Thread: Should a Home Inspector do this?

Trying to make a decision on whether or not to get involved in a situation, and thought some of you may have had similar situations.

Some tenents in an apartment complex have requested inspections due to ongoing problems with water: damage to personal and apartment property, mold, etc. The water has come from various sources, such as leaking dishwashers, leaking plumbing or A/Cs overhead, water penetration around windows, etc. According to the people I talked with, many tenents are having similar problems. The basic issue is that the property is getting run down and the owner is not doing much about it.

So, they are asking a couple of us to do written reports with photos so they have some reinforcement in going to the owner. Normally an attractive situation for an inspector, as there could potentially be a good bit of work here. However, concerned about being charged with trespassing when the owner finds out; also concerned about being drawn in to court cases if it goes that way.

I would welcome input from any of you who have had experience in anything along this line.

Thanks!
David

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David,

"However, concerned about being charged with trespassing when the owner finds out;"

I would not worry there, the tenants have the right to invite in whomever they like, and you would be considered 'an invited guest' into the tenant's apartment unit.

"also concerned about being drawn in to court cases if it goes that way."

You probably will be ... as an expert witness for the tenants ... should it go that far.

However, if the tenants are living as you describe, is this a property where people who can afford your services live? I.e., will you get paid?

They could invite in a news team from the local news stations and get their problems aired for everyone to see, and that would get a quicker response from the owner.

Likewise, if there is a landlord licensing law in your area, the tenants could seek enforcement of the law there, and that would include the Health Department and the Fire Marshall's Office.

If the tenants are not careful, they could end up being forced out of their apartments because the apartments could be deemed 'unsafe and unsanitary for human habitation' by the Health Department, and, because the apartments could be deemed 'unsafe and a fire hazard' by the Fire Marshall.

Originally Posted by David Arrington

Trying to make a decision on whether or not to get involved in a situation, and thought some of you may have had similar situations.

Some tenents in an apartment complex have requested inspections due to ongoing problems with water: damage to personal and apartment property, mold, etc. The water has come from various sources, such as leaking dishwashers, leaking plumbing or A/Cs overhead, water penetration around windows, etc. According to the people I talked with, many tenents are having similar problems. The basic issue is that the property is getting run down and the owner is not doing much about it.

So, they are asking a couple of us to do written reports with photos so they have some reinforcement in going to the owner. Normally an attractive situation for an inspector, as there could potentially be a good bit of work here. However, concerned about being charged with trespassing when the owner finds out; also concerned about being drawn in to court cases if it goes that way.

I would welcome input from any of you who have had experience in anything along this line.

Thanks!
David

As Jerry pointed out, you might have a problem getting paid. I have seen and have been involved in a similar issue. One small issue and it will become a bigger issue if it goes to court is the spelling that you used for tenents, this word has a complete different meaning than the word that you needed to use and that is tenant. I know this is a small detail but an attorney will make it a big issue. If we are going to be doing this type of work we need to be careful on how we spell the words. Words can sound the same but have different meanings. Gasp, I'm starting to sound like Walter!

If you have never done work like this or work that might be used for litigation, I would most likely tell the folks to get an attorney and then let the attorney hire the proper folks for the inspections.

As leasees however you spell it, they have rights to allow you to enter there living spaces as well as any common areas they are allowed to enter.
Doing a report for them is perfectly acceptable at standard rates.
Going to court would have to be billed at an hourly rate agreed upon before the inspection in writing.

I've never been in this situation before and maybe I'm way off base here but I see it two ways.


1.

Going to court would have to be billed at an hourly rate agreed upon before the inspection in writing.

That's great *IF* the attorney uses you as an *EXPERT WITNESS*, then you could bill for this and hopefully get paid.

2. If they other attorney decides to have you subpoenaed to testify as to what you saw/wrote in your report, then you would not be getting paid.

Unless there was some kinda clause in your agreement with them that *any* testimony/court appearance for whatever reason is billable.

I would think, in my own little brain.

I have done a few of these kinds of inspections in the past for individual tenants but never for a collection of them. In my experience the client has unrealistic expectations about what your inspection and report is going to do for them. Many labor under the misconception that they will hand your report to the building owner and that he will gasp in surprise as he reads it and say "My God! I didn’t know!" and that he will then suddenly start getting everything fixed.

That is just not the way it works with building owners who rent run down properties to people who can’t afford to move someplace better. I know it sounds harsh and callous , but if the tenant is in a position to do better then they need to walk and find a better place to live. If not, then handing the landlord an inspection report they struggled to pay for in the first place just gives the bum of a landlord one more thing to ignore that day.

Jerry is right, if these folks push hard enough they may well find the health or fire department pushing them out as they get their wish of "making the landlord do something". If the landlord is forced to bite the bullet and does upgrade his property (or sells to someone else who will) then the tenants may find that they can not afford the higher rent that comes with the property after the upgrade.

This is a very tight ethical rope for you to walk as an inspector. Do you take the tenant’s money now under circumstances like these? Do you really think there is an expert witness payday waiting down the road? If so, do the inspection pro bono or on speculation of future income.

Frankly, I don’t have the heart to do it anymore after I have figured out the true value of my report for this kind of customer. That’s not a putdown of the client by the way! It’s the landlord that ultimately negates the value of my service and make a waste of the fee the client paid. The client would be better off using that money for a deposit on a better place in most cases.

Just my opinion mind you.

Thanks for the responses; this is all very valuable information for someone (myself and the other inspector involved) who has not been in a situation like this and does not really want to be.

Tim, I think you are right. We thought of that scenario that, if subpoenaed, there would likely be no payment for our time. Phillip, we have already witnessed the "unrealistic expectations", as the people we talked with initially thought we would take the findings to the owner and encourage him to remedy the problems. We, of course, explained that we could not do that and explained why we could not. In fact, the owner has already seen these apartments and has chosen not to take steps to correct the problems.

Thanks again, it really helps!
David

Scott said "If you have never done work like this or work that might be used for litigation, I would most likely tell the folks to get an attorney and then let the attorney hire the proper folks for the inspections."

That is something I was going to add later, but now it a good time to do so.

When working for the tenants, your report is discoverable and can be used against them.

To step back to what I was going to suggest later, but Scott said it now, if you do your report for an attorney, you report is now considered "work product" and is not discoverable. The tenants' attorney may pick and chose what to use in your report, versus having to disclose the entire report. That is, provided the report is not released to the owner for 'leverage', but, as Phillip stated ...

Phillip said: "In my experience the client has unrealistic expectations about what your inspection and report is going to do for them. Many labor under the misconception that they will hand your report to the building owner and that he will gasp in surprise as he reads it and say "My God! I didn’t know!" and that he will then suddenly start getting everything fixed."

That's not going to happen.

Phillip added excellent advice with: "This is a very tight ethical rope for you to walk as an inspector. Do you take the tenant’s money now under circumstances like these?" and "The client would be better off using that money for a deposit on a better place in most cases."

Let's say you take $300 from 100 tenants, that's a very good payday for you.

But now those tenants are each $300 poorer ... with probably little benefit from that $300. That could be their families food budget for a month.

Phillip also said: "Do you really think there is an expert witness payday waiting down the road? If so, do the inspection pro bono or on speculation of future income."

If you think that will be the outcome, go for it, in fact, bring in the new reporters to film with you, letting them know you are doing the inspection pro bono to help the tenants out - could be a very big advertising coop for you, but, don't hold your breath for that payday as an expert witness - it is not likely to come.

The tenants get something they wanted: documentation of the problems.

The owner gets something they can accept: something else to ignore.

You get some good PR.

The news station get a good news story.

No one loses*, and there is only one winner - the news station ... while you will get good PR, is it worth all that time and missed income?

*Potential Losers - the tenants lose big time if the health department or fire department come in and force them to vacate the premises - where will they go to live?

Now, you lose too ... your 'good deed' PR turns against you because it was "your report" which caused the health department or fire department to investigate and ultimately force eviction because of unsafe or unsanitary conditions in the structure.

Tim,

"2. If they other attorney decides to have you subpoenaed to testify as to what you saw/wrote in your report, then you would not be getting paid."

That's a common misconception.

The other attorney can call you as 'Record Custodian", your response, and your only response, is "Yes, this is the inspection report, dated so-and-so, for the inspection performed on such-and-such dates." Nothing more. As the Records Custodian, you CAN ONLY attest to the fact that the report IS, or IS NOT, *THE* report for that inspection. Period.

They can call you as a Witness of Fact, your response, and your only response, is "I will have to read the report. Only what is in the report is fact, I have nothing I can add as a Witness of Fact."

When they press for more answers, you then respond with "I can answer those questions as an Expert Witness, however, you would need to complete this Expert Witness contract and agreement before I can act as an Expert Witness, would you like to complete it now?"

If not happened already, the Judge will likely break in and ask you to let him/her look at your Expert Witness contract. Make sure all the blanks are filled in, dollar amounts, time rate, minimum number of hours, typically half days, so if you come one minute before lunch and leave one minute after lunch you have 'two half days'. The Judge will likely then give it back to you and instruct the opposing attorney to either execute the Expert Witness agreement/contract or change their questioning, and, if executed, he/she (the Judge) will likely add "I *WILL* make sure you pay the amount in the Expert Witness agreement/contract should you continue with this line of questioning." (or something to that affect).

Mostly likely, the attorney will respond with 'No more questions, Your Honor.', at which time the Judge will turn to you and say 'You are now excused and you may leave." That is when you get up and leave.

You may not have wasted that time as there will be at least two attorneys present who will likely acknowledge your savvy in the courtroom and quite possibly call you for future Expert Witness work.

Jerry that is a very good description of what can and will happen.

Jerry,

Thank you for the info.

Is the expert witness contract something you had your attorney create or are there "cookie cutter" type contracts out there? If so, where?

Most inspectors steal from each other to make 'their own' contract.

I always recommend these cases to the states Attorney General as they have the resources to pursue these matters and most if not all states have statutes on the books that define tenant/landlord bill of rights. Getting involved with an inspection may not be the best recourse for the tenants as thier rights are usually well devined and no inspection report is usually needed to pursue these matters legally.

Originally Posted by Michael Greenwalt

tenants as thier rights are usually well devined

Well, maybe ...

But most *are* well "defined".

Just recently ran into a situation like this. I was paid for my services but in the end was subpeoned to court and not paid for my "expertise" as a witness. Be carefull when choosing your clients and if you feel any challenges may arise tell them to contact a attorney.

Originally Posted by Jack Myers Jr

Just recently ran into a situation like this. I was paid for my services but in the end was subpeoned to court and not paid for my "expertise" as a witness. Be carefull when choosing your clients and if you feel any challenges may arise tell them to contact a attorney.

They can't subpoena you as an expert for your opinion, i.e., for your "expertise".

They could subpoena you as a witness of fact, and all you can state is that, as stated in the report, on such-and-such property, on such-and-such date, the house was inspected and blah-blah-blah was recorded in the report. That's it.

As soon as they ask 'your *opinion* of such-and-such' you take out your expert witness contract, which is already filled out and which includes your minimum fee, and ask the judge to have the attorney asking the for your opinion sign the expert witness agreement and to make payment at this time for the minimum retainer ... I suspect one of two things will happen: the judge will ask the attorney to sign the agreement and write a check then and there; 2) the attorney will either: a) sign the agreement and write the check, or, b) withdraw the question. Because it is difficult to "un-ring the bell" for the question asked, the judge may have the attorney sign the agreement and write the check with no option to withdraw the question.

Hopefully W. C. Jerry will add his input, and Scott P. too.

Is the expert witness contract something you had your attorney create or are there "cookie cutter" type contracts out there? If so, where?

Most inspectors steal from each other to make 'their own' contract.

Here is one
Expert Witness Agreement for Inspectors

Originally Posted by Jerry Peck

They can't subpoena you as an expert for your opinion, i.e., for your "expertise".

They could subpoena you as a witness of fact, and all you can state is that, as stated in the report, on such-and-such property, on such-and-such date, the house was inspected and blah-blah-blah was recorded in the report. That's it.

As soon as they ask 'your *opinion* of such-and-such' you take out your expert witness contract, which is already filled out and which includes your minimum fee, and ask the judge to have the attorney asking the for your opinion sign the expert witness agreement and to make payment at this time for the minimum retainer ... I suspect one of two things will happen: the judge will ask the attorney to sign the agreement and write a check then and there; 2) the attorney will either: a) sign the agreement and write the check, or, b) withdraw the question. Because it is difficult to "un-ring the bell" for the question asked, the judge may have the attorney sign the agreement and write the check with no option to withdraw the question.

Hopefully W. C. Jerry will add his input, and Scott P. too.

Yep, you are the custodian of record not an expert. You are only an expert when declared so by the court.... But, that can happen pretty quick as Jerry pointed out. Most "good" attorneys know this and will not play this game; they know a good expert will cost money and that expert can make or break the case.

The tenants are looking for some leverage. Be it small claims or rent court, an independent party goes a long way.

If you are going to inspect/report unit conditions for tenants determine your motivation before you get involved. If you inspect 12 units in one day ( or more would be reasonable) at $100 per unit that $1200 +. Report writing time and some phone time that will follow. Possible court time , case rescheduling then sitting and waiting will be more time. Bottom line remuneration to you may not be that much per hour.

But, what you you pay for a hands on learning class to gain the experience in this area? Education does not come without a price. Could you learn everything from this forum or a few books, no. Learning is in the doing. Which takes you back to what is your motivation.

If you are so busy that this would be a distraction. Then pass it to someone else.
If you are looking to make a fast buck (without experience), wrong motivation. It will cost you.
If money is the sole motivation. It will cost you.


In a side note.
. Location dependent, the Apartment Complex Management (landlord/owner) can restrict who is allowed onto their property. Thus, by giving you notice that you may not come on to property, you would be trespassing. While you are there on site they can come to you and tell you to leave else you will be trespassing. You protest they call the police, end of story. Tenants do not have carte blanche when it comes to the grounds or unit that they lease.

Originally Posted by Garry Sorrells

Location dependent, the Apartment Complex Management (landlord/owner) can restrict who is allowed onto their property.
.
Tenants do not have carte blanche when it comes to the grounds or unit that they lease.

The first sentence is only correct as to the extent of access to common locations and vacant (non-rented) units.

The second sentence is correct in that the reverse is true also - the tenant CAN provide you with access and the landlord/management cannot stop them from allowing you that access. Of course, though, if you choose this path you are assuring yourself of not getting permission to inspect all the common areas.

As long as the tenant has a lease, a rental agreement, or even a verbal month-to-month contract, the tenant has "legal custody" of the apartment unit itself and can allow anyone in they so chose to even if the landlord/management says they do not have that authority - it comes with the tenants right-to-privacy of their rented space.

If the tenant wants to, they could make it very expensive for the landlord/management if the landlord/management forced the tenant to do otherwise ... there would be a gazillion attorneys standing in line to take that case and wipe their butts with the landlord's/management's face while emptying the landlord's/management's pockets and sharing the loot with the tenant.

You do not trample on those rights if you know what is best for you.

Originally Posted by Jerry Peck

The first sentence is only correct as to the extent of access to common locations and vacant (non-rented) units.

The second sentence is correct in that the reverse is true also - the tenant CAN provide you with access and the landlord/management cannot stop them from allowing you that access. Of course, though, if you choose this path you are assuring yourself of not getting permission to inspect all the common areas.

As long as the tenant has a lease, a rental agreement, or even a verbal month-to-month contract, the tenant has "legal custody" of the apartment unit itself and can allow anyone in they so chose to even if the landlord/management says they do not have that authority - it comes with the tenants right-to-privacy of their rented space.

If the tenant wants to, they could make it very expensive for the landlord/management if the landlord/management forced the tenant to do otherwise ... there would be a gazillion attorneys standing in line to take that case and wipe their butts with the landlord's/management's face while emptying the landlord's/management's pockets and sharing the loot with the tenant.

You do not trample on those rights if you know what is best for you.

If a guest of any other tenant is allowed in an area(s), then you, as a guest of a tenant, are also allowed in the same area(s). Subject to the same restrictions and privileges as other guest.