Thread: Right to cure

Ever since the province got rid of the limits to liability contract clauses last September
I have been chafing to find some type of alternate accommodation.
Part of the home inspection regulation reads as follows;

"12(2) a licensee must not, in a home inspection contract,

(b) purport to limit the liability or the amount of liability of the licensee, or
(c) purport to limit the time for making a claim against the licensee"

The term "liability" could be defined as legally responsible for the damage or harm caused by your action or inaction.

I have been considering placing the following words in my contracts;

Upon discovery of a defect you must immediately deliver to your home inspector a written
notice of any conditions you allege that your home inspector failed to include in the home
inspection report and provide your home inspector the opportunity to make an offer to
repair or pay for the damage or harm.

Do you think this "right to cure" clause offends the home inspection regulation?

Similar Threads:

• Concrete Cure

You may want to add;
1) you must be given access to the property to inspect defect or damage prior to any repairs being made.
2)you must have the opportunity to have defect or damage inspected by professional of your choosing before any repair or alteration is made.
3) immediate written detailed notice by Certified Mail of any claim of defect or damage.
4)failure of (1) , (2) or (3) by the home owner will negate any and all liability on you part for any defect or repair.

You might want to add limitation of consequential damage from defect or repair.

You seem to be on the hook till the property changes hands, no time limit.

I see some issue with the wording but I'm not a lawyer. I think you are on the right track with the "right to cure" but you want to get a lawyer to review and correct anything you come up with since anything you do wrong could run afoul of the law and thus negate any defense.

I agree with Garry's post.

Regarding - Jim's .....perhaps "right to review and reinspect".

I would never make any commitment to "cure, repair, fix" or make any claim to do so without consultation with the E&O insurer. Which basically means the choice of filing a claim or through your own personal compensation plan.

I think you should take this up with an attorney that specializes in contracts.

Originally Posted by Steve Panting

Ever since the province got rid of the limits to liability contract clauses last September
I have been chafing to find some type of alternate accommodation.
Part of the home inspection regulation reads as follows;

"12(2) a licensee must not, in a home inspection contract,

(b) purport to limit the liability or the amount of liability of the licensee, or
(c) purport to limit the time for making a claim against the licensee"

The term "liability" could be defined as legally responsible for the damage or harm caused by your action or inaction.

I have been considering placing the following words in my contracts;

Upon discovery of a defect you must immediately deliver to your home inspector a written
notice of any conditions you allege that your home inspector failed to include in the home
inspection report and provide your home inspector the opportunity to make an offer to
repair or pay for the damage or harm.

Do you think this "right to cure" clause offends the home inspection regulation?

I don't like that wording at all! You are admitting guilt by offering to make an offer or repair (right to cure).

If you can't have any limits then the home inspection profession in this province is screwed. Some of our states are similar but not as strict sounding.. To get around this many inspectors offer a refund of the fee and X $ to take care of proven negligence. By offering more than the fee that the client paid it seems to work in the courts.

Not being able to have a time limit for liability is bad!

Ever thought about moving South to the States!

You weren't asking to keep a limitation clause, but since it is so closely related to the overall discussion, I wanted to have one go back over it before carrying on. The second last paragraph is one of the clauses I use. It was not reviewed by a lawyer.

Limitations of liability to the extent of the professional fees are not permitted by many professional associations, such as engineers, accountants, lawyers, etc., simply because it contrary to public interest and also because it seriously raises the question as to what value their professional service has. Judges have, many times, criticized such clauses, referring to them as weasel wording, ultimately considering them a discredit to the inspector, and, in many causes, finding a way to remove the clause from the contract.

Here's what the judge has to say in Brownjohn v. Ramsay, 2003:

it would be contrary to public policy to uphold an exclusion clause whereby a home inspector can be incompetent, or reckless, or incompetent and reckless regarding his opinions on the major structural components of the house and have no responsibility to the client beyond the cost of the inspection

That's a harsh description, but also fair. In fact, it has since been referred to in other cases such as Larouche v. Radwanski, 2011, which refers directly to the Brownjohn case, and adds:

if the home inspector defendant wanted to achieve wholesale exclusion of liability, then it needed to bring its exclusions to the attention of the Plaintiff

and

if home inspectors wish to rely on a limitation of liability or exclusion clause in the contract, then as a matter of public policy, the home inspector must take reasonable steps to ensure that the existence, purpose and effect of the clause is drawn to the attention of the party contracting for home inspection.

As much as you may find comfort in a limitation clause, it would take a good lawyer to ensure the clause holds up in court. In the Larouche case, mentioned above, the client would have to do something like signing directly on the contract each and every time there was a weasel clause.

There are bigger questions here:

1. How can inspectors invite reliance on their opinions when they discredit them with limitation clauses?
2. Why should clients consider home inspectors to be sources of meaningful and reliable advice? ...and, if they can't, for what reason would someone need to retain an inspector?
3. Why are provincial governments enacting legislation to ban the practice of limitation clauses?
4. Why have a limitation of liability clause if you carry insurance?
5. Why choose an insurance provider that would insist on a limitation of liability clause that could deny you coverage if you, for example, forgot to sign a contract to enforce that clause?
6. Why are well trained and skillful inspectors, that are doing great work, complaining about those in and out hacks that are successfully taking away much of the business thanks to limitation clauses that are potentially keeping them in business?

There are better ways to protect yourself, in my opinion:

1. Carry adequate insurance.
2. Do good work.
3. Continue to train.
4. Perform your Duty of Care

Should you get a call back, rely on your excellent customer service, not your escape clauses. Don't forget, our business is consumer protection, we shouldn't be practising contrary to [our] primary purpose.

To answer your question, and this is along the lines of what you were suggesting, the following is how I address disputes in my contract. In short, all I'm asking for is an opportunity to use good customer service to find a resolution, without limiting the clients rights to seek other methods of resolution should those reasonable efforts fail.

The parties will make reasonable efforts to resolve disputes arising under this Inspection Agreement by amicable negotiations. They agree to provide frank, candid and timely disclosure of relevant facts, information and documents to facilitate these negotiations, without prejudice to their rights and recourses.

This is a hard job, no doubt, and it may seem like a bold step for some, but consider the benefits to yourself, and your industry, and give it some thought.

I wonder if a right of access clause is preferable to a right to cure. It's pretty tough to mitigate the issue without the facts and it's tough to examine the facts without access. Or better yet, include right of access into the proposed clause.

Hello Steve.
How about 'Must notify and provide access before starting remediation"?

Or do what I did and retire happy.
Somebody with HIBC ties could send Nigel T. an email if you like.

Hey John
An opinion from Nigel would be good.
I'm sure it is something that HIBC guys could use.
I know some of the ASTTBC boys are fairly steamed
about the regulation.