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  1. #1
    Join Date
    Mar 2007
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    Muncie, Indiana
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    78

    Talking What would you do

    I recently got a call from an unhappy client. I did the inspection in early June...6500 sq ft home with full basement, pool house barn, etc.
    They call last week and say they found a board on the front window that is stained and I missed it. It will cost 2700 dollars to replace the windows and she wants other interested parties to pay for it. I.E seller, and home inspector. He asked, don't you have insurance you can pay for this with?
    They called me the two days before thanksgiving. I told him I would call to schedule a time the next day. I returned the call the next day and got his voicemail. I said since we are too close to Thanksgiving, please call me on the weekend or after to schedule.
    I got a call from his wife yesterday and scheuled a time at noon to go out. I went out an hour early to see the wiondow.
    A construction company had plastic walls around the window system removing and replacing the window. It was a large window system aluminum thermal unit with awning type crank windows. It is about 7 ft tall and about 6 ft wide.
    One piece on the right side had been removed with rot shown underneath. They had already removed and got rid of that piece but said that is where it was visible 6 months ago. I see a little staining on the vertical board that would adjoin the window. All the casing has been removed and I can see along the sides of the entire system. There are no signs of any moisture anywhere except where the 12 inch cross piece has been removed.
    I comment that it appears the window unit itself has failed since there are no signs along any caulk joints that correspond to the outside. I asked whether this could have been painted over and just now shown itself?
    (Yes the visual agreement states that I must have an opportunity to examine before removal.)

    She tells me that when they moved in last August they replaced the carpeting and noticed the floor had been damaged with moisture. Yet they didn't call me then.
    I take some pictures and leave only to get a call from her upset that she does not know what I intend to do about this. This should not be her expense since I should have seen this defect.

    The home was occupied and still has the large plantation shutter systems that are hinged on each window. I mention the fact that their visual agreement that we went over verbally on the inspection day has all the standard verbage along with larger than normal lettering that states" Inspector is not responsible nor liable for the non discovery of any patent or latent defectrs in material, workmanship, or other conditions of the property, or any other problems which may occur or become evident after the time and date of this inspection report."
    As a habit on all inspections, at the end of the exit interview I say, "as thorough as I try to be, there are always things you will find after the home is cleared and you move in.

    What would you do?

    I feel the signed visual agreement should stand as my defense on the limitations especially when I verbally go through the agreement on site with them.

    They proceeded with the window replacement and suspiciously removed the 12 inch long piece that was the one I should have seen 6 months earlier when all the surrounding pieces had very light staining.

    The home was occupied with drapes and plantation shutters on all windows, and as stated in the agreement and verbally told to them that I do a representative sampling of items that are numerous and identical. I test at least one window in each room depending on the restrictions.
    Thanks for any feedback.
    And Merry Christmas!!!

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  2. #2
    Join Date
    Mar 2007
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    Orlando, FL
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    Default Re: What would you do

    Jeff,

    First, no disrespect intended, but those photos don't help me very much. Need some flash on that "under-sill" shot and a close up on the interior damage. Could use some annotation to point out the specific area you feel is contributing to the leak.

    Was there any moisture (reading on a meter) in any interior area? At the inspection or on the follow up?

    In my area, I try to recognize "suspect" windows and walls (due to the likely-hood of flashing leaks, poor installation, etc.) and check those walls and window areas with a meter, even when no stains are present. High percentage have issues that aren't visible, or are easy to miss due to furniture, shutters, drapes, brick-a-brack, whatever. "Light stains" as you describe would be reported.

    Did you see rot clearly in the wall on your re-inspection? Where do you think the water intrusion is coming from?

    What would be the cost to cure the "problem", not necessarily the cost to replace some windows?
    Need more information...

    Dom.


  3. #3
    Join Date
    Mar 2007
    Location
    Lake Barrington, IL
    Posts
    1,363

    Default Re: What would you do

    As you mentioned, they removed material before you got to see the condition. They saw water staining AFTER they removed some carpeting. Seems that at least part of this issue is on their shoulders. Whenever I see any staining around windows I make a note of it in the report and often recommend that they f/u with the seller. If you haven't already, put a comment in your agreement that the inspection is not intended to removed all risk on the client's behalf. I spend significant effort to plant this thought deeply inside the client's brain.

    Eric Barker, ACI
    Lake Barrington, IL

  4. #4
    Join Date
    Mar 2007
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    Default Re: What would you do

    Quote Originally Posted by Eric Barker View Post
    As you mentioned, they removed material before you got to see the condition. They saw water staining AFTER they removed some carpeting.
    That is the two things which came to my mind too:
    - First, they should have called you when the removed the carpeting and saw the staining (which, presumably from that description, was not visible until the carpet was removed).
    - Second, they should never (okay, "never" is a big word, as in 'what if there was an emergency' - which there apparently was not) ... never remove stuff until they give you an opportunity to look at it.

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

  5. #5
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    Maryland
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    Default Re: What would you do

    My 1st question would be, do they have photo documentation from the time that they move in (July? or Aug?) of the reported stained wood? Many times the property is painted for sale and the stain was painted over and not visible at the time of inspection. Then there is the question of how noticeable was the stain if it was there in June.

    2nd did you take pictures as to document the property as you found it in June? Most HIs don't. Granted they have little use until they are needed. Like a landlord taking pictures before tenant moves in of every little aspect of a rental property.

    3rd, they found dampness on floor in august but waited (5 months) until after they had a contract to replace the window and the the work was started before they called you. Very suspect as to being visible at the June inspection.

    4th the cost of repairing the damaged wood is not the cost of the entire window unless the original window is non repairable. Meaning a $150 - $200 dollar repair does not equal $2,700. A rotten board in the deck does not mean replace the entire deck. Unless you are selling decks or windows.

    If the sellers had known of the defect and constructively hid it, then it is the sellers problem, but the buyer has to prove it. Was your inspection the only one done? Did any other HI comment on the supposed stain??
    If it was not known by the seller and the painter sealed (which is what they would routinely do) and painted over the stain, then its neither the seller's no the Hi's problem.

    Your clients have been told by someone, recently (Nov.), that they can stick it to someone for the replacement cost. Sadly not uncommon these days. Yet they seem to have no tangible proof that the defect was viable on the day of the inspection or they would be beating you over the head with it.

    Frankly I would say to them, "You did not contact me immediately when you discovered the damaged floor in August and afford me the opportunity to inspect the supposedly stained wood at that time. Your delay in notifying me only leaves the impression that the staining was not visitable at the June property inspection. The stain may have been painted over causing me not to take notice of it and subsequently include it in the report. Furthermore, your replacement of the window precludes any action on my part. "

    In short they just waited to long for you to be responsible for anything involved with the window.

    SOPs say representative number of ____. Which is good to cover things missed yet not to good in the long run. Windows, if you can get to them, are the real exception to the rule in my book. Checking operation in one thing but a visual inspection of all is important, accessible or not. Electric outlets are up for grabs since you can not reach most of them. Pictures of everything is a boon against future problems. Digital is sooooo cheap now $54 for 1T.

    Passing thought. Is there a way for you to access the pictures used in the original sales listing and see if anything is visible for that window??


  6. #6
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    Default Re: What would you do

    Quote Originally Posted by Garry Sorrells View Post
    Frankly I would say to them, "You did not contact me immediately when you discovered the damaged floor in August and afford me the opportunity to inspect the supposedly stained wood at that time. Your delay in notifying me only leaves the impression that the staining was not visitable at the June property inspection. The stain may have been painted over causing me not to take notice of it and subsequently include it in the report. Furthermore, your replacement of the window precludes any action on my part. "
    Presuming, of course, that the contract addresses the timeliness of reporting such and for providing the inspector the opportunity review the area prior to any work being done in that area.

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

  7. #7
    Join Date
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    Caledon, Ontario
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    Default Re: What would you do

    1. Was the inspection contract reviewed and signed prior to inspection date?
    2. If your contract spells out specifics as to requirements vis-a-vis contract requirements, as with others she should have abided by the terms of the contract and called prior to any mitigation.
    3. If the purchaser has breached the terms of the contract, which you allege, in my view she can hoot and holler all they want. What good is a contract if people are not going to abide by the contract?

    The onus is on the seller to prove you breached your contract and/or negligently misrepresented the conditions at time of inspection.

    Now the questions remains are they blowing smoke or are they going to go to the trouble of taking you to small claims court?

    As for me I think I would not bend.


  8. #8
    Join Date
    Mar 2007
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    Knoxville, TN
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    Default Re: What would you do

    All of the replays so far are in line with my thoughts.
    Hopefully your contract was signed before you did the inspection. In addition, I hope there is a part of the contract that deals with things found after the inspection, and how they are to give you written notice, and give you enough time to come and look at it before they start tearing it out.

    Your report should also have addressed the issue of occupied homes and not being able to see everything because of owners belongings and window treatments. I'm sure it does.

    Like others have said, they should have contacted you at the first sign of an issue.

    Make sure you respond to this in writing.

    I would respond to them that they didn't meet the terms of the contract with giving you notice as soon as a defect was found, and giving you a chance to view it before it was torn out. This is not like a leaking pipe that needs to be repaired in an emergency situation.

    Good luck with this.


  9. #9
    Join Date
    Mar 2007
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    Muncie, Indiana
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    Default Re: What would you do

    Thanks for the education. I appreciate the fact that every instance is unique, even to the location where it occurs.
    Here is my planned response.
    Please feel free to comment.

    Dear Homeowner,
    I wanted to answer your concerns about my inspection report given to you on June 2nd, 2014.

    I appreciate the opportunity to come out and examine the area in question. I do, however, object to the fact that the removal of the window had already begun and the suspect piece was not available for me to see. Very curious indeed.
    I pride myself on the thoroughness of my inspections and firmly believe that I would not have missed a defect that visible in that location, especially since I remember taking the time to open the shutters to view the window framing and test a window in each room, as is typical practice. The damaged are was at eye level ond would have been in clear view the day of the inspection. I have been a Home Inspector since 2001 and have performed over 2500 inspections. I also have a reputation within the community of being picky and very thorough, just ask the Realtors in the area.

    The day of the reinspection there were contractors on site already in the process of removing the window where they advised me the damage would have been visible 6 months earlier and it was likely from water entry at the caulking joints outside.

    The framing was already removed from the window and the piece of trim between the right side window panel was missing that I was supposed to have been able to spot showing the rot underneath.
    In studying the window they were thermal units of an awning type. I could not see any damage along the top edge of the window where the casing had been removed. There was about a ½ inch gap exposed. All appeared to be in normal condition with no water staining visible. It does not appear that water is coming from the top of the window unit.

    The area of damage was noticed in the right side unit. Again the damaged piece had already been removed with moisture damaged wood between the glass sections. I could see down the entire right side where the casing was removed and there were no signs of any moisture intrusion noticed until it got to the damaged horizontal unit. The only damage piece was the horizontal piece underneath the right side middle awning window unit. I also noticed some fungus growth on the drywall at the floor level where the window casing had been removed.

    This trim piece removed appeared to be approximately 10-12 inches long. The contractor pointed to where the damaged piece would have been and said that is where I should have seen it during the inspection. I commented that I wondered what it would have looked like 6 months earlier and he said it had been painted over for the holidays and would have been worse in June.

    I noticed a light stain running down the right side trim that adjoins this piece barely noticeable. There was plastic sheeting up containing the window area since they had already started to remove the window. I was told that when you moved in August and had the carpet removed and wood flooring installed. You stated the wood subfloor had been damaged and wet in the past. I did notice fungus staining on the bottom drywall where the bottom window casing was removed. The staining would have been completely covered with this trim that had been removed before I arrived. Still strange that I did not receive a call in August concerning the floor damage or the window damage which was supposedly visible when I did the inspection on June 2nd. I would think a closer look at the entire window area would have taken place when the water damaged floor was discovered in August.

    After examining the exterior window caulking on that window and the others on the west side, I do not see anything that would lead me to think the water damage is from the caulking joints that I mentioned in the report that needed to be improved.

    I believe the water intrusion came from the window unit directly above the damage and not the caulking joints as the contractor suggested. I also do not believe that you would have repainted again without calling me in at that time.


    You did not contact me immediately when you discovered the damaged floor in August and afford me the opportunity to inspect the supposedly stained wood at that time. I also believe if the window damage was visible at that time that you would not have waited until late November to contact me. Your delay in notifying me only leaves the impression that the staining was not visible at the June property inspection. The stain may have been painted over causing me not to take notice of it and subsequently include it in the report. Typically sellers will clean up and touch up before they list their properties.

    After reviewing the pictures I took along with the original pictures of the inspection report in June, Here are my observations.

    In examination of the window unit, it appears that the damage or water entry was based on the one window unit in the middle of the right side system, not from the top down. This appears to be a window deficiency with no visible signs on the outside.


    There had been no improvements to the caulking joints observed since the original inspection. Water intrusion could have continued affecting the damaged section and may not have been visible 6 months ago. The water entry could be from the window unit which would explain why there were no visible signs the day of the inspection that progressively got worse over the next 6 months. The caulk joint cracking was typical for the age of the home and commented on to improve in the report.

    As stated in the visual agreement that was gone over verbally and signed by you that day,
    “The inspection report is based on the condition of the Property existing and apparent as of the time and date of the Inspection. Due to Weather conditions, inoperable systems or inaccessibility of areas of the Property, etc. not all the conditions may be apparent on the inspection date. Without dismantling the house or any of its systems, there are limitations to this inspection. Clues and symptoms often do not reveal the extent or severity of problems. Therefore, this Inspection and subsequent Inspection Report may help reduce the risk of purchasing the property but does not eliminate such risk nor does the Inspector assume such risk. This inspection report is not intended to provide an all inclusive list of minor building flaws. Inspector is not responsible or liable for the non-discovery of any patent or latent defects in materials, workmanship, or other conditions of the property, or any other problems which may occur or become evident after the time and date of this inspection report. Inspector does not guarantee or insure against defects in the building, improvements, systems, or components inspected. Inspector will assume no responsibility for the cost of repairing or replacing any unreported defects or conditions, nor is the Inspector responsible or liable for any future failures or repairs.”

    As stated in the visual agreement that is gone over verbally during the inspection and was signed by you,
    I do a representative sampling of components that identical and numerous, such as receptacles and windows. There were windows tested in each room the day of the inspection but with the knowledge or memory of what furniture, drapes, shutters, etc. there is no way to identify which windows were tested.

    As stated in the visual agreement in bold and larger letters that was gone over verbally and signed by you,
    “This inspection report does not constitute a warranty, guarantee or insurance policy of any kind. It does not imply that every defect will be discovered. I also lined near the comment and initial the line as I go over this with you during the exit interview.

    As stated verbally at the end of every exit interview on every inspection, it is a matter of habit that I say
    “As thorough as I try to be, there are always things found after the furnishings are removed and you move in”.

    As stated in the visual agreement that is gone over verbally and signed by you,
    “The inspection report is based on the condition of the Property existing and apparent as of the time and date of the Inspection. Due to Weather conditions, inoperable systems or inaccessibility of areas of the Property, etc. not all the conditions may be apparent on the inspection date. Without dismantling the house or any of its systems, there are limitations to this inspection. Clues and symptoms often do not reveal the extent or severity of problems. Therefore, this Inspection and subsequent Inspection Report may help reduce the risk of purchasing the property but does not eliminate such risk nor does the Inspector assume such risk. This inspection report is not intended to provide an all inclusive list of minor building flaws. Inspector is not responsible nor liable for the non-discovery of any patent or latent defects in materials, workmanship, or other conditions of the property, or any other problems which may occur or become evident after the time and date of this inspection report. Inspector does not guarantee or insure against defects in the building, improvements, systems, or components inspected. Inspector will assume no responsibility for the cost of repairing or replacing any unreported defects or conditions, nor is the Inspector responsible or liable for any future failures or repairs.

    In conclusion, I believe the inspection report I provided on June 2nd, 2014 was very thorough and provided you an accurate description of the home on the date and time it was performed. There were numerous defects listed for the property in the report provided. It is unfortunate that this defect was not discovered until later, but given the limitations that I adhere to by the State of Indiana, do not believe it should be my responsibility to be held accountable for the non discovery of the defect, which I sincerely believe was not visible the day of the inspection on June 2nd.
    It is unfortunate that I was contacted 6 months after the inspection date stating that, 6 months ago, the defect would have been easily seen. If that were the case, you would have contacted me much earlier.
    It is also unfortunate that I was not able to fully examine the damage before the contractor began to tear off the moulding making it impossible to see for myself what it looked like.

    You asked me if the shoe were on the other foot, what would I do. I would contact my homeowners insurance. It would be very difficult to prove that the damage was painted over prior to the sale of the home, and also that the damage would have been visible on the day of the inspection as you describe 6 months earlier.

    Sincerely,
    Jeff Gainey ACI
    Indiana State Licensed Home Inspector #00500082


  10. #10
    Join Date
    Feb 2008
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    Caledon, Ontario
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    Default Re: What would you do

    Jeff,

    If I may suggest, take another inspector if possible back to the house. Otherwise its he said, she said scenario.


  11. #11
    Join Date
    Mar 2007
    Location
    Orlando, FL
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    Default Re: What would you do

    Jeff, that reply you posted needs some serious editing, for clarity, and for brevity.

    If you're going to mention the PIA, then I suggest you attach a copy with the relevant portions highlighted.

    If you have E & O, notify your carrier or call for advice.

    I doubt this will vanish without a few more salvos.

    Dom.


  12. #12
    Join Date
    Feb 2008
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    Caledon, Ontario
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    Default Re: What would you do

    People buy a six thousand square foot house which I suspect cost a pretty penny, then expect the inspector to anti up for a $2700 defect. Boy thats rich!

    The problem with them thinking the inspectors E&O policy is another problem in that they think it's a warranty policy.


  13. #13
    Join Date
    Mar 2007
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    Default Re: What would you do

    Jeff,
    My suggestion is to cut it down to a only a few paragraphs leaving out your experience, etc.
    Remind them of what your contract says. Provide a copy of the sections that apply.
    Explain to them that the contractor can not say for sure what was visible, or not visible 6 months ago since they were not there during the inspection. They have no idea whatsoever what conditions were like 6 months ago, and what may or may not have blocked your view. You point ablaut them not calling you much earlier is also a good thing to include.

    Keep it short and sweet. If your contract has a limitation of liability clause, you may want to have a release made out, and a check ready, just in case. It is sometimes easier (in the long run) to just give them back their money and be done with them.


  14. #14
    Join Date
    Mar 2007
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    Default Re: What would you do

    There is a lot I would change, first and foremost would be to not say "visual agreement": 1) the agreement was not "visual"; 2) the inspection was not a "visual" inspection (I am sure you used some tools to help you); 3) it was not an "agreement", it was a "contract" (hopefully, depends on what you call it, I always called mine a "Contract for Services").

    I would also leave out any and all comments, such as "Very curious indeed." - that just gets people going, and you should be trying to do the opposite.

    Finally, as Jack said, reduce the War and Peace version down to the Reader's Digest Condensed version.

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

  15. #15
    Join Date
    Mar 2007
    Location
    Santa Rosa, CA
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    2,479

    Default Re: What would you do

    Jeff,As others have said, edit the response. And, avoid any snide or passive-aggressive comments (Very curious indeed). That will just tick them off.

    In my area, rot damage would be the pest inspector's responsibility. I don't know what the laws are in your area. If it were me, I would throw the pest inspector under the bus.

    Also, think about how much more of your time you might end up losing if you decide to tell them to pound sand. If it were me, I would seriously consider going a different route. Tell them that you believe you have no liability (briefly state reasons); but in good faith, you will refund the inspection fee in exchange for a liability waiver. This gets it out of your hair. True, you might win in court, but will lose a day's work. Either way, you are out money. Just a thought.

    Department of Redundancy Department
    http://www.FullCircleInspect.com/

  16. #16
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    Spring Hill (Nashville), TN
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    Default Re: What would you do

    Quote Originally Posted by Jack Feldmann View Post
    Jeff,
    My suggestion is to cut it down to a only a few paragraphs leaving out your experience, etc.
    Remind them of what your contract says. Provide a copy of the sections that apply.
    Explain to them that the contractor can not say for sure what was visible, or not visible 6 months ago since they were not there during the inspection. They have no idea whatsoever what conditions were like 6 months ago, and what may or may not have blocked your view. You point ablaut them not calling you much earlier is also a good thing to include.

    Keep it short and sweet. If your contract has a limitation of liability clause, you may want to have a release made out, and a check ready, just in case. It is sometimes easier (in the long run) to just give them back their money and be done with them.
    I agree with Jack, make it shorter and to the point.

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

  17. #17
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    Default Re: What would you do

    Quote Originally Posted by Gunnar Alquist View Post
    Tell them that you believe you have no liability (briefly state reasons); but in good faith, you will refund the inspection fee in exchange for a liability waiver. This gets it out of your hair. True, you might win in court, but will lose a day's work. Either way, you are out money. Just a thought.
    I agree with Gunnar, even if you won in court, you would spend more for legal fees and costs than the cost of the refunded inspection fee ... even if you charge more than I did when I did inspections.

    Make sure the release of liability is all inclusive.

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

  18. #18
    Join Date
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    St Paul, MN
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    1,628

    Default Re: What would you do

    #1 If you're insured I suggest you turn it over to your insurance company.

    #2 If you're not insured, I'd suggest you pay the $2700 and get a waiver signed releasing you from any further claims. The reason I suggest this is I don't see proper drainage at the base of the exterior brick siding and this probably is at least part of the problem. Without the proper drainage they'll probably have more problems in the future and want to hold you liable. So unless you reported the lack of drainage at the base of the brick, I'd pay up before they find out that the repairs are actually going to be $80,000.

    #3 If you reported the lack of drainage at the base of the brick and missing caulking I'd tell them that the deficiencies were included in the report and that you aren't responsible if they weren't corrected.

    MinnesotaHomeInspectors.com
    Minnesota Home Inspectors LLC
    ASHI #242887 mnradontesting.com

  19. #19
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    Default Re: What would you do

    Absolutely the shorter the better. Just a few sentences referring to the appropriate clauses(s) in your contract (cut and paste) and a straight denial of any liability. If the matter goes further your attorney will be more than thankful for your brevity. The shorter the better but in writing.

    I personally see no value whatsoever in replying how thorough you are, how long you have been inspecting, what you saw or didn't see etc. etc. The bottom line is the issue was not visible at the time, otherwise it would have been reported and they failed to comply with conditions of your contact requiring notification in a timely manner.

    Everything and and I mean everything, every word, comma period that you utter or write can and will be used against you if a lawsuit is filed. Give nothing unles at the direction of your attorney.


  20. #20

    Default Re: What would you do

    Quote Originally Posted by Jeff Gainey View Post
    Thanks for the education. I appreciate the fact that every instance is unique, even to the location where it occurs.
    Here is my planned response.
    Please feel free to comment.

    Dear Homeowner,
    I wanted to answer your concerns about my inspection report given to you on June 2nd, 2014.

    I appreciate the opportunity to come out and examine the area in question. I do, however, object to the fact that the removal of the window had already begun and the suspect piece was not available for me to see. Very curious indeed.
    I pride myself on the thoroughness of my inspections and firmly believe that I would not have missed a defect that visible in that location, especially since I remember taking the time to open the shutters to view the window framing and test a window in each room, as is typical practice. The damaged are was at eye level ond would have been in clear view the day of the inspection. I have been a Home Inspector since 2001 and have performed over 2500 inspections. I also have a reputation within the community of being picky and very thorough, just ask the Realtors in the area.

    The day of the reinspection there were contractors on site already in the process of removing the window where they advised me the damage would have been visible 6 months earlier and it was likely from water entry at the caulking joints outside.

    The framing was already removed from the window and the piece of trim between the right side window panel was missing that I was supposed to have been able to spot showing the rot underneath.
    In studying the window they were thermal units of an awning type. I could not see any damage along the top edge of the window where the casing had been removed. There was about a ½ inch gap exposed. All appeared to be in normal condition with no water staining visible. It does not appear that water is coming from the top of the window unit.

    The area of damage was noticed in the right side unit. Again the damaged piece had already been removed with moisture damaged wood between the glass sections. I could see down the entire right side where the casing was removed and there were no signs of any moisture intrusion noticed until it got to the damaged horizontal unit. The only damage piece was the horizontal piece underneath the right side middle awning window unit. I also noticed some fungus growth on the drywall at the floor level where the window casing had been removed.

    This trim piece removed appeared to be approximately 10-12 inches long. The contractor pointed to where the damaged piece would have been and said that is where I should have seen it during the inspection. I commented that I wondered what it would have looked like 6 months earlier and he said it had been painted over for the holidays and would have been worse in June.

    I noticed a light stain running down the right side trim that adjoins this piece barely noticeable. There was plastic sheeting up containing the window area since they had already started to remove the window. I was told that when you moved in August and had the carpet removed and wood flooring installed. You stated the wood subfloor had been damaged and wet in the past. I did notice fungus staining on the bottom drywall where the bottom window casing was removed. The staining would have been completely covered with this trim that had been removed before I arrived. Still strange that I did not receive a call in August concerning the floor damage or the window damage which was supposedly visible when I did the inspection on June 2nd. I would think a closer look at the entire window area would have taken place when the water damaged floor was discovered in August.

    After examining the exterior window caulking on that window and the others on the west side, I do not see anything that would lead me to think the water damage is from the caulking joints that I mentioned in the report that needed to be improved.

    I believe the water intrusion came from the window unit directly above the damage and not the caulking joints as the contractor suggested. I also do not believe that you would have repainted again without calling me in at that time.


    You did not contact me immediately when you discovered the damaged floor in August and afford me the opportunity to inspect the supposedly stained wood at that time. I also believe if the window damage was visible at that time that you would not have waited until late November to contact me. Your delay in notifying me only leaves the impression that the staining was not visible at the June property inspection. The stain may have been painted over causing me not to take notice of it and subsequently include it in the report. Typically sellers will clean up and touch up before they list their properties.

    After reviewing the pictures I took along with the original pictures of the inspection report in June, Here are my observations.

    In examination of the window unit, it appears that the damage or water entry was based on the one window unit in the middle of the right side system, not from the top down. This appears to be a window deficiency with no visible signs on the outside.


    There had been no improvements to the caulking joints observed since the original inspection. Water intrusion could have continued affecting the damaged section and may not have been visible 6 months ago. The water entry could be from the window unit which would explain why there were no visible signs the day of the inspection that progressively got worse over the next 6 months. The caulk joint cracking was typical for the age of the home and commented on to improve in the report.

    As stated in the visual agreement that was gone over verbally and signed by you that day,
    “The inspection report is based on the condition of the Property existing and apparent as of the time and date of the Inspection. Due to Weather conditions, inoperable systems or inaccessibility of areas of the Property, etc. not all the conditions may be apparent on the inspection date. Without dismantling the house or any of its systems, there are limitations to this inspection. Clues and symptoms often do not reveal the extent or severity of problems. Therefore, this Inspection and subsequent Inspection Report may help reduce the risk of purchasing the property but does not eliminate such risk nor does the Inspector assume such risk. This inspection report is not intended to provide an all inclusive list of minor building flaws. Inspector is not responsible or liable for the non-discovery of any patent or latent defects in materials, workmanship, or other conditions of the property, or any other problems which may occur or become evident after the time and date of this inspection report. Inspector does not guarantee or insure against defects in the building, improvements, systems, or components inspected. Inspector will assume no responsibility for the cost of repairing or replacing any unreported defects or conditions, nor is the Inspector responsible or liable for any future failures or repairs.”

    As stated in the visual agreement that is gone over verbally during the inspection and was signed by you,
    I do a representative sampling of components that identical and numerous, such as receptacles and windows. There were windows tested in each room the day of the inspection but with the knowledge or memory of what furniture, drapes, shutters, etc. there is no way to identify which windows were tested.

    As stated in the visual agreement in bold and larger letters that was gone over verbally and signed by you,
    “This inspection report does not constitute a warranty, guarantee or insurance policy of any kind. It does not imply that every defect will be discovered. I also lined near the comment and initial the line as I go over this with you during the exit interview.

    As stated verbally at the end of every exit interview on every inspection, it is a matter of habit that I say
    “As thorough as I try to be, there are always things found after the furnishings are removed and you move in”.

    As stated in the visual agreement that is gone over verbally and signed by you,
    “The inspection report is based on the condition of the Property existing and apparent as of the time and date of the Inspection. Due to Weather conditions, inoperable systems or inaccessibility of areas of the Property, etc. not all the conditions may be apparent on the inspection date. Without dismantling the house or any of its systems, there are limitations to this inspection. Clues and symptoms often do not reveal the extent or severity of problems. Therefore, this Inspection and subsequent Inspection Report may help reduce the risk of purchasing the property but does not eliminate such risk nor does the Inspector assume such risk. This inspection report is not intended to provide an all inclusive list of minor building flaws. Inspector is not responsible nor liable for the non-discovery of any patent or latent defects in materials, workmanship, or other conditions of the property, or any other problems which may occur or become evident after the time and date of this inspection report. Inspector does not guarantee or insure against defects in the building, improvements, systems, or components inspected. Inspector will assume no responsibility for the cost of repairing or replacing any unreported defects or conditions, nor is the Inspector responsible or liable for any future failures or repairs.

    In conclusion, I believe the inspection report I provided on June 2nd, 2014 was very thorough and provided you an accurate description of the home on the date and time it was performed. There were numerous defects listed for the property in the report provided. It is unfortunate that this defect was not discovered until later, but given the limitations that I adhere to by the State of Indiana, do not believe it should be my responsibility to be held accountable for the non discovery of the defect, which I sincerely believe was not visible the day of the inspection on June 2nd.
    It is unfortunate that I was contacted 6 months after the inspection date stating that, 6 months ago, the defect would have been easily seen. If that were the case, you would have contacted me much earlier.
    It is also unfortunate that I was not able to fully examine the damage before the contractor began to tear off the moulding making it impossible to see for myself what it looked like.

    You asked me if the shoe were on the other foot, what would I do. I would contact my homeowners insurance. It would be very difficult to prove that the damage was painted over prior to the sale of the home, and also that the damage would have been visible on the day of the inspection as you describe 6 months earlier.

    Sincerely,
    Jeff Gainey ACI
    Indiana State Licensed Home Inspector #00500082
    The letter is way, way too long. Use a highlighter and highlight the pertinent facts, use those to cut the letter to less than one page.


  21. #21
    Join Date
    Mar 2007
    Location
    Ridgewood, NJ
    Posts
    237

    Default Re: What would you do

    Quote Originally Posted by Jeff Gainey View Post
    I mention the fact that their visual agreement that we went over verbally on the inspection day has all the standard verbage along with larger than normal lettering that states" Inspector is not responsible nor liable for the non discovery of any patent or latent defectrs in material, workmanship, or other conditions of the property, or any other problems which may occur or become evident after the time and date of this inspection report."
    So, your contract states that you can't be held liable for ANY problem found after the inspection ? Do your clients know what that means when they sign the contract? Has your attorney advised you whether that would hold up in a court of law?


    Patent defects are those which can be discovered by reasonable inspection.


  22. #22
    Join Date
    Mar 2007
    Location
    Plano, Texas
    Posts
    4,170

    Default Re: What would you do

    Stick to the facts.
    1 - There was no staining or visible indications of a problem at the time of inspection. Therefore no observable defects were missed.

    2 - I reported deficient caulking which is likely a proximate cause, which you did not remedy as confirmed by my re-inspection.

    3 - Your repair of the areas in question have prevented my inspection of these areas thus breaching the inspection contract.



    Jeff, if you decide to answer the demand yourself you will likely make the first mistake. Just reading your intended reply appears to this non-lawyer to open yourself up to further problems.

    Get a lawyer to craft the response.
    Check out the guy I use, Joe Ferry the Home Inspector Lawyer ? Home of ClaimIntercept ? Protection and Education for Home Inspectors

    I won a free year of his service when I attended a continuing education seminar. After dealing with a similar issue on a bogus claim and now I am a paying client.

    Jim Luttrall
    www.MrInspector.net
    Plano, Texas

  23. #23
    Join Date
    Mar 2007
    Location
    Muncie, Indiana
    Posts
    78

    Thumbs up Re: What would you do

    I truly appreciate your input and have fashioned a response centered around the K.I.S.S method.
    I shortened my response down to 3/4 page and took all of the extra "feelings" out.
    I like the recommendations to change the verbage to Contract for Services in the future....Thanks Jerry.
    My thoughts were in line with the majority of the responses which tend to smell something fishy.
    In the short term I intend to deny liability and stand on the 6 month wait as the plausible deniability in my favor.
    Again many thanks for all the great feedback.
    Wishing you all a very Merry Christmas and prosporous new year.


  24. #24
    Join Date
    Feb 2008
    Location
    Chicago IL
    Posts
    1,984

    Default Re: What would you do

    I'll leave the payment issue alone since you've gotten plenty of advice on that already.
    However, for future reference whenever the lintel ends are closed as shown in the picture you should be writing it up as a defect and possible water intrusion problem.
    Obviously conditions will vary based on house construction, roof, exposure etc. Closed lintel ends equals probable problems.

    www.aic-chicago.com
    773/844-4AIC
    "The Code is not a ceiling to reach but a floor to work up from"

  25. #25
    Join Date
    May 2010
    Location
    No. San Diego Co., CA
    Posts
    562

    Default Re: What would you do

    Quote Originally Posted by Markus Keller View Post
    I'll leave the payment issue alone since you've gotten plenty of advice on that already.
    However, for future reference whenever the lintel ends are closed as shown in the picture you should be writing it up as a defect and possible water intrusion problem.
    Obviously conditions will vary based on house construction, roof, exposure etc. Closed lintel ends equals probable problems.
    Marcus
    What do you mean by, "...closed lintel ends..."? Wouldn't all lintels be closed or encapsulated if covered in exterior cladding, save for a masonry built structure (with exposed brickwork)?


  26. #26
    Join Date
    Feb 2008
    Location
    Chicago IL
    Posts
    1,984

    Default Re: What would you do

    Look at picture #4, see how the bricks sit on top of the lintel and stick out from the lintel a bit? the face joint along the front of the lintel to the bricks sitting on top of the lintel has been closed; looks like caulk, could be mortar.
    Lintel face ends like that should be open to allow wall water to get out. Most bricks I have talked with about this want the ends open, some don't care, a few think they should be closed. On an older building around here they are normally open but sometimes get closed up when someone does repair work. I don't necessarily have too much of a problem on older buildings depending on specific scenarios. Generally though, closed lintel ends means overly rusted lintels.
    On newer buildings I tend to be fair more aggressive on keeping the ends open. Based on the picture this appears to be a newer brick face building. Probably has a CMU or framed wall behind it. In that case you really need the ends open to allow water (from the presumed drainage plane) to get out. When closed water tends to either sit at the lintel and rust it out prematurely or migrate inward causing the issues we are well aware of. I've seen closed lintels on NC fail in 5-7 years. How pathetic is that.

    www.aic-chicago.com
    773/844-4AIC
    "The Code is not a ceiling to reach but a floor to work up from"

  27. #27
    Join Date
    Feb 2008
    Location
    Caledon, Ontario
    Posts
    5,005

    Default Re: What would you do

    In my view the damage behind the apron was not caused by upper window problems but possibly by bad sill (i.e. not caulked, inward slope).


  28. #28
    Join Date
    Feb 2008
    Location
    Chicago IL
    Posts
    1,984

    Default Re: What would you do

    You are possibly correct Raymond. Forgot about the ole back pitched limestone sill. Never ceases to amaze me how that gets done. Always fun when I pour a cup of water on a back pitched will and the Buyer watches the water disappear by not running off the front of the sill. Usually a dead deal at that point.

    www.aic-chicago.com
    773/844-4AIC
    "The Code is not a ceiling to reach but a floor to work up from"

  29. #29
    Join Date
    May 2010
    Location
    No. San Diego Co., CA
    Posts
    562

    Default Re: What would you do

    Quote Originally Posted by Markus Keller View Post
    Look at picture #4, see how the bricks sit on top of the lintel and stick out from the lintel a bit? the face joint along the front of the lintel to the bricks sitting on top of the lintel has been closed; looks like caulk, could be mortar.
    Lintel face ends like that should be open to allow wall water to get out. Most bricks I have talked with about this want the ends open, some don't care, a few think they should be closed. On an older building around here they are normally open but sometimes get closed up when someone does repair work. I don't necessarily have too much of a problem on older buildings depending on specific scenarios. Generally though, closed lintel ends means overly rusted lintels.
    On newer buildings I tend to be fair more aggressive on keeping the ends open. Based on the picture this appears to be a newer brick face building. Probably has a CMU or framed wall behind it. In that case you really need the ends open to allow water (from the presumed drainage plane) to get out. When closed water tends to either sit at the lintel and rust it out prematurely or migrate inward causing the issues we are well aware of. I've seen closed lintels on NC fail in 5-7 years. How pathetic is that.
    Marcus, so if I understand you correctly, you are referring to the length of the lintel (where the caulking/mortar is applied) which should be open to allow for drainage. As opposed to the lintel left and right ends, which are hidden behind the brickwork. If so, I somewhat concur, largely depending upon location. Brick or brick faced properties are a rarity here. With minimal precipitation, closing/sealing the lintel would not likely be an issue and probably preferred.


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