Avoiding Litigation: A Personal Contract by Dr. Keith Swift.

[Nick Gromicko]

http://www.nachi.org/apersonalcontract.htm

[Russell Spriggs]

Nice.
I have no idea what Joe F would say, but, to me, it's just plain English & common sense.
In a perfect world, that and the ADRS should be all that's needed, for a grand total of $90.

Thanks, Keith!

Russ

[jdavis4]

Dr. Swift,

Thanks for providing us with your personal contract. It will certainly be useful. I read it and wanted to point out that your company name is provided in the sentence beginning with: "In addition, Swift Inspections does not ...." I'm sure you took time to remove reference to your company name throughout the contract prior to posting it here for our use but I wanted to let you know that it remains in that instance, in case you want to remove it and re-post. If not, at least this reply may alert others that it's there. Otherwise, when they copy and paste it, they would be unaware that that particular statement should be revised to reflect their company name.

If it's OK with you, I'd like to provide it to an attorney who may or may not be willing/able to review and evaluate its degree of enforcement.

Thanks again for your effort to help us out.

Jeff Davis

[Joe Farsetta]

In actuality, the true purpose of the inspection agreement is to memorialize the understanding between the parties, being the Inspector and the Client.


As to Russ' comment regarding ADRS, it is true that arbitration clauses are beneficial. Mediation and arbitration are always a good way to attempt to resolve disputes. The key is that the clause is not onerous to the Client. In the case of ADRS, it is not.

As to limitations of liability, they rarely hold up in court. In fact, some jurisdictions (like Mass) specifically prohibit it. In fact, in MAss, having a limitations of liability clause in one's inspection agreement can cost you your license.

Disclaimers are, in many cases, seen as self-serving. With 51 jurisdictions and the federal system, the judgements are all over the place.

The biggest problem we face as inspectors with inspection agreements is the fact that the Client is typically under stress (maybe even duress) when he/she is asked to sign it. No time for review. No time for negotiations by people of equal skill. The last part is often overlooked.

There is no pat answer.

Be careful out there.

[gbeaumont]

Hi to all,

Funny, I thought I spotted a typo, but seeing as I know Keith maybe not

“prevailing party” shall be entitled to receive treasonable attorney fees and related expenses,

Still giggling over that one.

Regards

Gerry

[Ted Allen]

The biggest problem we face as inspectors with inspection agreements is the fact that the Client is typically under stress (maybe even duress) when he/she is asked to sign it. No time for review. No time for negotiations by people of equal skill. The last part is often overlooked.

This is the main reason why I started faxing or emailing my agreement to the client to be signed and returned before the date of inspection. Of coarse it does not always work out that way as some people either don't have a fax/email or just refuse to sign before the actuall time of the inspection.

[Blaine Wiley]

"I agree and understand that [insert company name] shall be held harmless for any defects or deficiencies that are alleged to exist beyond a period of two full years following the date of the inspection.

Initials: _____ "

Overall this looks to be a very good agreement, and spells out what is and isn't performed during the inspection. I am curious though about the above quoted statement. I can see one of the many ambulance chasers out there construing this as a two year guarantee. Have you had any issues or questions come up about this statement?

[Keith Swift, PhD.]

To respond to one or two observations. Sorry for the typos. I wrote the article in a hurry, and really in sympathy for the inspector that was being unjustly sued. ("Treasonable," should read "reasonable," but what an interesting typo. Maybe not a slip at the subconscious level). My clients are not under any duress, because I give them five days to read and recind my pre-inspection agreement, discuss it with their attorney, etc, etc. As to the clauses that may not stand up in court, I don't care. They are simply "speed bumps," because as some of us have learned the hard way once we're in court we lose, even when we win.

[jwortham]

I'd have to agree with Dr. Swift.

Spent an interesting evening at an A$HI meeting sometime back where a litigator was the speaker.

He was big on the "speedbump" approach. Limitations of liability, time limits on discovery of issues, etc. As I understood it, even if some of your "bumps" were tossed, there would be enough to stop most suits before they even got started.

Luckily, according to him, Illinois is big on contracts. If you signed it, you better have read it. Apparently the judiciary in IL isn't very tolerant of people who don't read the things they sign.

[William J. Decker]

I post my agreement onmy web site and highly recommend that the client download it (PDF) and read it before we meet. I have them initial that they have read it completely and in advance of our meeting.

This has saved me about 10 times. Three times, the client (at deposition) stated that they had not actually read the agreement and just initialed to get the inspection going. BAM! My lawyer than presents that they have signed under false pretenses.

I always try to get them to read it first. If I meet them and they say that they didn't get a change to read it, I hand the contract to them and tell them to read it before they sign it, while I just go and get some outside pictures and do the exterior.

One, sometimes, has to drag the horse to water and make them drink, if only for their own good.


BTW: My contract is on my web site, www.DeckerHomeServices.com , and everyone who wants to is free to download it and run it past their own lawyers and use whatever they want. It was written by one of Chicago's best litigators, Andrew Norman, JD, Esq. and run past Lee Perres, one of Chicago's finest Real Estate lawyers. With these two putting their imprintars on it, I am highly satisfied. Never had a problem.

Hope this helps.

[Ted Allen]

Thanks Keith

[hspinnler]

Will, nice agreement. I just don't like the idea of potentially putting a bug in the mind of the client in the "Notice To" heading to contact you in writing if they have a complaint. I don't want them thinking about complaints at all. I know you have it in there as protection with the 5 day timeline to act.

[William J. Decker]

Hank;

As always, check it out with your own lawyer and with respect to the specific laws of your own state.

[mrowan]

Nice keith.

We spend so much money dotting our i's and crossing out T's that maybe going back to plain old english is the answer!

Michael

[Cheryl Nordby]

well I love your writing Keith