Hi everyone, I haven't seen too many posts from clients so if i'm out of line coming here and asking this question, then let me know and i'll delete it or have the mods remove it. I just wanted some opinions from other inspectors as to whether my inspector acted negligent. This will be lenghty, so I apologize in advance.

We bought our house in July of last year. One of my reservations about this house was the slope of the front yard from the road to the house. The front yard is probably 30 feet deep..approximately. As far as the slope, if you are standing on our front porch, the road level is probably equal to your knee or just below. When i'm checking my mail, its obvious that you walk uphill to get it.

There was a small 12x12 drain just off the corner of the front porch. It had a pipe that ran north (the house faced east) and then west and emptied into the back yard. The slope of the yard was so that it sloped steadily towards the house until about 1 feet or so from the house where it was relatively level. By the way, we have no curb, just pavement onto the grass.

My realtor asked if I had an inspector in mind, and I said I didn't know any. So he said he could call one and get one started soon. I agreed and he set up a time for the inspection. I met the inspector at the house and followed him through the whole inspection. He made notes on a notepad and found a few small things (exhaust fan not working, etc.). Out front, I specifically asked him about the slope and drainage. He looked casually at it, looked at the catch basin and said, "If you keep this drain clear you should be fine. Just make sure no leaves build up on it and that the inside is clear." That was all that was said about it, and I could tell he wasn't even going to address it at all because I had to bring it up.

Fast forward a month or two later, we had a big thunderstorm with a heavy downfall, within 10 minutes our front porch was underwater and our welcome mat was floating. The drain quickly clogged, so I took off socks/shoes and waded out to clear it. The water receded as the thunderstorm passed and it was alright, except lots of dirt on the front porch. This happened numerous times throughout the next few months. About 2-3 times the water got so deep it was touching the metal threshold of the front door. It never came in, but one storm this April, it was just 4 "notches" on the threshold from coming in. This was with the drain free and clear, as I was obsessed and stood at the door during every thunderstorm.

Since it didn't come in the front door, we thought we were okay. However, 2 days later we smelled mildew. Apparently the water was ponding against the side of the house that was lower than the drain and seeped through and got the carpet wet in two rooms (I looked outside the next morning and the water line was at least 1 and 1/2 bricks above the slab). We pulled up the carpet and took several pictures.

We contacted a landscape professional, and he could tell immediately that I had a drainage issue and that it would only get worse. Without me disclosing that water had infiltrated the house, he said "Pretty soon after a big rain you'll get water seep through the bricks and into these two rooms". So he knew just by looking at it in less than 3 minutes that there was a potential problem. He quoted me $4,000 to lower the existing drain, add 2 new drains, dig down away from the foundation, put in a retaining wall, french drain, tie in 2 gutters (the gutters emptied uphill, which the water turned around right towards the house), and run it out back to the creek behind the backyard.

Then we contacted a lawyer. He wrote a letter to the inspector (as well as the real estate company and the previous owners) demanding compensation to pay for the damages and costs to prevent it from happening again. He got a call from my inspector who left a message, who he then tried to call back and left a message but never heard from the inspector again.

Now, after the inspection...we stood around in my kitchen and he briefly went over the things he found and said, "Alright, well i'll type up a report and get it over to the title company. I'll send them the bill and they'll just collect the fee at closing. Sound good? Thanks". So, I never saw a report at all, not even at closing because I didn't have to sign it (I didn't even have a copy in all of my paperwork afterwards). I just looked over and read the things that were put in front of me to sign. The only time I saw the report was after all of this happened and I called my real estate agent who faxed me over a copy. Thats when I saw his "limitation" on the front that said something to the effect of, "This is not a warranty or gaurantee of any kind. My limit of liability equals to that of the amount paid for my service, and acceptance of this report and payment for service constitutes acceptance of this limitation."

I can't see how that is enforceable. Otherwise, what is the point of hiring an inspector if he/she is only liable for the $175 that I paid for the service. Another thing, he is sponsored and even listed as a real estate agent for the real estate company that I used as my agent AND the selling agent.

To prevent further damage, we went ahead and had the landscape professional do the needed work to prevent it from happening again. We have since had some good rains and the front porch hasn't even so much as gotten moist. It all works perfectly.

The 30 days that he had to pay to come to a settlement have passed and now we are preparing a lawsuit for small claims court. Was he negligent? Am I in the wrong? Any help, ideas, would be greatly appreciated.

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Joe,

Welcome to THE home inspectors forum.

That was indeed a long post, with lots of information to digest.

I skimmed through it, knowing I will have to come back and read it again, and again, and again ... to digest everything in it, however, after first skimming through the information, ...

I see where it looks like every party has some slice of "the fault", including you, your agent, the home inspector, etc.

It's kinda like running a red light and being hit by a car going twice the speed limit - both parties contributed to the accident, so now it is down to 'how much did each party's actions contribute to the outcome'.

Being as no one died ... that's the good part.

How much was your fault for running the red light and how much was the other person's for speeding - that's what will have to be debated.

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

Joe
I echo Jerry Peck's comments and would only add that your agent did not properly represent you and the recommended inspector appears to be less than qualified. Bottom line; make sure you retain a lawyer familiar with Texas real estate and home inspector litigation.

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Jerry McCarthy
Construction Consultant
www.expertbuildingconsultants.com

Hi Joe,

I agree with Jerry and the other Jerry.

The $175 dollar fee for he home inspection should have been a clue that you were not getting much. The old saying of you get what you pay for holds true with most everything.

Anyway, it is what it is. It sounds like you have a major water drainage problem with the home and that the previous owner most likely new about it, and your agent screwed you.

You are asking if the home inspector was negligent? Well that is hard to say without reviewing the report, viewing the home and other pertinent matters. I would recommend hiring a litigation consultant who specializes in matters like this. You can find several just on this board alone or you can Google and come up with some others. Anyway, it is not a real simple process. Just about all will travel to other states. I know of a couple in TX, depends on your location. Expect to pay in upwards of $200 to $250 an hour plus all expenses.

Most likely the inspector has little to no insurance, so your best bet would be against the previous owners and their agent who was most likely aware of the problems with the home.

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Scott Patterson
Spring Hill, TN
http://www.traceinspections.com

I skimmed through the post as well, so forgive me if I ask a question that is in there somewhere. How old was the house? Did you get a copy of the seller's disclosure form? It is likely that the inspector could have forseen something, but it is almost a given that the seller should have disclosed this issue during the sale of the home. I just get tired of hearing of inspector's being blamed for problems that should have been disclosed during the home's sale. Let's put more of the blame on the seller's, RE agent's, and of course the builder's and contractor's who screwed up to begin with.

I can't see how that is enforceable. Otherwise, what is the point of hiring an inspector if he/she is only liable for the $175 that I paid for the service. Another thing, he is sponsored and even listed as a real estate agent for the real estate company that I used as my agent AND the selling agent.

Now there is a big case of conflict of interest which is against all Standards of Practice for Home Inspections. Some states do not allow the liable for fee only. Hopefully some of the Texas Inspectors will chime in and give you some good info.
Joe. Sounds like you were wronged mostly by Seller, Real estate agent and possible Home Inspector but you also have your self to blame for not doing your homework and hiring the Home Inspector yourself. You certainly seem intelligent enough to have known better?

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Dave

I am from Texas. I will state that. no, I did not do your inspection.

Now that is clear.

I am not going to comment on who may be at fault. What I will state though is in Texas, the biggest issue is always grading and drainage due to the expansive clay soils and will write up high or low soil. Soil sloping toward the home. No gutters (even though they are technically not required and as far as the slope, unless it is obvious or raining I will not comment on the slope). In that case it is written up in every state that I know of. Especially due to are soil concerns.

As far as your inspector being a Real Estate agent in the office that your agent was from. Gees, not cool. There is a particular Real Estate company that is owned by the same company that owns a national franchised Home Inspection Company and referred that Home Inspection company in a major way. This is nation wide. Yours may not be the same situation but being polite here, it is not cool.

I have many Realtors referring me solely and some that just add me to a short list of Inspectors. I give my clients and Realtor verbal and written acknowledgement that under no uncertain terms can any party, including the buyer sway what goes into my report, period. I am performing this inspection for the paying client, period.

Now to be slightly in the defence of the Home Inspector. His visual assessment of the property at the time of the inspection may have concluded, by sight, that there was slope to the soil away from the home and pitch or slope of the soil to transfer the water around the sides of the home and that that one drain *appeared* to be enough. Again, I have not seen the report and was not privy to the actual inspection. For all I know, he may have conveyed all this to you. If he did not see a concern then he more than likely would not have written anything about it but if you examine the TREC - Home Page and go to the home inspector section for the Standards of Practice. This will tell you what at least the minimum was that he should have inspected and written/commented on.

175.00, Gees. That in itself is an insult. How much do you pay by the hour for your car to be worked on. I do not know if you live in a depressed area but if you don't it sounds like you did some serious price shopping for the home you were going to live in. If that is the fact and you called a bunch of inspectors and went for the bottom dollar then, well, shame on you. At least inform friends and neighbors not to do the same.

Oh yeah. In case you are wondering, No, you cannot use my statements for anything or pass them off to anyone for any reason what so ever.

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Ted Menelly
"Castle"
Home Inspection Services

Thanks for the replies so far.

Yeah, hindsight is always 20/20. This was our first home purchase, 23 and 22 years of age as this was going on. Not that age or inexperience is an excuse, but I was certainly feeling my way through all of this as I went...doing as much research as possible, but wasn't able to catch everything. I know I should have hired my own inspector, but I just didn't know to. My realtor said, "I know a couple of guys, i'll call both of them and whoever can get to it first i'll go ahead and schedule." My realtor was a family friend who sold my parents house, of whom I trusted very well (used to go to church with them).

No I did not price shop for the inspector, I simply said I didn't know any and my realtor hired the guy and thats when I found out how much the inspection was. I thought it was fair (cheap), but I wasn't going to say, "hey wait, I want to pay more than that!".

The house was built in 1997. Yes real estate is cheap here, but this is a nice brick home in a nice neighborhood.

As far as the previous owners. We did contact them through the real estate agency, and they of course said that everything worked perfectly when they had the house. The letter from my lawyer was also sent to the real estate company and the previous owners. The previous owners had their lawyer write a letter saying they had no liability and we not responsibile. The real estate company had their lawyer call mine and say pretty much the same thing.

Proving that the previous owners were lying would be very difficult in my opinion. It would come down to my word against theirs, and obviously the burden of proof lies on me. The real estate agent/company is liable too, but I don't know exactly how I could pin something specific on them. The only hard tangible proof I have is really against the inspector, at least in my opinion. The only thing he wrote down under drainage/sloping was there was some dirt on a completely different side from where the water entered that he thought was too close to the foundation. He told me I should lower that to where several inches of the slab showed, which I promptly did after moving in. But on the rest, sloping/drainage, he didn't write anything.

I had two different guys (the one that performed the work) and another who mainly dealt with dirt work for new construction and they both said it is obvious there is a problem and it should've been spotted. I know you guys don't like to hear that, as I saw somebody say they hate it when the inspector is blamed for something that should've been disclosed. But, even if it wasn't disclosed, shouldn't the inspector have been able to pick up on something like this? That was severe enough to have 2 inches of water on the front porch and float my welcome mat around the side of the house?

Thanks again for the input.

Not putting blame on anyone but

"Float my mat away around the side of the house." This may be exactly what the inspector saw. Enough slope that it appeared to drain around the home.

If you have pictures of the water at your front door it will blow the sellers argument away that there was never a problem away.

Just a thought. The listing agent could not have known this either unless they were there when it rained before the sale and there was water there on your front patio.

Your comment about us (home inspectors) not liking a particular concern or not liking home inspectors blamed all the time. Well, If you new some of the crazy things that home inspectors are blamed for then you would under stand where that is coming from.

"That darned inspector should have known that my plumbing was going to back up 2 months after I was living in the home. I'll get him"

Sounds to me that the home sellers pulled one over own you if you want my opinion. Can't say about the inspector. Just going by the actual concern.

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Ted Menelly
"Castle"
Home Inspection Services

Heading on page 4 of my report 'Soil, Grading and Vegetation conditions'.
- $175.00 for an HI, you got what you paid for, crap!
- The realtor recommended the inspector and he sucked, imagine my lack of surprise. The HI works out of the same RE office. If your attorney can't make something out of that, look for another one.
Nothing against you personally Joe, really, but this is a good opportunity to rant.
I am so sick and tired of hearing people whine about how they got screwed when they bought their car, their house, their mortgage. These items are often times the largest financial obligations that many people take on in their lifetime. But do people do their homework before they sign on the line? NO.
Wake up people, the folks involved in these transactions are making a living doing it, often times a very good one at that. All these people whining about their mortgages now. Shut-up. You should have done your homework before the deal.
You as the consumer have the power, as long as the money is in your pocket. Before you pull the money out for the deal make sure you have exhausted all available options for more & better info on how to make the deal best for you.
As far as who's at fault in this case, it sounds like there's plenty of blame to go around.

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Accurate Inspections & Consulting, Inc.
773/844-4AIC
Markus Keller

So a first time home buyer should be infinitely wise in all aspects of home buying? I consider myself a very wise consumer, I buy nothing without lots of research (how do you think I found this forum?). I shopped for a mortgage, researched all the aspects of getting a mortgage, research buying a house, what to watch out for, etc etc. I guess I just didn't read to get your own inspector and make sure you pay over $XXX amount.

Just because something went wrong doesn't automatically mean somebody didn't do their homework. Like I said earlier, hindsight is always 20/20. Of course I won't hire an inspector without doing lots of research. I just relied on my real estate inspector, of who I knew several years and had done many things with my parents. He of which, recommended an inspector that "was a good guy, a good inspector" etc. I am guilty of just trusting those of whom I thought I could trust, I guess.

By the way, my attorney did tell me that we'll pursue him in small claims court and go with a case of his limitation is unconsionable and unenforcable. Plus, the fact that he is a reatlor in the RE company's office, etc.

I knew I would get some flak wandering into the lion's den for help, so thats okay.

Don't worry Joe, thin-skins are universal and even some home inspectors suffer from that malady. Like I said, a smart lawyer should rip a few new ones.

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Jerry McCarthy
Construction Consultant
www.expertbuildingconsultants.com

This young mans experience is why I wish the day would come when Realtors would have to quit giving out referrals for HI's.

I get these type of calls monthly of someone asking what they can do to the realtor or the HI for such complaints. All have the one thing in common, they let the realtor make their choices.

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Rick Hurst_Home Works Inspection Co_Rockwall TX
In the words of Mike Tyson.... "Everyone has a plan until they get hit inda mouf"

The only calls I ever get from clients, no matter how well I school them and talk to them are those that were referred by Realtors.

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Ted Menelly
"Castle"
Home Inspection Services

Rick is absolutely correct! The only individual who has no "horse in the race" of the transfer of title in a real estate transaction is the property inspector.

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Jerry McCarthy
Construction Consultant
www.expertbuildingconsultants.com

.
That's cause you don't never use that Dreaded MMMM (shudder) pardon my Stutter
.
M word. .

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It Might have Choked Artie But it ain't gone'a choke Stymie!
Billy J. Stephens HI Service
Memphis TN.

Joe,

I would not consider it flak that you are getting (not overall, anyway), but that you are getting "an education" and "street smarts".

First lesson (for almost everything): Don't let the person who is to gain financially from the deal direct you to someone who can cause that other person grief with the deal.

That was part of the 'your fault part'. As was the 'I didn't get a copy of the report part'. I was in the business for over 16 years and I only had a couple of people *not realize* that 'not getting a copy' was a bad idea.

As for the inspectors fault, I am sure there is enough to go around, but without seeing the report and the physical property, it would be hard to stated that categorically.

As for the agent - BOTH AGENTS - they should *buy the house back from your and make you whole*, meaning you get everything you paid and everything you put into the house. Talk about the "appearance" of collusion and fraud, that just makes my head spin.

Your attorney should not forget to include those two agents, their brokers, and everyone else in the chain of command over them. They should have known better. They should have been taught better. They should have had better supervision not to allow that.

You also need to realize that most inspectors here on this forum are here because we want to better ourselves, and that those who do not participate in forums like this (or at least lurk and read) are not necessarily out to make themselves better inspectors.

Finally, a real estate agent acting as the inspector??? In the same office as the agent involved in the deal??? One is bad enough, both is insane.

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