KansasCity.com Debate heats up over home inspection Bill.

[Nick Gromicko]

http://www.kansascity.com/news/polit...ry/533222.html

[john bubber]

dunno if this was already posted -Inspections at Risk
http://www.cjonline.com/stories/0310...55434546.shtml

[James H. Bushart]

The gloves are off.....at last.

I believe that this strategy applied earlier in the game would have kept the house from passing this obvious conflict of interest. I hope the senators are getting copies of these links.

[Dan Bowers, CMI]

I'm curious - any legal beagles out there. I heard somewhere that 1 group or profession trying to use their political influence or contributions to buy control over another profession by having a state legislate it - might be construed as racketeering.

An attorney I know, also thought it might be against state and/or federal laws to "Restrict our ability to CONTRACT with our clients". In other words the realtors are trying to get the state to dictate "how much risk we'll be able to take with our own clients". Thats especially interesting in Kansas where the state appellate court has ruled it to be legal (by using a service agreement or contract) for a business to CONTRACT with their customers how much liability in time and money they will take for the fee they're being paid - even if that is less that state consumer laws would allow.

Any thoughts?

[James H. Bushart]

Originally Posted by dbowers

I'm curious - any legal beagles out there. I heard somewhere that 1 group or profession trying to use their political influence or contributions to buy control over another profession by having a state legislate it - might be construed as racketeering.

An attorney I know, also thought it might be against state and/or federal laws to "Restrict our ability to CONTRACT with our clients". In other words the realtors are trying to get the state to dictate "how much risk we'll be able to take with our own clients". Thats especially interesting in Kansas where the state appellate court has ruled it to be legal (by using a service agreement or contract) for a business to CONTRACT with their customers how much liability in time and money they will take for the fee they're being paid - even if that is less that state consumer laws would allow.

Any thoughts?

If you had five to ten years, perhaps you could pursue it.

[John McKenna]

So if the inspector is indeed negligent, who pays?

[James H. Bushart]

Originally Posted by jmckenna1

So if the inspector is indeed negligent, who pays?

As in any state, the inspector.

In my state, my client and I get to negotiate the degree of my liability. If we agree to terms, we do business together. If we do not agree, we do not do business together.

For instance, in my contract I limit my liability to the amount of the inspection fee. If this is not satisfactory with my client, they will tell me and I will agree to more liability for a higher fee, or we will not come to terms and I will not perform the inspection.

In licensed states, the thinking has been done by the state and neither party is allowed this opportunity. The state determines the degree of liability of the inspector and his fee is set, accordingly. Any negotiations on their part would be a violation against the state's control over the transaction and would likely result in a threat against the inspector's license.

In this particular instance, as in countless others, licensing solves nothing. The state simply does the thinking for the consumer that they consider to be too ignorant to think for themselves.

[Joe Farsetta]

Massachusetts prohibits limits on liability for the HI, while New York does not.

They are both licensed states.

What is important in your particular case is the position of those who push for this. For instance, if a RE board member pushed the legislation and gains control of another industry, that person is likely not imune from a persdonal lawsuit for using their position of authority for personal gain. If you can find a link between the two, then contact te Governor's office ot the State Attorney Gneral.

This is what you should be looking at. Also, I'd be looking to gain favor/support of yopur governor. if the governor vetoes the measure, and there isnt enough support to over-ride his veto, then who cares?

[William J. Decker]

Originally Posted by jfarsetta

Massachusetts prohibits limits on liability for the HI, while New York does not.

They are both licensed states.

What is important in your particular case is the position of those who push for this. For instance, if an RE board member pushed the legislation and gains control of another industry, that person is likely not immune from a personal lawsuit for using (in) their position of authority for personal gain. If you can find a link between the two, then contact the Governor's office or the State's Attorney General.

This is what you should be looking at. Also, I'd be looking to gain favor/support of your governor. if the governor vetoes the measure, and there isn't enough support to over-ride his veto, then who cares?

Spelling corrected for clarity.

Illinois law prohibits limitation of liability for all licensed professions. This includes:

Hair Dressers
Cosmetitions
Nurses
Plumbers
Roofers
Lawyers
Physicians
Home Inspectors
Home Appraisors

and many more.

Part of the state law with regards to licensing: They figure that if you have the professional designation of licensing, issued by the state and serving as a protection from suit, that you are a professional and have a performance responsibility to your clients. Can you say, "fiduciary"!

There are, however, no restrictions on your written contract (except for the prohibition of limitation of liability). I can write a contract that excludes the roof, the foundation, the heating system, etc, just by noting it in my agreement.

I have to include such language (limitation of liability) in my inspection agreement (or else I couldn't get E&O), but that clause is not enforcable, by state law. This DOES NOT mean that every lawyer or judge knows this.

BTW: Not saying I like this or agree with this, but I gotta follow the law. Get a good lawyer, always.

It seems to work out well, at least in this state.

BTW2: Our state board is all home inspectors except for one "public" member, who is just a regular guy (not a realtor, lawyer, etc). The Director of the HI dept is a retired Realtor, but has instituted this policy (the board used to be mostly Realtors and "the public"). He has been a very fair guy to work with. He realizes that HIs can and should (if they are really "professionals") act to police themselves. All the state complaints against HIs are ajudicated by this board (HIs and one public member) and they "recommend" a judgement to the Director. The Director (in all, except one instance) just rubber stamps the board's recommendation.

It seems to work well.

Again, just providing information from my state. It seems to work well here. Serves the public (there are some REALLY bad HIs who got caught) but there has been only three cases dealing with the quality of the inspection. Usually the cases are about unlicensed HIs doing inspections, license renewal checks bouncing and not completing (and lying about it! ), unpaid child support and lack the state required CE credits for license renewal.

I find it nice that the board (all good guys, from various associations) can work together to police the industry. We all work with them.

Check out the cases, here: http://www.idfpr.com/DPR/RE/HIDisp.asp and tell me if there is one that seems fishy.

Again: It is not that I support licensing, but a good licensing law (one that is not controlled by the Realtors or lawyers or builders, and is controlled by the actual, working HIs in the state) does seem to help the industry. I, for one, do not want to be placed in the same catagory as some of these "stupid" inspector who don't even seem to care about the laws. Who better (as long as association affiliation, or lack thereof, is kept out of the equation) to police themselves than other HIs?

For us, it seems to work. If licensing becomes fact in your state (not that I want that, it is up to each of you), I would hope that you strive to get an HI licensing law like we have.

Hope this helps;

[John McKenna]

I just came behind the Realtors "good ole boy" who reported the house
was really nice (I see this all the time, even though they risk being sued for
being negligent with no limits to their liability)

I found pressed-board siding rotting all over the place (try not to touch it
so it does not fall off the wall).

Siding below the soil, with the slope draining toward the retaining wall (the
side wall of the house itself).

Plus approx 40+ other defects from just the exterior. The client had me stop
the inspection process. They had seen enough.

So... the law in Texas has not stopped the parade of bogus inspections, but
every now and then we get to see one of these inspectors burned on a stake.

It seems to shake a few people into reality... at least for a few minutes.

[Joe Farsetta]

Will,

Unless specifically stated, a true fiducuary responsibility probably does not exist.

This would included a responsibility to advise your client NOT to purchase a property, as if it were your job to protect their money.

We've gone through this in NY. Acting as if one has this responsibility is different when it is a matter of law. If the relationship is not stated or spelled out in the law, the responsibility doesnt really exist.

[William J. Decker]

Originally Posted by jfarsetta

Will,

Unless specifically stated, a true fiducuary responsibility probably does not exist.

This would included a responsibility to advise your client NOT to purchase a property, as if it were your job to protect their money.

We've gone through this in NY. Acting as if one has this responsibility is different when it is a matter of law. If the relationship is not stated or spelled out in the law, the responsibility doesnt really exist.

Joe.

In Illinois, a fiduciary responsibility does exist for HIs.

Don't argue with me, talk to my lawyer.

anorman@mauckbaker.com

I don't argue law, I hire good lawyers. Andy is, most probably, the most knowlegable and experienced HI law lawyer in Illinois. He is also a personal friend. He is also the lawyer for the Chicagoland Chapter and has helped out many Illinois HIs (both NACHI and otherwise).

Again, not trying to be a d*ck, but you live in NY and that isn't Illinois. What you "went through" in NY doesn't mean squat, (legally speaking) in other states. Different states, different laws.

He knows the law. Check it out for yourself.