Thread: Home Inspections: When is exceeding the SOP going too far?

Arron, I'm not trying to convince you or change your opinion. Lord, I don't think anyone could ever do that!

SP: Actually it is spelled "A-A-R-O-N" and not Arron. That is why I use initials when addressing folks here, so as not to inadvertently piss them off by misspelling their names.

As for TX, it really makes no difference what State you are in or what the SOP's say. SOP's are only a guideline and are not the Standard of Care. Standards of Care will trump SOP's every time if it can be shown that if the Standard of Care had been excercised it would have prevented or shown that a problem was imminent or was present.

SP: OK then a scenario for you: A manufacturer makes a building material that one builds houses from. He publishes precise installation instructions that appease his attorneys. A contractor installs the manufacturer's product in strict accordance with the published installation instructions. How, in your opinion, has the contractor not met the "standard of care"?

Originally Posted by Scott Patterson

Arron, if you do EW work it should matter. Case law can be used regardless of your location, especially if it is in Federal court.

SP: It is still spelled "AARON" and not Arron. I do hope that you are a bit more observant when working as an EW.

Originally Posted by A.D. Miller

RW: I simply do not give a rodent's derrière about the laws in Tennessee or Toronto. They do not apply where I live. Why should I?

Your problem, well at least one of the many you exhibit and whine about constantly, is that you seem nearly crippled when confronted with someone who not only does not swallow your blather, but is not cowed down by your pathetic bravado.

Save it for someone who flinches.

Again: dfwairport.com - Home Ya'll come.

So now you change the basis of your original arguement. Didn't think you could support your arguements for long without another veiled threat that is some manly bravado given your need for attention you fake.

Originally Posted by A.D. Miller

SP: Actually it is spelled "A-A-R-O-N" and not Arron. That is why I use initials when addressing folks here, so as not to inadvertently piss them off by misspelling their names.



SP: OK then a scenario for you: A manufacturer makes a building material that one builds houses from. He publishes precise installation instructions that appease his attorneys. A contractor installs the manufacturer's product in strict accordance with the published installation instructions. How, in your opinion, has the contractor not met the "standard of care"?

OK A-A-R-O-N (never seen a name spelled with hyphens like that, but it is TX ),

Well, that is a wide open scenario.
Did the contractor educate his workers?
Did the contractor sub out work?

Outside of the items that are within control of that contractor and if that contractor followed the instructions and took into account other aspects that might impact the installation I would say that he did meet the standard of care. But, this is not enough information to really decide on anything.

Originally Posted by A.D. Miller

SP: OK then a scenario for you: A manufacturer makes a building material that one builds houses from. He publishes precise installation instructions that appease his attorneys. A contractor installs the manufacturer's product in strict accordance with the published installation instructions. How, in your opinion, has the contractor not met the "standard of care"?

Aaron,

Not Scott, but here is an example for you.

HardiePlank siding allowed two options for installation:

1) putting flashing behind each end joint

2) caulking each end joint

Builder A installs HardiePlank using Option 2), caulking.

Builders B, C, and D install HardiePlank using Option 1), flashing.

Builders E and F install HardiePlank using Option 2) some of the time, but use Option 1) the rest of the time.

The standard of care is to use Option 1), flashing.

Builder A is sued because over his installation of the HardiePlank siding, for various reasons, including that the caulking keep falling out.

While Option 2) *WAS* a specified option by the manufacturer, Option 1) was used by more builders more often, and HardiePlank recommends the use of Option 1), but allows the use of Option 2).

Option 1), flashing is the standard of care.

Originally Posted by Scott Patterson

Arron, I'm not trying to convince you or change your opinion. Lord, I don't think anyone could ever do that!

As for TX, it really makes no difference what State you are in or what the SOP's say. SOP's are only a guideline and are not the Standard of Care. Standards of Care will trump SOP's every time if it can be shown that if the Standard of Care had been excercised it would have prevented or shown that a problem was imminent or was present.

Sorry Scott

I said it before and I will state it again.

The SOPs in a licensed state is no only to protect the client but also to protect the inspector.

You cannot have it both ways. You cannot set guidelines in place that the inspector has to adhere to for the protection of the client and use another standard that the inspector has to adhere to or he is not protected.

What is the saying. What is good for the goose is good for the gander. You can use all the legal jargon you want it will not change anything. I challenge you to go to a licensed stater in front of a judge and jury and tell them that what is good enough for protection of the client is not good enough for the protection of the inspector. That my friend is just a serious amount of legal bull.

That is like saying that anyone with a Cadillac can run red lights but anyone with a ranger pick up cannot. Sound stupid ??? sure does. So doesn't your reasoning about what is good for one party is not good for the other in a home inspection case.

Sorry....Standard of care....just legal bull waiting to be squashed.

Everyone in these united states have the same legal rights as another. Hold one accountable for one standard and another for another standard having to do with the same subject matter. I think not.

You have been playing both sides of the fence for to long. Time to step back and look at the defense council one day and the prosecuting the next. I have big respect for you Scott because you appear to be a decent intelligent man with a lot of back ground but I cannot agree with this either side of the fence crap.

I'll do anything for anyone as long as it puts money in my pocket. Sorry. That is one standard of care I could never have anything to do with. I have never been able to work like that and could never do such. I have a particular standard in life that I will not waiver from.

Originally Posted by Scott Patterson

OK A-A-R-O-N (never seen a name spelled with hyphens like that, but it is TX ),

Well, that is a wide open scenario.
Did the contractor educate his workers?
Did the contractor sub out work?

Outside of the items that are within control of that contractor and if that contractor followed the instructions and took into account other aspects that might impact the installation I would say that he did meet the standard of care. But, this is not enough information to really decide on anything.

SP: The hyphens symbolize the b-r-o-a-d expanses of Texas . . .

The contractor is a sole proprietor. He does the installation himself with no subcontractors.

So then, if he was compliant with the manufacturer's minimal installation instructions, he is also meeting the standard of care? If that is the case, then an HI in Texas who meets the minimal SOP is also meeting the standard of care, right?

Originally Posted by Jerry Peck

Aaron,

Not Scott, but here is an example for you.

HardiePlank siding allowed two options for installation:

1) putting flashing behind each end joint

2) caulking each end joint

Builder A installs HardiePlank using Option 2), caulking.

Builders B, C, and D install HardiePlank using Option 1), flashing.

Builders E and F install HardiePlank using Option 2) some of the time, but use Option 1) the rest of the time.

The standard of care is to use Option 1), flashing.

Builder A is sued because over his installation of the HardiePlank siding, for various reasons, including that the caulking keep falling out.

While Option 2) *WAS* a specified option by the manufacturer, Option 1) was used by more builders more often, and HardiePlank recommends the use of Option 1), but allows the use of Option 2).

Option 1), flashing is the standard of care.

JP: That would all depend on when Builder A installed the siding: before or after the publication of the requirement for flashing and the disallowment for caulking the butt joints.

Originally Posted by Ted Menelly

You have been playing both sides of the fence for to long. Time to step back and look at the defense council one day and the prosecuting the next. I have big respect for you Scott because you appear to be a decent intelligent man with a lot of back ground but I cannot agree with this either side of the fence crap.

I'll do anything for anyone as long as it puts money in my pocket. Sorry. That is one standard of care I could never have anything to do with. I have never been able to work like that and could never do such. I have a particular standard in life that I will not waiver from.

Hi Ted, and Thank you! Yes, I do as you say play both sides of the fence. I try to balance out working for plaintiffs and defendants; as any good EW knows this is what you must do. I'm not a "hired gun" and by working for either side of a case keeps it this way. Just this past Friday I was retained as a litigation consultant to help defend a home inspector. Actually for this year I have 7 cases working for the Defendant and 4 cases working for the Plaintiff and this is a pretty consistent average.

Not everyone can do litigation work, but for those of us that have entered into this realm of the profession we find it very rewarding in many ways.

Not everyone can do litigation work, but for those of us that have entered into this realm of the profession we find it very rewarding in many ways.

SP: I have found it to have just the opposite effect. In my pre-EW life I actually had (naively) allowed myself to believe in the concept of justice and that, though perhaps somewhat flawed, our legal system was functional. Nothing could be further from the truth.

Originally Posted by A.D. Miller

SP: The hyphens symbolize the b-r-o-a-d expanses of Texas . . .

The contractor is a sole proprietor. He does the installation himself with no subcontractors.

So then, if he was compliant with the manufacturer's minimal installation instructions, he is also meeting the standard of care? If that is the case, then an HI in Texas who meets the minimal SOP is also meeting the standard of care, right?

Aaron, wish I had the time, patience and desire to go head to head with you on this but I don't. Time to put the boots on and go sloshing through a job site for a client. Y'all keep it up and let me know the results.

Originally Posted by Scott Patterson

Aaron, wish I had the time, patience and desire to go head to head with you on this but I don't. Time to put the boots on and go sloshing through a job site for a client. Y'all keep it up and let me know the results.

SP: Me too. Perhaps another time.

Raymond, For clarification, I am the author and instructor for a course called "Certified Well Sampler". Within the content of this course, I cover a variety of things, including well types, aquifer, water table, installation practices, well construction, well equipment, water quality, test definitions, and how to collect, care for, and transport water samples. We even discuss labs and quality assurance.

It is one of the few courses of its type available. This particular course is designed specifically for those in our profession. I believe it to be an excellent course. It is approved in many states. I am quite proud of it, and am proud to have taught many inspectors in many locations, and from many different associations.

With regard to your erroneous statements, or downright misconceptions regarding what the course is (or isn't), I remind you that you have not attended it, and therefore are not in a position to judge it.

With regard to your erroneous statement with regard to Ontario law, need I remind you that the sole regulations regarding well licensing pertains to those who construct them or work on them. Your provincial government recommends testing private well water for quality, and does not license those who take samples or sell the service. Ontario Well Regulation 903 spells it out, if you need a point of reference.

As to the course, and more specifically the Ontario version of it, I incorporated Ontario's own listing of contaminents and maximum contaminent levels.

We certify people on the proper methodologies needed to ensure an accurate test result. Although it covers a broad range of topics relative to wells and water quality, it is called Certified Well Sampler for a reason.

If the states do not have a problem with the title or the certification process (the exam has been characterized as tedious, thorough, and generally difficult), why should you?

For those of you reading this, my apologies for this rather long explanation regarding a course I teach. It is NOT intended to be a marketing ploy - I am not selling the course. I have posted this in response to innacurate comments made by Ray Wand regarding this subject.

Originally Posted by Ted Menelly

You cannot have it both ways. You cannot set guidelines in place that the inspector has to adhere to for the protection of the client and use another standard that the inspector has to adhere to or he is not protected.

Ted,

I see the crack in your thinking, and why you are thinking that way ...

"You cannot set guidelines in place that the inspector has to adhere to "

The inspector does not have to "adhere to" those standards.

The inspector does, however, have to "meet the minimum requirements of" those standards.

BIG DIFFERENCE between those two statements as there is a big difference between "adhere to" and "meet".

As I recall from you Texas inspectors, the inspector IS ALLOWED to go beyond the TREC standards as long as you meet the TREC standards, correct?

Joe

Save your pleadings on regulation 903 I am very familiar with it. And your course is not recognized by anyone up here other than you. Sure anyone can take a water sample that is not what 903 was legislated to do.

I have had to contact the Ministry several times with inspectors who openly stated on their sites and who attended your course that they were certified to inspect wells. Where would they get that idea?

And to further clarify when you challenged me sometime ago when this topic came up on your home board you hadn't a clue about the law per 903 and at the time refused to accept any opinion or input as to what you were instilling in your students.

Pleased to see you finally did your homework after me having to point it out to you.

Take care Joe.

For the record, this article is industry-related, relevant and thought-provoking. I have not, nor will I use Brian's forum in any way other than it is intended which is as an industry platform for the open exchange of ideas. BTW - let's all wish Brian the best - he is getting married on October 2nd.

BIG DIFFERENCE between those two statements as there is a big difference between "adhere to" and "meet".

JP: So then, if it does not meet your face, how does that stuff adhere to it?

As I recall from you Texas inspectors, the inspector IS ALLOWED to go beyond the TREC standards as long as you meet the TREC standards, correct?

JP: Correct, the operative term here being "allowed to", and not "required to", or "expected to", or "obliged to" . . . in order to meet someone's hypothetical "standard of care".

Ray,

The course is called Certified Well Sampler; not Certifed Well Inspector.

Please point out where the content or presentation runs contrary to any Ontario law in what the inspector performs during the course of a home inspection, or during the course of gathering water samples and explaining to a client what can happen to their well water. In fact, please point out where any of the material presented was either incorrect or not pertinent to our industry or to the public's safety. Educating a homeowner with a well to the things that can go terribly wrong with wells and water is, in my, opinion... a good thing.

Your spin was that, somehow, a license was needed to teach the course or draw a water sample for testing. I am quite familiar with Regulation 903, and mention it to illustrate that this is the sole area regarding wells that is regulated by your Ministry.

JP, et al.:

Although the idea of a general duty of care is now widely accepted, there are significant differences among the common law jurisdictions concerning the specific circumstances under which that duty of care exists. Obviously, courts cannot impose unlimited liability and hold everyone liable for everyone else's problems, so there must be some reasonable limit to the duty of care. The problem is where to set that limit.

Because each of the 50 U.S. states is a separate sovereign free to develop its own tort law under the Tenth Amendment, and because Erie Railroad Co. v. Tompkins (1938) ruled that there is no general federal common law (thus implying no general federal tort law), there are several tests for finding a duty of care in United States tort law.

http://en.wikipedia.org/wiki/Duty_of_care

Read the article and see that the difference between the duty or standard of care in California and Florida alone is nerely as wide as the physical space between them.

Originally Posted by Julie Weishaar

For the record, this article is industry-related, relevant and thought-provoking.

You did a good job at getting some thoughts and provoking, especially after ole lightning rod joe got involved in the topic

Originally Posted by Jerry Peck

Ted,

I see the crack in your thinking, and why you are thinking that way ...

"You cannot set guidelines in place that the inspector has to adhere to "

The inspector does not have to "adhere to" those standards.

The inspector does, however, have to "meet the minimum requirements of" those standards.

BIG DIFFERENCE between those two statements as there is a big difference between "adhere to" and "meet".

As I recall from you Texas inspectors, the inspector IS ALLOWED to go beyond the TREC standards as long as you meet the TREC standards, correct?

Adhere, as I am sure you new what I was referring to, as in these are the standards that must be met, stick to as a minimum, go by, at the minimum in accordance with the Texas Real Estate Commissions SOPs for home inspection to protect the client. And as far as adhering to, pertaining to, some arbitrary Standard of care that a pole says 50 plu 1% of inspectors in your area inspect to and all other inspectors must adhere to that very vague Standard of care, at a minimum or OH MY GOODNESS, YOU ARE IN TROUBLE where if not met by home inspectors, Aunt Maybel may sue you.

There is no fixed figure that anyone can name or put a fingure on for how much the majority of home inspectors exceed standards. There are no written standard of care standards for anyone to go by other than the SOPs that person is licensed thru.

You can pick 100 inspectors in the area that inspect a particular item a certain way buy a split of 49% to 51%. That is not going to cut it for a hard and fast fixed standard of care. If you ask a different hundred inspectors, again..randomly, how they inspect an item then that standard could be 25 to 75 or 75 to 25.

I know everyone wants to say that performing an inspection to the standards is a shmuck loser inspector. My point is that even if you do inspect over the standards....what ever that means...... then the reality is you are still just inspecting to at least the standards because that is all you should be judged by in any arbitration or court of law. Anything after that is just which lawyer talks what point up best. If lawyers were only allowed to bring claims against standards as in SOPs, not some make believe SOC alone, then Scotts example where the inspector simply said that that portion of the crawl was not accessible, the inspector should have walked free and clear because the client did not follow up and have the crawl made accessible and someone gone under to evaluate.

Originally Posted by Ted Menelly

then Scotts example where the inspector simply said that that portion of the crawl was not accessible, the inspector should have walked free and clear because the client did not follow up and have the crawl made accessible and someone gone under to evaluate.

Ted,

You are not reading again, and, even worse, adding things into what you read which were not stated.

Unless I missed it (show me where it is), Scott did not state anywhere in his post that the inspector wrote up that the inaccessible area should be inspected, the inspector only stated that he could not access the area.

Had that inspector recommended to his client to have someone inspect the area he could not get to, and then, as you said, not followed through, I am sure the result from the judge would have been different.

Originally Posted by Jerry Peck

Ted,

You are not reading again, and, even worse, adding things into what you read which were not stated.

Unless I missed it (show me where it is), Scott did not state anywhere in his post that the inspector wrote up that the inaccessible area should be inspected, the inspector only stated that he could not access the area.

Had that inspector recommended to his client to have someone inspect the area he could not get to, and then, as you said, not followed through, I am sure the result from the judge would have been different.

Only using Scotts post as an example.

But as you wished

""If this inspector had used a meter he/she would have found the problem around the toilet in this 65 year old home. They would have been able to tell that the entire subfloor was wet from seepage of the toilet. Then even though they could not access this area from the crawlspace they would have known that their was a major water problem and could have reported on it. Instead they simply said they could not access this area of the crawlspace. That statement did not work very well for them, and it is part of an SOP."

As I said. From what I am taking of Scotts post is the area under the bath or an entire area of the crawl could not be accessed. That sets the bell off to have access made and have it inspected. Should he have used a moisture meter around the toilet area and, who knows...the entire inaccessible crawl area...I guess so. Why limit it to the toilet area. The area under the bath could not be accessed to evaluate what moisture that may have been found. I do not know the entire story of course and there may be a lot more to it as I said to Scott.

As far as not being able to read ???? Seriously...You have to cut that statement out of your things to say.

The highlighted red area of Scotts post tells me that the area could not be accessed. If someone chose to buy a home not knowing what was going on under there then so be it but keep their stinking hands out of other peoples pockets and own up to there God awful blunder of not investigating further before they bought the home. What if a mpoisture meter read nothing and there was a leak under the home that went on un noticed, or a sewer gas leak slowly sickening the home owners? Then what? When the sewage leak and sewer gas leak was notice way down the road would it then still bethe darn home inspectors fault because the home buyers did n ot follow up on the comment that that area could not be accessed.

This can go on forever. From the very minute piece of Scotts post I chose to use it as somewhat of an example and put my own twist on it. And round and round we go.

It was only an example. I told Scott I was sorry if there was more to it. I even commended him on himself.

Again Jerry please take the "you cannot read" thingy you have going there and do yourself a favor and delete it from your automatic things to say.

Originally Posted by Ted Menelly

As far as not being able to read ???? Seriously...You have to cut that statement out of your things to say.

Ted,

I'll make you a deal.

I will work on that and YOU work on what was actually said, not what you imagined what was said or thought - deal?

OK, bottom line is that you should use a moisture meter on just about every bathroom floor if you have anything that might be throwing up a Red Flag that the subfloor could be wet.

What is a Red Flag:
Age of house
Type of foundation
Visible conditions
Unable to access a crawlspace
A home that has been recently remodeled

I think that most will agree with this...

Scott

I understand your reasoning, but there are times when there are:

1. No visible signs
2. No access
3. Age is a subjective caveat
4. Patent vs. latent defect
5. The SOP are an minimal standard, and many courts have at least up here recognized the standard. That case demonstrated that access if not available and if brought to the attention of the purchaser absolves the inspector from negligence.


And from a Canadian POV where an attic access hatch was not opened by the inspector due to it being sealed with caulk.

In Seltzer-Soberano v. Kogut, [1999] O.J. No. 1871, a decision of B. Wright J., states at paragraph 6: The usual house inspection is general in nature and is performed by a visual inspection. A house inspector cannot be held responsible for a problem which is not readily apparent by a reasonable visual inspection.


Sited with approval by Gillese J. in Biggs v. Harris (c.o.b. Harris Homes Inspections), [1999] O.J. No. 4831, she went on to say at paragraph 33 of her decision:

33. The standard of care owed is that of a reasonable visual inspection done in accordance with ASHI standards but, I would add, what is reasonable is to be determined, as well, by the cost of the inspection and the known level of expertise of the inspector.

And I point this legal renderings for any Canadian member who is reading this as it would appear there are vast differences between what an American court would consider reasonable and what a Canadian court would find reasonable. Not to mention in my opinion it was a latent defect not discoverable by visual inspection method.

Fwiw.

As I mentioned way up there:

http://www.inspectionnews.net/home_i...32-post84.html

There is no such thing as what "an American court" would consider this or that. There is a very large dispairty between how things are viewed and dealt with from jurisdiciton to jurisdiction.

Not to belabour the point but it is the courts who decide the fates of the respondents no one else regardless of jurisdiction, unless of course the issues went to arbitration.

Originally Posted by Raymond Wand

Not to belabour the point but it is the courts who decide the fates of the respondents no one else regardless of jurisdiction, unless of course the issues went to arbitration.

RW: "Jurisdiction", according to Black's Law Dictionary, means, among other things:

"A court's power to decide a case or issue a decree."

It is that definition that I was referring to. And, believe it or not, my last post was neither addressed to you nor intended solely for you.

Too bad.