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  1. #1
    Julie Weishaar's Avatar
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    Default Home Inspections: When is exceeding the SOP going too far?

    “I exceed the Standard of Practice”. Many inspectors make this statement all the time. Many put it in their brochures and on their website. But, what exactly do they mean? What measure can anyone apply, with any degree of certainty, to gauge what can be expected of an inspector who “exceeds the standard of practice”?

    I suppose it can mean that whatever the SOP dictates is a minimum inspection standard is enhanced. Okay, I’ll buy that. But, now comes the next logical question: is everything in the SOP exceeded, or only certain things and how far will the inspector go beyond the minimum? Am I guaranteed that what the inspector did on his last two inspections will also be done on mine? How can one guarantee that the inspector exceeds the SOP in all cases, uniformly, and on every property?

    The problem is that you can’t. A Standard of Practice is called a Standard of Practice for a reason; it creates a standard. Once that standard is “exceeded”, the dynamics and expectations between Client and Inspector are automatically changed. Beyond that, the inspector needs to be careful that he or she has not raised the expectations of the client beyond what can be reasonably delivered. Where the specter of professional liability becomes an issue, these expectations, in conjunction with the inspector’s process, can come back to haunt you.

    Let’s say you “exceed” the SOP during the inspection of a forced warm-air heating system. Instead of simply removing the panel covers, you decide to unscrew the flame shield to get a better view of the burners and heat exchanger. You tell the client you are doing this for a specific reason. You use your mirror, flashlight, and boroscope. You find nothing. The client moves into the home and on the first cold night, their carbon monoxide detectors starting to wail. The fire company and gas company come to the home, and discover that the home is filled with carbon monoxide, apparently emanating from the heating system. A specialist is called and discovers a crack in the exchanger. The system requires replacement, and the client wants to know what you are going to do about it. You feel that you are in the clear. You get sued. Now, your inspection process gets called into question, because you claim to have exceeded the standard of practice. In fact, you were specifically chosen over all other inspectors in your area, because you boast that you exceed the SOP. Your processes have no parameters. Your processes have not been revealed to the client. All they know is that you unscrewed something, claiming to be able to get a better view. You used a "whatchamacallit" to enable you to see things that other inspectors can’t see. Yet, you still didn’t find the problem. It’s going to be a tough call to go back to the very standard you ignored as a defense, by saying “I didn’t have to do what I did, because the standard says so”. The fact of the matter is that you chose to throw the SOP out the window as a means of marketing; remember, you tell everyone how you “exceed” the standards.

    The problem becomes one of undefined boundaries. How far are you expected to go? You have failed to accurately set the client’s expectations. They now expect you to exceed. So, please exceed…

    Think of the former co-worker that told tales of weekend conquests; whether it be hiking, or a date, or some massive project around the house. Then think about what you thought when it was discovered that the conquest wasn’t exactly as real as depicted. Or the sale at the local department store, where the words “while supplies last” is in the fine print. You go to purchase the item only to find out that there were two in stock that sold out as soon as the store opened. The person or organization claiming something that, while technically correct, turns out to be a load of bunk quickly gets the reputation of being a liar.

    For home inspectors, this can be the difference between losing and prevailing in a lawsuit. When determining professional liability, one needs to examine the benchmark, or parameters, by which the inspection was performed; that benchmark is the SOP. When you veer too far outside of those parameters, you are in undiscovered territory. Instead of being black and white, shades of gray become areas for close examination. Where process becomes the issue, it becomes vital that those processes are documented and available. Process needs to be defensible, consistent, and expectations need to be correctly set.

    By Joe Farsetta
    Inspection Arbitration Services (IAS)

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  2. #2
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Julie Weishaar View Post
    By Joe Farsetta
    That explains it all right there. Joe Farce-etta

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
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  3. #3
    Ted Menelly's Avatar
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Way to much thinking going on here.

    All that matters is the the SOPs are met. Anything beyond that matters not.

    The only time it becomes of any consequence is when someone tries to make something of it.

    Your signiture tells it all and why you are questioning it.

    Do the standards get exceeeded...I am sure they do buy everytime somewhere in the SOPS by all inspectors.

    It would not be your duty to question anything beyond because beyond has no standard. You duty would be making sure that the standards are met on the particular complaint against the inspector....not the entire standards. What is the complaint of the client? The inspection of the service equipment panel. Did the inspector inspect the panel to the strandards they work under? Yes he did but he did not inspect the chimney to the standards. IS there anything wrong with the chimney? Well, no there isn't. Well there is nothing wrong with the panel and the other question at hand is the chimney which has nothing to do with the complaint so everyone have a nice day and pay the nice inspector for wasting his time.

    To many questions. Determine if the inspector inspected the items in question to the standards. Nothing else has anything to do with the complaint. There has to be specifics in a complaint. There is no proving or disproving that the standards were exceeded only that they were met and in this world....that is exceeding the standards of most.


  4. #4
    Ron Bibler's Avatar
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    gRAY IS gRAY is gRAY...

    Its all in the hands of the one looking into the glass. If he is looking for something to put in his pocket It may be half full if he is try to keep some one from taking the only things he has then the glass is half empty...

    All this because some one was trying to do a good job...

    Best

    Ron


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

    Can you really believe anything Fartsetta says given his reputation as a rube, who quite frankly has no understanding of law as it relates to some of his seminar teachings and in his his roll as ESOP Chair? The boy hasn't a clue and it appears his vocal chords needed exercising.


  6. #6
    Ron Bibler's Avatar
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Lets play this another way. What if you have no standards. and only the information in the report is the standard.

    In other words a report is limited to the finding listed in the report. If its not in the report its not part of the inspection.

    Best

    Ron


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

    Quote Originally Posted by Jerry Peck View Post
    That explains it all right there. Joe Farce-etta



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

    Quote Originally Posted by Raymond Wand View Post
    Can you really believe anything Fartsetta says given his reputation as a rube, who quite frankly has no understanding of law as it relates to some of his seminar teachings and in his his roll as ESOP Chair? The boy hasn't a clue and it appears his vocal chords needed exercising.
    Joe can spot an idiot a mile off.


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

    Quote Originally Posted by Michael Larson View Post
    Joe can spot an idiot a mile off.
    I imagine he can also spot one in the mirror too.

    I don't have anything against the man, ... other than you cannot believe a word he says (from my experience).

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    You can't trust Michael for the truth either. After all he likes to be judged by the company he keeps.


  11. #11
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Michael Larson View Post
    Joe can spot an idiot a mile off.
    ML: Closer yet - his mirror.


  12. #12
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Has anyone any specific case law specifically faulting a respondent for exceeding the SOP? I doubt very much you will find any regardless what the inspector did beyond the SOP of record.


  13. #13
    A.D. Miller's Avatar
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Raymond Wand View Post
    Has anyone any specific case law specifically faulting a respondent for exceeding the SOP? I doubt very much you will find any regardless what the inspector did beyond the SOP of record.
    RW: I am certain that you will find the proscription for exceeding the SOP in every E&O insurance provider's play book.


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

    AD

    Good point. But again do you know of any cases where the E&O provider disclaimed coverage for exceeding SOP?

    Curious.


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

    Quote Originally Posted by Jerry Peck View Post
    I imagine he can also spot one in the mirror too.

    I don't have anything against the man, ... other than you cannot believe a word he says (from my experience).
    I would trust Joe's sie of the story before yours Jerry.


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

    Quote Originally Posted by Michael Larson View Post
    I would trust Joe's sie of the story before yours Jerry.

    Michael,

    I have no doubt about that.

    Truly, I have no doubt that you would believe whatever Joe states.

    I'm not sure why you think that is a "good thing", but you do.

    Jerry Peck, Construction / Litigation Consultant
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  17. #17
    A.D. Miller's Avatar
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Raymond Wand View Post
    AD

    Good point. But again do you know of any cases where the E&O provider disclaimed coverage for exceeding SOP?

    Curious.
    RW: There are none of which I am aware. The TREC started down that road with me 6 or 7 years ago, got as far as my attorney, and promptly changed their minds.


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

    AD

    Thanks. It would seem to me that the plaintiff would have to prove negligence in the performance of the contracted services whether they be the SOP or some standard beyond the SOP.

    Thanks.


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

    I see no problem with exceeding an SOP as long as you are working to a "Standard of Care" and then an SOP is really a moot point. I almost confused myself with that statement!

    Scott Patterson, ACI
    Spring Hill, TN
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  20. #20
    Joseph Farsetta's Avatar
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Notwithstanding the comments of the disgraced R Wand, I do respect many of the comments of one, Jerry Peck.

    But, I'll leave you all with this ditty: If any of you have been sued, and have tendered the complaint to your carrier, invariably one of the first questions the adjuster will ask you is which SOP do you inspect to. They then ask if you informed your client which one it was, and where you informed the client. You may also be asked if you provided the SOP to the client or told them where to find them. Why does anyone think that the carrier cares?

    The question is not one of wanting to do a better job; the question becomes one of consistency. So, if you perform an inspection one way for Client X, and another way for Client Y, and you miss something during Client Y's inspection, your process may be called into question. If your process was not as comprehensive for Client Y, for whatever reason, then that client's attorney may ask the next logical question: "Mr. Inspector... why didn't you find this problem during my client's inspection? You found it at Client X's house. What was different?"

    Now you find yourself defending what you did differently, and why you did it one way as opposed to the other.

    Standards are there for a reason: they serve as a benchmark. When you exceed it, you need to do so in a consistent manner, and be able to justify why you did it for one versus another. This is the same philosophy that manufacturers and service providers adapt to when they go through ISO9000 certification.

    If process and consistency didn't matter, industry wouldn't have invested multiple millions of dollars in process documentation and gap analysis.

    Ask yourselves if you inspect the same way today, as compared to the way you inspected on the day you started. Inspectors learn and adjust their processes accordingly. The concept of Lean Process Evolution comes to mind. During this evolution, inspectors get better and do more in less time. Where the SOPs get exceeded in this process, without rhyme or reason, and in an inconsistent manner, the inspector can wind up in trouble.

    Inspectors regularly state the following: "I exceed the Standards of Practice". So, when comparing inspectors, including what helps to determine professional negligence, where does the line begin and end?

    Think about it.


  21. #21
    Ted Menelly's Avatar
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Raymond Wand View Post
    AD

    Thanks. It would seem to me that the plaintiff would have to prove negligence in the performance of the contracted services whether they be the SOP or some standard beyond the SOP.

    Thanks.
    Forget about contracted services. If you screw up as a home inspector and miss something you are going to pay for it. The only exception may be in an unlicensed state. As far as state minimum standards, that is what you have to go by. Again, miss some obvious foundation concerns and you are paying. Of course the proof is in the pudding. You for one always talk of contracted services. The only contract in a licensed state is the state contract of sorts and the states standards. Those that have contracts signed in a licensed state are just putting a bully clause in place that they hope to scare possible actions off with.

    Last edited by Ted Menelly; 09-20-2009 at 07:00 PM.

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

    Quote Originally Posted by Joseph Farsetta View Post

    Inspectors regularly state the following: "I exceed the Standards of Practice". So, when comparing inspectors, including what helps to determine professional negligence, where does the line begin and end?

    Think about it.
    Professional negligence starts with inspectors that don't have a clue what the SOP means, advertize they exceed ASHI's SOP, and than claim they are a "Certified Inspector" or a "Certfied Master Inspector" with absolutely no verificiation of their experience or home inspector knowlege .
    Where does that line begin and end?

    Last edited by Dan Harris; 09-20-2009 at 07:06 PM.
    Phoenix AZ Resale Home, Mobile Home, New Home Warranty Inspections. ASHI Certified Inspector #206929 Arizona Certified Inspector # 38440
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Joseph Farsetta View Post
    Notwithstanding the comments of the disgraced R Wand, I do respect many of the comments of one, Jerry Peck.

    But, I'll leave you all with this ditty: If any of you have been sued, and have tendered the complaint to your carrier, invariably one of the first questions the adjuster will ask you is which SOP do you inspect to. They then ask if you informed your client which one it was, and where you informed the client. You may also be asked if you provided the SOP to the client or told them where to find them. Why does anyone think that the carrier cares?

    The question is not one of wanting to do a better job; the question becomes one of consistency. So, if you perform an inspection one way for Client X, and another way for Client Y, and you miss something during Client Y's inspection, your process may be called into question. If your process was not as comprehensive for Client Y, for whatever reason, then that client's attorney may ask the next logical question: "Mr. Inspector... why didn't you find this problem during my client's inspection? You found it at Client X's house. What was different?"

    Now you find yourself defending what you did differently, and why you did it one way as opposed to the other.

    Standards are there for a reason: they serve as a benchmark. When you exceed it, you need to do so in a consistent manner, and be able to justify why you did it for one versus another. This is the same philosophy that manufacturers and service providers adapt to when they go through ISO9000 certification.

    If process and consistency didn't matter, industry wouldn't have invested multiple millions of dollars in process documentation and gap analysis.

    Ask yourselves if you inspect the same way today, as compared to the way you inspected on the day you started. Inspectors learn and adjust their processes accordingly. The concept of Lean Process Evolution comes to mind. During this evolution, inspectors get better and do more in less time. Where the SOPs get exceeded in this process, without rhyme or reason, and in an inconsistent manner, the inspector can wind up in trouble.

    Inspectors regularly state the following: "I exceed the Standards of Practice". So, when comparing inspectors, including what helps to determine professional negligence, where does the line begin and end?

    Think about it.

    Joe,

    I will acknowledge that the above post was quite good, although flawed.

    "Ask yourselves if you inspect the same way today, as compared to the way you inspected on the day you started. Inspectors learn and adjust their processes accordingly. The concept of Lean Process Evolution comes to mind. During this evolution, inspectors get better and do more in less time."

    As inspectors, even following an SoP, the simple facts you stated above means that your 1,000th inspection was made with more knowledge than your 1st inspection, and, as such, your inspection and report should represent that increased knowledge.

    Thus, when you miss something which you now know about (but did not know about at your 1st inspection), and yet you ignore it see it and do not include it in your report, THAT is where the inspector gets into trouble.

    Additionally, another flaw in your post above is your presumption and repeated stating that the SoP is exceeded willy-nilly, on an as "just because I feel like it" basis. I sincerely doubt that any inspector does things willy-nilly or "just because they feel like it" on one inspection and not another. When knowledge is gained, methods change, otherwise knowledge is not gained - only "information" is gained, and such "information" is useless unless one turns it into knowledge. And with knowledge comes the ability and knowing when, where, what, and how to change your method, which, yes, is consistently changing with your gained knowledge.

    The only people who are inspecting their 1,000th or 10,000th house the same as they did their 1st or 100th house are people who are not gaining knowledge.

    To show you the extent that it is LEGALLY REQUIRED TO GAIN KNOWLEDGE, just review ANY licensing in any state regarding any licensed occupation and you will see a REQUIREMENT for CONTINUED EDUCATION, which is there solely for the purpose of keeping inspectors knowledgeable and as current in their knowledge as the state can require.

    Don't use that yearly REQUIRED GAINED KNOWLEDGE and it just becomes more "information", which is not what "continuing EDUCATION" - note the emphasis on the word "education" - is for. Continuing education is to "educate" with "knowledge", not just pass along "information" which is ignored and not learned.

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

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

    Joe, you drunken disgraced hack who applies the rules to suit your ego - you are out of your league here. The only disgrace is your ignorance in calling someone in a drunken stupor and threatening them and acting on those threats. That is called premeditated bias. You have nothing on me and the Nachi lawyer backed that up so don't try and paint a different story.

    Your theory is wet. Practicing beyond the SOP has not been proven to be a detriment. As I already pointed out the basis and merits of the case revolve around negligence. The plaintiff would have to prove beyond doubt that the inspector erred in inspecting to a SOP not commonly found in the profession.

    The points which must be proven are, there must be a duty of care based on a special relationship between the parties; the representation made by one party to the other must be false, inaccurate or misleading, the representation must be made negligently, the person to whom the representation is made must have reasonably relied on the representation and, the reliance must have been detrimental to that person with the consequence of his suffering damages.

    Further the general legal principle that applies is that the standard of care applicable to a professional in the performance of his or her duties is one of reasonable skill, care and knowledge. The SOP's are not going to protect anyone from negligent misrepresentation, nor will practicing above that standard protect anyone from negligence so the point is moot. There are occasions where the courts are willing to find that professionals have acted negligently even though they followed the accepted practice of the day but not based on the fact they exceeded the standards.

    And if you want to sell this theory of yours I challenge you to provide case law or documentation to back up the claims.


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

    Quote Originally Posted by Raymond Wand View Post
    Further the general legal principle that applies is that the standard of care applicable to a professional in the performance of his or her duties is one of reasonable skill, care and knowledge.
    The "standard of care" is more binding than an SoP as an SoP is a "minimum requirements" document, whereas the "standard of care" for the profession in the local area is what 50% plus 1 of the inspectors do and know in that area.

    When 50% plus 1 of the inspectors in the area you are in do blah-blah-blah, you will be held to doing the same blah-blah-blah and be asked to explain why you did not, if you did not, and your answer that the SoP minimum requirement document does not call for that will fall on deaf ears as you are, first and foremost, admitting and stating that the SoP is a "minimum requirement" document and that your intention was "to do the minimum", which will not come out in your favor.

    Anyone who testifies that they are only doing the minimum and nothing more has no shot at winning anything.

    Remember, the "standard of care" is of far greater importance and bearing on any legal dispute than a "minimum requirement" document SoP.

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

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

    How does one determine what is the standard of care for a given area?

    I asked a flavor of this question several years ago. How do I know, how do I quantify I am a better inspector than any inspector in my area of operation?

    I know several regular posters perform litigation services. How do you determine the standard of care in the area the defendant is plying his trade?

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

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

    Jerry good points thanks for picking up on that.

    Also further points for discussion...

    The ASHI SOP as an example do not dictate that an inspector must walk a roof, or do not state that bathtubs and sinks be filled. So if an inspector walks the roof and fills the bathtub and sink he is exceeding SOP. As stated many times before by you and others the SOP are a minimum anyway and from the courts pov the minimum is the acceptable standard.

    As to a standard of care, I would argue that the standard of care is still going to come down to a question of - did the inspector conduct the inspection negligently? If there is no intent to conduct or relay information negligently the point is moot. However the question as to a standard of care would come down to the contractual terms, limitations, and what the inspection will include or not include as compared to your peers services.

    Other factors as to the standard of care would be for example;

    The report identifies a problem condition, but NOT its significance or
    meaning.

    The report understates the significance or meaning of a problem condition.

    The inspector verbally dilutes the significance or meaning of a problem
    condition identified in the report.

    The report fails to suggest that the client retain an expert to more fully
    evaluate a problem condition.

    The report fails to identify a limitation which prevents or hinders a more
    thorough inspection of an area or system.

    The inspector does not obtain a signed contract from the client.

    The inspector presents the contract for the first time immediately before
    the actual inspection.

    The contract does not contain a limit of liability provision.

    The contract does not identify what services are being offered and excluded.


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


  29. #29
    Joseph Farsetta's Avatar
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    "Standard of Care"

    Scott.... you have summed it up. Thank you.

    A standard of care eludes to a true process. PROCESS and consistency is key. Sure, you exceed the SOP. So what? What does it MEAN?

    My point is one of documentation and consistency. The SOP is a benchmark. When you exceed it, is it mamby-pamby, or executed with dilligence and dependent upon a number of factors. Do you disassemble or not. If so, when and why.

    As to Dan, I do see your point. And, after performing thousands of inspections, there s validity to your comment. But, you also elude to PROCESS. A process of certification for your argument.

    And, your discussion point goes directly to my question as to whether you inspect the same way today as you did when you started.

    Jerry,

    Thank you. Nice discourse.

    And, you are correct in what you are stating, except for the fact that you assume that I am stating that the experience one has learned through the years cannot or should not be leveraged, where observations should not be documented in a report. I can assure you that I support what you have just stated... to a T.

    However, I insist that what you have described does not necessarily translate into exceeding the SOP.

    Also, I disagree with your argument that many inspectors do not exceed the SOP willy-nilly. My contention is that many inspectors do just that, without thought as to what it means for professional inspectors who have developed their craft and inspection styles over the years, as opposed to a crafty marketing point.

    When Jerry Peck shows up to inspect a dwelling, I suspect that you stay for quite a while. At least that's what I can remember about your style and service. Your inspections differ from many others, and you clearly used to go way beyond the SOP. (are your inspections still like this?).

    The other thing I remember is that your techniques were CONSISTENT. Within the context of a JP inspection, the client's expectations were set. Your methods were known and documented in a consistent manner from dwelling to dwelling.

    But, can you honestly say that every inspector who regularly "exceeds the standard of practice" does so consistently.

    After all, when you insert the word "Regularly", couldn't the word "Irregularly" be just as relevent?

    Think about it. We all evolve, Jerry.

    Raymond - This is not the place for name callling and false accusations - it is a place for professionals to share ideas and experiences. I have nothing further to add to your comment.


  30. #30
    Ted Menelly's Avatar
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Jerry Peck View Post
    The "standard of care" is more binding than an SoP as an SoP is a "minimum requirements" document, whereas the "standard of care" for the profession in the local area is what 50% plus 1 of the inspectors do and know in that area.

    When 50% plus 1 of the inspectors in the area you are in do blah-blah-blah, you will be held to doing the same blah-blah-blah and be asked to explain why you did not, if you did not, and your answer that the SoP minimum requirement document does not call for that will fall on deaf ears as you are, first and foremost, admitting and stating that the SoP is a "minimum requirement" document and that your intention was "to do the minimum", which will not come out in your favor.

    Anyone who testifies that they are only doing the minimum and nothing more has no shot at winning anything.

    Remember, the "standard of care" is of far greater importance and bearing on any legal dispute than a "minimum requirement" document SoP.
    Jerry

    I am not an advocate of minimum satndards at all but in a licensed stte no one can hold you accountable for anything more than the SOPs.

    Standard of care becomes a crock. The standard of care is the SOPs.

    Yes there will be come backs from both sides but that is what state SOPs are all about. That is all any client can hold you to. period. There are no ifs, ands or buts about it. They are there not only to protect your client but you as well. Standard of care is just ass lawyers trying to get something fo nothing. Hate to repeat myself but the standards are the standards of care.


  31. #31
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Bruce,

    This is a tough question and one that is not easily answered. I suppose that a place to start is with regard to local, state, and national associations. Then, applicable laws would come into play.

    A voluntary SOP can translate into a standard of care. These vary by geographic location and by trade.

    For a trade, it can be a bit easier, as warranties and craftsmanship are benchmarks. For inspectors, trying to determine the condition of a 50 year old dwelling in a three-hour time period is a bit tougher to nail down.


  32. #32
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Jerry,

    You stated the following:

    "Remember, the "standard of care" is of far greater importance and bearing on any legal dispute than a "minimum requirement" document SoP."

    This logic is flawed. as licensed states rely on a mandated SOP to determine professional adherance to inspection standards. Where a duty of care is referenced within a HI licensing law, that duty tracks back to the SOP. If my state's SOP states that I am not required to lift ceiling tiles, and am not responsible for the discovery of mold in a home, then it matters not what my "standard of care" is, unless I decide to advertise and offer these actions as a part of the inspection.

    A standard of care is not necessarily dictated by the local market. I suspect that price still drives many inspector-selection criteria. To deny this fact is looking through our professional practices with rose-colored glasses.


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

    ¶ 20 While I suggest there are obvious limitations to what one can expect from home inspections of the type undertaken in this case, one also needs to be mindful of the responsibility which is taken on by the home inspector. Persons who hold themselves out to the community as professionals prepared to provide advice for a fee -- accountants, lawyers, engineers, architects, physicians, and other professionals immediately come to mind -- must know that in marketing and providing their services, they invite reliance upon their advice and, in doing so, they create a risk that their client will suffer harm if the professional falls short of the standard of care which reasonably may be expected of that category of professional in the particular circumstances, and their advice is wrong.


  34. #34
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Raymond,

    "if the professional falls short of the standard of care which reasonably may be expected of that category of professional in the particular circumstances"

    Standard of Care...
    Reasonably may be expected...
    Professional in the particular circumstance...

    Nothing may be reasonably expected, except as dictated by a Standard of Practice. The logic here is intended to track in a sort of linear fashion, I suppose. However, the variable comes down to what "reasonably" may be expected, from professionals with varying degrees of education and experience (in the arts of inspecting and communication), in particular circumstances.

    All from those who may claim to "exceed the standards of practice".


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

    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 most always by the court reviewing the case and the particulars, as well, by the cost of the inspection and the known level of expertise of the inspector. Needless to say the SOP may or may not play a role in the SOC and the two do not always relate to each other fwiw.


  36. #36
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Raymond,

    You wrote: "...reasonable visual inspection done in accordance with ASHI standards... to be determined most always by the court .... by the cost of the inspection and the known level of expertise of the inspector..."

    Okay.. I'll bite. You mention the ASHI standards. Fine, if those are the standards you follow. However, I submit that if the Client was indeed damaged due to the professional negligence of the inspector, the cost of the inspection and the "known" (what is known, anyway) level of expertise of the inspector are the last things to consider except in evaluating how much of a rip-off artist the inspector was in addition to being professionally negligent. This translates into the question of what the client expected for their money. No client will ever admit looking for a cheap and crappy inspector. If they do, get it in writing!

    I submit that cheap, inexperienced inspectors do not fair any better than an expensive, inexperienced inspector... and that a cheap but brilliant inspector may find him/herself in much more defensible situations in court.

    Bottom line is that all situations still use the SOP as a benchmark. Claiming you exceed these, and failing to do so absent of logic and consistency, is a recipe for problems.

    Guys and Gals... exceeding the SOP is an exercise in process engineering... as opposed to a marketing strategy.

    Get it?


  37. #37
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Joseph Farsetta View Post
    The other thing I remember is that your techniques were CONSISTENT. Within the context of a JP inspection, the client's expectations were set. Your methods were known and documented in a consistent manner from dwelling to dwelling.

    But, can you honestly say that every inspector who regularly "exceeds the standard of practice" does so consistently.
    Joe,

    In this day and age, the answer would be a resounding "Yes, most, if not every, inspectors who exceed the standard of practice does so consistently."

    The reason is that, in years gone by, the methods of the inspectors changed from house to house, inspection to inspection, until they developed their own reporting system, whether that be paper and narrative off a work sheet checklist list or paper on a check list report, which made their inspection "consistent" as regards to what they do, and how they do it.

    Now, in this day and age, most inspectors are working with computer reporting systems, which greatly enhances and increases "consistency" from house to house and inspection to inspection. The report asks for certain information on certain items, systems and components, and the inspector tweaks the reporting system to their likes and wants and then basically (reduced to the basic concept for this discussion) "fills in the blanks", blanks which they have created or at least edited to fit closer to what they want.

    After all, when you insert the word "Regularly", couldn't the word "Irregularly" be just as relevent?
    No, "irregularly" indicates the opposite of "regularly", like "untimely" indicates the opposite of "timely". Just because one is "timely" does not therefore mean that "untimely" is relevant to those people. Possibly to others who are "untimely", but then, being "untimely" or "irregularly" becomes in itself "regular", i.e., if you *always* show up 30 minutes late, your timing becomes known and you are regularly schedule by the receiving end "30 minutes early" so that you are your regular 30 minutes later, you are actually "timely" and on time.

    Think about it. We all evolve, Jerry.
    Yes, Joe, think about it. Anything someone consistently does differently becomes their 'consistently done' way.

    With today's common computer inspection systems and programs, "consistency" becomes a way of life and is built into each inspection, and when one varies from that and forms a new method or way, that new method or way becomes their newly consistent method or way.

    The only time that does not happen is, hopefully anyway, with new inspectors who are trying to figure out "their way", and they have not established any consistency until they first flounder through their inconsistency to arrive at "their way".

    Regarding the SoP and standard of care, no ... I repeat, absolutely *no* standard of practice *REQUIRES* an inspector to go up on a roof and walk it. At most, the standard of practice may "encourage" the inspector to do so "if it is deemed safe to do so" and is so deemed "by the inspector" and only by "the inspector". Thus, the inspector may be afraid of heights, and thus NO ROOF is "safe" for them to walk, or they may have a bad leg, making NO ROOF "safe" for them to walk.

    Thus, the SoP they are following minimally requires the roof to be "inspected", and "inspecting from the ground" is acceptable.

    Now take another inspector, that other inspector feels safe on 9/12 slope roofs, thus they are "exceeding the standard of practice" and do so all the time, each and every inspection. And there is nothing wrong with that inspector 'exceeding the standard of practice".

    Now let's take a local group of inspectors who meet monthly for a dinner meeting, there are 20 of them, and 15 of those inspectors climb on and walk roofs up to 6/12 slope, 1 goes on roofs to 9/12 slope, 2 go up on roofs to 4/12 slope, 1 looks at the roof from a ladder at the overhang, and 1 inspects from the ground as he is afraid of heights.

    Those 4 inspectors who do not go up on and walk roofs up to 6/12 are not working at a level with the standard of care for that area. And 1 inspector is exceeding that standard of care. ALL 20 of the inspectors are meeting or exceeding the standard of practice.

    ~~~~~~~~~~~~~~~

    Let's look at it the same way but from a different point of view: contractors.

    The "code" is their minimum legally required standard.

    How many ONLY meet "the code" and do not go beyond the code in any way?

    I am going to guess the answer is *0*, for even those contractors who seem incapable of meeting the code on "some things" actually exceed the code on other things. There is nothing wrong with any contractor "exceeding" code, and "code" is the legally required "minimum standard".

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

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

    The broad purpose of securing a residential home inspection is to provide to a lay purchaser expert advice about any substantial deficiencies in the property which can be discerned upon a visual inspection, and which are of a type or magnitude that reasonably can be expected to have some bearing upon the purchaser's decision-making regarding whether they wish to purchase the property at all, or whether there is some basis upon which they should negotiate a variation in price. Broadly speaking, it is a risk-assessment tool.

    ¶¶ 18 In Seltzer-Soberano v. Kogut, [1999] O.J. No. 1871 (Ont. Superior Court of Justice), Justice Wright said (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. A house inspector would be held to a different standard of responsibility if requested to respond to a specific question, i.e., "we want to know if there is any evidence of termites in this house?" If that specific question was asked of a house inspector, the inspector, unless expert in that area, would probably tell the proposed purchaser to consult a pest control company.

    ¶¶ 19 In Drever v. Eaton, unreported, November 14, 2000, Victoria Registry No. 28199 (Provincial Court), my colleague Judge Filmer dealt with a claim against a home inspector, and mentioned in passing:

    (The home inspection) was not being used as an assurance of the structural integrity of this building. To do that for $200 would be a fool's errand, in my view.
    It would be great if you could back up your arguements with factual info rather then speculative comments based on opinion if you please.


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

    Joe,

    A separate post for this.

    It all comes down to what a "reasonable and prudent" home inspector would do, and to what a "reasonable and prudent" client thinks the home inspector has stated they would do.

    The above gets back to something I have repeated many times before, and I am sure you remember it too: When home inspectors advertise "Complete", "Comprehensive", "Thorough", "All Inclusive", and other of the other words or phrases which are intended to make a reader think that inspector is doing what is stated, no standard of practice, no amount of calling it a "visual inspection", no amount of back-pedaling, etc., will relieve that inspector from *being expected to fulfill* what they promised in their advertisements.

    When an inspector advertises that "they inspect it all", "over 1,500 items", blah, blah, blah (you have seen those advertisements, web sites, etc.), that inspector's INTENT is to set himself/herself up on a pedestal above all other home inspectors in that area. That same pedestal of INTENT is where they will be placed with defending against some legal action taken against them.

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

  40. #40
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Joseph Farsetta View Post
    "


    As to Dan, I do see your point. And, after performing thousands of inspections, there s validity to your comment. But, you also elude to PROCESS. A process of certification for your argument.

    .
    From a recent post on Wash State licensing, and from what I've seen locally, the process that seems to work pretty well is, state licensing, this certificiation process has exposed lack of inspectors [ old and new] understanding the SOP's.

    Last edited by Dan Harris; 09-20-2009 at 09:12 PM.
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Jerry

    One need not look very far to see exaggerated claims being advertised by inspectors. They had better hope that if they do face litigation that they are able to back up those exaggerated claims, because a good lawyer will make mince meat out of them and make the inspector look like a fool. After all such claims will undoubtedly increase the purchasers expectations, and that is not a good thing.

    A good example is the claim that P2P inspects 1600 items, we all know that is not a true statement.

    All Pillar To Post home inspectors are trained to inspect up to 1,600 points on a home as part of a standard inspection. For the convenience of our customers, many Pillar To Post inspectors also offer a wide range of additional services, which include Radon, well water quality, mold, wood destroying organism, asbestos, and lead testing, as well as septic, swimming pool, and condominium inspections.


    Last edited by Raymond Wand; 09-20-2009 at 09:15 PM.

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

    Rather interesting that the original post was posted by a marketing person who just happens to represent Joe F, and here is Joe's home page as listed in his profile.

    Inspection Arbitration Services (IAS)

    Lovely.


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

    Quote Originally Posted by Raymond Wand View Post
    Rather interesting that the original post was posted by a marketing person who just happens to represent Joe F, and here is Joe's home page as listed in his profile.


    Lovely.
    Ray. I noticed that.
    On positive thing is, I give him credit on his other posts for not using this forum as a free marketing tool. YET

    Phoenix AZ Resale Home, Mobile Home, New Home Warranty Inspections. ASHI Certified Inspector #206929 Arizona Certified Inspector # 38440
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Dan Harris View Post
    Ray. I noticed that.
    On positive thing is, I give him credit on his other posts for not using this forum as a free marketing tool. YET
    No but he had his marketing agent introduce the topic and if that is not a plug I don't know what is. I knew there had to be more to this than meets the eye, even more so that the same topic about inspecting to SOP is being discussed on the Nacho site and I didn't see the marketing rep making use of that forum.


  45. #45
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Scott Patterson View Post
    I see no problem with exceeding an SOP as long as you are working to a "Standard of Care" and then an SOP is really a moot point. I almost confused myself with that statement!
    SP: Worked on me! Besides the term "standard of care" will only lead you back to "accepted industry practices" which in turn, if the HI is in a licensed state or a member of an HI organization with an SOP, will bring us full circle back to the prevailing standard of practice.


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

    OK, let me give you a case study of a home inspector "Standard of Care";

    A case that I finished a few months ago working for a plaintiff who was suing a home inspector for missing a rotted out subfloor, joist and a few other things. Fast forward......... The inspector did not own a moisture meter and we were able to prove in part through this website, Inspectors Journal and even the INACHI site that it is a standard of care for a home inspector to own and know how to use a moisture meter.

    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.

    Owning and using a moisture meter is a Standard of Care in our profession.

    Last edited by Scott Patterson; 09-21-2009 at 07:42 AM.
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  47. #47
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Raymond,

    You make a point to discredit me, which is understandable for a person with your record, but I will not discuss that here. In this forum, and as it pertains to this particular topic, our marketeer chose to share a recent article I penned. The issue of SOPs which happen to be in the throws of discussion on the InterNACHI website have nothing to do with me. The question was raised by Ben Gromicko, and I will argue in the same manner over there as I do over here. Ben wants to wrap exceeding the SOP with his training courses. I look at it quite differently.

    However, and back to the point of exceeding the SOP, Jerry Peck does bring it into context. To his credit, and to my point, your intent and your marketing combined with a number of factors including your skillset will protect you or fail you. Combine this with "we exceed the standards of practice" and it becomes the wild west.

    If you'd like an example of case law, my suggestion is that you look to a case here in Utica NY a year or so back, with the ICC certified HI who advertised his certification and combined it with "I exceed the SOP". He was sued, and settled for $30k +, for failing to point out code violatations, although it was never part of his inspection standard.

    Not conjecture. Not legend. Not hyperbole. Just fact, Raymond

    As I wrote in my article, the only thing guaranteed is that NOTHING is guaranteed.


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

    Scott

    Was this matter heard in court or settled out of court?


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

    Joe

    My record? You have been caught repeatedly exerting your authority without so much as any consideration to the rules. You are also the one who came up here to Ontario and taught a water quality course and well inspection and told the students they were certified upon completion of your course that they were certified to inspect wells. When I challenged that aspect of certification it was clear you had not done your home work and refused to accept the legalities as per provincial law with respect to well inspectors requiring licencing.

    Again as usual you offer no substantiation of your claims by way of documentation. Unlike you I am able to supply supportive documents. When you can muster the documents come forward..

    By Joe, try and do your own research and stop using me as your sounding board for your preposterous opinions. And you don't give orders around here, this is not your domain to do so.


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

    Quote Originally Posted by Raymond Wand View Post
    Scott

    Was this matter heard in court or settled out of court?
    Court with jury for a day and a half and then settled after the noon break.

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  51. #51
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    The inspector did not own a moisture meter and we were able to prove in part through this website, Inspectors Journal and even the INACHI site that it is a standard of care for a home inspector to own and know how to use a moisture meter.
    SP: Be that as it may, your impromptu poll would be unbelieveably inaccurate based upon its scope. Additionally, at least in Texas where an SOP exists, there is not only no requirement to utilize "specialized tools", the SOP goes so far as to explcitly exclude the use of "specialized tools".

    (b) Scope.

    (1) These standards of practice define the minimum levels of inspection required for substantially completed residential improvements to real property up to four dwelling units. A real estate inspection is a limited visual survey and basic operation of the systems and components of a building using normal controls and does not require the use of specialized tools or procedures. The purpose of the inspection is to provide the client with information regarding the general condition of the residence at the time of inspection. The inspector may provide a higher level of inspection performance than required by these standards of practice and may inspect parts, components, and systems in addition to those described by the standards of practice.


    (9) Specialized tools--Tools such as thermal imaging equipment, moisture meters, gas leak detection equipment, environmental testing equipment and devices, elevation determination devices, and ladders capable of reaching surfaces over one story above ground surfaces.


    Owning and using a moisture meter is a Standard of Care in our profession.
    SP: That is just plain BS. Next you'll want to add crystal balls.


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

    For your edification and delectation.

    An appeal from Small Claims Court to Divisional Court re use of moisture meter.

    R E A S O N S F O R J U D G M E N T


    LANE J.:


    [1] The appellant appeals from the judgment of Freeman D.J. of the Toronto Small Claims Court dated May 8, 2006, whereby he awarded damages of $9,148.58 to the plaintiffs for negligence of the defendant in carrying out a home inspection. The appellant seeks dismissal of the action or a new trial on the ground that the trial judge misapprehended the evidence and failed to give effect to the limitation of liability clause in the contract.


    [2] Prior to closing their agreement to purchase a home in Nobleton in July 2003, the respondents engaged the appellants to perform a home inspection. The inspection failed to disclose a latent defect, being water leakage from outside the house into the basement and consequent deterioration of wood structures in the basement. Relying on the inspection report, which did not note any damage or problem in the basement, the respondents closed. It turned out that there was actually a very large problem and the foundation needed to be dug up, the exterior wall tarred and the weeping tile replaced. At least one rotted piece of the wood was put in evidence. Mrs. Celebre described the problem as a long-standing one which had been ongoing for some years. The respondents say that the defects would have been revealed by ordinary care and that the limiting provisions in the agreement cannot assist the appellant.


    [3] The appellant contends that as the basement wall was dry-walled, it was not intended that the inspection be any more than visual and non-intrusive. What was behind the drywall was not the subject of inspection unless there were stains on the dry wall. As there were no visible stains, the inspector did not see the need to employ the moisture meter with which he was equipped.


    [4] The evidence of the inspector was that he first inspected the exterior. He found that the water management was “fairly poor”[1]. He found that the gutters needed to be cleaned; the downspouts were too short to direct the water away from the foundation, the grading sloped toward the house. All of these matters needed to be repaired to ensure that water could not enter through the foundation walls.


    [5] The interior inspection disclosed that the walls were completely dry-walled so that inspection of the interior of the foundation wall was not possible. As noted, he said he did not use the moisture meter because there were no stains. The judge asked at this point:
    Now if you see problems on the outside, such as the eaves or the – basically the drainage, because of the slopes, would you not use a moisture meter in the basement in that case?
    A. I would if I see signs of the –of water in the area and as I said there were no signs at all. The drywall were dry; there’s no stains. If the owner of the house went to the extent of hiding the damage and I cannot – I cannot be a detective looking for, for hidden – for someone trying to hide – to hide the problems from my eyes.
    BY MS. CELEBRE: You just said that you would use a moisture detector if you saw that there was some evidence of moisture in the area. Now you had given us some suggestions, so that moisture wouldn’t go into the exterior or into the basement foundation, by changing eavestroughs, which we did and the grading. So did you notice that there were some moisture problems in the area…
    A. Yeah, I …
    Q. …to the exterior.
    A. Yeah, I thought that there would be potential problems in the area, yes.
    Q. So why wasn’t the moisture meter used?
    A. As I said, I did not see any signs on the outside - on the inside- as I went inside that tells me that I should use my moisture meter and these areas were covered by furniture Your Honour, and household items.

    [6] In rebuttal, Mr. Celebre testified that the area behind which the leak existed was furnished only with a small TV stand.


    [7] In his report on the inspection of the basement, the inspector wrote:
    704 Walls Poured concrete.
    Normal moisture levels were observed at the time of inspection.

    [8] In reporting on the joists, columns, insulation and beams in the basement, the inspector referred in each case to his inability to report because the ceiling and walls were finished. He testified the walls were dry, but he reported that he saw “normal” levels of moisture. Counsel for the appellant submitted that a report of “normal” moisture cannot be a signal of a moisture problem. Therefore the evidence did not support this finding. But dry wall does not normally have moisture on it; moisture does serious damage to drywall. The trial judge picked up on this in his reasons:
    The defence witness testified that he did not observe any moisture on the walls. However, the inspection report, Exhibit number 4, which I rely on, indicates there was moisture on the walls. I find that, having observed moisture on the walls, the inspector should have proceeded further by either using a moisture meter or some other means and consequently there was gross negligence on behalf of the defendant. Exhibit 1 indicates the water damage was four to five years old.

    [9] Accordingly, the judge gave judgment for the costs of repair.


    [10] The standard by which this court reviews the findings of fact made at trial is one of deference to the judge who saw and heard the witnesses. This means that we do not interfere unless the trial judge made a palpable and overriding error; an error that is plainly seen.[2] One such error would be reaching a conclusion of fact when there was no evidence to support it. The appeal does not involve my re-weighing the evidence and choosing what to believe. Rather I look to see if there is evidence in support of the finding. If there is such evidence I cannot interfere.



    [11] In my opinion, the evidence I have referred to is plainly capable of supporting the finding of the judge. The inspector observed conditions outside the house such that water was being directed toward the foundation and not away from it, making it more probable that water problems would occur. The presence of moisture on the walls is reported in the report and the judge was entitled to prefer the report to the inspector’s oral evidence and to find gross negligence in failing to follow up. The appeal from the finding of negligence is dismissed.


    [12] Regrettably, the trial judge did not give any reasons except for the passage quoted above. He did not deal with the debate about when the contract was signed and under what circumstances. The inspector testified that the contract was signed after he had examined the exterior and when they went inside to examine the interior. They stopped and he explained the contract and the fee and the limitation of liability clause to Mr. Celebre and obtained his signature. The respondent testified that there was no such discussion and no signature until after all the inspection was completed. He acknowledged that he was then told of the limitation of liability clause, what the fee would be and he signed. I cannot resolve this issue as I did not see the witnesses. However, I can resolve the appeal without resolving this particular issue, because, even assuming that the contract was signed as described by the appellant, there is a legal issue relating to the enforceability of the limitation of liability clause in the circumstances.


    [13] While it is the case that the contract was signed, it does not follow that the limitation of liability clause is enforceable. The contract is one of adhesion, a consumer standard-form, and not the result of negotiation and the circumstances typically are that there is a limited time allowed in the contract of purchase and sale for the buyer to have a home inspection done. The buyer is not normally in the position of being able to have a second inspection done; there simply is not time. At its best for the appellant, this contract was not presented for signature and was not explained until the entire inspection of the exterior had been completed. At that point the buyer is not, in practical terms, able to reject the contract and engage another inspector. The inspector has done much of the work and will expect to be paid for it. There is thus a pressure applied by the practice of delaying the explanation and signature until after much work has been done. This was described by the inspector as his usual practice. It seems to me that this practice is not a fair one. If there are particularly onerous terms in a contract of adhesion, the duty of the inspector is to explain the term at a time and in a manner that gives the customer a real opportunity to refuse and to find an alternate inspector.


    [14] Counsel for the appellant drew my attention to another case[3] involving the appellant company, in which Coo J. of this court at trial enforced the limitation of liability clause and reduced the damages to the amount of the fee. That case, however, was not the same as this one. The court rejected the plaintiff’s claim that there had been a prior oral agreement that governed the relationship. Significantly, the trial judge found that the contract was “…signed by the plaintiff before any real work was done by the inspector and as a clear and unequivocal condition of there being any inspection at all.” That is not our case, and the emphasis placed by the judge in the quoted passage reinforces the importance of a timely explanation and execution of the contract.


    [15] A contract is fundamentally breached when the result of the breach is to deprive the innocent party of all or substantially all of the benefit contracted for[4]. The respondents did not contract for or expect to receive a warranty that the house was well built, or a form of insurance. They contracted for a competent inspection of the house so that they could decide to accept the purchase as written, bargain for a price reduction if defects were found, or abandon the purchase altogether. The trial judge has found gross negligence in the manner of inspection. The respondents did not receive the only thing they bargained for.



    [16] The leading case on the effects of fundamental breach is Syncrude[5] where the Court decided that an exclusion of liability could be enforceable even in the face of a fundamental breach. As Wilson J. said, the court must consider whether:
    “… in the context of the particular breach which had occurred it was fair and reasonable to enforce the clause in favour of the party who had committed that breach even if the exclusion clause was clear and unambiguous.” Later, she continued: “In particular, the circumstances surrounding the making of a consumer standard-form contract could permit the purchaser to argue that it would be unconscionable to enforce an exclusion clause.” And: “I believe however, that there is some virtue in a residual power residing in the court, to withhold its assistance on policy grounds in appropriate circumstances.”

    [17] The finding that the breach is fundamental is not in itself a basis for refusing to enforce the limitation clause. It opens the door to a consideration of whether to enforce the exclusion of liability clause not only in respect of the circumstances of the making of the contract containing the clause, but also in the light of the subsequent breach.[6] The contract may be enforced as written unless the circumstances are such that it would be unconscionable, unfair, unreasonable or contrary to public policy to do so.


    [18] The limitation of liability clause is clear and applicable to the work done. However, in my view it would be unfair to enforce it in the circumstances. The explanation of the limitation of liability clause was delayed until much work had already been done, placing the respondents in an unfair position, and the breach deprived them of the entire benefit of the contract.
    [19] For these reasons, the appeal is dismissed. Submissions as to costs may be made in writing but only after the parties have attempted to settle them.





    ___________________________
    Lane J.

    DATE: July 17, 2007



  53. #53
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Raymond Wand View Post
    For your edification and delectation.

    An appeal from Small Claims Court to Divisional Court re use of moisture meter.

    R E A S O N S F O R J U D G M E N T


    LANE J.:


    [1] The appellant appeals from the judgment of Freeman D.J. of the Toronto Small Claims Court dated May 8, 2006, whereby he awarded damages of $9,148.58 to the plaintiffs for negligence of the defendant in carrying out a home inspection. The appellant seeks dismissal of the action or a new trial on the ground that the trial judge misapprehended the evidence and failed to give effect to the limitation of liability clause in the contract.


    [2] Prior to closing their agreement to purchase a home in Nobleton in July 2003, the respondents engaged the appellants to perform a home inspection. The inspection failed to disclose a latent defect, being water leakage from outside the house into the basement and consequent deterioration of wood structures in the basement. Relying on the inspection report, which did not note any damage or problem in the basement, the respondents closed. It turned out that there was actually a very large problem and the foundation needed to be dug up, the exterior wall tarred and the weeping tile replaced. At least one rotted piece of the wood was put in evidence. Mrs. Celebre described the problem as a long-standing one which had been ongoing for some years. The respondents say that the defects would have been revealed by ordinary care and that the limiting provisions in the agreement cannot assist the appellant.


    [3] The appellant contends that as the basement wall was dry-walled, it was not intended that the inspection be any more than visual and non-intrusive. What was behind the drywall was not the subject of inspection unless there were stains on the dry wall. As there were no visible stains, the inspector did not see the need to employ the moisture meter with which he was equipped.


    [4] The evidence of the inspector was that he first inspected the exterior. He found that the water management was “fairly poor”[1]. He found that the gutters needed to be cleaned; the downspouts were too short to direct the water away from the foundation, the grading sloped toward the house. All of these matters needed to be repaired to ensure that water could not enter through the foundation walls.


    [5] The interior inspection disclosed that the walls were completely dry-walled so that inspection of the interior of the foundation wall was not possible. As noted, he said he did not use the moisture meter because there were no stains. The judge asked at this point:
    Now if you see problems on the outside, such as the eaves or the – basically the drainage, because of the slopes, would you not use a moisture meter in the basement in that case?
    A. I would if I see signs of the –of water in the area and as I said there were no signs at all. The drywall were dry; there’s no stains. If the owner of the house went to the extent of hiding the damage and I cannot – I cannot be a detective looking for, for hidden – for someone trying to hide – to hide the problems from my eyes.
    BY MS. CELEBRE: You just said that you would use a moisture detector if you saw that there was some evidence of moisture in the area. Now you had given us some suggestions, so that moisture wouldn’t go into the exterior or into the basement foundation, by changing eavestroughs, which we did and the grading. So did you notice that there were some moisture problems in the area…
    A. Yeah, I …
    Q. …to the exterior.
    A. Yeah, I thought that there would be potential problems in the area, yes.
    Q. So why wasn’t the moisture meter used?
    A. As I said, I did not see any signs on the outside - on the inside- as I went inside that tells me that I should use my moisture meter and these areas were covered by furniture Your Honour, and household items.

    [6] In rebuttal, Mr. Celebre testified that the area behind which the leak existed was furnished only with a small TV stand.


    [7] In his report on the inspection of the basement, the inspector wrote:
    704 Walls Poured concrete.
    Normal moisture levels were observed at the time of inspection.

    [8] In reporting on the joists, columns, insulation and beams in the basement, the inspector referred in each case to his inability to report because the ceiling and walls were finished. He testified the walls were dry, but he reported that he saw “normal” levels of moisture. Counsel for the appellant submitted that a report of “normal” moisture cannot be a signal of a moisture problem. Therefore the evidence did not support this finding. But dry wall does not normally have moisture on it; moisture does serious damage to drywall. The trial judge picked up on this in his reasons:
    The defence witness testified that he did not observe any moisture on the walls. However, the inspection report, Exhibit number 4, which I rely on, indicates there was moisture on the walls. I find that, having observed moisture on the walls, the inspector should have proceeded further by either using a moisture meter or some other means and consequently there was gross negligence on behalf of the defendant. Exhibit 1 indicates the water damage was four to five years old.

    [9] Accordingly, the judge gave judgment for the costs of repair.


    [10] The standard by which this court reviews the findings of fact made at trial is one of deference to the judge who saw and heard the witnesses. This means that we do not interfere unless the trial judge made a palpable and overriding error; an error that is plainly seen.[2] One such error would be reaching a conclusion of fact when there was no evidence to support it. The appeal does not involve my re-weighing the evidence and choosing what to believe. Rather I look to see if there is evidence in support of the finding. If there is such evidence I cannot interfere.



    [11] In my opinion, the evidence I have referred to is plainly capable of supporting the finding of the judge. The inspector observed conditions outside the house such that water was being directed toward the foundation and not away from it, making it more probable that water problems would occur. The presence of moisture on the walls is reported in the report and the judge was entitled to prefer the report to the inspector’s oral evidence and to find gross negligence in failing to follow up. The appeal from the finding of negligence is dismissed.


    [12] Regrettably, the trial judge did not give any reasons except for the passage quoted above. He did not deal with the debate about when the contract was signed and under what circumstances. The inspector testified that the contract was signed after he had examined the exterior and when they went inside to examine the interior. They stopped and he explained the contract and the fee and the limitation of liability clause to Mr. Celebre and obtained his signature. The respondent testified that there was no such discussion and no signature until after all the inspection was completed. He acknowledged that he was then told of the limitation of liability clause, what the fee would be and he signed. I cannot resolve this issue as I did not see the witnesses. However, I can resolve the appeal without resolving this particular issue, because, even assuming that the contract was signed as described by the appellant, there is a legal issue relating to the enforceability of the limitation of liability clause in the circumstances.


    [13] While it is the case that the contract was signed, it does not follow that the limitation of liability clause is enforceable. The contract is one of adhesion, a consumer standard-form, and not the result of negotiation and the circumstances typically are that there is a limited time allowed in the contract of purchase and sale for the buyer to have a home inspection done. The buyer is not normally in the position of being able to have a second inspection done; there simply is not time. At its best for the appellant, this contract was not presented for signature and was not explained until the entire inspection of the exterior had been completed. At that point the buyer is not, in practical terms, able to reject the contract and engage another inspector. The inspector has done much of the work and will expect to be paid for it. There is thus a pressure applied by the practice of delaying the explanation and signature until after much work has been done. This was described by the inspector as his usual practice. It seems to me that this practice is not a fair one. If there are particularly onerous terms in a contract of adhesion, the duty of the inspector is to explain the term at a time and in a manner that gives the customer a real opportunity to refuse and to find an alternate inspector.


    [14] Counsel for the appellant drew my attention to another case[3] involving the appellant company, in which Coo J. of this court at trial enforced the limitation of liability clause and reduced the damages to the amount of the fee. That case, however, was not the same as this one. The court rejected the plaintiff’s claim that there had been a prior oral agreement that governed the relationship. Significantly, the trial judge found that the contract was “…signed by the plaintiff before any real work was done by the inspector and as a clear and unequivocal condition of there being any inspection at all.” That is not our case, and the emphasis placed by the judge in the quoted passage reinforces the importance of a timely explanation and execution of the contract.


    [15] A contract is fundamentally breached when the result of the breach is to deprive the innocent party of all or substantially all of the benefit contracted for[4]. The respondents did not contract for or expect to receive a warranty that the house was well built, or a form of insurance. They contracted for a competent inspection of the house so that they could decide to accept the purchase as written, bargain for a price reduction if defects were found, or abandon the purchase altogether. The trial judge has found gross negligence in the manner of inspection. The respondents did not receive the only thing they bargained for.



    [16] The leading case on the effects of fundamental breach is Syncrude[5] where the Court decided that an exclusion of liability could be enforceable even in the face of a fundamental breach. As Wilson J. said, the court must consider whether:
    “… in the context of the particular breach which had occurred it was fair and reasonable to enforce the clause in favour of the party who had committed that breach even if the exclusion clause was clear and unambiguous.” Later, she continued: “In particular, the circumstances surrounding the making of a consumer standard-form contract could permit the purchaser to argue that it would be unconscionable to enforce an exclusion clause.” And: “I believe however, that there is some virtue in a residual power residing in the court, to withhold its assistance on policy grounds in appropriate circumstances.”

    [17] The finding that the breach is fundamental is not in itself a basis for refusing to enforce the limitation clause. It opens the door to a consideration of whether to enforce the exclusion of liability clause not only in respect of the circumstances of the making of the contract containing the clause, but also in the light of the subsequent breach.[6] The contract may be enforced as written unless the circumstances are such that it would be unconscionable, unfair, unreasonable or contrary to public policy to do so.


    [18] The limitation of liability clause is clear and applicable to the work done. However, in my view it would be unfair to enforce it in the circumstances. The explanation of the limitation of liability clause was delayed until much work had already been done, placing the respondents in an unfair position, and the breach deprived them of the entire benefit of the contract.
    [19] For these reasons, the appeal is dismissed. Submissions as to costs may be made in writing but only after the parties have attempted to settle them.






    ___________________________



    Lane J.



    DATE: July 17, 2007
    RW: While Toronto and Tennessee both start with a "T", they still are not in Texas making both your and SP's points moot.


  54. #54
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Scott Patterson View Post
    OK, let me give you a case study of a home inspector "Standard of Care";

    A case that I finished a few months ago working for a plaintiff who was suing a home inspector for missing a rotted out subfloor, joist and a few other things. Fast forward......... The inspector did not own a moisture meter and we were able to prove in part through this website, Inspectors Journal and even the INACHI site that it is a standard of care for a home inspector to own and know how to use a moisture meter.
    Scott,

    Years ago Norm Sage and I worked on a case in South Florida where an inspector was being sued for something he had not done/not found because he had not done something (similar to your case).

    Norm and I were able to show, based on published and distributed advertisements (those brochures everyone dropped off at real estate offices back then before the internet took hold) that 50% plus 1 of the area inspectors did such-and-such and and that this inspector had not done such-and-such, and in fact disclosed that he did not even know about such-and-such (I forgot what it was now, it was so long ago).

    We established what the "standard of care" was for area inspectors, which exceeded the standards of practice, and that this inspectors actions, knowledge, and actions on behalf of and for his client were far below that standard of care - that inspector paid dearly as he went out of business due to his losing that case. He was one of those inspectors who charged something like $99 (back then) for a "full comprehensive home inspection" and which took him an average of 45 minutes to an hour to do. He was always bragging about how many inspections he did each day (I recall it being something like 10 per day) and that he was the only inspector who knew what they were doing.

    What he failed to understand, though, was that he was not meeting the standard of care for the area.

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

  55. #55
    A.D. Miller's Avatar
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    RW: I might also add from the Texas SOP:

    (3) General limitations. The inspector is not required to:

    (A) inspect:

    (i) items other than those listed herein;

    (ii) elevators;

    (iii) detached structures, decks, docks, fences, or waterfront structures or equipment;

    (iv) anything buried, hidden, latent, or concealed; or


  56. #56
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    AD

    Still waiting for you to actually provide some proof to back up your gum flapping. Tick, tick, tick..... All talk as usual.


  57. #57
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Norm and I were able to show, based on published and distributed advertisements (those brochures everyone dropped off at real estate offices back then before the internet took hold) that 50% plus 1 of the area inspectors did such-and-such and and that this inspector had not done such-and-such, and in fact disclosed that he did not even know about such-and-such
    JP: It seems to me that any competent attorney would have to expend little effort in showing this to be an unofficial and inaccurate polling technique.

    (I forgot what it was now, it was so long ago).
    JP: Pre- or post Watergate?

    We established what the "standard of care" was for area inspectors, which exceeded the standards of practice,
    JP: I was unaware that Florida even had an SOP.

    He was one of those inspectors who charged something like $99 (back then) for a "full comprehensive home inspection" and which took him an average of 45 minutes to an hour to do. He was always bragging about how many inspections he did each day (I recall it being something like 10 per day) and that he was the only inspector who knew what they were doing.
    JP: So then, whatever he got he deserved it.

    What he failed to understand, though, was that he was not meeting the standard of care for the area.
    JP: It has been my experience - which is admittedly less than yours - that "standard of care", "fraud", "deception", "intent", et al. are very difficult indeed to prove up in a court of law, especially in the presence of a prescriptive SOP.


  58. #58
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Raymond Wand View Post
    AD

    Still waiting for you to actually provide some proof to back up your gum flapping. Tick, tick, tick..... All talk as usual.
    RW: Actually the burden of proof lies with you. You are pontificating about the law in a place where you do not reside, conduct business, or work in the judicial system. Your examples from other places, while perhaps cogent when taken in context, are meaningless in places with different laws.


  59. #59
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by A.D. Miller View Post
    JP: I was unaware that Florida even had an SOP.

    JP: It has been my experience - which is admittedly less than yours - that "standard of care", "fraud", "deception", "intent", et al. are very difficult indeed to prove up in a court of law, especially in the presence of a prescriptive SOP.

    Florida does not, as yet, have an SoP, however, every inspector advertises that they meet or exceed blank-SoP (fill in the "blank" with whatever association you want).

    Again, the legal prescriptive SoP is MINIMUM, and if an inspector advertise and professes to "do more and know more", and if 50% plus 1 of the inspectors in the area advertise and professes the same, than that "do more and know more" raises the area standard of car to a higher level than the minimum SoP establishes.

    If an inspector does not meet the MINIMUM SoP, they not only have not met the area standard of car (which is this case will not matter) but they have also not met their legally required MINIMUM REQUIREMENTS - and THAT is what they will get hung on.

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

  60. #60
    Ted Menelly's Avatar
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Scott Patterson View Post
    OK, let me give you a case study of a home inspector "Standard of Care";

    A case that I finished a few months ago working for a plaintiff who was suing a home inspector for missing a rotted out subfloor, joist and a few other things. Fast forward......... The inspector did not own a moisture meter and we were able to prove in part through this website, Inspectors Journal and even the INACHI site that it is a standard of care for a home inspector to own and know how to use a moisture meter.

    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.

    Owning and using a moisture meter is a Standard of Care in our profession.

    Used a moisture meter on what. Crawling the entire floor of the home checking every square foot with the moisture meter of the inaccessible crawl area.

    Not digging on you but there is obviously a serious amount more to the facts that we are not hearing. No obvious signs at all around the toilet or soft, wet and or spongy floors. Did the man state that the area in the crawl was not accessible??? And that there should be access made and further evaluation done blah blah blah. If he put the matter off to a particular contractor or even just further eval and or access made then I just don't see it. If all that is the case and it was just pursued that he should own and use a moisture meter I call absolute bull. One has nothing to do with the other. Even if moisture were found further eval would have been needed. This sounds like a matter of *prove him guilty so the home owner can get paid no matter what,

    Again, I am sorry for being so *on the side of the inspector* and if there is a lot more to it then I apologize. From what I see in your very very brief story is utter bull on the behalf of head hunting.

    If the crawl was inaccessible in that area and then the crawl should be made assessable for further eval because if moisture were found with his moisture meter someone would have to have crawled under there or access made to further evaluate.

    No matter which side you want to take further eval was needed and you made the lawyers case with the fact that the inspector did not have a moisture meter.

    Instead of the buyer or client following thru with the further eval it sounds like they bought the home, found rot later and then wanted to put it in someone elses pocket instead of paying on their own faults.

    Yeah yeah. I know. If they new there was moisture then they would have followed it up.......Bull. They should have followed it up anyway.

    I don't think I even want to know all the details of the case. He said no access. They decided not to follow up. Inspector loses because he informed, they did not follow up, he loses because he did not own a moisture meter.


  61. #61
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by A.D. Miller View Post
    RW: Actually the burden of proof lies with you. You are pontificating about the law in a place where you do not reside, conduct business, or work in the judicial system. Your examples from other places, while perhaps cogent when taken in context, are meaningless in places with different laws.
    AD

    Pontificating? I am providing info to show how the courts come to the conclusions they do, and the thinking of the courts seem to be pretty much the same. I did not add any commentary therefore can't be pontificating. You are no more able to comment on state law in TN then in Texas.

    What is your problem anyway?


  62. #62
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by A.D. Miller View Post
    SP: Be that as it may, your impromptu poll would be unbelieveably inaccurate based upon its scope. Additionally, at least in Texas where an SOP exists, there is not only no requirement to utilize "specialized tools", the SOP goes so far as to explcitly exclude the use of "specialized tools".

    (b) Scope.

    (1) These standards of practice define the minimum levels of inspection required for substantially completed residential improvements to real property up to four dwelling units. A real estate inspection is a limited visual survey and basic operation of the systems and components of a building using normal controls and does not require the use of specialized tools or procedures. The purpose of the inspection is to provide the client with information regarding the general condition of the residence at the time of inspection. The inspector may provide a higher level of inspection performance than required by these standards of practice and may inspect parts, components, and systems in addition to those described by the standards of practice.


    (9) Specialized tools--Tools such as thermal imaging equipment, moisture meters, gas leak detection equipment, environmental testing equipment and devices, elevation determination devices, and ladders capable of reaching surfaces over one story above ground surfaces.

    SP: That is just plain BS. Next you'll want to add crystal balls.
    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.

    Scott Patterson, ACI
    Spring Hill, TN
    www.traceinspections.com

  63. #63
    A.D. Miller's Avatar
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Raymond Wand View Post
    AD

    Pontificating? I am providing info to show how the courts come to the conclusions they do, and the thinking of the courts seem to be pretty much the same. I did not add any commentary therefore can't be pontificating. You are no more able to comment on state law in TN then in Texas.

    What is your problem anyway?
    RW: I simply do not give a rodent's derričre 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.


  64. #64
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by Jerry Peck View Post
    Scott,

    Years ago Norm Sage and I worked on a case in South Florida where an inspector was being sued for something he had not done/not found because he had not done something (similar to your case).

    Norm and I were able to show, based on published and distributed advertisements (those brochures everyone dropped off at real estate offices back then before the internet took hold) that 50% plus 1 of the area inspectors did such-and-such and and that this inspector had not done such-and-such, and in fact disclosed that he did not even know about such-and-such (I forgot what it was now, it was so long ago).

    We established what the "standard of care" was for area inspectors, which exceeded the standards of practice, and that this inspectors actions, knowledge, and actions on behalf of and for his client were far below that standard of care - that inspector paid dearly as he went out of business due to his losing that case. He was one of those inspectors who charged something like $99 (back then) for a "full comprehensive home inspection" and which took him an average of 45 minutes to an hour to do. He was always bragging about how many inspections he did each day (I recall it being something like 10 per day) and that he was the only inspector who knew what they were doing.

    What he failed to understand, though, was that he was not meeting the standard of care for the area.
    Norm, was the one who got me into investigating the Standard of Care with EW work. I recall the case you are talking about, he used it as an example. Not a day goes by that I don't use something I learned from that man, sure do miss him...

    Scott Patterson, ACI
    Spring Hill, TN
    www.traceinspections.com

  65. #65
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    Default Re: Home Inspections: When is exceeding the SOP going too far?

    Quote Originally Posted by A.D. Miller View Post
    RW: I simply do not give a rodent's derričre 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.
    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.

    Scott Patterson, ACI
    Spring Hill, TN
    www.traceinspections.com

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