LEGAL: Ask NACHI's Attorney Joe Ferry, Dedicated Thread.

Originally Posted By: jkoong
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Hi guys,


The Lawyer said right things, those exclusion clauses do not release any of the inspector be sued, any one can sue any body, will win or lose is up to the court to have the balance of the liability, If the cracks in the foundation has very serious problem and every one can see it except you did not see it,and the major repair over ten more thousand to fix it ,and how can you dispute this? How can you say I did not see it?


Do not forget you are trained.


Originally Posted By: rwand1
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Since when are sprinklers part of the SOP? If they are not part of the SOP you fall outside of the SOP and are acting on your own without protection of the SOP.


I never ever comment on sprinklers.


--
Raymond Wand
Alton, ON
The value of experience is not in seeing much,
but in seeing wisely. - Sir William Osler 1905
NACHI Member
Registered Home Inspector (OAHI)
http://www.raymondwand.ca

Originally Posted By: rwand1
This post was automatically imported from our archived forum.



Quote:
The Lawyer said right things, those exclusion clauses do not release any of the inspector be sued, any one can sue any body, will win or lose is up to the court to have the balance of the liability, If the cracks in the foundation has very serious problem and every one can see it except you did not see it,and the major repair over ten more thousand to fix it ,and how can you dispute this? How can you say I did not see it?
Do not forget you are trained.


Inspectors have been sued for latent defects. I know because I was sued for what was a latent defect that was purposely concealed. Had the insurer had a back bone and fought I feel I would have been absolved. Instead they offered the plaintiff $15K plus legal fees which brought the payout upto $22k. The plaintiff was seeking $65K! The insurance adjuster agreed I could not have seen the problem as did another inspector I took back to the location.

Insurance is a game as are the insurance companies. You will see less and less inspectors being able to afford insurance. As far as I am concerned the insurers can stick their policies up their wasooo. When I find time I will post info on latent and patent defects.

The article below will help in understanding Patent and Latent defects.

>>>>>>>>>>>>>><<<<<<<<<<<<<

The Dotted Line Alan Silverstein
Saturday February 15,1997 New Homes Section Toronto Star


While the world prepares to welcome the 21st century, much of real estate is still governed by a 13th century doctrine ? caveat emptor, or buyer beware. Although sellers have intimate knowledge about an existing property, the law only imposes a narrow duty on them to disclose defects in its physical condition. (New home buyers are protected by the Ontario New Home Warranty Program.)

Property defects fall into two categories, patent and latent. Patent defects are obvious flaws buyers should detect inspecting a property with ordinary care. Example: a crumbling chimney. Latent defects are not as apparent. They would not be revealed by any inquiry a buyer could make before closing a deal.

Different disclosure rules apply to each type of defect. Sellers do not have to draw alert buyers to patent defects; caveat emptor prevails. The onus is on buyers to ascertain the physical condition of what they are buying.

The law on latent defects is much more complex. Vendors have a duty to disclose latent defects that render the premises dangerous. Similarly, any latent defects which vendors know (or ought to know) would render the premises unfit for habitation must be disclosed.

However, sellers have no Iegal obligation to volunteer information about latent defects that only affect the value of a property, provided they do not pose a health or safety risk. Once again caveat emptor applies, although the latent detect might be a material factor which could have a negative effect on a property?s value. The presence of methane gas in well water is an example).

All this assumes the vendor makes no attempt to deliberately conceal patent or latent defect. Fraud, mistake and misrepresentation are exceptions to the rule of caveat emptor.

To fully protect themselves, home buyers must ask pertinent questions about specific areas of concern, add the appropriate clauses to their agreement of purchase and sale, and conduct a proper inspection (usually involving a home inspector).

In the U.S., the heyday of caveat emptor has passed. In most states, either "seller disclosure" laws force sellers to reveal defects to prospective buyers, or the real estate industry itself has made a standard disclosure form mandatory when listing a home.

What must be divulged? The U.S test is relatively clear-cut? "known hidden defects," that is, latent defects.

Unfortunately, the Canadian real estate industry hasn't embraced the concept of "seller disclosure" as warmly. The B.C. Real Estate Association was the first to make a property condition disclosure statement mandatory for all MLS listings in 1993. More than three years later, only a handful of boards in Ontario have done the same. While OREA's vendor property information statement is voluntarily used by some boards and realtors, its acceptance is far from widespread.

Seller disclosure is not meant to replace a home inspection. The OREA form states. "Purchasers still must make their own enquiries." Rightly so, since purchasers are to assume patent defects with a resale home, unless clauses to the contrary appear in an offer.

While buyers directly benefit from seller disclosure, realtors have been spearheading the reform movement in the U.S. Why? Self-interest. Seller disclosure helps insulate agents from potential liability to purchasers, by shifting the blame for undisclosed defects from realtor to vendor.

Later this year the real estate industry will be given the power to "self-manage." One of its first moves should be the mandatory use of seller disclosure, at least in residential real estate transactions. The public demands it.


Cheers,


--
Raymond Wand
Alton, ON
The value of experience is not in seeing much,
but in seeing wisely. - Sir William Osler 1905
NACHI Member
Registered Home Inspector (OAHI)
http://www.raymondwand.ca

Originally Posted By: jferry
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Since a lot of legal questions have a local dimension, we are working on this new project.


http://www.nachi.org/bbsystem/viewtopic.php?p=170018#170018

I will continue to respond to questions posted on this thread.


Originally Posted By: Nick Gromicko
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Roy, this is not true. The mark was applied for and has been sitting at the advertised status since 1997 without being registered.

See: http://strategis.ic.gc.ca/SSG/0909/trdp090934800e.html

It is likely that the mark is too descriptive (general) to ever be awarded registration.

Even if it ever does get awarded registration (which I doubt), preceding the phrase with the word NACHI so as to read "NACHI Certified Home Inspector" would defeat any deceptively similar accusation and so wouldn't be Trademark infringement.

This bunch has been trying to scare some of our members for years. Disregard them.


--
Nick Gromicko
Founder
dues=79cents/day.

I much prefer email to private messages.

Originally Posted By: jferry
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The NY State Division of Licensing Services responded to my email as follows:



Thank you for your E-mail.

For your convenience, we are providing you with a link to the Division
of Licensing Services web page where you can obtain the information
that you are inquiring about: http://www.dos.state.ny.us/lcns/licensing.html

Once you access the page, please read the What's New section.

Please note that the application is not yet available for distribution.

We will keep your address on file and will mail out the application as
soon as it is available for distribution.

Thank you for corresponding with our office.

>>> "jferry" <jferry@ferrylaw.biz> 10/3/2005 1:51:28 PM >>>
To whom it may concern:

I am General Counsel to the National Association of Certified Home
Inspectors ("NACHI"). I understand that New York State is
contemplating
requiring Home Inspectors to be licensed by the state and that
individuals entering the home inspection industry after January 1, 2006
will have to undergo 100 hours of instruction in order to be licensed.

Are there currently any schools licensed by the New York to provide
this instruction? If so, please identify them.

On behalf of the NACHI membership, as well as myself, I thank for your
attention to this matter.

Very truly yours.


Joseph A. Ferry
Joseph A. Ferry, Esquire
Two Penn Center Plaza
Suite 200
Philadelphia, PA 19102
215-854-6444 tel.
215-243-8202 fax


Originally Posted By: rwand1
This post was automatically imported from our archived forum.



Quote:
It is likely that the mark is too descriptive (general) to ever be awarded registration.


I like the way you think Nick.

Just to be factual Pillar to Post in Canada uses Certified Home Inspector (CHI).

Regards,


--
Raymond Wand
Alton, ON
The value of experience is not in seeing much,
but in seeing wisely. - Sir William Osler 1905
NACHI Member
Registered Home Inspector (OAHI)
http://www.raymondwand.ca

Originally Posted By: clawrenson
This post was automatically imported from our archived forum.



Nick, et al; I must respectfully disagree on the suggested use of Certified Home Inspector or suggestion of any potential misleading or confusing variations. Certainly this is not my battle, but one that squarely belongs between the registrant and that of those who may potentially be viewed as infringing upon such trade-mark use/misuse.


The advertised date is the date a trade-mark is advertised in the Trade-marks Journal. Furthermore it is a Prohibited Mark; Official Mark - This includes any mark protected under sub-paragraph 9(1)(n)(iii) of the Trade-marks Act being any badge, crest, emblem or mark adopted and used by any public authority, in Canada as an official mark for wares or services. Index Heading: Index headings identify all word components of the trade-mark. ?CERTIFIED HOME INSPECTOR? A registered trade-mark has been approved and entered on the Trade-mark Register held by the Trade-marks Office. Registration is proof of ownership. A registration is valid for 15 years and is renewable every 15 years thereafter upon payment of a fee. My take is was advertised as ?registered? and formalized in April of 1997; therefore it is valid for 15 years from that time frame.

The basic rationale or test for determining whether there is confusion between trade-marks is the following: Would a prospective purchaser upon seeing one trade-mark applied to certain wares and/or services, and seeing another trade-mark on similar wares/services, reasonably assume that the wares and/or services in both cases emanated from the same source? If the answer is yes, confusion probably exists between the two trade-marks.

Web link ? Trademark Act http://laws.justice.gc.ca/en/T-13/text.html

Please note it does not appear that this name has been abandoned. In addition the question that comes to mind is the past and potential challenges to the ?misuse? of this title in Canada. Believe me I know cases where it has been rigorously defended. As such the certifying body has the right by law to challenge those that infringe upon improper use, and issue legal notice and warnings or legal actions if necessary.

As far as Pillar to Post using such a title, perhaps Mr. Welby Solomon could address the history behind such reference, as well as OAHI's role in the merger process of PACHI in the rights to such.


--
Ontario Home Inspections Inc.

Originally Posted By: rcooke
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If this is the case why have they not gone after those who use CHI in Canada.


This is the same as OAHI they have never gone after those who use RHI.


They just might loose use the rite to it ( if they do have the rites).


I wonder are they afraid of a true court case ?



Roy Cooke Sr.


http://Royshomeinspection.com

Originally Posted By: rwand1
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Roy


Actually OAHI did go after one ex member for misuse of RHI but it was very costly. He paid a fine of $1500 out of a possible $5K fine. It would not take many misuses of RHI to break the bank. I guess it boils down to how much money an association willing to spend to defend a title. Also the fines collected by the court do not go back to the Association the fines go to the crown.

Regards,


--
Raymond Wand
Alton, ON
The value of experience is not in seeing much,
but in seeing wisely. - Sir William Osler 1905
NACHI Member
Registered Home Inspector (OAHI)
http://www.raymondwand.ca

Originally Posted By: rcooke
This post was automatically imported from our archived forum.



rwand1 wrote:
Roy

Actually OAHI did go after one ex member for misuse of RHI but it was very costly. He paid a fine of $1500 out of a possible $5K fine. It would not take many misuses of RHI to break the bank. I guess it boils down to how much money an association willing to spend to defend a title. Also the fines collected by the court do not go back to the Association the fines go to the crown.

Regards,

Please correct me but was it not the Director of the DPPC who went after the HI and then finally OAHI got involved .


--
Roy Cooke Sr.

http://Royshomeinspection.com

Originally Posted By: rwand1
This post was automatically imported from our archived forum.



Roy you are absolutely correct. I forgot about that. From what I recall Oahi didn’t want to touch it. The DPPC chair prior to me laid a private complaint. Only then did Oahi get involved at a cost of approx. $30K plus, if memory serves me correctly. Thanks for catching that.



Raymond Wand


Alton, ON


The value of experience is not in seeing much,


but in seeing wisely. - Sir William Osler 1905


NACHI Member


Registered Home Inspector (OAHI)


http://www.raymondwand.ca

Originally Posted By: rcooke
This post was automatically imported from our archived forum.



It is so unfortunate that OAHI/CAHPI is having so muck difficulty these last few years .


I feel if they just treated the membership with some dignity they could be growing instead of shrinking.


They continue to loose many great members.


I have a friend who has a saying all wounds are self inflicted in this case I think he is correct.


Long Live NACHI may we keep growing and helping all.

Be Happy Join NACHI


--
Roy Cooke Sr.

http://Royshomeinspection.com

Originally Posted By: Nick Gromicko
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Hate to let the little secret out but CAHI’s “REGISTERED HOME INSPECTORS (RHI)” which is a registered Trademark… unlike “Certified Home Inspector” (which is merely an advertised application of a too descriptive term, is not a registered trademark, has never been issued a TM number in Canada, and offers the applicant no protection)… has a little problem as well:


You see CAHI, the trademark owner of "REGISTERED HOME INSPECTORS (RHI)," which unlike "Certified Home Inspector" does have a TM#: TMA490299 only got awarded the trademark of this also very descriptive term on the condition that CAHI disclaim the rights to exclusive use of "REGISTERED HOME INSPECTORS" apart from "REGISTERED HOME INSPECTORS (RHI)."

In other words, you can call yourself a Registered Home Inspector if you want to.


--
Nick Gromicko
Founder
dues=79cents/day.

I much prefer email to private messages.

Originally Posted By: rcooke
This post was automatically imported from our archived forum.



Gee I would love to be a fly in a BAY ST. lawyers office this morning.


The phones will be ringing all over Toronto today.

Long Live NACHI may we keep growing and helping all.


--
Roy Cooke Sr.

http://Royshomeinspection.com

Originally Posted By: rwand1
This post was automatically imported from our archived forum.



I think you are correct. The only saving grace is Oahi managed to get some smuck politician to use a private members bill through the Ontario Legislature protecting RHI in legislation, but I have to agree that RHI was never registered as a trademark. There is also the issue of using RHI after one retires. After all Doctors don’t have to stop using Doctor when they stop practicng medicine. They are still trained and educated to be a doctor. Would a retired inspector not be able to use RHI after retirement? After all he was granted the RHI because he met the requirements? Hmmmm.


http://www.ontla.on.ca/hansard/committee_debates/35_parl/session3/regsbils/t029.htm#P256_32987

Some even seem to think that this legislation creates a self regulating body equal to the Architects Act, Engineers Act, which it does not. Those specific acts are created for the protection of the public. OAHI is not set up legislatively to protect the public. There is a very big difference. The buck stops at the BOD in OAHI where as in Engineers Act, Architect Act the buck stops at the government level. There is a higher degree of accountability and oversite with licensing. The way the Private Members bill is structured has little weight in law. If you have done as much research on this subject as I have you will know that. And if anyone doesn't believe me go see your local member of provincial parliment. I was in John Tory's office the other day and no one could find anything on PR158 other than the act, but could not really ascertain who had jurisdiction over it. But it does seem to fall under the Ministry of Business Services, and they have no interest in licensing or regulating OAHI which equals no protection to the consumer or the members.


--
Raymond Wand
Alton, ON
The value of experience is not in seeing much,
but in seeing wisely. - Sir William Osler 1905
NACHI Member
Registered Home Inspector (OAHI)
http://www.raymondwand.ca

Originally Posted By: clawrenson
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RE: RHI - registration - are we talking federal or provincial registration? After all there can be different levels to trademark registration.



Ontario Home Inspections Inc.

Originally Posted By: rwand1
This post was automatically imported from our archived forum.



http://www.canlii.org/ca/cas/fca/2002/2002fca218.html


Ontario Association of Architects (Appellant)

v.

Association of Architectural Technologists of Ontario (Respondent)

Indexed as: Ontario Assn. of Architects v. Assn. of Architectural Technologists of Ontario (C.A.)

Court of Appeal, Stone, Evans and Sharlow JJ.A.-- Toronto, April 23; Ottawa, May 28, 2002.

Fwiw AATO is set up the same way as OAHI it was enacted under a private members bill. I know one idiot that is member and he thinks AATO is set up like Architects Act and Engineering Act, but when you have an ego and think you know everything I guess it goes with the territory.

Trade-marks -- Official Marks -- Appeal from Trial Division's dismissal of application to reverse Registrar of Trade-marks' decision to give public notice of adoption, use of official mark by Association of Architectural Technologists of Ontario (AATO) -- Only public authority may register official mark under Trade-marks Act, s. 9(1)(n)(iii) -- AATO not-for-profit corporation, incorporated by letters patent, continued by private Act of Ontario Legislature -- Applications Judge holding AATO public authority as controlled by Legislature which could amend enabling legislation -- Appeal allowed -- Application of two-part test of degree of governmental control, public benefit to determine whether public authority -- Duty to do some thing of benefit to public (third part of English test) may be relevant as element of public benefit -- Government control of otherwise private organization requiring some ongoing supervision of activities -- Legislature's exclusive power to change AATO's statutory objects, powers, duties insufficient to satisfy government control test because not allowing government to exercise ongoing influence -- AATO's activities benefit public -- Setting, enforcing standards of professional competence regulating part of practice of profession, providing public with some assurance as to competence, honesty of members -- That activities may also benefit members not fatal to characterization of public benefit.

Trade-marks -- Practice -- Registrar of Trade-marks giving public notice of adoption, use by Association of Architectural Technologists of Ontario (AATO) of official marks -- Ontario Association of Architects applied to Trial Division for order reversing Registrar's decision pursuant to Federal Court Rules, 1998, governing both applications for judicial review, appeals under Trade-marks Act, s. 56, without specifying which remedial route pursuing -- Should be treated as application for judicial review, not as appeal -- Nothing in scheme of Trade-marks Act, s. 9(1) justifying departure from normal principle person who was neither party, nor intervener in proceedings having no standing to exercise statutory right of appeal.


--
Raymond Wand
Alton, ON
The value of experience is not in seeing much,
but in seeing wisely. - Sir William Osler 1905
NACHI Member
Registered Home Inspector (OAHI)
http://www.raymondwand.ca

Originally Posted By: rwand1
This post was automatically imported from our archived forum.



Quote:
RE: RHI - registration - are we talking federal or provincial registration? After all there can be different levels to trademark registration.


I think it may be both.


--
Raymond Wand
Alton, ON
The value of experience is not in seeing much,
but in seeing wisely. - Sir William Osler 1905
NACHI Member
Registered Home Inspector (OAHI)
http://www.raymondwand.ca

Originally Posted By: wdecker
This post was automatically imported from our archived forum.



Guess someone bounced a retainer check.


![eusa_dance.gif](upload://s9dv24YwSSRLNpgOOSxL1BkwUQ9.gif)


--
Will Decker
Decker Home Services
Skokie, IL 60076
wjd@DeckerHomeServices.com