI is not being paid for the liability exposure by successive persons relying on a report. Is that not the real "theft" taking place?

    As the number of persons relying on the report increase the probability that the HI may be drawn into litigation over some aspect of the report also increases. Something akin to, for every mile driven the probability of an accident increases.

    Is the concern so much the lost revenue or the potential cost of litigation.

    So if your state would limit liability to the original report owner would you be satisfied?
    Such as OAR 212-008-0202 (2) "...(F)


  12. #77
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Jerry Peck View Post
    Russel,

    When you or Ian provide the complicated legal explanation from an Oregon court stating why that is not "theft of services", please provide that information here.

    Thank you, I look forward to you doing so. Until then, however, what those statutes clearly state that theft of services is a crime and clearly define theft of services as being from a professional and that a professional is licensed and that home inspectors are licensed professionals in Oregon - stealing a home inspection report is therefore theft of services.
    Not seeing it.

    However, let's say that a person contracted with a home inspector to get a home inspection, and the report delivered but the check bounced. The buyer had already canceled the purchase based on the home inspection so he saw no need to make good on the bounced check. THAT would be theft of services.

    A person who has a copy of the report in his hand, regardless of how the report was obtained, has not stolen any services. He might have stolen the report, but not the services. Maybe the report had been left on the kitchen counter, and someone saw it and took it. That would be theft, but not theft of services.

    If services were provided and paid for, then those same services can't then be stolen. They were already paid for.


  13. #78
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    Default Re: Rules on Agents passing out report to 4th parties

    Think of it this way: An architect draws plans for a house, someone uses those plans and builds a house (or does not build it, that aspect does not really matter); however, someone else "borrows" the plans and builds that same house (presuming the building department would issue a permit based on those drawings).

    Question: Do you not consider the above "theft of services" by the architect?

    The issue is not "the physical plans" but the time, effort, and knowledge the architect provided for the drawing of those plans (those are the "services", the "plan" is not, the plan is a result of those "services").

    Presuming that you will answer 'Yes, that would be theft of services.' to the above question (like most, if not all states would answer that question), then explain the difference between the architect's "services" in producing those plans and the home inspectors "services" in producing the report.

    In the case with the architect the plan would be considered to have been "stolen" and used without permission or compensation, the same would apply to the home inspectors report having been "stolen" and used without permission or compensation.

    The architect's and home inspector's main concern is likely the liability the "theft" creates for them, the concern for that liability is not the main issue regarding the law (probably even a non-issue regarding the law), the "theft of services" is the main issue regarding the law.

    Now, one could, if they elected to, include a 'license' with each report which would allow one to use the report, and each use of the report would generate a fee which would then be owed to the seller of that 'license'. In this case, each unauthorized reproduction and distribution of the report would be a "theft", not unlike what got Napster and its users in trouble back then.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  14. #79
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    Default Re: Rules on Agents passing out report to 4th parties

    Theft of services for using a home inspector report compiled for someone else? Does anyone really think the law enforcement community has nothing better to do then chase someone who used a second hand report?

    As to the Architect and his plans being used by others, that in my view is so far out of the realm as a cost comparison, of which the architect has financially more to lose than a home inspector and his report. Trivial perhaps, but the question remains how many are prosecuted for theft of a report? I suspect not many.

    What would it cost to persue theft of service in relation to the cost of the inspection. Seems foolish to spend energies trying to seek resolve.


    Happy New Year.


  15. #80
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Raymond Wand View Post
    but the question remains how many are prosecuted for theft of a report?
    Ahh, but that is not the question. The question in law has nothing to do with how many are prosecuted for something, only that something is, or is not, permitted/allowed/forbidden by law.

    Whether or not the law is ever enforced is not the question, but whether or not the law is enforceable (a law can be enforceable while never being enforced).

    The Oregon law is written that it is, indeed, enforceable - will anyone *ever* enforce the law? Does not matter, that it is there allows it to be used as a 'big stick', having to use the 'big stick' is often not necessary, just hold it behind your back and let it show a little is most often all that is needed - as in the case in Oregon where the agent was told to back off and not do it again - they saw the 'big stick' and realized there was not enough benefit for them to risk challenging it if it were to be used.

    Laws are there for law abiding people - because they will follow the law and not do what they are not to do ... laws are also there for going after non-law abiding people in an effort to get them to comply with the law ... and laws are also there for those who insist on ignoring the law ... in which case they end up before a judge and are offered the chance to explain 'why they insist on ignoring the law'.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
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  16. #81
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    Default Re: Rules on Agents passing out report to 4th parties

    Jerry
    There a few of your issue I need to respond to and will try to do so, without replying by quotes as it takes up so much space.

    First - Theft of Services. Please re-read my #12 post, where I originally brought this issue up as a possible remedy - but not all States have that legislation and it, unlike Theft (definition of which is more general) would really need to be well crafted to include Inspection(s). It is extremely difficult to use one specific penal code to fit a unique set of circumstances. I seriously doubt there will be any legal Court interpretation in Oregon, which could be referred to here. Courts will only interpret issues brought before them. If the Prosecutors consider that 'sharing' an Inspection report is not a crime or worth pursuing, then such a case will not be brought before the court for adjudication. That's like trying to prove something does not exist.

    As I requested in an earlier post, ...if you consider 'sharing' an Inspection Report a Theft crime, then seek the opinion of your local Prosecutor's Office. Or, being that you are a Litigation Consultant, speak with any Criminal Attorney you may be on terms with, for their opinion. I'd like to read it.

    As for the 'Theft of Services' in Oregon. There is no loss. No one is the victim. The HI provided a service for which he was compensated. Oregon Law (OAR 212-008 - 0202(2) doesn't even prohibit the use the report in furtherance of a transaction it simply states the information can not be relied upon, so, to all intents and purposes, the Inspection and subsequent report has no (or at the most - limited) value. Now if the transaction moves forward with another buyer, then they (buyer) may be foolhardy but impossible to prove they used the report (or the services of the Inspector) or that they intended to avoid payment. There is NO crime of being 'foolhardy'. Under those circumstances, the original HI would have to be paid twice for performing just the one inspection at one time. The report can not be used at another property. The Inspector/Report author can not establish any harm as the Regulations state it can not be relied upon by another beyond the inspection date. ( 'Matter of Law' )


    Your 'Architect' scenario is not relevant. The Architect's services resulted in a 'Plan' which has value because it can be used again and again (unlike the Inspection Report). Any actual 'theft' of that plan would satisfy the Theft definitions - but it would be Theft of Plans and not Theft of his Services, which resulted in the Plans being drawn. His services are included to establish the plan value and can not be separated. Just as if you made a birdhouse - the cost of which includes the labor to make it, as does the Inspection and Report. If the birdhouse were stolen, the crime would not be theft of the labor to make it. The Inspectors labor can not be separated. The Inspection has intrinsic value only to the original client, with whom he has a fiduciary relationship to provide the report. The Architect has the same relationship but the plans, also have additional value because they can be used elsewhere.

    As yet, I have not read anyone else in support of your opinion - you are alone, my friend, and sinking...


  17. #82
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Jerry Peck View Post
    Think of it this way: An architect draws plans for a house, someone uses those plans and builds a house (or does not build it, that aspect does not really matter); however, someone else "borrows" the plans and builds that same house (presuming the building department would issue a permit based on those drawings).

    Question: Do you not consider the above "theft of services" by the architect?
    No, not at all. The services were rendered, and I can guarantee you that the architect got paid for his services. When I had my house plans drawn up (twice, now; in two different states), the architect got a significant fee up front. Upon delivery of the completed drawings, s/he got the remainder of the fee.

    Such was done all the time in Texas while I was growing up, and probably still is. Probably done here, too, especially in rural areas.

    Quote Originally Posted by Jerry Peck View Post
    The issue is not "the physical plans" but the time, effort, and knowledge the architect provided for the drawing of those plans (those are the "services", the "plan" is not, the plan is a result of those "services").

    Presuming that you will answer 'Yes, that would be theft of services.' to the above question (like most, if not all states would answer that question), then explain the difference between the architect's "services" in producing those plans and the home inspectors "services" in producing the report.
    Finally, you're beginning to see. Same with home inspectors and home inspections. The time, effort, and knowledge are the services, not the home inspection report itself. Provided that the home inspector got paid by the original Client, then services were rendered and paid for.


  18. #83
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Ian Page View Post
    Your 'Architect' scenario is not relevant. The Architect's services resulted in a 'Plan' which has value because it can be used again and again (unlike the Inspection Report).
    Not without their permission, and architects who design custom homes design ONE home for ONE SPECIFIC client, no reuse of the plan.

    You are also incorrect on all of your other points.

    The architect and home inspector, along with the plans and report, are essentially the same, and the theft if of the services.

    I am still waiting for you to provide a court case from Oregon which states differently, until then the Oregon laws are quite clear to the clear headed among us.

    Jerry Peck, Construction / Litigation Consultant
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    Default Re: Rules on Agents passing out report to 4th parties

    I've been sitting by for the last 83 post watching what ya'll have to say and taking it all in. when the post get personnel and take on the air of attacks I typically stay out of it just because, as my daughter says, I don't care to deal with all the drama, and some of you are down right drama kings or queens and seem to treat others opinions as ammo for you to use to fire back. That aspect of this forum probably keeps a lot of folks from participating and hence this forum loses what it was originally set up to do and that is an exchange of opinions ideas, etc. That can be done without the personal attacks and innuendos etc. Since some of you seem to feed off that I guess it will never change. That's one reason why I tend to turn it off and don't come around more often. But this forum keeps blowing up my phone so I am stuck with it. I am sure that after my post I'll get attacked. I'll have to say that I ( gulp) agree with a lot of what Jerry has to say. So he is not alone. Coming from the construction world and having to deal with architects I can tell you that they would feel the same way as Jerry and I do about theft of their service. One drawing, one building, one customer. Same as my report. I provide a written report because 1. My state requires it, 2. it makes it easy for my customer to remember problems , & 3 it creates a record for them to refer to, FOR THEM, my ORIGINAL client. Simply because it has been paid for once does not mean that it should not be paid for again if someone else uses it for THIER benefit, ie used cars, used houses, used equipment, whatever. If I don't want someone to have or see my report, since I wrote it I should have control over it. The service that has been paid for is my information gathering and communication to my client. It's not a book to be given away. I don't give that ability to anyone. That is my agreement with my client. I do allow them to share it with anyone involved in THIS transaction and this one only. After that, if I could recall it or create a self destruct report I would. Since my report is electronic I do expire the report after a period of time like when I am aware the deal has fallen through. Of course a printed copy is out there and could be passed around and should not be but it happens. Am I going to prosecute someone, nope not worth the money but it would be worth my time. I would like the idea as Jerry says of having a stick out there that could be brandished to help prevent some of this from occurring. I can't for the life of me understand why most of you seem to want to create your repot and then give a license to anyone to give it away at their whim as opposed to you being compensated for it. I understand the advertising part but to me the liability out weighs the advertising benefit. But that is how I view my hard work and it is hard work. Crawling around in attics and crawlspaces is tough and dangerous and unhealthy. I don't feel like just getting paid once and then giving ,my report away from that point forward. Heck I didn't get paid enough for it the first time, but that's our fault for working cheap. Anyway thats how I view my time away from family otherwise known as work. I know that most of you view yours differently and that's OK with me. I'll still work in the industry because I enjoy helping folks when I am the only one on their side. Have a Happy New Year. Let the personal attacks begin.


  20. #85
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    Default Re: Rules on Agents passing out report to 4th parties

    A good exercise might be to try to get someone arrested for stealing a report next time someone uses a report you did for someone else. My guess is you will find it very difficult to get anyone in law enforcement, or the court system to take an interest.


  21. #86
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Jack Feldmann View Post
    A good exercise might be to try to get someone arrested for stealing a report next time someone uses a report you did for someone else. My guess is you will find it very difficult to get anyone in law enforcement, or the court system to take an interest.
    Jack
    Not only would there be a lack of interest, the allegation of report 'stealing' doesn't even come close to satisfying the legal requirements to establish a Theft occurred. It's a non-issue. But, like you, I truly hope someone will try and then post there experience here. For the record, I'm going to say it now..."I told you so..."


  22. #87
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Jerry Peck View Post
    Not without their permission, and architects who design custom homes design ONE home for ONE SPECIFIC client, no reuse of the plan.

    You are also incorrect on all of your other points.

    The architect and home inspector, along with the plans and report, are essentially the same, and the theft if of the services.

    I am still waiting for you to provide a court case from Oregon which states differently, until then the Oregon laws are quite clear to the clear headed among us.
    The 'Architect' issue is explained in my previous post. Yes, the Plans could be stolen because they have value beyond the property for which they were created. The ' thief ' could re-sell the plans and a property could be built, using the plans, without the Architect's knowledge or permission. Not so with a Home Inspection. Try selling an old Inspection report for one property to the purchasers of a different home. See how much business that creates. The Architect or his client (who may have control over them) would be the victim and a Theft report could be filed. It would not be a Theft of his Services in creating the plan but a straight forward 'Theft' of the plans, with an attached value (in many States) to determine whether misdemeanor or felony. Otherwise by your rationale - no matter what physical item was stolen the Prosecution would charge the non-existent, 'Theft of the labor' in creating it, not the theft of the item itself.
    As a typical, and often referred example - Theft of Services is usually applied to 'bilking' a cab driver of the fare. It's the theft of the intangible. Significantly different to the 'Architect' example where there is a tangible asset (plans).

    As previously explained, it's extremely unlikely that any court case is available for review, in any State, as Theft charges are not satisfied, can not be filed and, therefor, not subject to Judicial Review. What would be available, however, is for you to seek the opinion of a Prosecutor. Though I doubt that will be forthcoming also.


    On another point, let's say for discussion purposes, a Third Party is handed a month old report and later negotiated purchase of the property to which the report applied. No additional Inspection was conducted. HOW can it be PROVEN that reading the report affected their decision and that the property was purchased, amongst other things, on the content of the report? What if the decision to purchase had already been made, prior to reading the report or the purchaser wasn't even aware of the reports existence until much later during escrow. So how is the Inspector harmed under those circumstances? Is the Inspector entitled to 'double-dip' because a Third Party read the report which highlighted some safety concerns. What if the report comes to light, AFTER the property is purchased, is the HI still looking for compensation ( or hoping to prosecute someone) or is compensation expected only BEFORE negotiations to purchase? Really!

    Being clear-headed has little to do with understanding principles of law, court procedure, definition(s) of Theft (and other crimes) and how all that is applied or interpreted to fit specific circumstances. It's the 'Rule of Law', not the 'Rule of Clear-headedness'. Not often the same and definitely not an area determined out of naivete and in-experience.

    Jerry, at least I explain, with reason why your belief's and legal understanding is incorrect. I don't just state you are wrong (even though you are).

    Last edited by Ian Page; 12-30-2013 at 10:15 AM.

  23. #88
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    Default Re: Rules on Agents passing out report to 4th parties

    The way I see it - inspectors no longer own their work as the inspection has been paid for by the original client. The client owns the rights once the inspector has been paid. He can do with it what he/she wishes.

    http://www.copyright.gov/circs/circ09.pdf

    Work Made for Hire: What It Really Means

    As to theft of services and contrary views, the fact remains its not a theft of service for the reasons Ian has pointed out. Further law enforcement will likely not become involved as it is considered a civil matter, not a criminal matter based on what Ian has pointed out which is the original owner has paid for the report. Subsequent use by others not privy to the contract have not stolen services, if anything its could be a copy right issue, which is a civil matter.


  24. #89
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Ian Page View Post
    Jerry, at least I explain, with reason why your belief's and legal understanding is incorrect. I don't just state you are wrong (even though you are).
    Ian,

    I too have explained why you are wrong (and you are), but to no avail, so I left it with 'show me' ... as in 'show me the court case which states you are not wrong' ... and I have not seen that posted either.

    I am still waiting on that evidence which contradicts Oregon statute and show you are correct.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  25. #90
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Jerry Peck View Post
    Ian,

    I too have explained why you are wrong (and you are), but to no avail, so I left it with 'show me' ... as in 'show me the court case which states you are not wrong' ... and I have not seen that posted either.

    I am still waiting on that evidence which contradicts Oregon statute and show you are correct.
    Jerry
    You are asking for something, which in all probability does not exist, no more than anyone can PROVE aliens do not exist and I think you know that in a failed attempt to win an argument. Sad, very sad. It is non-existent for the very reason why your argument fails. Just because there is no Court ruling on the issue, does not mean your reasoning is supported - quite the contrary. Show me a Court case, any court, any case in any State - I'll even go as far as to include Canada, which substantiates YOUR position. That too does not exist. But...in all fairness, if you will briefly re-state your issues where you discount my interpretation(s) in favor of your own, (several have been covered) I will do a little research. Obviously no one case would offer remedies to all that has been covered.

    Oh, BTW, a much easier task, did you contact your Prosecutor's Office yet? Just asking......"No".... Didn't think so....Probably didn't want to hear their response (or laughter).


  26. #91
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Ian Page View Post
    Jerry
    You are asking for something, which in all probability does not exist, ...
    Then I will wait until you do provide evidence to support your theory.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  27. #92
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Jerry Peck View Post
    Then I will wait until you do provide evidence to support your theory.
    Hey Jerry
    Do you need a flashlight for that corner you backed yourself into, while you are waiting?


  28. #93
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Jerry Peck View Post
    Ian,

    I too have explained why you are wrong (and you are), but to no avail, so I left it with 'show me' ... as in 'show me the court case which states you are not wrong' ... and I have not seen that posted either.

    I am still waiting on that evidence which contradicts Oregon statute and show you are correct.
    Sorry Jerry. I think you are the one that is wrong in this case. To prove your point, can you show evidence on a court case where a home inspector sued someone (and won) for "stealing" a report?


  29. #94
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    Default Re: Rules on Agents passing out report to 4th parties

    For the love of Pete, how many times must one point out a report carried out for and paid for by the purchaser and if its subsequently passed on with or without permission is not theft of services from the inspector?

    The links I provided prove my point and theft of services is moot, given its a 'work for hire'.

    I have yet to see anyone prove their points with hard documentation as I provided, rather then repeated hyperbole based on ones own opinion.

    Talk about going in circles.

    BTW, Happy New Year!


  30. #95
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Raymond Wand View Post
    The way I see it - inspectors no longer own their work as the inspection has been paid for by the original client. The client owns the rights once the inspector has been paid. He can do with it what he/she wishes.

    http://www.copyright.gov/circs/circ09.pdf

    Work Made for Hire: What It Really Means
    I've read the articles you provided links to.
    Everything in the articles indicate that:
    A home inspector is not an employee of the client
    The inspection and or report is not the result of a Work Made For Hire
    Given those two, the report is not property of the client under work made for hire rules.
    If you understand it differently, perhaps you can explain it to me.

    ' correct a wise man and you gain a friend... correct a fool and he'll bloody your nose'.

  31. #96
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Ian Page View Post
    Hey Jerry
    Do you need a flashlight for that corner you backed yourself into, while you are waiting?
    Ian,

    As bright as daylight in the middle of the room where I am, you must be facing into the corner and that may be why you do not see me.

    Quote Originally Posted by Jack Feldmann View Post
    Sorry Jerry. I think you are the one that is wrong in this case. To prove your point, can you show evidence on a court case where a home inspector sued someone (and won) for "stealing" a report?
    I will be doing that when I can, I figured that if I put that one Ian I would also try and provide that too - the Oregon statutes are clear on what I am saying, CA is not, not sure about other places, so I will attempt to find something related to the Oregon statute as that is clear on it. I will be seeing what I can find.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  32. #97
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    Default Re: Rules on Agents passing out report to 4th parties

    Rick

    The links I provided prove my point and theft of services is moot, given its a 'work for hire'.
    Yes you are right, and thanks for correcting me. I should have stated 'not work for hire'.

    However I had a US Supreme Court Appeal finding expounding on this issue with regard to 'work for hire' and 'employee or employer' factoring into the equation of work for hire, and I cannot find the article. Will try and find it again to see if it clarifies the issue further as to definitions 'work for hire'.

    Happy New Year.


  33. #98
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    Default Re: Rules on Agents passing out report to 4th parties

    When an agent gives a copy of your report to someone other than your client, you should consider it a blessing: What happens when your inspection report gets recycled? - InterNACHI Inspection Forum

    Last edited by Lisa Endza; 12-31-2013 at 10:07 AM.
    Lisa Endza
    Director of Communication
    InterNACHI

  34. #99
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    Default Re: Rules on Agents passing out report to 4th parties

    Sorry could not read the last post. Too many beers at dinner, and lost interest a while ago.
    However, Happy New Year Everyone!
    I hope that 2014 is better than 2013, and everyone makes money and does well.


  35. #100
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Lisa Endza View Post
    When an agent gives a copy of your report to someone other than your client, you should consider it a blessing: What happens when your inspection report gets recycled? - InterNACHI Inspection Forum
    This is such a coincidence but I just a work order from someone who saw one of my reports in the realtor's office, while they were discussing making an offer on a totally different property. I'm happy to use any report I complete as 'free' advertising. Never had any complaint from the original client yet but I usually redact any confidential information.


  36. #101

    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Jack Feldmann View Post
    A good exercise might be to try to get someone arrested for stealing a report next time someone uses a report you did for someone else. My guess is you will find it very difficult to get anyone in law enforcement, or the court system to take an interest.

    You are right Jack. The home inspection report police doesn't exist.

    Update on what Oregon says.......

    I spoke with the Construction Contractor's Board legal counsel this morning and she said that a Realtor passing out old inspection reports without the original buyer's consent is against Oregon law and is theft of intellectual property. She then gave me the phone number to the Oregon State Realtor licensing board for their take.

    The legal person there said that is was an ethics violation but she didn't know of any broken licensing law committed and that I should contact the local Board of Realtors Association.

    The Board of Realtors legal person said that this is a clear violation of ethics and that the Realtor has opened himself up to a fine and/or suspension of his membership. Which means that he can keep his license but cannot call himself a Realtor or advertise himself as one and the Realtor can be sued in civil court for theft.

    Looks like Jerry was right.


  37. #102
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    Default Re: Rules on Agents passing out report to 4th parties

    Quote Originally Posted by Jeff C. View Post
    You are right Jack. The home inspection report police doesn't exist.

    Update on what Oregon says.......

    I spoke with the Construction Contractor's Board legal counsel this morning and she said that a Realtor passing out old inspection reports without the original buyer's consent is against Oregon law and is theft of intellectual property. She then gave me the phone number to the Oregon State Realtor licensing board for their take.

    The legal person there said that is was an ethics violation but she didn't know of any broken licensing law committed and that I should contact the local Board of Realtors Association.

    The Board of Realtors legal person said that this is a clear violation of ethics and that the Realtor has opened himself up to a fine and/or suspension of his membership. Which means that he can keep his license but cannot call himself a Realtor or advertise himself as one and the Realtor can be sued in civil court for theft.

    Looks like Jerry was right.
    I know this is an old thread but I just came across the last post and had to respond...
    Jeff...You clearly do not have an understanding of law. Basically in the U.S. There are two kinds, Civil and Criminal.

    Theft is a criminal offense and handled in the criminal court system by Law Enforcement officers and Prosecutors. They choose whether to file a criminal complaint or not based on violation of statute - specific laws enacted to protect the public at large.

    A realtor can not be sued in civil court for theft. They can be sued for their actions or omissions by plaintiffs whereby a theft was alleged or included in the circumstances. The totality of their actions would be incorporated into the affidavit. Civil courts can not impose sentences (think jail/prison/probation/fines) they award Judgements for or against which are monetary awards only.

    Consider homicide...a suspect could be charged with murder in Criminal court, found guilty and get prison time but in Civil court, for the same action would be sued by the family of the victim for 'wrongful death' and have a monetary judgement awarded to the family.

    Your assertion that "...Jerry was right". Is, in fact wrong. In previous posts Jerry concluded that the use of the report was theft and multiple uses would elevate the theft to that of a felony - a more serious criminal charge - but simply untrue.

    Seems to me that the person who gave you the information at the Board of Realtors did not understand the appropriate avenues of legal procedure either - "...can be sued...(civil process) ...for theft (criminal process)". Each process very different, handled differently in different legal systems by totally different legal professionals in different courts.


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