Standards question

[John Cahill]

Internachi definition of material is A Material Defect is a condition of a residential real property, or any portion of it, that would have a significant, adverse impact on the value of the real property, or that involves an unreasonable risk to people on the property. The fact that a structural element, system or subsystem is near, at or beyond the end of the normal useful life of such a structural element, system or subsystem is not by itself a material defect.

The limitations state "An inspection does not determine the market value of the property or its marketability."

It seems "value of real estate property" and "market value of property" are the same. The definition of material conflicts with the limitation. It seems you must estimate value in order to determine if it is a significant adverse value.

Who determines if it is significant? The inspector, the plaintiff or a jury using "reasonable arguments". The inspector will find it very difficult to determine what the buyer considers significant. There are no statistical guidelines that define what is reasonable.

So how does the inspector determine what is material?

How does the inspector determine reasonable risk?

If any reasonable material condition can be attributed to an item that also is old does age now contribute to material impact? The defintion excludes age only if it is the sole concern.

[James E. Braun, CMI]

Example: A leaking roof, siding, or foundation will adversely effect the value of a home.
Another Example: A door bell not working will have a very little effect on the value of a home.

Simply put, anything that can cause a bigger problem down the road adversely effects the value of the home. NACHI inspectors do not need to know how much it will effect, just that it will.

[John Cahill]

Thanks for that answer. The problem that remains is what is "significant". I inspect 500,000 dollar homes that need 4,000 in foundation repair. I do not consider 4,000 to be significant. It's not even 1% of the value. The taxes are 25,000 a year.

Until recently, high home values made 4,000 repairs immaterial. On the other hand a 4,000 repair on a 90k hoe might be material.

Still seems to place a burden on the inspector to determine "significant" adverse value decisions

[James E. Braun, CMI]

I just make sure everything that I feel is a defect is in my report. Let the SOP be your guide. Interrupt it anyway you feel is right. Everybody sees the SOP differently thats why it is so easy to defend in court.

[Rick Maday]

If the $4,000 repair does not get done, will there still be a $500,000 house?

[Rick Maday]

Just noticed you're in TX. Follow TREC

[Michael Larson]

A door bell not working will have a very little effect on the value of a home.

I still report the bad doorbell.

[John Cahill]

Originally Posted by jbraun

I just make sure everything that I feel is a defect is in my report. Let the SOP be your guide. Interrupt it anyway you feel is right. Everybody sees the SOP differently thats why it is so easy to defend in court.

I should clarify. I am a student of all SoP. I look for loop holes from both sides. Forum comments help me find those loop holes so I may consider them in debate.

"Easy to defend in court" might not be that easy if your going up against an expert who knows how to sell the jury the alternate point. While the SoP have strong defenses built in one must remember the jury is almost always going to be sympathetic to a plaintiff with a good counter argument. (For example this thread implies one must factor in future impact in addition to reporting doorbells; neither of these are in the SoP but members act as if they are so we now have an implied requirement).

"defending in court" does not happen all that often. The insurance company will usually make a settlement offer before it gets to that point. The strength of the arguments against them affects how much they think it will cost them to defend. Some arguments can be costly to defend even if the inspector is innocent. The result is a claim settled just to close the books. The inspector is tagged for the deductible and the rate increased if they are not cancelled.

While I see a benefit to NACHI SoP I also see potential weakness in the form of conflicting wording. All SoP are like this to some extent. Texas is an abomination of conflicts. Hopefully by pointing those out the forum can prepare for a future rebuttal.

[James H. Bushart]

As with any legal document, the more specific and exact, the less room for interpretation. Room for interpretation is sometimes built in by design....sometimes created by omission.

One would not want to write their Last Will and Testament in the same manner and style as they would write an SOP, and hope to avoid probate.

[John Cahill]

Originally Posted by mlarson

I still report the bad doorbell.

I do not see the door bell as a reporting requirement in the InterNACHI SoP. It is a requirement in the Texas SoP. Without some limiting language regarding exceeding the SoP I would be led to think you exceed the InterNACHI SoP routinely. You do expert work I believe and I think you see where I am going with this. The logical question is "You chose to exceed the SoP by reporting doorbells; why didn’t you report the widget? I would not have bought this home had I known about the widget. I believed you would continue your precedent to protect me by reporting the widget".

The steps of dispute resolution can be numerous. If your dealing with a consumer you can use the SoP to convince them they do not have an argument. I think that happens most often. The same for a lot of lawyers. If however it ever makes it to the insurance company they are apt to take the cost effective approach and settle if a skilled expert is interpretting requirements.

[John Cahill]

Originally Posted by jbushart

As with any legal document, the more specific and exact, the less room for interpretation. Room for interpretation is sometimes built in by design....sometimes created by omission.

One would not want to write their Last Will and Testament in the same manner and style as they would write an SOP, and hope to avoid probate.

Very good point James. The problem I see however is where an SoP conflicts with itself.

Material = would have a significant, adverse impact on the value of the real property

Limitation - An inspection does not determine the market value of the property or its marketability.

The above SoP language is further clouded by “would have” and “does not determine”. Two different tenses that apply to the same item within the Scope.

Most SoP I see have requirements specified with intentional omissions; limitations specified by design and copious conflicts due to poor technical writing skills.

The conflicts allow an inspector to convince a consumer you did your job; the conflicts also cause insurance companies to settle. Depends on how far the complaint goes. They work for the inspector in the field and against the inspector in court.

[James H. Bushart]

I don't see a conflict in the terms "adverse impact on the value" and "determine the market value". I see these as two separate and distinct functions.

Factors that determine the "market value", such as the selling prices of nearby homes of similar size and design and the amount of land that comes with the house, is not a part of anyone's SOP.

Defects that would "significantly" affect its value (or perceived value in the mind of my client) is my call. Six and a half inches between balusters on the staircase is of variable signficance....meaning nothing to a childless couple in their seventies with grown up grandchildren, and being a deal breaker to a young couple with five kids, ages 6 mos to 6 years.

The open endedness, if you will, of the SOP allows my judgment to prevail as to what should or should not be reported.

[John Cahill]

Originally Posted by rmaday

If the $4,000 repair does not get done, will there still be a $500,000 house?

There are two ways I see to answer that.

1 - If you are asking if the home is worth 500,00 after repair is done: An inspector is not required to provide an appraisal, determine market value or marketability.

2 - If you are asking what deterioration or consequential depreciation will occur if the repair is not done: The inspection is . . . . . . . not the prediction of future conditions.

However

A Material Defect is a condition of a residential real property, or any portion of it, that would have a significant, adverse impact on the value of the real property.

Would have is future tense therefore you seem obligated to predict value.

That leads to the question. Does a limitation supercede and rewrite the requirement?

[Michael R. Boyett]

Originally Posted by jcahill

Does a limitation supercede and rewrite the requirement?

Like you pointed out...Yes, in the eyes of the inspector & his insurance provider; No, in the eyes of the client & his attorney.

Perhaps TREC got it more right when defining a "Deficiency":

Deficiency--A condition that, in the inspector’s reasonable opinion, adversely and materially affects the performance of a system or component or constitutes a hazard to life, limb, or property as specified by these standards of practice. General deficiencies include but are not limited to inoperability, material distress, water penetration, damage, deterioration, missing parts, and unsuitable installation.

Here, a defect affects the performance not the value. Value is left up to the client, Realtor and appraiser. Right?

[John Cahill]

Originally Posted by jbushart

I don't see a conflict in the terms "adverse impact on the value" and "determine the market value". I see these as two separate and distinct functions.

Factors that determine the "market value", such as the selling prices of nearby homes of similar size and design and the amount of land that comes with the house, is not a part of anyone's SOP.

Defects that would "significantly" affect its value (or perceived value in the mind of my client) is my call. Six and a half inches between balusters on the staircase is of variable signficance....meaning nothing to a childless couple in their seventies with grown up grandchildren, and being a deal breaker to a young couple with five kids, ages 6 mos to 6 years.

The open endedness, if you will, of the SOP allows my judgment to prevail as to what should or should not be reported.

James, you and I are on the same plain. I agree with you in concept. However, if you are insured you surrender your judgment to the claims manager who looks at cost of defense and benefits of settlement. Right and wrong is measured by loss risk and not how you or I interpret the SoP.

None of this matters if you can still buy affordable insurance after a claim. In Texas you have to have insurance. Your right to work is as good as the willingness of the carrier to defend and underwrite you.

Hooray for regulation.