Page 1 of 2 12 LastLast
Results 1 to 65 of 78
  1. #1
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Letter to stop passing out my inspection report

    Any of you guys have a boiler plate letter (cease and desist?) that addresses, in this case an agent passing my inspection report around to prospective buyers? I need to send one out.

    Similar Threads:
    Inspection Referral
    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  2. #2
    Join Date
    Mar 2007
    Location
    Ormond Beach, Florida
    Posts
    26,252

    Default Re: Letter to stop passing out my inspection report

    What copyright/notices do you have on your report?

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

  3. #3
    Join Date
    Mar 2011
    Location
    Sparks,NV
    Posts
    109

    Default Re: Letter to stop passing out my inspection report

    The person who paid for it is the one that really owns it. If it was me I would explain that the report is good only for the day and time of the report and that it is the property of the person that paid for it. I would explain that since I recently inspected it I would give a discount on a new inspection.

    Nevada IOS#1730
    Nevada Energy Auditor #30
    775-342-4767 www.homecsi.com

  4. #4
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Jerry,
    This is from our (past) insurance carrier. It was their suggestion we include it in the report. We had other verbiage previously, but like this better.

    NOTICE TO THIRD PARTIES: This report is the exclusive property of Mazza Inspections and the Client(s) listed above. It is NOT transferable to any third parties or subsequent buyers. Our inspection and this report have been performed with a written agreement that limits its scope and usefullness. Unauthorized recipients are therefore advised not to rely on this report, but rather to retain the services of an appropriately qualified home inspector of their choice to provide them with their own home inspection report.

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  5. #5
    Join Date
    Mar 2007
    Location
    Ormond Beach, Florida
    Posts
    26,252

    Default Re: Letter to stop passing out my inspection report

    (bold and underlining is mine)
    Quote Originally Posted by Marc M View Post
    Jerry,
    This is from our (past) insurance carrier. It was their suggestion we include it in the report. We had other verbiage previously, but like this better.

    NOTICE TO THIRD PARTIES: This report is the exclusive property of Mazza Inspections and the Client(s) listed above. It is NOT transferable to any third parties or subsequent buyers. Our inspection and this report have been performed with a written agreement that limits its scope and usefullness. Unauthorized recipients are therefore advised not to rely on this report, but rather to retain the services of an appropriately qualified home inspector of their choice to provide them with their own home inspection report.
    Okay, so I get a copy of the report to read, but the report is not transferable to me, okay, works for me, but I still got to read the report and find out what was in it.

    Okay, so I will heed your advise and not rely on the report, but thank you for the information.

    No where did you say it was copyrighted or was not to be reproduced, just that it was not "transferable" and that I should not "rely" on it. Works for me as a recipient of your report.

    From my old reports, on the bottom of every page:
    ©This report is work product and is copyrighted by the company shown above (INSPECTION SERVICES ASSOCIATES, INC. ) as of the date of this report (*the date of the report automatically entered itself here*). Duplication by any means whatsoever, including sharing access to a protected copy, is prohibited without prior written permission and authorization from the company shown above. Duplication of, use of, or reliance on this report in any way for any purpose whatsoever has the effect of agreeing to the terms and conditions as set forth in the Authorization and Contract for Services, included herewith as numbered pages 3 and 4 of the original report, which are included for the users review, please do so. Unauthorized duplication of, use of, or reliance on this report has the effect of all parties agreeing to hold harmless, individually, jointly, and/or otherwise, this inspector, the Company, their successors and assigns AND IS A VIOLATION OF FEDERAL COPYRIGHT LAWS.

    I never had any problems with people copying it or passing it around.

    Of course, though, maybe the reason they did not copy it was because it would have used up all of their paper and ink or toner ...

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

  6. #6
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Jerry Peck View Post
    (bold and underlining is mine)


    Okay, so I get a copy of the report to read, but the report is not transferable to me, okay, works for me, but I still got to read the report and find out what was in it.

    Okay, so I will heed your advise and not rely on the report, but thank you for the information.

    No where did you say it was copyrighted or was not to be reproduced, just that it was not "transferable" and that I should not "rely" on it. Works for me as a recipient of your report.

    From my old reports, on the bottom of every page:
    ©This report is work product and is copyrighted by the company shown above (INSPECTION SERVICES ASSOCIATES, INC. ) as of the date of this report (*the date of the report automatically entered itself here*). Duplication by any means whatsoever, including sharing access to a protected copy, is prohibited without prior written permission and authorization from the company shown above. Duplication of, use of, or reliance on this report in any way for any purpose whatsoever has the effect of agreeing to the terms and conditions as set forth in the Authorization and Contract for Services, included herewith as numbered pages 3 and 4 of the original report, which are included for the users review, please do so. Unauthorized duplication of, use of, or reliance on this report has the effect of all parties agreeing to hold harmless, individually, jointly, and/or otherwise, this inspector, the Company, their successors and assigns AND IS A VIOLATION OF FEDERAL COPYRIGHT LAWS.

    I never had any problems with people copying it or passing it around.

    Of course, though, maybe the reason they did not copy it was because it would have used up all of their paper and ink or toner ...
    The agent passing it around it the listing agent. The original deal fell through and I'm getting tired of people calling me asking questions (from new buyers thinking of buying the house) about my report that they were given by the listing agent.
    Thanks Jerry for the attachment.

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  7. #7
    Join Date
    Mar 2007
    Location
    Ormond Beach, Florida
    Posts
    26,252

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Marc M View Post
    The agent passing it around it the listing agent. The original deal fell through and I'm getting tired of people calling me asking questions (from new buyers thinking of buying the house) about my report that they were given by the listing agent.
    Thanks Jerry for the attachment.
    All the insurance company's wording does is tell people not to rely on it, and thus, if someone relies on it and there is a compliant, the insurance company's first defense is "Too bad, we TOLD YOU NOT TO RELY on it. See, this problem you have is exactly why we said NOT TO RELY on it. It is now your loss because you relied on a report that you were advised NOT TO RELY on."

    What should you do?

    Change the wording of your notice.

    Send a nice nastygram to the listing agent and tell her that you will be sending your report to a local TV station so that *everyone* will have a copy of your report on that house, and that EVERY ITEM IN THAT REPORT had better be on the seller disclosure or the listing agent will be sued, that you will help anyone and everyone sue him/her for fraud if EVERY ITEM IN THAT REPORT is not on the seller disclosure.

    Not much else you can do about THAT report. Consider it gone. A lesson learned, and it didn't cost you too much for that lesson.

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

  8. #8
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Jerry Peck View Post
    All the insurance company's wording does is tell people not to rely on it, and thus, if someone relies on it and there is a compliant, the insurance company's first defense is "Too bad, we TOLD YOU NOT TO RELY on it. See, this problem you have is exactly why we said NOT TO RELY on it. It is now your loss because you relied on a report that you were advised NOT TO RELY on."

    What should you do?

    Change the wording of your notice.

    Send a nice nastygram to the listing agent and tell her that you will be sending your report to a local TV station so that *everyone* will have a copy of your report on that house, and that EVERY ITEM IN THAT REPORT had better be on the seller disclosure or the listing agent will be sued, that you will help anyone and everyone sue him/her for fraud if EVERY ITEM IN THAT REPORT is not on the seller disclosure.

    Not much else you can do about THAT report. Consider it gone. A lesson learned, and it didn't cost you too much for that lesson.
    A nice nastygram, we'll give that a shot.

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  9. #9
    Join Date
    Mar 2007
    Location
    Spring City/Surrounding Philadelphia area
    Posts
    3,473

    Default Re: Letter to stop passing out my inspection report

    Why don't you put some verbiage in that says the report has a curse on it for anybody who reads it other than the listed BUYER?

    "It takes a big man to cry. It takes an even bigger man to laugh at that man". - Jack Handey

  10. #10
    Join Date
    Dec 2008
    Location
    Maryland
    Posts
    2,778

    Default Re: Letter to stop passing out my inspection report

    Marc,
    Hate to say it but I think that once the agent shared the report with one potential buyer they would be obligated to share it with all in future.

    In a post int he past there was a discussion about the Calf. law that all documentation becomes historical information that must be maintained and passed from owner to owner and also must be disclosed in all future transactions.

    Does your report fall into that requirement? Or am I just confused with the whole historical doc requirements?


  11. #11
    Join Date
    Mar 2007
    Location
    Knoxville, TN
    Posts
    2,446

    Default Re: Letter to stop passing out my inspection report

    To get some clarification on "copyrights" I went to the Copyright website. Just browsing the document I found that its very east to "copyright" something, however, to sue someone for infringing on your copyright, the work has to be registered.
    Here is the website - very interesting. LIke I said, I really only briefly looked it over, i plan to read more later.
    U.S. Copyright Office - Copyright in General (FAQ)

    I just read the registration part, and it appears that you have to have the work registered prior to the breach to be able to sue someone. That would make it very difficult to register a home inspection report prior to someone else using it. Plus it costs money to register.
    The other part of suing someone over your report, is to prove damages. Is it really worth it to sue someone over the cost of an inspection?

    Last edited by Jack Feldmann; 03-02-2012 at 06:23 AM. Reason: read more about registration

  12. #12
    Join Date
    Mar 2007
    Location
    Spring Hill (Nashville), TN
    Posts
    5,847

    Default Re: Letter to stop passing out my inspection report

    Have you called the real estate agent and simply asked them to stop? That would be the first thing to do. Tell them that they have no right to provide the report since they were not the client.......etc.....etc....!

    Then back it up with an email and a snail mail letter to the agent and to their broker or whoever holds their license.

    If that does not work then depending on how much time and money you want to invest you can take the next step and kick it up a notch or two.

    If it was me, I would not even let it bother me. When somebody calls and ask about the home because of the report they were given just tell them that you can't comment on that report due to privacy laws(nobody ever questions this). Then offer to inspect the house for them if they want to buy it.

    Last edited by Scott Patterson; 03-02-2012 at 06:32 AM.
    Scott Patterson, ACI
    Spring Hill, TN
    www.traceinspections.com

  13. #13
    Join Date
    Feb 2008
    Location
    Caledon, Ontario
    Posts
    5,005

    Default Re: Letter to stop passing out my inspection report

    Marc

    Do you solicit realtors for inspections?

    Whats the difference between a pre purchase inspection vs. pre-listing inspection were a copy of the report is reproduced and handed out at an open house, or provided to potential buyers?


  14. #14
    Join Date
    Mar 2007
    Location
    Knoxville, TN
    Posts
    2,446

    Default Re: Letter to stop passing out my inspection report

    When I do a pre-purchase inspection it is very clear that no one else has rights to the report except the parties involved with THIS TRANSACTION ONLY. Most real estate contracts in the Knoxville area, require the Buyer to give a copy of the report to the Seller.

    When I do a pre listing inspection, I make it clear that the report was generated for the Sellers use only (to get the house ready for listing), and that potential Buyers should get their own inspection.


  15. #15
    Join Date
    Jul 2008
    Location
    Snowbird (this means I'm retired and migrate between locations), FL/MI
    Posts
    4,086

    Default Re: Letter to stop passing out my inspection report

    Marc,

    IIRC, approximately 18 mos to 30 mos ago there was an extensive discussion on the subject, especially pertaining to Real Estate transactions and Disclosure specific to California. I think there may have been a secondary discussion a few months later. It might have been Ron Bibler who started the discussion, I recall the title being something like 'Historical" or "History" "documents" of the home or some such topic discussion title. I believe there have been other discussions on the topic as well (specific to California). In Ron B.'s discussion thread, it was also oriented about the importance for maintaining "tail" coverage.

    Seems there were references to a series of major cases that developed case law regarding disclosure requirements, and some references to black letter law regarding real estate agents, brokers, etc.

    Unless something has changed significantly in Cali, and If I'm recalling the subject matter correctly, and understanding what you're addressing in your post...

    I recall you have stated on a number of occasions that you do not affiliate with CRIEA or any other HI "organization", forgive me if I'm recalling incorrectly - point being, I believe this subject has been addressed several times via same, as well as from the "real estate professionals" side, and attorneys, etc. regarding disclosures and liabilities in California Real Estate Transactions.

    If for example your client was a potential purchaser under contract contingent upon your inspection, and your report was not accepted by the potential purchaser and same withdrew their offer based upon same, and therefore same was included, cited, as such, the seller likely is disclosing your report. Likely not an REO, etc. so would have to. Same as far as if your former client was the purchaser/seller, or a former owner, disclosing items in your ealier report which either were or were not addressed, again full disclosure. The historical "documents" notifications, awareness, etc. for full disclosure.

    A copyright does not exist until same is specifically registered. The right to register same exists when such is created - it may be registered retroactively. No action regarding same can be enforced unless and until the copyright has actually been registered.

    Registration is not automatic, technically the "right" to "register a copyright" exists, but NOT a "copyright" unless and until one takes the steps to actually register the copyright.

    Unaware of the complete language of your inspection agreement. Obviously acquiring a Home Inspection Report under a contingency, or a Pre-sale/listing report by an Owner, Trustee, etc. would likely be a disclosure consideration at a minimum, and furthermore, likely be discoverable, eventually, anyway.

    P.S. I did a simple search following my post, one of the discussions I was recalling can be found here (clickable link): http://www.inspectionnews.net/home_i...documents.html It is in general chit-chat as opposed to business operations, reports, etc. not exactly where you might have expected it to be catagorizied.

    HTH.

    Last edited by H.G. Watson, Sr.; 03-02-2012 at 09:43 AM. Reason: added a post script with a link to one of the California Disclosure, "Historical Documents" discussions.

  16. #16
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Nick Ostrowski View Post
    Why don't you put some verbiage in that says the report has a curse on it for anybody who reads it other than the listed BUYER?
    I think i did by default when i bombed the inspection...

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  17. #17
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Raymond Wand View Post
    Marc

    Do you solicit realtors for inspections?

    Whats the difference between a pre purchase inspection vs. pre-listing inspection were a copy of the report is reproduced and handed out at an open house, or provided to potential buyers?
    No way... I don't solicit them...

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  18. #18
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by H.G. Watson, Sr. View Post
    Marc,

    IIRC, approximately 18 mos to 30 mos ago there was an extensive discussion on the subject, especially pertaining to Real Estate transactions and Disclosure specific to California. I think there may have been a secondary discussion a few months later. It might have been Ron Bibler who started the discussion, I recall the title being something like 'Historical" or "History" "documents" of the home or some such topic discussion title.

    Seems there were references to a series of major cases that developed case law regarding disclosure requirements, and some references to black letter law regarding real estate agents, brokers, etc.

    Unless something has changed significantly in Cali, and If I'm recalling the subject matter correctly, and understanding what you're addressing in your post...

    I recall you have stated on a number of occasions that you do not affiliate with CRIEA or any other HI "organization", forgive me if I'm recalling incorrectly - point being, I believe this subject has been addressed several times via same, as well as from the "real estate professionals" side, and attorneys, etc. regarding disclosures and liabilities in California Real Estate Transactions.

    If for example your client was a potential purchaser under contract contingent upon your inspection, and your report was not accepted by the potential purchaser and same withdrew their offer based upon same, and therefore same was included, cited, as such, the seller likely is disclosing your report. Likely not an REO, etc. so would have to. Same as far as if your former client was the purchaser/seller, or a former owner, disclosing items in your ealier report which either were or were not addressed, again full disclosure. The historical "documents" notifications, awareness, etc. for full disclosure.

    A copyright does not exist until same is specifically registered. The right to register same exists when such is created - it may be registered retroactively. No action regarding same can be enforced unless and until the copyright has actually been registered.

    Registration is not automatic, technically the "right" to "register a copyright" exists, but NOT a "copyright" unless and until one takes the steps to actually register the copyright.

    Unaware of the complete language of your inspection agreement. Obviously acquiring a Home Inspection Report under a contingency, or a Pre-sale/listing report by an Owner, Trustee, etc. would likely be a disclosure consideration at a minimum, and furthermore, likely be discoverable, eventually, anyway.
    Got it. the only reason I have an issue with this is that the individual who is now thinking of buying it, "was" going to be a client of mine but now may not. So I lost $500 here. I understand i did the first inspection but repairs have been conducted since my first inspection. Normally I would not do another inspection of the same property but in this case the repairs were extensive. Also, I don't really know much of copyrights and don't really care to know much about them. TMI....

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  19. #19
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Also, what about the person who paid $500 for the original document? Do they not have a right to own that document solely?

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  20. #20
    Join Date
    Jul 2008
    Location
    Snowbird (this means I'm retired and migrate between locations), FL/MI
    Posts
    4,086

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Marc M View Post
    Also, what about the person who paid $500 for the original document? Do they not have a right to own that document solely?
    Marc,

    I added a post script with a link to one of the recalled discussion threads. Most can be found in the real estate profession area, and significant case law, some of which goes back quite some time historically.

    They may have an exclusive right to rely on the information you provide for a specific time period, but that wouldn't necessarily change the requirement to provide the information to others, or for the real estate professional, or the present or future owner of the property to potential rentors or purchasers, or sales brokers and/or agents regarding full disclosure responsibilities. The infomation contained therein wouldn't be considered proprietary, secret, etc. I seem to recall even "work product" alternatively sourced independant inspections, investigations, etc. via attorneys "considering" taking on a particular case, and who did not, having been found to be discoverable in California.

    Haven't followed more recent decisions. Your questions could be better and more reliably researched by a California Attorney, who is experienced in the disclosure laws (black letter law and case law), and your own business attorney.


  21. #21
    Join Date
    Mar 2007
    Location
    Knoxville, TN
    Posts
    2,446

    Default Re: Letter to stop passing out my inspection report

    Good post HG. Nice summation of the stuff I was reading about registration.

    Marc, I feel your pain, and have shared this experience more times than I can count. It would be very hard to prove you really "lost" $500. How many times does someone cancel because they found someone that would do the job for $3.50 less?

    I once did a $1500 inspection and my buyer backer out. The listing Realtor "gave" my report to the new buyer. I felt she had picked my pocket for $1500, but in reality, there was nothing I could do about it.

    The one thing I do if I hear my client backed out is to remove the report form the web site. I found that most people just read the report on the computer and don't save the PDF to their hard drive.


  22. #22
    Join Date
    Oct 2011
    Location
    Minneapolis, MN
    Posts
    780

    Default Re: Letter to stop passing out my inspection report

    I just read the registration part, and it appears that you have to have the work registered prior to the breach to be able to sue someone.
    Jack, this isn't the impression I get. Where did you read that? To me it just sounds like you have to register before filing suit.

    A copyright does not exist until same is specifically registered. The right to register same exists when such is created - it may be registered retroactively. No action regarding same can be enforced unless and until the copyright has actually been registered.

    Registration is not automatic, technically the "right" to "register a copyright" exists, but NOT a "copyright" unless and until one takes the steps to actually register the copyright.
    Not true, HG. Copyright is automatic.

    I think you'd be hard-pressed to show that it's against federal copyright law to show a report to others. If the client agreed in writing not to do so, that would be breach of contract, not copyright violation. Copyright is about reproduction.

    However, the issue may be addressed in other federal or state laws, may be worth looking into.

    In this case, you wouldn't sue for a loss of money from one inspection, you'd sue for every client the realtor showed the report to, saying they were all potential clients of yours. If there's legal recourse to do so, anyway.

    Last edited by Kristi Silber; 03-02-2012 at 04:57 PM.
    Do not think of knocking out another person's brains because he differs in opinion from you. It would be as rational to knock yourself on the head because you differ from yourself ten years ago.
    - James Burgh, 1754.

  23. #23
    Join Date
    Mar 2007
    Location
    Ormond Beach, Florida
    Posts
    26,252

    Default Re: Letter to stop passing out my inspection report

    Some tidbits of information from the link Jack provided above: http://www.copyright.gov/circs/circ1.pdf

    (bold and underlining are mine)
    Copyright Secured Automatically upon Creation The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. (See following note.) There are, however, certain definite advan*tages to registration. See “Copyright Registration” on page 7.

    Copyright is secured automatically when the work is cre*ated, and a work is “created” when it is fixed in a copy or phonorecord for the first time. “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. “Phonorecords” are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or vinyl disks. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph disks (“phonorecords”), or both. If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.


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

    note: Before 1978, federal copyright was generally secured by the act of publication with notice of copyright, assuming compliance with all other relevant statutory conditions. U.S. works in the public domain on January 1, 1978, (for example, works published without satisfying all conditions for securing federal copyright under the Copyright Act of 1909) remain in the public domain under the 1976 Copyright Act.

    Certain foreign works originally published without notice had their copyrights restored under the Uruguay Round Agreements Act (URAA). See Circular 8b and see the “Notice of Copyright” section on page 4 for further information.

    Federal copyright could also be secured before 1978 by the act of registration in the case of certain unpublished works and works eligible for ad interim copyright. The 1976 Copyright Act automatically extends to full term (section 04 sets the term) copyright for all works, including those subject to ad interim copyright if ad interim registration has been made on or before June 30, 1978.

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

    Notice of Copyright

    The use of a copyright notice is no longer required under U.S. law, although it is often beneficial. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works.

    The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office.

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

  24. #24
    Join Date
    Mar 2007
    Location
    Knoxville, TN
    Posts
    2,446

    Default Re: Letter to stop passing out my inspection report

    Kristi, Here is the part I glanced at that raised the question for me. Like I said, I only briefly looked over the document, and may have taken something out of context.
    Here is the section:
    If registration is made within three months after publica*tion of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

    The part that I was concerned about was where it says: "... or prior to an infringement of the work....". I took that to mean that you would have to register the copyright before someone highjacked it, to win any damages in a lawsuit.

    I think that going to court to only try to get back actual damages (without attorney fees and statutory damages) would be a huge waste of time.


  25. #25
    Join Date
    Feb 2008
    Location
    Caledon, Ontario
    Posts
    5,005

    Default Re: Letter to stop passing out my inspection report


  26. #26
    Join Date
    Mar 2007
    Location
    Ormond Beach, Florida
    Posts
    26,252

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Jack Feldmann View Post
    Kristi, Here is the part I glanced at that raised the question for me. Like I said, I only briefly looked over the document, and may have taken something out of context.
    Here is the section:
    If registration is made within three months after publica*tion of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

    The part that I was concerned about was where it says: "... or prior to an infringement of the work....". I took that to mean that you would have to register the copyright before someone highjacked it, to win any damages in a lawsuit.

    I think that going to court to only try to get back actual damages (without attorney fees and statutory damages) would be a huge waste of time.
    I am sure there is an expanded, legally written, complicated document which addresses this in detail, however ... base on what that says:
    • If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

    "If registration is made within three months after publication of the work" ... "or prior to an infringement of the work,"

    That says, on its face, without fine print technicalities, that if you register it within three months after publication ... attorney's fees will be available.

    That also says, on its face, without the same fine print disclaimers, that if you register it after 3 months, but before infringement of the work ... attorney's fees will be available.

    One advantage of having the copyright notice (which is not even required, but gives advantages because it give "notice" that the work is copyrighted) is that the person who may be otherwise willing to make copies may think twice because they will not get their attorney's fees back whether or not you register the work. A simple letter from your attorney, should you go that way, would either get them to cease and desist, or have them pay their attorney to respond to your attorney, and what would their response be? 'I'm sorry, my client is guilty and will cease and desist immediately, will you forgive collecting attorney's fees?'

    I suspect that the simple fact that my blurb is worded rather strongly makes people think twice about making copies, or at least would think twice about continuing to make copies once they were called and asked/told to stop making copies.

    On a couple of occasions (more than once, but not a lot of times) an attorney would call and ask if they could make copies of my report, I said sure, send me a request in writing and I will send you permission in writing to make limited copies, and I never heard back from those attorneys.

    I presume they made one or two copies anyway and that was it, but I did not care because they were the attorney's of my clients and were probably making copies for the seller for renegotiation of the sales price.

    Last edited by Jerry Peck; 03-03-2012 at 06:19 AM. Reason: Dang, had that same '*' in publica*tion the other post had???
    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  27. #27
    Join Date
    Jul 2008
    Location
    Snowbird (this means I'm retired and migrate between locations), FL/MI
    Posts
    4,086

    Default Re: Letter to stop passing out my inspection report

    Full disclosure is not only "public policy" relative to real estate transactions, it is legislated in California.

    Inclusion is required under the "historical documents" doctrine.

    Dixclosure of the full and complete HI report is required, when so included under DISCLOSURE in anticipation of a real estate transaction (sales or lease).

    It is also fully protected under FAIR USE doctrine tests, N.D. Calif. decisions other districts, and Supreme Court decisions.

    It also meets the "Betamax" case tests as well as the 1% or less of published or unpublished works Salinger letters decisions.

    It does not deprive your income from sales of the same document or work. The nature of the exclusionary "only for the named clients" and "only as of the date and time of the inspection" type language - you can derive no alternate income from the use/nature of the disclosure.

    Full disclosure is a matter of public policy, its use is solely informative in nature, etc.

    Even if the seller, agent, etc. disagrees with the content, they are required to share with all prospective purchasers, leasees, owners under the disclosure laws, if they have knowledge that said report exists, to share it, unadulterated, andin its entirety.

    Much ado about nothing, copyrighting published or unpublished home inspection reports does not protect from the required disclosure or from full disclosure to others for the purpose of DISCLOSURE relative to real estate, and most especially in California.

    Use as Marc has described meets two of the four FAIR USE doctrine allowances/defenses.

    It also provides for a proactive & more expensive case against one who "fails to excercise good faith" case against one who issues a cease & desist or DMCA take-down demand, by one's failure to consider FAIR USE of copyrighted or not published or not materials. (Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008).)

    You cannot resell the inspection report for use as an inspection report at a later date to a different client relative to the same property, without performing a separate and distinct property inspection, so you aren't deprived of any income - and will likewise lose the case, and likely get SLAPed back twofold.

    I strongly recommend you consult with a copyright attorney and your Imdemnity BEFORE you even THINK about composing such a letter on your own, relative to the activities you described Marc (as they are required to do what they are doing with "your" report) as long as it is fully disclosed in its entirety and made for the purposes of FULL DISCLOSURE relative to the potential real estate transaction.


  28. #28
    Join Date
    Jul 2008
    Location
    Snowbird (this means I'm retired and migrate between locations), FL/MI
    Posts
    4,086

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Kristi Silber View Post
    Jack, this isn't the impression I get. Where did you read that? To me it just sounds like you have to register before filing suit.



    Not true, HG. Copyright is automatic.

    I think you'd be hard-pressed to show that it's against federal copyright law to show a report to others. If the client agreed in writing not to do so, that would be breach of contract, not copyright violation. Copyright is about reproduction.

    However, the issue may be addressed in other federal or state laws, may be worth looking into.

    In this case, you wouldn't sue for a loss of money from one inspection, you'd sue for every client the realtor showed the report to, saying they were all potential clients of yours. If there's legal recourse to do so, anyway.
    3/4's wrong doesn't make you 1/4 correct and vice-versa.

    There have been decades of case law regarding work for hire, and "FAIR USE" cases. All the way to the Supreme Court, and subsequent to the latest conventions (international accords).

    Really, you don't know what you are talking about relative to what IS and IS NOT copyrightable relative to Home Inspections and public policy, informational, and real estate transactions.

    You were already dead wrong regarding just what your own "activities" were and are regarding Mueller. I refuse to debate nonsense with you, you are utterly wrong in each and every attempt at application.

    Nine fundemental conditions and five fundemental concepts relative to Fair USE and you've scored a zero.

    What is not copyrightable? If you don't have a clue about what canNOT be copyrighted, then of course you're going to get everything else wrong.


  29. #29
    Join Date
    Oct 2011
    Location
    Minneapolis, MN
    Posts
    780

    Default Re: Letter to stop passing out my inspection report

    "I refuse to debate nonsense with you"

    Then debate using intelligence and we might get somewhere.

    Do not think of knocking out another person's brains because he differs in opinion from you. It would be as rational to knock yourself on the head because you differ from yourself ten years ago.
    - James Burgh, 1754.

  30. #30
    Join Date
    Oct 2011
    Location
    Minneapolis, MN
    Posts
    780

    Default Re: Letter to stop passing out my inspection report

    Oh, I think I see where HG misunderstood. Just in case others did as well, I'll clarify. I should have stressed "show,"

    I think you'd be hard-pressed to show that it's against federal copyright law to show a report to others. If the client agreed in writing not to do so, that would be breach of contract, not copyright violation. Copyright is about reproduction.
    That is, show a single copy to a bunch of people, vs making a bunch of copies and passing them around. The way the OP was stated, it sounded to me like the former was the case, and that wouldn't be protected by copyright. Maybe I have Marc's meaning wrong.

    I didn't say anything about what is protected.

    Do not think of knocking out another person's brains because he differs in opinion from you. It would be as rational to knock yourself on the head because you differ from yourself ten years ago.
    - James Burgh, 1754.

  31. #31
    Join Date
    Mar 2007
    Location
    Knoxville, TN
    Posts
    2,446

    Default Re: Letter to stop passing out my inspection report

    Jerry, My thoughts were that most likely the report will get passed around within a few days, or weeks of generating it. Not likely it would be registered before it was distributed, so no attorney fees would be available.

    I have no idea what it costs to register something for copyright, but I'm guessing its not a trivial sum. Considering the average fee for an inspection (based on a business survey I saw a while back) was in the $300 - 375 range, it seems like a lost cause to register a copyright on every report you do, just in case it may be given away for free, and your chance of winning a lawsuit based on lost business is pretty slim.

    Honestly, I don't think it would be worth the trouble and cost to register a copyright for anything less than a work in the 5 figure range.

    Today is the first time I bothered to even Google "copyright", so I am far from an expert, in fact I know very little about the subject. That said, it's also pretty obvious that no one else on this forum is an expert on copyright law either.
    While putting copyright on a report might scare off some people, I doubt it will keep anyone from passing reports around as they feel like it. A threat of a lawsuit for lost business, would probably end up as an empty threat, since I imagine it would be very hard to get an attorney to even take the case, UNLESS there was a large sum of money involved. Again, not likely with the average inspection report.

    I do what I can to protect my reports, but really don't lose any sleep over someone giving it away to a third party. I won't answer questions from a 3rd party, and remove reports from the web as soon as I hear my clients backed out. I did a job, and got paid.


  32. #32
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    So I CC'd my client who paid for the report ($500) to the email that I sent the agent who was passing out the report to stop sending it etc... So he sent his own email to her and shortly after, she responded that she will stop passing the report around.

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  33. #33
    Join Date
    Feb 2008
    Location
    Caledon, Ontario
    Posts
    5,005

    Default Re: Letter to stop passing out my inspection report

    Good for you Marc. Guess they figured you wouldn't find out.

    Cheers,


  34. #34
    Join Date
    Mar 2007
    Location
    Ormond Beach, Florida
    Posts
    26,252

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Jack Feldmann View Post
    Jerry, My thoughts were that most likely the report will get passed around within a few days, or weeks of generating it. Not likely it would be registered before it was distributed, so no attorney fees would be available.
    Jack,

    I understood what you were saying, which is why I said it this way, but first qualified that the document we are referring to may not be as specific as the documents it was complied from, i.e., this document was written for the public - us - versus the legalese one written by the attorneys:
    Quote Originally Posted by Jerry Peck View Post
    I am sure there is an expanded, legally written, complicated document which addresses this in detail, however ... base on what that says:
    • If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

    "If registration is made within three months after publication of the work" ... "or prior to an infringement of the work,"

    That says, on its face, without fine print technicalities, that if you register it within three months after publication ... attorney's fees will be available.

    That also says, on its face, without the same fine print disclaimers, that if you register it after 3 months, but before infringement of the work ... attorney's fees will be available.
    Given that gives two options, without regard to which one takes place first, that says that if you find copyright infringement within 3 months of publication and registered the copyright, even though the infringement took place prior to registration, you were still within the 3 months - therefore the registration prevails and attorneys' fees will be available.

    That also says (not that it matters in this discussion) that if it is 5 years after publication and you hear that infringement may be going to take place, you can still register it prior to that infringement taking place and attorneys' fees will be available. For example, someone call and wants to use a book you wrote and they do not want to pay you a license fee for that use, their conversation with you ends with 'Then I am going to use it anyway.', you may register the copyright prior to the infringement.

    At least that is what the simple language says, the legalese may actually say something different.

    Like you I am not a copyright expert (x=unknown, spurt=drip under pressure ), however this issues has come up many times over the past 20+ years (when I first got into home inspections) and every time I research it the same or similar 'simply written' stuff comes up and says the same thing (probably because it is all referring to the changes in copyright law which took place in 1976 and then the changes due to international agreements in 1989 (the dates are close, I believe the first was the 1976 copyright act which may not have been effective until 1/1/1978. Regardless - both dates predate the time I remember looking copyright up for home inspections.

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

  35. #35
    Join Date
    Mar 2007
    Location
    Ormond Beach, Florida
    Posts
    26,252

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Marc M View Post
    So I CC'd my client who paid for the report ($500) to the email that I sent the agent who was passing out the report to stop sending it etc... So he sent his own email to her and shortly after, she responded that she will stop passing the report around.
    All's well that ends well ... did your client get his $500 he paid for the report from the agent for them passing the report around without his permission?

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

  36. #36
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Jerry Peck View Post
    All's well that ends well ... did your client get his $500 he paid for the report from the agent for them passing the report around without his permission?
    HAha...no. but i did find out it was passed to over 7 agents and their buyers. $$
    Just JA's...the lot of them.

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  37. #37
    Join Date
    Dec 2008
    Location
    Maryland
    Posts
    2,778

    Default Re: Letter to stop passing out my inspection report

    Mark or any of the Californians, do you have any direct 1st person experience of how the Calf. Historical Documentation requirements are actually being applied ?

    I know HG has made short dissertation on the subject and not diminishing his expertise on the subject and his interpretation of the law, it would be interesting as to how the Californians are having it applied.
    \

    Marc, was the agent passing out the entire (unedited) report as you presented it to your client?


  38. #38
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Garry Sorrells View Post
    Mark or any of the Californians, do you have any direct 1st person experience of how the Calf. Historical Documentation requirements are actually being applied ?

    I know HG has made short dissertation on the subject and not diminishing his expertise on the subject and his interpretation of the law, it would be interesting as to how the Californians are having it applied.
    \

    Marc, was the agent passing out the entire (unedited) report as you presented it to your client?
    I personally have no 1st person experience with HD or how they are applied. And yes the agent was passing out the entire report just as I sent it to the buyers agent/client.

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  39. #39
    Join Date
    Dec 2008
    Location
    Maryland
    Posts
    2,778

    Default Re: Letter to stop passing out my inspection report

    Marc,
    Were you clients receiving any calls as to why they did not purchase the property?


  40. #40
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Garry Sorrells View Post
    Marc,
    Were you clients receiving any calls as to why they did not purchase the property?
    No, I didn't have their phone number on the report.
    But gary, don't you just love those phone calls?
    " um, yes...you recently did an inspection on a property that fell out of escrow and my wife an i are now thinking of buying...can I ask you some question about what you have on your report"?

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  41. #41
    Join Date
    Mar 2007
    Location
    Ormond Beach, Florida
    Posts
    26,252

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Marc M View Post
    No, I didn't have their phone number on the report.
    But gary, don't you just love those phone calls?
    " um, yes...you recently did an inspection on a property that fell out of escrow and my wife an i are now thinking of buying...can I ask you some question about what you have on your report"?
    Well ... sure thing there good buddy ... see, my wife didn't like the color of some of the rooms. I told her we could paint, but you know women, last house we bought and had to repaint some rooms and do other things, she swore that the next house we buy will be one that 'all she has to do is sweep the floor', and, well, you know women, there was more to that house than just 'sweeping the floor', repainting a few rooms and other small things is easy enough, but ... my wife is standing by her 'all she has to do is sweep the floor'. Gosh, I sure did hate to let that house get away.

    The caller will jump on that house and ... then spend a ton of cash to fix the "other small things".

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

  42. #42
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Jerry Peck View Post
    Well ... sure thing there good buddy ... see, my wife didn't like the color of some of the rooms. I told her we could paint, but you know women, last house we bought and had to repaint some rooms and do other things, she swore that the next house we buy will be one that 'all she has to do is sweep the floor', and, well, you know women, there was more to that house than just 'sweeping the floor', repainting a few rooms and other small things is easy enough, but ... my wife is standing by her 'all she has to do is sweep the floor'. Gosh, I sure did hate to let that house get away.

    The caller will jump on that house and ... then spend a ton of cash to fix the "other small things".
    Hey Jerry,
    I did hear of an inspector in our area getting dragged into a lawsuit for a report he did for a buyer that fell out, and then a completely different buyer bought it and used his report as a basis for getting concessions etc..

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  43. #43
    Join Date
    Mar 2007
    Location
    Spring Hill (Nashville), TN
    Posts
    5,847

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Marc M View Post
    Hey Jerry,
    I did hear of an inspector in our area getting dragged into a lawsuit for a report he did for a buyer that fell out, and then a completely different buyer bought it and used his report as a basis for getting concessions etc..
    Third party lawsuits do happen. Once you produce a work product and even if it is used by a third party without anyone's permission you can still be held liable for what you reported on in it. You can find case law on this. Even though you are named in a lawsuit it does not always mean that you will not prevail.

    Always write your report with the idea that others might be reading and depending on it. This is just something we have to deal with whether we like it or not.

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

  44. #44
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Scott Patterson View Post
    Third party lawsuits do happen. Once you produce a work product and even if it is used by a third party without anyone's permission you can still be held liable for what you reported on in it. You can find case law on this. Even though you are named in a lawsuit it does not always mean that you will not prevail.

    Always write your report with the idea that others might be reading and depending on it. This is just something we have to deal with whether we like it or not.
    Wow, I had no idea...
    I agree..when I write my reports, I write them as if they were going to be used to defend myself in a court of law.

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  45. #45
    Russel Ray's Avatar
    Russel Ray Guest

    Default Re: Letter to stop passing out my inspection report

    You're in California. Not much you can do about it because the report here actually belongs to the property and becomes part of the disclosure process (see Leko v. Cornerstone; 2001). If you look at the CAR residential purchase agreement, it says that the buyer shall provide a copy of all reports to the seller at no charge. Once the buyer does that, the seller and/or the seller's agent has the responsibility and liability to disclose, and the easiest way to disclose is to provide all previous reports to prospective buyers.


  46. #46
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Russel Ray View Post
    You're in California. Not much you can do about it because the report here actually belongs to the property and becomes part of the disclosure process (see Leko v. Cornerstone; 2001). If you look at the CAR residential purchase agreement, it says that the buyer shall provide a copy of all reports to the seller at no charge. Once the buyer does that, the seller and/or the seller's agent has the responsibility and liability to disclose, and the easiest way to disclose is to provide all previous reports to prospective buyers.
    Wow...that stinks. Thanks for the info RR

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  47. #47
    Russel Ray's Avatar
    Russel Ray Guest

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Marc M View Post
    Wow...that stinks. Thanks for the info RR
    Not really. Use it as part of your marketing. For example, one of the first paragraphs in my report offers a 25% discount to "update" the report for any prospective buyers as long as the update is done within 60 days of the report they currently hold in their hands. I get a lot of business from that, and it's easy to provide a 25% discount because I don't have to go describing the property again. That's all been done and the only description that I've found that ever changed was the roof, usually from wood to composition, tile, concrete, or metal.


  48. #48
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Russel Ray View Post
    Not really. Use it as part of your marketing. For example, one of the first paragraphs in my report offers a 25% discount to "update" the report for any prospective buyers as long as the update is done within 60 days of the report they currently hold in their hands. I get a lot of business from that, and it's easy to provide a 25% discount because I don't have to go describing the property again. That's all been done and the only description that I've found that ever changed was the roof, usually from wood to composition, tile, concrete, or metal.
    I dig the marketing idea. Never thought of that because I was always set on the fact that they weren't supposed to use it anyhow. Can you summarize that case you cited for me?

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  49. #49
    Russel Ray's Avatar
    Russel Ray Guest

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Marc M View Post
    I dig the marketing idea. Never thought of that because I was always set on the fact that they weren't supposed to use it anyhow. Can you summarize that case you cited for me?
    Nope. However, I can give you the most important sentence from the case that my attorneys gave me:

    "Inspection companies do not have a privileged, fiduciary relationship with the client, and their reports are not confidential."

    The case was published on January 31, 2001, so it created case law. The only way you'll get around case law is to have a higher court overrule the lower court — that didn't happen — or to have the legislature write a new law voiding the case law — that didn't happen either.

    In October 2001 CAR updated its purchase contracts to take advantage of the new case law. That leaves us where we are today.

    I'll note that Cornerstone, the inspection company in the case, had a contract that stated that its report was confidential and could not be used by a third party. That's why the case was so important to home inspectors here in California, and that's why the court said what it did as to the reports not being confidential.


  50. #50
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Russel Ray View Post
    Nope. However, I can give you the most important sentence from the case that my attorneys gave me:

    "Inspection companies do not have a privileged, fiduciary relationship with the client, and their reports are not confidential."

    The case was published on January 31, 2001, so it created case law. The only way you'll get around case law is to have a higher court overrule the lower court — that didn't happen — or to have the legislature write a new law voiding the case law — that didn't happen either.

    In October 2001 CAR updated its purchase contracts to take advantage of the new case law. That leaves us where we are today.

    I'll note that Cornerstone, the inspection company in the case, had a contract that stated that its report was confidential and could not be used by a third party. That's why the case was so important to home inspectors here in California, and that's why the court said what it did as to the reports not being confidential.
    Fair enough. Pretty darn good information.

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  51. #51
    Join Date
    Dec 2008
    Location
    Maryland
    Posts
    2,778

    Default Re: Letter to stop passing out my inspection report

    Russel,
    Thanks I thought that was the case.

    In Calf.
    At what point in the listing and marketing of the property does the owner or agent provide the disclosure of the property known defects/problems and the historical documentation of that property?

    1) With listing information?
    2) To each person that physically looks at the property with an agent?
    3) Open house marketing?
    4) Upon request by Buyer or and agent before a purchase offer is tendered?
    5) After a purchase offer is first tendered?
    6) Some other point and time?


  52. #52
    Russel Ray's Avatar
    Russel Ray Guest

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Garry Sorrells View Post
    Russel,
    Thanks I thought that was the case.

    In Calf.
    At what point in the listing and marketing of the property does the owner or agent provide the disclosure of the property known defects/problems and the historical documentation of that property?

    1) With listing information?
    2) To each person that physically looks at the property with an agent?
    3) Open house marketing?
    4) Upon request by Buyer or and agent before a purchase offer is tendered?
    5) After a purchase offer is first tendered?
    6) Some other point and time?
    It just depends. I have seen copies of old home inspection reports, appraisals, pest control reports, and receipts for work performed left on the kitchen counter for all to browse, or even take.

    Some agents will put significant information in the MLS: "New roof and new water heater."

    Once there is an accepted purchase offer, there is a contingency period for the seller/agent to transmit appropriate disclosures to the buyer.


  53. #53
    Join Date
    Mar 2007
    Location
    Healdsburg, CA
    Posts
    1,741

    Default Re: Letter to stop passing out my inspection report

    Sadly California home inspectors suffer third party liability due to the Lecko Case.
    No. B137570. - LEKO v. CORNERSTONE BUILDING INSPECTION SERVICE - CA Court of Appeal

    It matters little what disclaimers one writes in their inspection reports because they become public the minute the agents get their hands on it. The report also becomes a required disclosure item as long as the home exists.
    As far as answering any questions from third parties, beware because that is an extremely slippery slope. Mum’s the word and try to tell them you will re-inspect that home for a discount and then they will have their own report in their name otherwise you cannot and will not discuss your report with anybody other than the client who originally retained you. You may also want to share with a caller that you have never seen any of the repairs/ replacements that may have been made since your original inspection.
    BTW, Scott had some good advice.

    Jerry McCarthy
    Building Code/ Construction Consultant

  54. #54
    Join Date
    Oct 2011
    Location
    Minneapolis, MN
    Posts
    780

    Default Re: Letter to stop passing out my inspection report

    This isn't really germane to the current direction of the conversation, but the question of copyright interests me, and it's applicable in states besides CA. I thought I'd plop it here anyway.

    From the Stanford Copyright and Fair Use site:
    "Finally, to receive copyright protection, a work must be the result of at least some creative effort on the part of its author...For similar reasons, copyright does not protect facts -- whether scientific, historical, biographical or news of the day. Any facts that an author discovers in the course of research are in the public domain, free to all. "

    It would appear that copyright is not applicable to inspection reports. No?

    Do not think of knocking out another person's brains because he differs in opinion from you. It would be as rational to knock yourself on the head because you differ from yourself ten years ago.
    - James Burgh, 1754.

  55. #55
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    So yesterday I did an inspection for a client who later that night decided to not buy the house based on what a plumber found (main drain). So I offered her a few bucks back if i didn't have to do the report which she agreed. Today, she changed her mind and wants the report to give to the seller so they can fix the issues for the next buyer. Huh?

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  56. #56
    Russel Ray's Avatar
    Russel Ray Guest

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Kristi Silber View Post
    This isn't really germane to the current direction of the conversation, but the question of copyright interests me, and it's applicable in states besides CA. I thought I'd plop it here anyway.

    From the Stanford Copyright and Fair Use site:
    "Finally, to receive copyright protection, a work must be the result of at least some creative effort on the part of its author...For similar reasons, copyright does not protect facts -- whether scientific, historical, biographical or news of the day. Any facts that an author discovers in the course of research are in the public domain, free to all. "

    It would appear that copyright is not applicable to inspection reports. No?
    That's what I've always believed which is why I don't try to mislead anyone by saying that my reports are copyrighted. I'm comfortable enough with my inspections and reports that I really don't care who sees them. In fact, I believe that the more people who see them, the more business I will have.


  57. #57
    Russel Ray's Avatar
    Russel Ray Guest

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Marc M View Post
    So yesterday I did an inspection for a client who later that night decided to not buy the house based on what a plumber found (main drain). So I offered her a few bucks back if i didn't have to do the report which she agreed. Today, she changed her mind and wants the report to give to the seller so they can fix the issues for the next buyer. Huh?
    Since you're in California, it's always to your benefit to do a report. I suspect her Realtor told her that she needs the report to provide to the seller since that requirement is part of the standard CAR purchase agreement unless it is scratched out and initialed, and no one ever does that.


  58. #58
    Join Date
    Mar 2007
    Location
    Ormond Beach, Florida
    Posts
    26,252

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Kristi Silber View Post
    This isn't really germane to the current direction of the conversation, but the question of copyright interests me, and it's applicable in states besides CA. I thought I'd plop it here anyway.

    From the Stanford Copyright and Fair Use site:
    "Finally, to receive copyright protection, a work must be the result of at least some creative effort on the part of its author...For similar reasons, copyright does not protect facts -- whether scientific, historical, biographical or news of the day. Any facts that an author discovers in the course of research are in the public domain, free to all. "

    It would appear that copyright is not applicable to inspection reports. No?
    No. That is correct.

    The facts contained within the report are free to be used by others, but the report itself and how it presents the facts are not.

    From your link: (bold and underlining are mine)
    For similar reasons, copyright does not protect facts -- whether scientific, historical, biographical or news of the day. Any facts that an author discovers in the course of research are in the public domain, free to all. For instance, anyone is free to use information included in a book about how the brain works, an article about the life and times of Neanderthals or a TV documentary about the childhood of President Clinton -- provided that that they express the information in their own words.

    Facts are not protected even if the author spends considerable time and effort discovering things that were previously unknown. For example, the author of the book on Neanderthals takes ten years to gather all the necessary materials and information for her work. At great expense, she travels to hundreds of museums and excavations around the world. But after the book is published, any reader is free to use the results of this ten year research project to write his or her own book on Neanderthals -- without paying the original author.

    The book referenced above is protected by copyright. The facts contained within the book are free to be by anyone when *they write their own* book in their own words.

    Thus, "the report" is copyrighted and copyrightable (if that is a word), and the agent may use the facts contained in that report and write those facts down on a seller disclosure list *in her own words*. That is what is not being done.

    I suspect that if someone challenged that California law on the grounds that it was a violation of copyright, which is a federal law and supersedes California law, that court decision would be overturned, or at least clarified that the agent 'may extract the facts from the report and present those facts in the agent's own words' (or something to that effect).

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

  59. #59
    Join Date
    Jul 2008
    Location
    Lancaster, CA
    Posts
    153

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Marc M View Post
    So yesterday I did an inspection for a client who later that night decided to not buy the house based on what a plumber found (main drain). So I offered her a few bucks back if i didn't have to do the report which she agreed. Today, she changed her mind and wants the report to give to the seller so they can fix the issues for the next buyer. Huh?
    That sounds about right.. The one or two times I've made offer of concession to forego the report (been a long time), I think it worked out just like that.. probably for reasons Russell mentioned.

    Of all the calls I've gotten over the years that ask about "you did an inspection...." I'm sure there are many calls we *never get* that saw a report and just booked it!


  60. #60
    Join Date
    Sep 2008
    Location
    so so, California
    Posts
    1,769

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Tim Spargo View Post
    That sounds about right.. The one or two times I've made offer of concession to forego the report (been a long time), I think it worked out just like that.. probably for reasons Russell mentioned.

    Of all the calls I've gotten over the years that ask about "you did an inspection...." I'm sure there are many calls we *never get* that saw a report and just booked it!
    I was kinda hoping I wouldn't have to .....POS

    The MAZZA INSPECTION GROUP
    www.mazzainspections.com
    Level III Thermo-picture-taker-er...er

  61. #61
    Join Date
    Oct 2011
    Location
    Minneapolis, MN
    Posts
    780

    Default Re: Letter to stop passing out my inspection report

    Yes, Jerry, I know the difference between facts and their vehicle. Duh. You missed the important part. The work must be a creative effort. That's a hard thing to define, but are HI reports not usually based on templates? Perhaps bits of legalese borrowed here and there?

    Is effort put into making each report original? Or are they more like assemblages of observations and recommendations following a common format?

    Do not think of knocking out another person's brains because he differs in opinion from you. It would be as rational to knock yourself on the head because you differ from yourself ten years ago.
    - James Burgh, 1754.

  62. #62
    Join Date
    Dec 2008
    Location
    Maryland
    Posts
    2,778

    Default Re: Letter to stop passing out my inspection report

    Marc and others, it may be time to start putting advertising into your reports since it will be getting a lot of exposure.

    It does seem that the court has put Calf. HIs feet to the fire with the ruling.
    Once a report is created it is no longer yours and you can not get around writing it either.
    I can see how this argument could now be applied across the country to all states.

    Some interesting excerpts from Jerry's link:
    No. B137570. - LEKO v. CORNERSTONE BUILDING INSPECTION SERVICE - CA Court of Appeal

    “…A home inspection company retained by the purchaser owes the purchaser a statutory duty to “conduct a home inspection with the degree of care that a reasonably prudent home inspector would exercise.”…”

    “…Inspection companies do not have a privileged, fiduciary relationship with the client, and their reports are not confidential….”

    “…an inspector may not contractually eliminate its duty of care. …”

    “…realtor may not rely on a home inspection report to avoid its own statutory duty to conduct a reasonable inspection …”

    “…when a purchaser of residential real property was damaged by the nondisclosure of a defect that both the inspector and the realtor were obligated to discover and disclose, it is fair to apportion the damages between the two. …”

    “…“ ‘knows with substantial certainty’” that the third party, or the class of persons to which that third party belongs, will rely on the information in the course of the transaction …”

    “… provided their reports to the listing agent on the property, they knew with substantial certainty that those reports would be transmitted to other prospective purchasers if the pending deal fell through. …”

    “… This inference may be drawn even though Crystal's written contract with Antonsen stated that the report could not be used by or transferred to other persons without Antonsen's and Crystal's consent. …”


  63. #63
    Join Date
    Mar 2007
    Location
    Ormond Beach, Florida
    Posts
    26,252

    Default Re: Letter to stop passing out my inspection report

    Quote Originally Posted by Kristi Silber View Post
    Yes, Jerry, I know the difference between facts and their vehicle. Duh. You missed the important part. The work must be a creative effort.
    I understand that part too.

    That's a hard thing to define, but are HI reports not usually based on templates?
    Ahh ... that is a very interesting question ...

    My reports were based on my template, I wrote my own program - however, that does not apply to most home inspectors ... sort of 'does not apply' (that's the very interesting part).

    Even though a home inspector uses an off-the-shelf program, each home inspector 'tailors' the report and verbiage to their needs in one way or another, sometimes in many ways, and the same reporting system used by two different home inspectors may end up with quite different looking reports and the information contained therein.

    Thus I would say that *the report* is copyrighted (can be copyrighted). The agent may, indeed, extract the "facts" from the report and use those "facts".

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

  64. #64
    Join Date
    Dec 2008
    Location
    Maryland
    Posts
    2,778

    Default Re: Letter to stop passing out my inspection report

    Sorry this became a little long before I realized it. But here it is.

    The use of copyright to control a persons rights is potential useful but may be severely limited in the future.

    Not knowing where the Second District, Division 6, California stands in relation to the rest of the known world but it may show a direction that other states may take in the future. It is interesting how real estate law has changed over the past 35 years. At one time the requirements of disclosure were limited. Agents would say what I do not know, will not hurt you. Meaning, if I do not know it as a fact then it does not exist and I am not required to disclose. The agents position was that they were only a sales person and not a contractor nor a engineer thus could not have an informed opinion.

    Life and times have changed. Disclosure has been formalized and incorporated into the real estate transaction. Drawing many parties into the transaction that were not there years ago.

    The idea of copyright of the inspection report may be a mute issue in Calf.. Furthermore Calf. may be the example of the future that is coming, if is not already here. The copyright process may only be good to protect your credit for authoring the report, but not its reproduction nor distribution once it has been used past the the personal use of of a Buyer client and not shown to the buyer's agent. Once it is used as a document in connection with the contract it now probably public property. The HI looses all rights to the report other than the right to be sued over it.

    I would think that the past use of copyright as a method to maintain control over the inspectors document has been muted by state law of full disclosure by the seller and their agents. Not knowing the requirements of all the States in the U.S. I would think that they all have some form of required Seller disclosure of the real estate being offered for sale. Also, Agents (Buyer and Seller) are then brought into the disclosure process if they are made aware of the disclosure items. A Seller would not take a report and edit it to only disclose parts of the report for fear of not making a full disclosure. Thus would offer the entire report as presented to them.

    If you extrapolate, it is possible to have several inspection reports being distributed potential buyers based on the number of failed contracts. The question may be at what point a disclosure is made. Technically disclosure must be made with the contract, but it may be a reasonable argument that the disclosure be made at the first contact with the potential Buyer. So the Inspection Report is passed out to all that look at the property.

    Granted it is not a pleasant thought the the work of an HI for one paying client is then distributed to others without compensation. Though it may be one that many will have to be accustomed to as a function of the real estate sales process. The only use of the copyright laws may be if the HI report is sold to a third party. Key word being sold. If the report is actually sold there may be a recourse by the HI. Short of that, all HIs may be up the creek without the proverbial paddle when it comes to controlling the report once it has been presented to the client. The only way around publishing the report to others with out compensation would be to restrict the report to the client and only the client. In that the client could not even show the report to their agent. The client could use the report in determining the offer being made, but could not use it as written justification in conjunction of their offer on the property. Many (most) real estate contracts have a requirement that if a contract is contingent on a Home Inspection that the HI Report must be provided to the seller as part of a release from the contract or any counter offers. Thus even if the buyer (client) terminates the contract for sale the seller now has a full copy of the HI Report and from that point forward must, as a point of disclosure, provide that report to all that come to the property from that point.

    A question rises as to foreclosure properties and the holder of those properties having Inspection Reports presented to them as part of a offer, does the property holder have the responsibility to pass the report along? Even though the property holder does not know the validity of the report other than it has been performed by a State Licensed Home Inspector (if there is licensing in that state) making it authoritative by a presumed expert. More people having use of the report without cost......


    I agree that the producer of the HI Report should be compensated for their work. It may be that those days have passed. The HI has liability for things that they really have no control over and to third parties in the future. It may be a fact that there is a "brave new world out there" , that will have to be dealt with.


  65. #65
    Join Date
    Mar 2007
    Location
    Lake Barrington, IL
    Posts
    1,363

    Default Re: Letter to stop passing out my inspection report

    Actually, I see the distribution of my report as free marketing. Since I really can't stop the distribution I don't see a reason to get worked up over it. The report's front page says that the report is for the exclusive use of the client and the contract states that my client will defend me in the event of a third party claim so I may as well enjoy some free exposure.

    Eric Barker, ACI
    Lake Barrington, IL

Page 1 of 2 12 LastLast

Bookmarks

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •