Good Inspector Bad Inspector

[Keith Swift, PhD.]

I’ve been following the comments on the message board and wondering what it should take to be a certified master inspector (CMI), and what it means to be a good inspector. I’m not even sure what “good” means. All I know is that after completing thousands of inspections without a lawsuit or significant complaint, I was beginning to believe that I was a good inspector, and then I was served with a lawsuit. It was frivolous, but still an affront to my self-esteem and a real embarrassment. This is what happened. I arrived early for an inspection of a slab-on-grade tract house built on a flat level pad, and was greeted by a gracious young woman who invited me to begin my inspection on the outside, but cautioned me to wait until her husband arrived before venturing into the back yard where a large Rottweiller salivated for foreign flesh. I was happy to oblige, and was noting some deficiencies with a water heater in an exterior closet when the woman’s husband arrived home. He was definitely aggressive, and berated me for having started the inspection without him being present. I allowed him to bluster for a moment or two, learning that he was not only the seller but also the listing agent and that he had completely remodeled the residence himself. Without playing the role of amateur psychologist and giving my unprofessional evaluation of his personality, and also without revealing too much of my own latent hostility, I let him know that I wasn’t particularly interested in his opinions and wouldn’t tolerate him interfering in my inspection.

The residence had been renovated: re-plastered inside and out, and freshly painted, with new windows, new doors, new tiled floors in the entry, living room, bathrooms, and hallway, and new carpets in the bedrooms. There were some mechanical issues with the plumbing and HVAC system that the seller wanted to argue about until I established my authority for the second time, at which point he seem to tolerate my presence and glare at me like a sullen child. Regardless, the only visible imperfections were a crack in an old and original patio slab outside a new slider in the rear of the house, and a mismatched piece of fascia board where a newer piece of 1X6 imperfectly met an original 2X6. I noted both, but was not overly concerned. Now, bear in mind that I wasn’t too fond of the seller and, although I’m a trusting person, I had recommended that my clients request or obtain all the necessary permits for the renovation. In addition, and this is important, I knew that there were expansive soils in the area, and had taken the extra caution of shooting laser levels across the length and breadth of the house, and found it to be level. So how could a lawsuit result on what to all intents and purposes appeared to be a totally renovated house?

Apparently, about a year later, a window in the master bedroom at the corner of the house started to leak. When the stucco surrounding the window was chipped away, it was discovered that the window, and probably all of the others, had been installed without any flashing. Furthermore, when the carpet was pulled back from beneath the window and all the way to the corner of the room, it was discovered that a triangular section of slab had fractured and settled several inches. Obviously, this fracture and settled slab would have deformed the walls and windows in the area, but this was no longer apparent for several reasons: the stucco and windows were new; a strip of five-inch baseboard had been installed perfectly level, and the sunken area of the floor had been custom-fitted with several layers of padding before the carpet was laid over it, and covered by furniture. The facts were indisputable and had been video-documented by structural expert witnesses for the plaintiffs, who acknowledged deliberate concealment. But, here’s the rub. I had arrived on-site in the company of an attorney and an expert witness who is a senior inspector that I respected, and who I hoped respected me. And, together, we were forced to witness the plaintiffs’ attorney struggling to open the front door, which was unquestionably out of square. But, the view inside was even more astounding: there were cracks everywhere. Until that moment, I had only an intellectual understanding of expansive soils, and had never actually witnessed its awesome power, which can quite literally move structures with relative ease and send cracks radiating in every direction, like lightening flickering across a sky. I found myself stammering incredulously: “Oh, my God, I swear it didn’t look like this a year ago when I inspected it: it was pristine, perfect, in fact; and you’d have to be blind to miss this sort of damage.”

It goes without saying that there could be no denying the obvious, and that my insurance company happily paid to get me out of a very expensive lawsuit. However, it also goes without saying that I was not at fault, and could not possibly have known that the nasty seller/agent had failed to disclose knowledge of structural movement, and had deliberately concealed the evidence of movement. And, furthermore, he had completed the entire renovation without applying for even a single permit. Knowing what I know now about the expansive soils in this particular area, I am not likely to be victimized again, but let me tell you this was a very expensive lawsuit, which resulted in an even more expensive renovation. I drive by the house every once in awhile, knowing that it not only looks very elegant but that it has been structurally stabilized by caissons.

[George A. H. Luck]

So sorry to hear that you were the victim of a scam! This is yet another reason to take extensive photos of the interior and exterior of every house inspected.

[Keith Swift, PhD.]

Couldn't agree more. The expert witness that accompanied me on this one reports that he takes in access of one-hundred pictures per inspection and has never included one of them in a report.

[Russel Ray]

I take anywhere from 50 pictures on a brand new condominium to 250 or so on a scraper. The only pictures I put in the report are pictures that illustrate something (such as what a chimney cricket is), show a problem that I could see that would not be visible to anyone else (such as in the foundation crawl space or in the attic), or show what something is that the general public might not be familiar with (such as the TPR valve on a water heater).

All the other pictures are simply saved to remind me what the property was like when I was there in case someone should come a-callin'.

[Keith Swift, PhD.]

The truth is what I've been repeating, regardless of pictures: "once you've been named in a lawsuit you're toast." In this case, even the expert witnesses on the plaintiffs' side confirmed with video-documentation that there had been deliberate concealment, and everyone knew that the residence had been copmpletely renovated. In short, I was completely innocent of any wrongdoing, and justice did not prevail.

[Bruce A. King]

I hope you did not use that same attorney again.....

[Roy D. Cooke, Sr]

Originally Posted by kswift

The truth is what I've been repeating, regardless of pictures: "once you've been named in a lawsuit you're toast." In this case, even the expert witnesses on the plaintiffs' side confirmed with video-documentation that there had been deliberate concealment, and everyone knew that the residence had been copmpletely renovated. In short, I was completely innocent of any wrongdoing, and justice did not prevail.

I would love to see some court cases that we all can read where it has involved a home inspector
win or loose it just might give us all some information .
I expect this one was settled out of court .
Roy Cooke sr

[Roy D. Cooke, Sr]

Double post sorry Roy

[Keith Swift, PhD.]

Yes, it was settled; about ninety-five percent are. Such cases are rarely about justice, but about significant sums of money changing hands, which is why all of my articles have the phrase "avoiding litigation" in the title, and why I keep warning inspectors that "there are terrorists among us." Take care.

[Paul W. Abernathy]

Keith,

This is a prime example of a SUE HAPPY environment...such a shame as people can't expect you to predict the future yet they ask us to do it all the time.

[Keith Swift, PhD.]

Ain't that the truth. What we truly need to put an end to the frivolous lawsuits that are terrorizing inspectors is tort reform, or something like British common law, which damn near guarantees that if someone sues someone else and loses it will cost them. As it stands now, unscruplous clients and their attorneys realize that ninety-five percent of the time the insurance companies will simply pay them to go away. Innocent inspectors, and the really decent ones who believe that it is a moral duty to carry insurance, are being victimized daily. My advice: don't worry about being branded as a deal-killer, fire first and ask questions later.

[jferry]

Originally Posted by kswift

I’ve been following the comments on the message board and wondering what it should take to be a certified master inspector (CMI), and what it means to be a good inspector. I’m not even sure what “good” means. All I know is that after completing thousands of inspections without a lawsuit or significant complaint, I was beginning to believe that I was a good inspector, and then I was served with a lawsuit. It was frivolous, but still an affront to my self-esteem and a real embarrassment. This is what happened. I arrived early for an inspection of a slab-on-grade tract house built on a flat level pad, and was greeted by a gracious young woman who invited me to begin my inspection on the outside, but cautioned me to wait until her husband arrived before venturing into the back yard where a large Rottweiller salivated for foreign flesh. I was happy to oblige, and was noting some deficiencies with a water heater in an exterior closet when the woman’s husband arrived home. He was definitely aggressive, and berated me for having started the inspection without him being present. I allowed him to bluster for a moment or two, learning that he was not only the seller but also the listing agent and that he had completely remodeled the residence himself. Without playing the role of amateur psychologist and giving my unprofessional evaluation of his personality, and also without revealing too much of my own latent hostility, I let him know that I wasn’t particularly interested in his opinions and wouldn’t tolerate him interfering in my inspection.

The residence had been renovated: re-plastered inside and out, and freshly painted, with new windows, new doors, new tiled floors in the entry, living room, bathrooms, and hallway, and new carpets in the bedrooms. There were some mechanical issues with the plumbing and HVAC system that the seller wanted to argue about until I established my authority for the second time, at which point he seem to tolerate my presence and glare at me like a sullen child. Regardless, the only visible imperfections were a crack in an old and original patio slab outside a new slider in the rear of the house, and a mismatched piece of fascia board where a newer piece of 1X6 imperfectly met an original 2X6. I noted both, but was not overly concerned. Now, bear in mind that I wasn’t too fond of the seller and, although I’m a trusting person, I had recommended that my clients request or obtain all the necessary permits for the renovation. In addition, and this is important, I knew that there were expansive soils in the area, and had taken the extra caution of shooting laser levels across the length and breadth of the house, and found it to be level. So how could a lawsuit result on what to all intents and purposes appeared to be a totally renovated house?

Apparently, about a year later, a window in the master bedroom at the corner of the house started to leak. When the stucco surrounding the window was chipped away, it was discovered that the window, and probably all of the others, had been installed without any flashing. Furthermore, when the carpet was pulled back from beneath the window and all the way to the corner of the room, it was discovered that a triangular section of slab had fractured and settled several inches. Obviously, this fracture and settled slab would have deformed the walls and windows in the area, but this was no longer apparent for several reasons: the stucco and windows were new; a strip of five-inch baseboard had been installed perfectly level, and the sunken area of the floor had been custom-fitted with several layers of padding before the carpet was laid over it, and covered by furniture. The facts were indisputable and had been video-documented by structural expert witnesses for the plaintiffs, who acknowledged deliberate concealment. But, here’s the rub. I had arrived on-site in the company of an attorney and an expert witness who is a senior inspector that I respected, and who I hoped respected me. And, together, we were forced to witness the plaintiffs’ attorney struggling to open the front door, which was unquestionably out of square. But, the view inside was even more astounding: there were cracks everywhere. Until that moment, I had only an intellectual understanding of expansive soils, and had never actually witnessed its awesome power, which can quite literally move structures with relative ease and send cracks radiating in every direction, like lightening flickering across a sky. I found myself stammering incredulously: “Oh, my God, I swear it didn’t look like this a year ago when I inspected it: it was pristine, perfect, in fact; and you’d have to be blind to miss this sort of damage.”

It goes without saying that there could be no denying the obvious, and that my insurance company happily paid to get me out of a very expensive lawsuit. However, it also goes without saying that I was not at fault, and could not possibly have known that the nasty seller/agent had failed to disclose knowledge of structural movement, and had deliberately concealed the evidence of movement. And, furthermore, he had completed the entire renovation without applying for even a single permit. Knowing what I know now about the expansive soils in this particular area, I am not likely to be victimized again, but let me tell you this was a very expensive lawsuit, which resulted in an even more expensive renovation. I drive by the house every once in awhile, knowing that it not only looks very elegant but that it has been structurally stabilized by caissons.

I find it incomprehensible that, if your recitation of the facts of this claim is true, your attorney did not bring the seller/listing agent into this lawsuit as a third-party defendant for the massive fraud that he perpetrated on both you and your client.

If he did not, you have a good case against him for professional negligence.

[jferry]

Originally Posted by rcooke

I would love to see some court cases that we all can read where it has involved a home inspector
win or loose it just might give us all some information .
I expect this one was settled out of court .
Roy Cooke sr

I would like to see this case because it makes absolutely no sense as you describe it.

Why the plaintiff's attorney would sue you, who has actual defenses: the pre-inspection agreement, the SOP, and the report with all of its disclaimers; and not the seller/real estate agent who a. has no defenses to the massive fraud that he perpetrated on this buyer and b. has considerable exposure to professional discipline should the fraud be reported to the state Real Estate Commission simply defies common sense.

Can you give us a court and docket number, a case caption, surely you have a copy of the Complaint, anything? This one is going to keep me up all night.

[Keith Swift, PhD.]

Joe, having spent the last several years writing about "avoiding litigation" and pointing out how easily the judicial process can be corrupted, I've been vemtremely careful about keeping my facts straight and not leaving myself vulnerabl to a slander lawsuit. You are more than welcome to read the case, and I'd love to have you or someone like you represent me. Would forwarding the case number to you be the most efficient means of delivering the facts?

[Keith Swift, PhD.]

I was so pleased to have Joe involved in this thread that I fired-off a rapid response, hence the typos. (I also left a message on his telephone). Let me repeat, every word that I've written is true. In the interests of brevity, I did not include all of the details of the case, but I have not omitted anything that would alter the truth of what transpired. The case is older than four years, and after going to a storage facility this evening I realized that I'd dumped not only this case but every other document that exceeded the four year statute of limitation in California, which I would otherwise be obligated to keep. However, I do intend to provide Joe with the proof that he has asked for and certainly deserves. I'm delighted, of course, to have an attorney express the incredulity that I felt. Tone is a difficult thing to establish, but after reading Joe's response it does seem to me that he doubts the truth of what I've reported. And that's okay--no it's even better than okay-- because it tacitly proves that the case really is unbelievable. Language is subject to interpretation, and I'm sure many people reading my articles have thought that I was merely using a figure of speech when I used such phrases as: "makes a mockery of justice," and "there are terrorist among us," but I meant every word. Now, perhaps when Joe has reviewed the case, he will be moved to add his voice to mine, and confirm the threat that many decent and hardworking inspectors face, day in and day out. And, remember, this is only one of the cases that I've written about, all of which can stand the bright light of scrutiny. If this thread fades, be sure to attend my seminar on avoiding litigation at the next convention. I'll show you cases that have made a mockery of justice, cases that will leave you laughing or crying. Take care. The judicial system is easily corrupted, commonly makes a mockery of justice, and, yes, there are terrorists among us.