Thread: Another Barry Stone Article

From: Inspector oversteps bounds with advice | Albuquerque Journal News


""DEAR BARRY: The people who were buying our home canceled the deal on the advice of their home inspector. During the inspection, he found a crack in the foundation, which he blew entirely out of proportion. After taking some measurements, he concluded that the foundation was compromised and settling, and he advised the buyers not to purchase our the property. They backed out of the deal on the spot.

The fact is, our foundation underwent major repairs several years ago and at great expense. If anyone would have asked, we could have shown receipts from the structural engineer and the general contractor who made the repairs. Now the property is back on the market and we just accepted a lower purchase price than we had with the previous buyers. Is it right for home inspectors to make these kinds of recommendations, and is the home inspector liable for our financial loss? – Michael""

Some of Barry's responses seem to be a bit pompous. 99% of the inspectors will refer this type of issue to a structure engineer and I bet this inspector did also but Barry never ask the writer that question. He also did not question why the seller did not include this major repair in the seller's disclosure. Most buyers would not want to be surprise by this issue. Most inspectors I know only give information and let the client decide however I frequently hear that the seller believes the HI sunk the deal by telling the buyer not to buy the home. I believe its usually the report that sinks the sale.

And lastly Barry suggests a small claims court suit. Really??? Is Barry looking to increase the number of frivolous suits that occur in the real estate industry? I for one do not live in a litigious state but many many other inspectors do. I feel sorry for those that do because many people who feel entitled to easy money will see this as an opportunity.

Barry has obviously been around for years and appears to know his stuff but I stopped reading his articles because I didn't agree with his advice/standpoint on things.

Sounds like Barry just took the information given to him and formulated his entire response on the seller being 100% correct. Anybody know there are three sides to any story in this situation.....the seller's side, the inspector's side, and somewhere in the middle lays the truth.

Originally Posted by Nick Ostrowski

Barry has obviously been around for years and appears to know his stuff but I stopped reading his articles because I didn't agree with his advice/standpoint on things.

Sounds like Barry just took the information given to him and formulated his entire response on the seller being 100% correct. Anybody know there are three sides to any story in this situation.....the seller's side, the inspector's side, and somewhere in the middle lays the truth.

Sorry Nick,

I'm not buying this. The facts tell the truth, not a compromise. You have just made some insurance agents day with that comment.

Originally Posted by Rick Bunzel

I believe its usually the report that sinks the sale.

I think it is usually the house which sinks the deal ... being as the report reflects the condition of the house (or should anyway).

Originally Posted by Nick Ostrowski

Barry has obviously been around for years and appears to know his stuff but I stopped reading his articles because I didn't agree with his advice/standpoint on things.

I stopped reading Barry years ago because, to me, his column's were written to support sellers and agents, not actually reflect home inspectors and home inspections - i.e., sell more columns.

I guess New Mexico doesn't have a Seller's Disclosure (or it didn't cover structural defects)? Just curious. I'm not saying Georgia real estate is great because we have a seller's disclosure, but at least with that document, the sellers could have listed the problem and noted it had been corrected. I think the seller SHOULD have noted that somewhere rather than leave the interpretation of the item to fate. Not saying the seller bears the blame, but if there is something in your home you think might raise questions AND you've addressed it already, don't you want to HIGHLIGHT that?

Originally Posted by Rick Bunzel

And lastly Barry suggests a small claims court suit.

I wonder if that home inspector could sue Barry for recommending the seller sue the home inspector - giving advice to sue without knowing the facts: 1) was it on the seller disclosure - if not, the home inspector should counter sue the seller and the real estate agents, and get the buyer to join in and sure the seller and the real estate agents ... and then the home inspector needs to sue Barry for encouraging a frivolous lawsuit. Of course, that would be at their own will, little old me is not recommending anything.

Agents need to realize that they need to present the facts, a fully filled out seller disclosure (not one which just has "unknown" on everything).

It sounds like I have had good fortune as I don't know who Barry Stone is

Originally Posted by Bronson Beisel

I guess New Mexico doesn't have a Seller's Disclosure (or it didn't cover structural defects)? Just curious. I'm not saying Georgia real estate is great because we have a seller's disclosure, but at least with that document, the sellers could have listed the problem and noted it had been corrected. I think the seller SHOULD have noted that somewhere rather than leave the interpretation of the item to fate. Not saying the seller bears the blame, but if there is something in your home you think might raise questions AND you've addressed it already, don't you want to HIGHLIGHT that?

We've got the same disclosure forms as other states, as far as I know. They don't usually do much good, but we've got them.

A Seller's Disclosure Statement is nothing more than a list of lies many sellers will tell in order to unload a property. Absolutely worthless. At least in the case of a few property purchases I've been involved with.


And I've never heard of this Barry guy, either

Originally Posted by Jim Robinson

We've got the same disclosure forms as other states, as far as I know. They don't usually do much good, but we've got them.

Originally Posted by BridgeMan

A Seller's Disclosure Statement is nothing more than a list of lies many sellers will tell in order to unload a property. Absolutely worthless. At least in the case of a few property purchases I've been involved with.

You guys are missing the point of the seller disclosure with regard to the buyer and the home inspector - the seller stated that they either: a) did not know, of b) nothing was wrong ... when something big is wrong and the seller "had to have known" and did not disclose, that is misrepresentation and fraud and can be used to protect the buyer and home inspector against any lawsuits arising from the sale or inspection as the purchase and inspection were based on misleading and/or incorrect information.

The intent of the seller disclosure is to protect the seller (not really to inform the buyer), but that only works when ... er ... if ... the seller disclosure is actually properly and fully filled in.

When was the last time ... sorry ... first time ... you've seen a seller disclosure filled out properly and fully?

Originally Posted by Ken Amelin

Sorry Nick,

I'm not buying this. The facts tell the truth, not a compromise. You have just made some insurance agents day with that comment.

Buy it or don't buy it if you like Ken. But there's no way all the pertinent details have been provided by the seller who wrote this. Do you think the inspector's story would match up exactly with what the seller wrote? I don't.

Not sure what you mean that I made an insurance agents day with my comment. ??????

Originally Posted by Ken Amelin

Sorry Nick,

The facts tell the truth, not a compromise.

That's the whole point. The truth is "bent" by each party, until the actual facts can be revealed.

Surely you understand that.

Dom.

Originally Posted by Jerry Peck

.....

When was the last time ... sorry ... first time ... you've seen a seller disclosure filled out properly and fully?

I inspected a house where my clients didn't mention until the end of the inspection that they had a seller disclosure form. I never ask for the disclosure statements as I find them to be generally worthless. The disclosure statement on this particular house said the house has a sump pump and that the pump had run in the past. The house had so sump pump nor a sump pit.

Now that said, the seller should have disclosed the foundation issue and provided any paperwork they had to potential buyers.

Originally Posted by Dom D'Agostino

That's the whole point. The truth is "bent" by each party, until the actual facts can be revealed.

Surely you understand that.

Dom.

Exactly. The seller is biased as it is his/her house and they have a desire to be correct. I'm not saying the seller or the inspector is correct as there are not enough details provided. But if you got each of them in a room and asked for their side of things, somebody is likely going to let their emotions and financial interest in being correct lend embellishment to their story. Therefore, I stand by what I said that there are 3 sides to this story.

Up here in Ontario some brokers will insist their agents have SPIS (Seller Property Information Statement) completed by the vendor while others insist on not having an SPIS completed.

Dependent on which legal advice you wish to follow some lawyers are of the opinion that it leaves the vendor open for a law suit while other lawyers will argue it protects the vendor. After all the parties are obligated to act in good faith and answer questions honestly put to them by a purchaser. However...

Cellar flood among wave of lawsuits from disclosure form

Sellers are liable for misrepresentation, even if the misrepresentation is innocent.

It is still Caveat Emptor with realestate in Canadian Law. The onus is on the purchaser to do his/her due diligence.

Further even if a SPIS is provided and the purchaser retains a home inspector the liability is transfered from vendor and the SPIS to the inspector, absent of negligence on the part of the vendor and truthfully and accurately answering the SPIS form.

Originally Posted by Dom D'Agostino

That's the whole point. The truth is "bent" by each party, until the actual facts can be revealed.

Surely you understand that.

Dom.

Nick's quote stated that the truth is in the middle of what is said by each party. I interpreted that as "a compromised solution for a court decision". I don't like that. I believe that the facts presented are the truth and not somewhere in the middle of what two parties say. Who cares what is said, In this business it is what is written. Insurance companies will settle for a compromised solution for closure - whether or not the inspector has the facts.

That was my point.

I wasn't inferring court in any way.

Originally Posted by Nick Ostrowski

I wasn't inferring court in any way.

I totally got what you said from the start. 99% of all real estate transactions are the same - seller thinks the house is great and needs nothing, buyer thinks everything we say means it's going to fall down tomorrow. The reality is somewhere in between.

An inspection should not be influenced by anyone else's inspections, reports, documents, disclosures, etc. You observe conditions that are visible or otherwise discernible under the conditions of the inspection at the time of the inspection and report on the relevance of those facts and conditions. If you observe an anomaly in a foundation, you note it and recommend further investigation by qualified people.

In general, the failure to disclose hidden defects will come back to bite both the seller and the Realtor--not the inspector.

The inspector may have a case against Barry Stone for defamation of character. The fact that in this case, there apparently, based upon the limited information we have, was information about a pre-existing foundation issue that was not only known to the seller but underwent extensive consulting and repairs. The fact there is a crack in the foundation may give rise to a suit against the contractor and engineer for breech of warranty, whether expressed or implied. If the seller seeks compensation for alleged damages, they would be better off going against the foundation contractor and engineer.

Of course, if the seller had contracted with an inspector for a pre-sale inspection, he might have uncovered the foundation defect and sought recourse against the proper people instead of blaming the inspector who discovered it. Also, we don't know what expressed warranty, if any, was issued by the foundation contractor or engineer. Regardless, there would probably be a case against the engineer, esp. if the foundation contractor acted in a workmanlike manner to the engineer's specs.

"The inspector may have a case against Barry Stone for defamation of character. ".

Maybe I missed it, but I don't think Barry named the inspector. Pretty hard to defame someone without naming them.

Originally Posted by Bob Harper

An inspection should not be influenced by anyone else's inspections, reports, documents, disclosures, etc.

I disagree with that to the extent that a seller's disclosure (properly filled out) discloses issues known to the seller - with knowledge of those issues, the inspector has a heads up to look at those issues with that knowledge going in, and a "previously repaired foundation issue" may, indeed, have been "repaired", or the "repair" may not have fully addressed the issue, or the foundation settlement may have continued after the "repair".

Without the knowledge of a previous repair, and if the repair put the house back into 'as it was built' condition, the inspector may not find it (repair pilings could be outside and below grade with no visible evidence the work was done, I've see that several times inspecting the repairs in-progress for permits, then the fact that the only evidence of the repair is fresh pieces of sod or fresh mulch next to the house at final inspection after the work was done - a home inspector, coming in several months later, would likely have no visible clues that work was done).

Not only is there nothing wrong with having the seller's disclosure information, I recommend it reviewing it ... as it also "gives permission" to do things which the seller stated as not having any known problems (fill and run the spa tub, if it leaks, not the inspector's fault; run the dishwasher, if it leaks, not the inspector's fault; etc). Now, if the seller disclosed that the spa tub leaks when filled and the inspector fills it and it leaks ... Lions, tigers, and bears! Oh my! (You are not in Kansas anymore.)

In general, the failure to disclose hidden defects will come back to bite both the seller and the Realtor--not the inspector.

Case law suggests otherwise. Further all defects may not be patently obvious, they could be latent defects which are undiscoverable by visual means.

Also consider the Realtor, home owner and home inspector could all be named in a suit regardless of liability.

[QUOTE=Rick Bunzel;245274]From: Inspector oversteps bounds with advice | Albuquerque Journal News


""DEAR BARRY: The people who were buying our home canceled the deal on the advice of their home inspector. During the inspection, he found a crack in the foundation, which he blew entirely out of proportion. After taking some measurements, he concluded that the foundation was compromised and settling, and he advised the buyers not to purchase our the property. They backed out of the deal on the spot.

...........QUOTE]

I look at it a little differently.

The HI gave an opinion supported by a factual observation, "he found a crack in the foundation".

The fact that it was repaired and there was supporting documentation could be dismissed by the HI and the Buyer. With the argument that "it broke once it might break again and I don't want to take the chance". Don't want to have to sue the Seller, SE nor the Contractor for remediation. Just not worth the effort and just may loose. Which may have been the reason that the Seller final offer was lower, a foundation repair past and possibly in the future.

Originally Posted by Garry Sorrells

The fact that it was repaired and there was supporting documentation could be dismissed by the HI and the Buyer. With the argument that "it broke once it might break again and I don't want to take the chance".

Similar to one of the scenarios I gave, except that my scenario was that it could have cracked since the repair.

Both scenarios above are valid.

Anyone aware of any contractor or engineer repairs which turned out to not be sufficient to have addressed the issue?

Hey ... you! In the back row with the headphones on. You are the only one who did not raise their hand ... you probably didn't hear the question did you?

Jerry,we will just have to disagree. If an inspector is competent, he will observe signs of something "different" about a foundation that is accessible and visible and then, based upon his initial comments for professional follow up, the seller/ Realtor can disclose the history. Based off that, the inspector may then recommend a different engineer or foundation contractor inspect it and submit their report. The home inspector is just that--an inspector, not an investigator. What you have described is a forensic investigation based upon subjective information provided, not triggered off the inspectors findings. If an inspector see's a crack and mentions it in his report, along with the recommendation for professional follow up, whether this crack is new or post-repair, he has done his job. If a seller/Realtor want to disclose certain facts or defects, that's fine but those issues should not guide the inspection. If an inspector must rely on disclosures to know what to look for, he's in trouble. He should be the one coming to his client informing them "something" went on that warrants follow up. I just think there needs to be a distinction between "home inspectors" and "home investigators".

Originally Posted by Bob Harper

Jerry,we will just have to disagree. If an inspector is competent, he will observe signs of something "different" about a foundation that is accessible and visible and ...

Bob,

I'm guessing that you have not seen the types of foundation repairs that I have inspected.

I suspect that you are talking about basements with visible walls inside, or maybe even crawlspaces with concrete or masonry walls, while I am referring to slab on grade foundations ... you may have to trust me on this, but when the work is done, and done properly, there is no visible evidence that the work was done - except for fresh sod or mulch, and after a few months, as I said, that is not visible either.

When I was a home inspector, I inspected some crawlspaces where the structures were on pilings and grade beams, yeah, no doubt, even a dim-witted inspector should be able to see that something is "different" (a newbie inspector may not "know" what or what it is different, but surely should be able to see the "difference"). That newbie inspector, seeing the condition before the repair, and while not knowing or understanding the scope of what they are seeing, know to recommend an engineer to design appropriate repairs - the after appropriate repairs look is completely different than the areas not repaired. The newbie inspector then learns what it was he/she was looking at, what it is called (spalling) and then goes back with the engineer (to learn about what they saw), and finally goes back to see the repairs after the work is done (to learn more about the condition and the repairs for it).

Next time, the newbie inspector is no longer a newbie inspector, they now a veteran inspector (with regard to that issue) and have "been there, done that" and know how it should be addressed.

We all started out as newbies, we all learned, that is called progress.

I never ask for disclosure statements. But I do ask for copies of elevation surveys for pier placement. A seller's remark that foundation work has been done is never good enough. Twice now I have found serious foundation problems in areas of a house where no work had been performed before.