Can a home inspector supply and ask a Seller to complete the Seller' Declaration.

[Marc-Andre Beauchemin]

If the Seller is protected by law and under contract by his licenced OACIQ broker,

Can the buyer's inspector supply and ask the seller to complete such an official brokerage form as it is an official brokerage form and keep a copy for his file?

[James H. Bushart]

No.

The seller has no duty to tell you the truth. He can lie to you like you were his mistress....with no penalty at all. Signed or unsigned, he is providing his "disclosure" to someone who has nothing at all at stake (other than his own reputation) in the sale of the house.

This is one of the less humorous failings of a home inspection I occasionally read about where some guys will acually include information in their reports that they receive from the seller. This is not only an insane thing to do, IMO, but constitutes fraud since I am not paid for my interviewing skills...but my inspection skills. If I cannot see it, feel it, smell it, taste it, or hear it....it was not observed by me and has no place at all in my report.

[Marc-Andre Beauchemin]

James,

Information is allright, remember that the seller may need a home inspector for his purchase!
Sellers also need reassuring!
In Quebec things can be different, I am often offered copies of sellers declarations and I decline stating that they are part of the brokerage file and that I should not have access to the brokerage contract or part of it.
( These sellers declaration forms are of brokerage nature).
I will write in the report that a sellers declaration number so and so has apparently been included in the file and I add that I will not verify its contents nor will I attack any professionnally signed expertise like landfill analysis like some do.
We all know that if you inspect, you cannot perform brokerage actions.
At least that is my position! One hat at a time!
I explained to the Quebec Real Estate board the OACIQ that there is a sellers declaration in the brokerage contract plus a second form which sellers do not have to fill.
If they allow one declaration to be handed over to the inspector, then it is just like telling brokers to give the whole contract to the home inspector.

[James H. Bushart]

I don't understand your response...particularly as to how it relates to your question.

If I am hired by a buyer to perform an inspection, that is what I do. What the seller discloses (or does not disclose) or any other communication between the selling and buying parties is none of my business and my involvement in it can only detract from...not add to...the credibility of what is to be my complete, accurate and unbiased record of my personal observations of the condition of the home.

[agallatin]

Originally Posted by jbushart

I don't understand your response...particularly as to how it relates to your question.

If I am hired by a buyer to perform an inspection, that is what I do. What the seller discloses (or does not disclose) or any other communication between the selling and buying parties is none of my business and my involvement in it can only detract from...not add to...the credibility of what is to be my complete, accurate and unbiased record of my personal observations of the condition of the home.

This is well said . And that is exactly how it should be ,IMO . Good job James !

[Jeffrey R. Jonas]

Originally Posted by jbushart

I don't understand your response...particularly as to how it relates to your question.

If I am hired by a buyer to perform an inspection, that is what I do. What the seller discloses (or does not disclose) or any other communication between the selling and buying parties is none of my business and my involvement in it can only detract from...not add to...the credibility of what is to be my complete, accurate and unbiased record of my personal observations of the condition of the home.

Isn't that what Marc said, only in Canadian?

[Wand Raymond]

Actually, the minute a purchaser has a inspection conducted the vendor disclosure statement becomes moot absent of misrepresentation or fraud by the vendor and liability transfers to the home inspector for any undiscovered patently obvious short comings.

I have routinely looked at vendor disclosures provided by the vendor/purchaser and though I do not put much faith in them they are none the less relevant to home inspections as some of the questions asked are pertinent to issues which I inspect for. Even more so given that I as the inspector will incur liability for the above reasons I have noted and as opined in Canadian Court judgements.

[Marc-Andre Beauchemin]

James Bushart,

My friend, You make my day!

You have your style and I have mine.

I'm not knocking your experience, (au contraire), I appreciate your collaboration greatly.

I believe that the seller can speak now of forever hold his version until something happens! (If I am called to testify in court, the court system would not appreciate that I do not ask. Give the guy a second chance!). Sellers have good intentions in my area.

I hear you (and agree with you), when you say it should not change one's inspection conclusions.
Most homes I inspect are approximately 60 years or less, they may have aluminum wiring, vermiculyte insulation, poly-B piping, lead water mains, urea formaldeide insulation, pyrite back fill and OCRE ferreuse, the metal eating bacteria.
Some have gone through fires, floods, ice storms, and it is normal to ask questions in order to provide a good answer.
I like to give the right time of day! I have always dont this.
So I believe you agree with me that it is not up to the inspector to complete brokerage forms.
I made my case clear! Hoping that I did not upset anyone. (It cetainly was not my intent).
Salut!

I always provide in my service agreement the following Quebec Civil Code article.

1726. The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them.
The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without any need of expert assistance.
Code civil du Québec, art. 1726
« Le vendeur est tenu de garantir à l’acheteur que le bien et ses accessoires sont, lors de la vente, exempts de vices cachés qui le rendre impropre à l’usage auquel on le destine ou qui diminuent tellement son utilité que l’acheteur ne l’aurait pas acheté, ou n’aurait pas donné si haut prix, s’il les avait connus.

Il n’est, cependant, pas tenu de garantir le vice caché connu de l’acheteur ni le vice apparent; est apparent le vice qui peut être constaté par un acheteur prudent et diligent sans avoir besoin de recourir à un expert. »

The point I am making is that some home inspectors were hiding behind sellers declarations for insurance protection purposes, the AIBQ which is one of the self proclaimed association, actually was insisting that the sellers declaration be completed before all inspections and that is wrong and certainly not for them to decide.

I believed that the AIBQ was doing indirectly what the laws did not permit them to directly.

In order to undo the damage done by those who show up for the previous inspections, I tell them that:
1. I do not provide nor hand out the Sellers declaration.
2.I do not need a copy of this document nor to consult it. I will ask if there are things that my client should be informed of and that if there were a seller's Declaration, I would only write the number down into the report and add that the document should be in the brokerage file. I would hope that the home inspector is professionnel enough to perform his mandate well and all information obtained including what a neighbour will add to the comprehension of the inspected subject is admissible.
Nevertheless, when I finish my inspection and my buying client, the owner selling, the buying and the selling brokers all ask for my cards and saw they will refer me, I must be doing something right!
Salut,
Marc-Andre Beauchemin (NACHI) of Brossard Quebec.

[Wayne B. Wilson]

If seller says something that pertains to some repair of replacement i will add that in my report as a quote from seller . And add my findings

[Vern Mitchinson]

This a copy of what I posted in the members section and reposted here as it is pertinent to sellers statement. 9(2) requires the seller to disclose all things that do not meet the codes.
These are some very severe penalties if convicted under this act.
Penalty
68(1) A person who is guilty of an offence is liable
(a) for a first offence,
(i) to a fine of not more than $15 000 and, in the case of a continuing offence, to a further fine of not more than $1000 for each day during which the offence continues after the first day or part of a day, or
(ii) to imprisonment for a term not exceeding 6 months, or to both fines and imprisonment, and

The Alberta Safety Codes act states:
Vendors’ duties
9(1) A person who is a vendor in the ordinary course of business, other than as an employee or an agent, shall not advertise, display or offer for sale, for lease or for other disposal, or sell, lease or otherwise dispose of, any thing to which this Act applies unless that thing complies with this Act.
The owner can not sell it but an agent can
(2) A person who sells, leases or otherwise disposes of a thing referred to in subsection (1) shall provide any warnings or instructions required by this Act.
Now this clause says the owner can sell it if he discloses.
(3) No person shall advertise, display or offer for sale, for lease or for other disposal, or sell, lease or otherwise dispose of, any thing that is prohibited from being sold by the regulations.
This says that the defective thing can not be advertised for sale. This act applies to all building codes in the province. I interpret the act as the owner is responsible for the building to be code compliant. If it is not he/she can not sell it.
So where does the HI fit into this legal jungle. I submit that if I was the buyer and hired an inspector to inspect the property before I bought it and then find obvious visible code violations I would be instructing my lawyer to seek restitution from the inspector.
It is also my opinion that the inspector is responsible to find these violations so the the seller can be held responsible for the code violations and correct then before closing. It should also be noted that the owner can not advertise but the agent can. An example of the saying " the law is an A $$".
As for the code inspectors the act says:
Liability exemption
12(1) No action lies against the Crown, the Council, members of the Council, safety codes officers, accredited municipalities or their employees or officers, accredited regional services commissions or their employees or officers, accredited agencies or their employees or officers or Administrators for anything done or not done by any of them in good faith while exercising their powers and performing their duties under this Act.
(2) The Crown, an accredited municipality, an accredited regional services commission and an accredited agency acting in good faith under this Act are not liable for any damage caused by a decision related to the system of inspections, examinations, evaluations and investigations, including but not limited to a decision relating to their frequency and the manner in which they are carried out.
(3) The Crown and an accredited municipality and an accredited regional services commission that engage the services of an accredited agency are not liable for any negligence or nuisance of the accredited agency that causes an injury, loss or damage to any person or property.
(4) Subject to this section, nothing done pursuant to this Act affects the liability of any person for injury, loss or damage caused by any thing, process or activity to which this Act applies.

1991 cS-0.5 S;1993 C S;1999 C S

These excerpts in blue type are from the Alberta Safety Codes Act published by the Alberta Queens

[Vern Mitchinson]

It is obvious that each jurisdiction has it's own rules, laws or practises of what is and what is not acceptable.
A national certificate that covers all 13 provinces and territories? This is not going to happen as I serious doubt that this national thing from Ontario has any idea of what is required in the other jurisdictions.

[Gilles Larin]

I can't establish any relationship of uniformity on a seller's disclosure in so many jurisdictions! I happen to perform inspections in 4 (NY, VT, Ont., Qc) jurisdictions in two countries and the laws are different!

[ROBERT V. YOUNG]

Originally Posted by mbeauchemin

If the Seller is protected by law and under contract by his licensed OACIQ broker,
mbeauchemin
Can the buyer's inspector supply and ask the seller to complete such an official brokerage??? form as it is an official brokerage form and keep a copy for his file?

Marc,me-thinks you are asking to represent yourself as a broker.
Ware 2 hats.
Your are trying to ack as a broker, evade the licensing requirements and setting yourself up for litagation. ( just my view ).
I do not understand the question.
My interpretation is that James is right.
Our part in the transaction is to work for the client as a HOME INSPECTOR only.
By asking, buyer's inspector " supply and ask the seller " to complete such an official brokerage. you are asking to represent yourself as a Broker and a home inspector at the same time.

Ask your client to ask the seller for FULL DISCLOSURE if you have any VALID evidence of systems, and structure that have apparent defects or appear as retofit, or alteration to the origanal residencestructure.
Keep that on file.
If I am hired by a buyer to perform an inspection, that is what I do. That is your " legal position " within the transaction Marc.
What the seller discloses (or does not disclose) or any other communication between the selling and buying parties is none of my business and my involvement in it can only detract from...not add to...the credibility of what is to be my complete,
accurate and unbiased record of my personal observations of the condition of the home.

[Rudolf Reusse]

It is my understanding that the seller has no obligation to volunteer any information about the subject property. However - if asked about a specific condition - he or she is well advised not to lie. This is one reason why agents try to keep sellers and purchasers apart.

I once acted in court as witness where a colleague and the seller both were suit by the purchaser. The colleague had found water stains in the basement which gave reason to suspect that occasional water seepage had occurred. He raised his concern with the seller who denied to have experienced any water seepage during his ownership. He reported his suspicion - but also added that the seller had claimed when asked that there was no active waterproofing problem.

Shortly after the purchaser had taken possession, water was seeping into the basement during the first rainfall. The upset new owner talked to one of the neighbours who told him in conversation that the previous owner had problems with water seepage for years.

The home inspector was cleared - but a judgment against the seller was rendered.

[Chuck Evans]

Originally Posted by jbushart

This is one of the less humorous failings of a home inspection I occasionally read about where some guys will acually include information in their reports that they receive from the seller. This is not only an insane thing to do, IMO, but constitutes fraud since I am not paid for my interviewing skills...but my inspection skills. If I cannot see it, feel it, smell it, taste it, or hear it....it was not observed by me and has no place at all in my report.

When the seller tells me that something does NOT work, I generally take their word for it and report that said item "was visually inspected but not operated during the course of the inspection, because the seller stated that it was non-operational..."

Guess that puts me in the category of inspectors who "actually include information in their reports that they receive from the seller."