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  1. #1
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    Default What woul YOU do....?

    Arrangements were made for an Inspection through a realtor. I sent a copy of the contract to the buyer who said they would bring the signed copy (all via email) to the inspection. At the appointed time, only the buyers realtor shows up and calls the buyer to see where they are. The buyer promptly declines the inspection against the realtors advice electing to waive an inspection. The realtor still wants the inspection on behalf of the buyer (who is a friend) and offers to pay for the inspection. The property is vacant and sellers realtor on their way.

    Tools in hand, ladder against the roof, camera at the ready? What would you do, having completed several previous inspections for the realtor and who is a good source of referrals?

    Inspection Referral

  2. #2
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    Default Re: What woul YOU do....?

    I would do the inspection. If the agent is paying on behalf of the client and everyone is in agreement (fully disclosed) then its okay in my eyes.


  3. #3
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    Default Re: What woul YOU do....?

    I would hand the realtor a new contract that had their name on it. Get it signed, and proceed with inspection.


  4. #4
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Ian Page View Post
    Arrangements were made for an Inspection through a realtor. I sent a copy of the contract to the buyer who said they would bring the signed copy (all via email) to the inspection. At the appointed time, only the buyers realtor shows up and calls the buyer to see where they are. The buyer promptly declines the inspection against the realtors advice electing to waive an inspection. The realtor still wants the inspection on behalf of the buyer (who is a friend) and offers to pay for the inspection. The property is vacant and sellers realtor on their way.

    Tools in hand, ladder against the roof, camera at the ready? What would you do, having completed several previous inspections for the realtor and who is a good source of referrals?
    I would do the inspection. Ian, what did YOU do?

    Department of Redundancy Department
    http://www.FullCircleInspect.com/

  5. #5
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Jack Feldmann View Post
    I would hand the realtor a new contract that had their name on it. Get it signed, and proceed with inspection.
    Same here...


  6. #6
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Ian Page View Post
    Arrangements were made for an Inspection through a realtor. I sent a copy of the contract to the buyer who said they would bring the signed copy (all via email) to the inspection. At the appointed time, only the buyers realtor shows up and calls the buyer to see where they are. The buyer promptly declines the inspection against the realtors advice electing to waive an inspection. The realtor still wants the inspection on behalf of the buyer (who is a friend) and offers to pay for the inspection. The property is vacant and sellers realtor on their way.

    Tools in hand, ladder against the roof, camera at the ready? What would you do, having completed several previous inspections for the realtor and who is a good source of referrals?
    Ian, I do not know if this will help you but I have been in your shoes on several occasions.
    Now I send the (PIA) agreement ahead of time so the client can read the agreement and have time to get advice if they do not understand the terms.
    Once they accept the PIA the booking date is theirs and not before.

    There must be a meeting of the minds to fulfil a contract. Your client expressed his will by forgoing the inspection.

    That being said.
    If you email your clients the PIA they can email back saying they accept the terms within a prescribed time.
    I am pretty sure that would stand up in a court of law.

    The reason I follow my booking procedures, a president was set in B.C. Canada.
    The client should be given the PIA 72 hours prior the inspection date so they can have the agreement explained to them by a professional, a lawyer or notary.

    My PIA expresses cancellations must be done within a given time frame, (24) hours or the client will incur the full cost of the inspection. That they will receive the report within 24 to 48 hours as well.
    I have had cancellations and booked someone else in that spot, or I am happy I have a day to catch up on chores, education or sleep:-)

    Ian, if the inspection is to continue, the PIA should be modified to reflect whom the inspection is for, why it was modified, all parties agreeing in writing, lastly whom will pay.
    If you do the inspection in good-faith, at least one dollar $1.00 should be charged.

    Tread lightly when in situations like that.
    I would personally wait for the client explaining to everyone there to have patients.
    Go get some coffees and doughnuts, tell stories and be social.
    Exchanging ideas.
    I am sure they would all understand.
    I have meet some real professionals, charming and handsome REA of the opposite gender and laughed with some like-minded professionals.

    If the client still insists he wishes to forgo the inspection after his/her arrival I have turned around and chalked it up to experience.

    Ian, best of luck with your endeavours.
    Tell us how it turned out.

    Last edited by ROBERT YOUNG; 02-25-2016 at 02:31 PM. Reason: Edit my attempt a speech recognition
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  7. #7
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    Default Re: What woul YOU do....?

    You just have a new customer. Mod contract to have agents name, they sign, they pay, do the inspection.

    Do not care who is actually buying the house Our job is to do inspections. You got a paying customer in front of you offering money. Do the inspection, send the report to the agent.

    "The Code is not a peak to reach but a foundation to build from."

  8. #8
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Jack Feldmann View Post
    I would hand the realtor a new contract that had their name on it. Get it signed, and proceed with inspection.
    This ^^^

    "It takes a big man to cry. It takes an even bigger man to laugh at that man". - Jack Handey

  9. #9
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    Default Re: What woul YOU do....?

    For those of you who are ASHI members.

    Standard and Code of Ethics Interpretations:

    Question

    A real estate agent recently paid a fee for an inspection I performed. This was apparently a service she was providing for her clients. The buyers were not paying for the inspection. Is this a conflict of interest under 1.B, or 1.D of the Code? At the time of the inspection I had no idea who was actually paying until I asked for the payment.

    Response

    The committee finds no violation of the Code of Ethics. There is no evidence that payment is contingent upon specific inspection findings per 1.B of the Code, nor is there evidence that payment was being made by the real estate agent without agreement between the parties per 1.D of the Code. However, the inspector has specific responsibilities to his or her client, especially with regard to disclosure of inspection results per 2.C. This requires clear understanding and agreement as to which party is the client.


  10. #10
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    Default Re: What woul YOU do....?

    Raymond, this has happened several times to me over the years.
    All service representatives involved understand. The PIA is not modified.
    The purchaser holds all the cards.
    My PIA is delivered to the purchaser.
    I am paid by cheque to insure transparency.
    A transparent arrangement.

    In this case the circumstances are differant.
    The client made the offer and the offer was accepted.
    The original client wishes to forgo the inspection.

    No one knows why yet the service providers are will to modify a contractual agreement between the vendor and the purchaser.

    All parties were not informed that the agent, either or, will be paying for the inspection.

    Questions. 1: What if the purchaser still refuses?
    He is allowed refusal of the inspection because his/her offer was accepted.
    Not the agents.
    2: What if litigation arises due to the inspector missed a defect.
    3: What if complications ensue during the inspection phase due to client/agent misunderstandings or inconsistency in what is understood?

    IMO; No one has had a measured/prescribed time to read the PIA and insure everyone understands what is taking place to protect all involved.
    The client's are being thrust into an prearranged on the spot agreement that could have been offered before hand.
    IMO it looks like it can be conceived as a mala fide arragemnt/contract.

    Last edited by ROBERT YOUNG; 02-25-2016 at 02:11 PM. Reason: Editing the post
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  11. #11
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    Default Re: What woul YOU do....?

    Quote Originally Posted by ROBERT YOUNG View Post
    Raymond, this has happened several times to me over the years.
    All service representatives involved understand. The PIA is not modified.
    The purchaser holds all the cards.
    My PIA is delivered to the purchaser.
    I am paid by cheque to insure transparency.
    A transparent arrangement.
    As it should be. And yes the purchaser has all the cards, I don't think it should be any other way, after all the recognized standard is caveat emptor absent of fraud or misrepresentation by vendor.

    In this case the circumstances are differant.
    The client made the offer and the offer was accepted.
    The original client wishes to forgo the inspection.
    If the client refused the inspection that's his perogative, maybe he did not have the funds to pay for the inspection and was accepting advice from everyone. Its not uncommon for purchasers to get cold feet. So the agent/friend gives them the gift of an inspection. Nothing wrong with that. The report is for their sole benefit report made out to them, they have the luxury of going in eyes open and welcomed to do so by the vendor. The agent is looking out after them. What purpose would it serve the agent/friend to think any significant findings by the inspection - she so graciously provided - would be used against her? What benefit is the report to the agent? She is not buying the house.

    No one knows why yet the service providers are will to modify a contractual agreement between the vendor and the purchaser.
    That is an option, but they did not exercise that right to modify the inspection contract. I don't know of any inspectors personally but have heard anecdotal stories where inspectors have declined to do the inspection if the client wants changes to the contract. Others may have stories to tell on that subject.

    All parties were not informed that the agent, either or, will be paying for the inspection.
    Absolutely - fully disclosed.

    Questions. 1: What if the purchaser still refuses?
    He is allowed refusal of the inspection because his/her offer was accepted.
    Not the agents.
    2: What if litigation arises due to the inspector missed a defect.
    3: What if complications ensue during the inspection phase due to client/agent misunderstandings or inconsistency in what is understood?
    1. I am not going to guess what the purchaser might do if he refuses. See #2 below.
    2. Again I can't speculate what they may decide among themselves, its theoretical as to how events could unfold. But if the inspector missed a defect for whatever reason and the purchaser comes back to the inspector having found a patent defect or latent defect; well we could go on forever ... ,but again, (and I am not trying to be smart here) ... who cares whether the agent paid the report? Once again it is for the sole discretion, use, to do as he sees fit with. Again regardless of the agent paying for it.
    3. Read #2 above.

    Now as an ASHI member had the same scenario played out with me I would have not breached any ethical holdings, according to a panel of my peers.

    What would a Nachi/CMI member be beholden too in the same circumstances?

    IMO; No one has had a measured/prescribed time to read the PIA and insure everyone understands what is taking place to protect all involved.
    The client's are being thrust into an prearranged on the spot agreement that could have been offered before hand.
    IMO it looks like it can be conceived as a mala fide arragemnt/contract.
    Can't understand why someone accepting an inspection paid for someone else on the spur of the moment, with no ill intention/deceive, warrant or need for exclusive use of the report is again beyond my comprehension, at the moment, anyway.

    (: a mala fide abuse of position. in bad faith; with intent to deceive: [ as adj. ] : a mala fide abuse of position.

    Cheers,


  12. #12
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Gunnar Alquist View Post
    I would do the inspection. Ian, what did YOU do?

    I walked...went to Starbucks and did office work.

    And here is my reasoning. To me, anyway, these are muddy waters, which I want no part of. I'm not saying that completing the inspection, as normal, would have been wrong - as some would have done. For me, I need a clear understanding, defined objective and no mis-interpretation regarding the parties to a contract. The buyer waived for some reason, which, at the time, I was not privy to.

    Even with a newly signed contract with the agent - which they would have willingly signed, the fiduciary interests were not clear. There were just too many 'what if's' to be resolved with one foot on the ladder.

    Any contract to purchase is between the buyer and the seller with the realtors facilitating the transaction...and that's all. When the seller agrees to the Inspection, as part of negotiations, they are doing so as a requisite from the buyer - not the agent. As I said, all a little too murky for $400.

    I agreed to return, if the buyer changed their mind, or obviously if another buyer came on the scene. Both agents clearly understood the predicament, though disagreed somewhat with me...that's okay but they certainly respected my (IMO) ethical stance.
    Update:
    Strangely, while typing...got the call to reschedule with my inspection contract being emailed. And so it goes..... Maybe I'll learn more on Sunday.

    Robert, based on your post(s) I think you would have done the same.


  13. #13
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Ian Page View Post
    I walked...went to Starbucks and did office work.

    And here is my reasoning. To me, anyway, these are muddy waters, which I want no part of. I'm not saying that completing the inspection, as normal, would have been wrong - as some would have done. For me, I need a clear understanding, defined objective and no mis-interpretation regarding the parties to a contract. The buyer waived for some reason, which, at the time, I was not privy to.

    Even with a newly signed contract with the agent - which they would have willingly signed, the fiduciary interests were not clear. There were just too many 'what if's' to be resolved with one foot on the ladder.

    Any contract to purchase is between the buyer and the seller with the realtors facilitating the transaction...and that's all. When the seller agrees to the Inspection, as part of negotiations, they are doing so as a requisite from the buyer - not the agent. As I said, all a little too murky for $400.

    I agreed to return, if the buyer changed their mind, or obviously if another buyer came on the scene. Both agents clearly understood the predicament, though disagreed somewhat with me...that's okay but they certainly respected my (IMO) ethical stance.
    Update:
    Strangely, while typing...got the call to reschedule with my inspection contract being emailed. And so it goes..... Maybe I'll learn more on Sunday.

    Robert, based on your post(s) I think you would have done the same.
    Ian, thank you.
    Yes you are correct, but you explained the situation like the classic professional you are.

    I was also going to post that they will likely reschedule the inspection.
    Happy everything worked out and thank you for keeping everyone posted.

    Regards.

    Robert Young's Montreal Home Inspection Services Inc.
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  14. #14
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    Default Re: What woul YOU do....?

    I disagree with Ian ... if he had done as several have said and rewrote the contract for services (that is what you use, regardless of what else you may call it) so that the client (the person ordering your services and the person you are performing your services for) was the agent - the contract is between you and the agent, your inspection is for that client (who happens to be an agent ... you've never done an inspection for an agent before? Someone needs to do inspections for agents - what if they called you to doan Iinspection on a house their son/daughter/mom was buying? ) ... your inspection SHOULD be the same.

    What if the agent wanted the inspection to help protect THEIR liability from their friend who was buying the house?

    I cannot think of one reason your liability would be any greater than walking away and NOT doing the inspection as Ian did.

    Yes, it is a choice, I just don't see the logic in not doing the inspection. And, yes, I can see some potential liability for not doing the inspection.

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

  15. #15
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    Default Re: What woul YOU do....?

    Jerry, everyone at the inspection is liable for their actions.
    So does conspiring to rearrange a contract have merit?

    The contract struct between the vendor and purchaser. The realtors only facilitate the translation. The home inspector hired to facilitate the terms of the contract.

    When does a agent become a permissible party to rewriting the terms and conditions of the contract?
    If the vendor knew the purchaser would wave the inspection we would likely not be having this conversation, but he did not.

    A contract was struct after the offer was accepted, and I suspect for less than the asking price, between vendor and the purchaser, too which I can reasonably predict had a contingency agreement addressing and means of OUT, as well as an means to address negotiations upon the inspectors findings. either or, the home inspection was part of the terms in the contract I predict.
    If a condition requires amendment, it first must pass in-front of the vendor.

    If the vendor knew the purchaser was going to wave the inspection I bet other terms and conditions would have been apart of the original contract.

    In effect, the purchaser rearranged the contract without the vendors knowledge.
    In essence, he/she blocked the sale of the home to which there can be extenuating legal circumstances.

    I know Ian reflected on the situation as I would, by occupying my time on my surface pro 2 doing office work to feel more at ease and think it all through.

    Now I am not an educated man like the rest of you here but I agree with Ian's decision, its a question of ethics and common sense.

    Last edited by ROBERT YOUNG; 02-25-2016 at 06:34 PM.
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  16. #16
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Jerry Peck View Post
    I disagree with Ian ... if he had done as several have said and rewrote the contract for services (that is what you use, regardless of what else you may call it) so that the client (the person ordering your services and the person you are performing your services for) was the agent - the contract is between you and the agent, your inspection is for that client (who happens to be an agent ... you've never done an inspection for an agent before? Someone needs to do inspections for agents - what if they called you to doan Iinspection on a house their son/daughter/mom was buying? ) ... your inspection SHOULD be the same.

    What if the agent wanted the inspection to help protect THEIR liability from their friend who was buying the house?

    I cannot think of one reason your liability would be any greater than walking away and NOT doing the inspection as Ian did.

    Yes, it is a choice, I just don't see the logic in not doing the inspection. And, yes, I can see some potential liability for not doing the inspection.
    Jerry,
    i knew you would take a contrarian view and actually hesitated to post my decision knowing you would jump in right after. If I'd have said I did the inspection with an agent signed contract, somehow you would have found something to disagree on...that's your past, and I expect, continued practice. But...makes for an interesting debate and education for some.

    I look at it this way...Completing the inspection, even with a new contract, has downsides with some, no matter how small, potential liability. There is no way to see what might evolve between both parties et al. over the course of negotiations. Performing the inspection could have, in some way, embroiled me in legal action. I don't know, may have. But that's a big 'may' in my book.
    Declining the inspection removes any liability whatsoever, as far as I can see. I can not be held liable in any way, shape or form for declining to enter into a contract or performance without one in effect.

    In effect the inspection just took a breather with nothing to be gained by acting impulsively with monetary reward as a carrot.


  17. #17
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    Default Re: What woul YOU do....?

    Quote Originally Posted by ROBERT YOUNG View Post
    Jerry, everyone at the inspection is liable for their actions.
    So does conspiring to rearrange a contract have merit?

    The contract struct between the vendor and purchaser. The realtors only facilitate the translation. The home inspector hired to facilitate the terms of the contract.

    When does a agent become a permissible party to rewriting the terms and conditions of the contract?
    Robert,

    Excuse me, but ... when was any inspection of yours or you a party to the contract between the buyer and the seller, or the contract between the buyer and the agent?

    -0- times, unless you are doing something the rest of us have not done ...

    That said ... are YOU saying that YOU have NEVER inspected a house for ANYONE except the BUYER?

    Really?

    You know this because you REVIEW each and every contract before agreeing to do the inspection, and again before actually doing the inspection?

    YOU ... SHOULD ... BE ... inspecting the house ... it does not matter if the seller hires you, or if the agent hires you, or if a relative hires you, or, heaven forbid - the buyer hires you: YOU have ONE client ... the person who hired you.

    Hopefully, you will do the same thorough job REGARDLESS WHO hires you.

    Consider this: The agent was a friend of the buyer, the agent is actually LOOKING OUT FOR the buyer (one of those rare ones) and the agent has a fiduciary responsibility to the buyer (THEIR client), and part of that responsibility may be considered as letting the buyer know of known defects ... what better way to know the defects than to have an inspection (in addition to a truthful seller disclosure)?

    Let's proceed another step further - the buyer cancels the inspection, the agent hires Ian to do the inspection, Ian, being a good inspector, finds something major wrong with the house ... do you think the agent would not want their friend, and their client, to know that?

    Take is a step in the other direction - the buyer cancels the inspection, the agent wants to hire Ian, Ian says no ... no inspection was done ... the buyer closes, moves in, and finds something major wrong which Ian would have found ... I don't know about you, but I see 'lawyer' written all over that, and I see Ian's name listed as a defendant ... along with the agent ... who convinces the judge that 'Yes, your Honor, I TRIED to get the inspection done, I even offered to PAY for the inspection, I DID ALL I COULD to try to get the inspection done.'

    Buyer's attorney asks Ian ' Would you have found this 'blah' item if you had done the inspection?'

    Ian either has to say 'no' that he would not have found what the inexperienced buyer found ... or ... say 'yes', he would have found it.

    Buyer's attorney asks Ian 'Didn't my client's agent ask you to do the inspection? Didn't my client's agent even offer to pay for the inspection? And you just said that if you had done the inspection that you would have found 'blah', and that would have saved my client from buying that money pit.'

    Realistic and likely? No.

    Far fetched? No.

    If that happens and Ian gets out without paying anything for 'not having done the inspection', Ian spent a tidy bundle on the case and lost all the time associated with the case.

    All when there was a willing client, and a house which was already scheduled to be inspected by Ian.

    I'm not picking on Ian, but he is the one who posted the question.

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

  18. #18
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Ian Page View Post
    Jerry,
    i knew you would take a contrarian view and actually hesitated to post my decision knowing you would jump in right after. If I'd have said I did the inspection with an agent signed contract, somehow you would have found something to disagree on...that's your past, and I expect, continued practice. But...makes for an interesting debate and education for some.
    I'm not the contrarian, I'm the one who sees things some others don't see (but others do see).

    If you had answered that you had done the inspection, I likely would not even have posted, or possibly given you a 'good' as that is what should have been done, and that is no just my thinking either.

    I guess Jack and the others are contrarians too? No, we are realists, and when that pick up truck runs over you (canceled inspection) there is nothing to stop you from noticing the bald tires and worn out universal joints as it goes over you ... the tag number as you roll over in pain ...

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

  19. #19
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    Default Re: What woul YOU do....?

    I think we can all agree, that the buyer is the client. Under these circumstances, someoneone in the process of a legal transaction but with whom I have no signed contract. He waived his right to have an inspection, which he is perfectly at liberty to do of his own valition, yet against the recommendations of his agent.

    Does the agent have any authority to usurp his clients wishes even though it may be, in his view, to the client's benefit ? I think not. The client made a sound of mind waiver for his own reasons and even with good intentions I don't think the agent can countermand that unless it was preventing a legal issue or clear violation.

    Furthermore, the seller, who was not present, may not have agreed to an inspection performed at the whim of a realtor, knowing that the buyer had waived, thereby removing a contingency to the contract. We don't know what their response would have been, they were not apprised.

    What if I had performed the inspection against the buyers wishes, the deal fell through and my actions (and those of the realtors) were blamed, wholly or in part. Just one of those open-ended 'what if's' and the can of worms I saw looming in my future.

    I made a business decision which appeared the safer of the options, with fewer issues, without incurring liability for anyone. Can't fault that - or can you?

    Last edited by Ian Page; 02-26-2016 at 02:27 AM.

  20. #20
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Jerry Peck View Post
    Robert, Excuse me, but ... when was any inspection of yours or you a party to the contract between the buyer and the seller, or the contract between the buyer and the agent?
    a. When the vendor stipulates, and I suspect verbally, for it would be interesting to see that chestnut roasted in a legal discussion in-front of a judge's open fire, added the term, "vendor chooses the inspector."
    It has happened on several occasions unless you where there telling me what I heard did not happen.
    Or, every time I work for a client within the contingency.
    I am privy to the condition of the home and all that attended including their actions as well as mine.
    jerry, if I misinterpreted the legal framework to which I work and can be held liable, than excuse me.

    But if you wish to represent that number -0- well then you know more than me I suppose, but I expressed that in a previous post.
    See, I am always open and love to learn.

    Quote Originally Posted by Jerry Peck View Post
    That said ... are YOU saying that YOU have NEVER inspected a house for ANYONE except the BUYER?
    I do not know how that question/statement merits this discussion but, yes and they accept my PIA or I do not work.

    Quote Originally Posted by Jerry Peck View Post
    I'm not picking on Ian, but he is the one who posted the question.
    Never said you were. You are exercising your right within this forum and open the discussion from an opposing view. Plus I am sure Ian can rebuff many of you points.

    Last edited by ROBERT YOUNG; 02-26-2016 at 11:47 AM.
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  21. #21
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    Default Re: What woul YOU do....?

    Ian

    Thank you for the update.

    At the end of the day regardless what anyone has to say on the subject YOU did what you thought right for you and your biz. The buck stops with you.

    Best,


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    Default Re: What woul YOU do....?

    To add a little seasoning to the stew for thought.

    Most states the inspection is the property of the person that you have contracted with and typically the inspection contract limits (liability) who can rely on the inspection report.

    Ian is in California which has some interesting laws. The inspection report becomes part of the public historical documentation of the property and is passed on through the years. I am still a fuzzy on length of liability on an inspection in CA. and who can claim damage , which may be at the root of all decisions.

    Seller gives permission specifically to Buyer, not any other party outside of the contract, for a HI and the HI report may be or may not be a contingency in the purchase contract. Te Buyer waives the HI contingency, if there is one, in the purchase contract. The Seller did not give Buyer's Agent permission to perform a HI but Buyer's Agent now contracts without Seller's permission to have one done. Lets postulate that the property was taken off the market due to the purchase contract. The HI was a totally visual inspection, as though he was a potential buyer and the inspector prepares a report for the Agent. Is the Buyers Agent required to disclose the HI Report? Does the HI Report become a historical document to he property? Can other buyers rely on that report in the future? Some points to ponder. I am sure there may be many more. But some food for thought, especially in CA.

    Ian's decision, being in CA, probably was one that may have saved time and aggravation in the long run.


  23. #23
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Garry Sorrells View Post
    To add a little seasoning to the stew for thought.

    Most states the inspection is the property of the person that you have contracted with and typically the inspection contract limits (liability) who can rely on the inspection report.

    Ian is in California which has some interesting laws. The inspection report becomes part of the public historical documentation of the property and is passed on through the years. I am still a fuzzy on length of liability on an inspection in CA. and who can claim damage , which may be at the root of all decisions.

    Seller gives permission specifically to Buyer, not any other party outside of the contract, for a HI and the HI report may be or may not be a contingency in the purchase contract. Te Buyer waives the HI contingency, if there is one, in the purchase contract. The Seller did not give Buyer's Agent permission to perform a HI but Buyer's Agent now contracts without Seller's permission to have one done. Lets postulate that the property was taken off the market due to the purchase contract. The HI was a totally visual inspection, as though he was a potential buyer and the inspector prepares a report for the Agent. Is the Buyers Agent required to disclose the HI Report? Does the HI Report become a historical document to he property? Can other buyers rely on that report in the future? Some points to ponder. I am sure there may be many more. But some food for thought, especially in CA.

    Ian's decision, being in CA, probably was one that may have saved time and aggravation in the long run.
    Mr. Sorrells, Garry, thank you for the information.
    Members, it appears there is ALOT for me to catch up on the next time this debate comes to light and I wish to add substance, not speculation.

    Thanks.

    Last edited by ROBERT YOUNG; 02-26-2016 at 12:16 PM.
    Robert Young's Montreal Home Inspection Services Inc.
    Call (514) 489-1887 or (514) 441-3732
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  24. #24
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    Default Re: What woul YOU do....?

    When someone calls me and asks me to perform an inspection, I do not know if they have a contract with the seller or not. Don't care. Makes no difference to me. Someone has to provide me access to the property. If they were able to provide access, then they presumably have permission from the seller/owner.

    I have done inspections PRIOR to the potential buyer putting an offer on the home. They wanted to know if it was worth the effort to move forward. The properties were vacant, not that makes any difference.

    I have had relatives order and pay for inspections. They don't have a contract with the seller. Their family member has a contract with the seller. So relative gets report. The seller could complain the report is in the wrong name. Doesn't make the defects any less wrong. That is for the seller and buyer to argue about.

    Original poster did what was right for him. Sounds like he still gets to do an inspection but wasted a time slot. He feels good, so win for him

    "The Code is not a peak to reach but a foundation to build from."

  25. #25
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    Default Re: What woul YOU do....?

    Very interesting post!!!
    Simple though!
    Client bailed
    Cannot do inspection for broker unless viewing by client forbidden in writing
    Client not worthy
    Leave,
    Be happy


  26. #26
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    Default Re: What woul YOU do....?

    Gentlemen, for those that are interested...here is the behind the scene story which, until today, I was not aware of. In a nutshell...

    The buyer (my client), had waived an inspection at the last minute. Apparently he had become aware of an inspection and report which had recently been completed. I, nor my clients agent were not aware of its existence. He contacted the seller personally for a copy of the report. A heated argument ensued alleging having not made full disclosure and trying to hide something. Initially both parties were refusing to continue with the contract with each other. The inspection 'waiver' which prompted my post was an attempt at an olive branch to the seller. The seller, however, was still furious - with everyone, (for whatever reason) and threatening all kinds law suits. I guess to do with the previous inspection, their agent, who the seller was refusing to speak to and even threatening trespass on the property In any event the fit was hitting the shan and in foresight, I had distanced myself from it to some extent.

    So a couple of days breathing room, the parties calmed. The inspection was completed today without any major problems. As it turns out the previous (recent ???) inspection was 9 mos ago and had little bearing today.

    I charged a little extra 'gas money' for the previous cancellation and my client was happy to pay it.

    So there we have it...all's well that ends well... And any other number of appropriate cliches.


  27. #27
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    Default Re: What woul YOU do....?

    Ian,
    Correct/enlighten me please. Curious..

    I was under the impression that in CA the Seller has to provide all reports and documents (no mater the age) dealing with the property to the Buyer. It is not a mater of Seller's discretion or option but is in the real estate law codes somewhere.

    Went and did a little research, but still not sure about where Historical Documents of property fit in by Civil Code requirements.

    CIVIL CODE SECTION 1102-1102.17
    CA Codes (civ:1102-1102.17)

    CA Realtor Disclosure Statement
    http://www.car.org/media/pdf/legal/s...-forms/478218/

    From previous threads


    #8
    Here in California, home inspection reports are part of the transfer disclosure process (TDS), specifically courtesy of the Leko Decision of January 31, 2001..

    http://www.inspectionnews.net/home_i...nia+disclosure


    #7

    ............In California we have this law.

    What is a Historical Document law ? Any Home Inspection Report, Termite Inspection Report, statement of fact, Photos or any other form of information to a peace of Real Estate becomes a Historical Document to that property.
    From what i understand you can get into more trouble by not providing your old report ( Historical Document )..


    http://www.inspectionnews.net/home_i...nts+california

    Last edited by Garry Sorrells; 02-29-2016 at 06:45 AM. Reason: Added text info

  28. #28
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    Default Re: What woul YOU do....?

    Thank you for the update.
    Much appreciated.

    Are you saying, "A heated argument ensued alleging having not made full disclosure and trying to hide something. Initially both parties were refusing to continue with the contract with each other. The inspection 'waiver' which prompted my post was an attempt at an olive branch to the seller. The seller, however, was still furious - with everyone, (for whatever reason) and threatening all kinds law suits."

    Ian, I have never seen nor even HEARD this type of conduct can be carried out during the sale of real estate.
    My My!!!
    I thought. as normal, every one gathers together agents buyers, actually all parties, has drinks, laughs with lovely music playing, all end-up dancing together as angles float drown from above.
    Is this not the case in your necks of the woods colleagues??????????????


    Gees Louise! I guess I will continue like you do, being concerned and avoiding situations that can be conceived as possibly liable.


    Sorry for the edits. My router is acting up.



    Last edited by ROBERT YOUNG; 02-29-2016 at 07:53 AM.
    Robert Young's Montreal Home Inspection Services Inc.
    Call (514) 489-1887 or (514) 441-3732
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  29. #29
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    Default Re: What woul YOU do....?

    State of California
    Department of Real Estate
    Disclosures in Real Property Transactions
    Sixth Edition 2005

    http://www.dre.ca.gov/files/pdf/re6.pdf


  30. #30
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    Default Re: What woul YOU do....?

    I'll try to answer the latest question(s) but bearing in mind this is a public forum and not wishing to get embroiled in alleged libelous conduct.

    The previous inspection, as I said, was 9 months ago. However, the buyer learned of an inspection being perfomed on the home from a friend and neighbor as being 'recent'. It seems that the house was listed for sale last year, an inspection completed but the deal fell through. I'm not sure if it was as a result of the inspection or one of financing. In any event the house was taken off the market and just recently a new agent/ broker was engaged for the sale at a different price. I believe they would have been aware of the previous listing but not necessarily aware of the inspection report. I don't know. They are now but not originally.

    When the new buyer, my client, came into the picture and learned of the previous inspection, he asked the agents, who basically shrugged shoulders and denied any knowledge. The buyer then contacted the seller himself - not specifically protocol but did anyway. I don't know what went down between the two other than it wasn't pleasant. The buyer believed the 'recent' inspection was just that, 'recent' inferring within the previous week or so. I think the seller said no inspection had been performed, forgetting about the previous one last year. You can see how allegations might erupt especially over a near million dollar property. Basically misinformation being misconstrued.
    The buyer may have 'waived' the inspection I was about to perform but thinking about it more likely to have been attempting to cancel the contract completely. I don't know. Seems more likely under the circumstances.

    So, yes there is a Historical Document requirement but I'm not aware of previous inspection reports attached to previous sales being inclusive. Where would you draw the line? I'm not aware of any legislation which specifically identifies Inspection reports being held ad infinitum. I'm aware of some case law and Insurers requiring reports be held and I keep mine 4 years - some older ones in hard copy but the vast majority on thumb drive.

    Robert, Raymond, Garry - thank you for posting the last links. As you see, California is a letigious State so it certainly warrants staying clear of minefields.

    Last edited by Ian Page; 02-29-2016 at 05:13 PM.

  31. #31
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Ian Page View Post
    I'll try to answer the latest question(s) but bearing in mind this is a public forum and not wishing to get embroiled in alleged libelous conduct.

    The previous inspection, as I said, was 9 months ago. However, the buyer learned of an inspection being perfomed on the home from a friend and neighbor as being 'recent'. It seems that the house was listed for sale last year, an inspection completed but the deal fell through. I'm not sure if it was as a result of the inspection or one of financing. In any event the house was taken off the market and just recently a new agent/ broker was engaged for the sale at a different price. I believe they would have been aware of the previous listing but not necessarily aware of the inspection report. I don't know. They are now but not originally.

    When the new buyer, my client, came into the picture and learned of the previous inspection, he asked the agents, who basically shrugged shoulders and denied any knowledge. The buyer then contacted the seller himself - not specifically protocol but did anyway. I don't know what went down between the two other than it wasn't pleasant. The buyer believed the 'recent' inspection was just that, 'recent' inferring within the previous week or so. I think the seller said no inspection had been performed, forgetting about the previous one last year. You can see how allegations might erupt especially over a near million dollar property. Basically misinformation being misconstrued.
    The buyer may have 'waived' the inspection I was about to perform but thinking about it more likely to have been attempting to cancel the contract completely. I don't know. Seems more likely under the circumstances.

    So, yes there is a Historical Document requirement but I'm not aware of previous inspection reports attached to previous sales being inclusive. Where would you draw the line? I'm not aware of any legislation which specifically identifies Inspection reports being held ad infinitum. I'm aware of some case law and Insurers requiring reports be held and I keep mine 4 years - some older ones in hard copy but the vast majority on thumb drive.

    Robert, Raymond, Garry - thank you for posting the last links. As you see, California is a letigious State so it certainly warrants staying clear of minefields.
    Ian, you are quite welcome.
    I fully agree, no need to interpret how you perceive the law or how others will act.
    Keep yourself harmless in cases like this.

    That being said, in the purchasers case, it would just be prudent to have a current assessment of the real estate.
    A lot can occur over the course of 12 months.
    Plus, for such a small finical out put the gains can be staggering.

    Thanks again!

    Robert Young's Montreal Home Inspection Services Inc.
    Call (514) 489-1887 or (514) 441-3732
    Our Motto; Putting information where you need it most, "In your hands.

  32. #32
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    Smile Re: What woul YOU do....?

    Gentlemen, After reading all these comments, I am somewhat confused. If the buyer's agent states they will be paying for the inspection, for whatever reason (buyer's short on cash, it's a gift, whatever), and the buyer is in agreement, is the inspection agreement with the agent, or with the buyer? I have always made my PIA with the buyer of the property, regardless of who hands me the money.

    Regards,
    Ken
    Sierra Spec Home Inspection


  33. #33
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Ken Schaumann View Post
    Gentlemen, After reading all these comments, I am somewhat confused. If the buyer's agent states they will be paying for the inspection, for whatever reason (buyer's short on cash, it's a gift, whatever), and the buyer is in agreement, is the inspection agreement with the agent, or with the buyer? I have always made my PIA with the buyer of the property, regardless of who hands me the money.

    Regards,
    Ken
    Sierra Spec Home Inspection
    Ken, in this instance the buyer was declining/ waiving the inspection but their agent was offering to pay for it basically against the buyers wishes.


  34. #34
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    Default Re: What woul YOU do....?

    I carry blank inspection contracts...so, if things change I can insert the name of whoever becomes my client - buyer, agent, seller...whoever.
    I don't make a big deal of it...I'm providing a service, and someone wants to have benefit of my findings. I have done many inspections for realtors and buyers and sellers and other interested parties such as family buying for a son or daughter. They want your service...so serve...and get paid for it. That's what I would do.


  35. #35
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Chris Weekly View Post
    if things change I can insert the name of whoever becomes my client.
    I don't make a big deal of it...
    Chris, in this situation the vendor holds all the cards so to speak and trumps all.

    I am not going to tell you how to operate your business but it might be an idea to review that business strategy and have your PIA's glossed over by a capable professional.

    Good luck with your business.
    All the best!

    Last edited by ROBERT YOUNG; 03-11-2016 at 09:22 AM.
    Robert Young's Montreal Home Inspection Services Inc.
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  36. #36
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Ian Page View Post
    Ken, in this instance the buyer was declining/ waiving the inspection but their agent was offering to pay for it basically against the buyers wishes.
    I find this area of CA real estate law , Historical Document requirement, interesting and somewhat unique. In general most real estate transactions require that the seller, agent disclose information with some exceptions like bank sales. Years ago the mantra of the agent was that they did not want to know anything negative about the property so that they could claim total ignorance and not be held liable. Like Schultz from Hogan's Heroes, " I see nothing, I know nothing"! ! Things are still basically the same, but the state laws concerning disclosure are forcing change.

    The world of Home Inspections are also changing. It use to be just a service to a client like changing a tire. Many cared little who paid for what. Today Banks want to see or may question every detail about the sale, especially focusing on the money that the buyers have and where it comes from. The loan officers handling the paperwork will council that the Buyers not have any discrepancy/inconsistency in their cash flow so they will not have to account for money appearing as a gift that may be a loan of some type.

    In Ian's situation the Owner gave the Buyer permission to enter the property and have an HI performed. That permission rested with the Buyer and no one else. So it might be construed that the Buyer's Agent had no right to enter the property for the purpose of an inspection and that a HI report might be considered detrimental to the Sellers position in this sale and should the sale mot be completed/finalized that detrimental HI Report would carry forward to effect other potential buyers and sales of the property. Especially since the Buyer rescinded the contingency regarding the Home Inspection Report. So Ian's action to not go forward on the Agent's behalf might have been the wisest decision. But it would have been insightful should the Seller argue that the Agent was the direct cause of a monetary loss as the result of the Agents actions.

    Historical Document requirements in CA will be an interesting to watch as it develops in court cases. There seems to be a lot of gray area to be defined either by statute or adjudication. I hope that those that come across these cases and find other situations that offer greater clarification dealing with Historical Document requirement think to bring them here for the forum members edification.


  37. #37
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Garry Sorrells View Post
    In Ian's situation the Owner gave the Buyer permission to enter the property and have an HI performed. That permission rested with the Buyer and no one else.
    Typically, the seller gives permission to the buyer and their representatives (agent, home inspector, termite inspector, etc.) - not just the buyer.

    Historical Document requirements in CA will be an interesting to watch as it develops in court cases.
    That is the aspect which, to me, is the 'catch' which made Ian's choice not to do the inspection the correct choice - the historical document aspect of the home inspection.

    It is possible that the buyer found out something from the seller which was not disclosed and is not on a previous home inspection, the buyer and seller worked out the details (negotiation) and the buyer, having agreed to whatever they worked out with the buyer, did not want a home inspection as that would leave a historical record of what they were told by the seller ... a historical record they did not want a record of.

    Which brings up some other ponderables (I have not read the California law on that historical record, it may or may not address this aspect): If, such as in Ian's case, the buyer did not want the inspection but the agent did (for their protection), the agent becomes the client and pays for the inspection ...
    - Is that inspection still considered as a part of the real estate transaction and is it then an historical document?
    - Is that inspection still considered as part of the real estate transaction but is not considered an historical document?
    - If that inspection was made and no written report was issued (it was, after all, outside the real estate transaction), only an oral report was made to the agent, there is no historical document, right?

    Just a few of the ponderables to ponder.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
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  38. #38
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Ian Page View Post
    Ken, in this instance the buyer was declining/ waiving the inspection but their agent was offering to pay for it basically against the buyers wishes.
    Just for clarification for myself and other fellow inspectors; the "declining/ waiving the inspection", by the buyer, is the defining factor then, not who is actually paying for it. Therefore, if the buyer is agreeable to have the inspection, (and to sign the inspection agreement), but the agent pays for it, the PIA is still with the buyer, not the agent correct?

    Ken
    Sierra Spec


  39. #39
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    Default Re: What woul YOU do....?

    Quote Originally Posted by Ken Schaumann View Post
    Just for clarification for myself and other fellow inspectors; the "declining/ waiving the inspection", by the buyer, is the defining factor then, not who is actually paying for it. Therefore, if the buyer is agreeable to have the inspection, (and to sign the inspection agreement), but the agent pays for it, the PIA is still with the buyer, not the agent correct?

    Ken
    Sierra Spec
    Ken, Yes... the key here is ".... Is agreeable..." If the buyer had wanted the inspection but didn't have the funds and the agent, friend, family member or Santa Clause were willing to pay, I would have performed the inspection as arranged. It mattered not who was writing the check. I've done that many times. Even when my fee comes out of escrow (rare) the fee is dispersed from total funding and not directly out of the buyer's pocketbook.

    In this case the buyer didn't want the inspection for their own reasons (later rescinded). There is no hard and fast rule as to whether the inspection should or should not be completed, more of a business decision but with potential legal consequences if it were performed. I viewed it as a can of worms I'd rather not be embroiled in. Nothing wrong in taking a step back and rescheduling if need be.

    Last edited by Ian Page; 03-11-2016 at 11:31 PM.

  40. #40
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    Default Re: What woul YOU do....?

    Well played sir...
    Quote Originally Posted by Ian Page View Post
    I walked...went to Starbucks and did office work.

    And here is my reasoning. To me, anyway, these are muddy waters, which I want no part of. I'm not saying that completing the inspection, as normal, would have been wrong - as some would have done. For me, I need a clear understanding, defined objective and no mis-interpretation regarding the parties to a contract. The buyer waived for some reason, which, at the time, I was not privy to.

    Even with a newly signed contract with the agent - which they would have willingly signed, the fiduciary interests were not clear. There were just too many 'what if's' to be resolved with one foot on the ladder.

    Any contract to purchase is between the buyer and the seller with the realtors facilitating the transaction...and that's all. When the seller agrees to the Inspection, as part of negotiations, they are doing so as a requisite from the buyer - not the agent. As I said, all a little too murky for $400.

    I agreed to return, if the buyer changed their mind, or obviously if another buyer came on the scene. Both agents clearly understood the predicament, though disagreed somewhat with me...that's okay but they certainly respected my (IMO) ethical stance.
    Update:
    Strangely, while typing...got the call to reschedule with my inspection contract being emailed. And so it goes..... Maybe I'll learn more on Sunday.

    Robert, based on your post(s) I think you would have done the same.


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