Property Information Statements

[Mario A. Kyriacou, CHI]

Originally Posted by bjones5

Naw Mario.......... I waz referrin to a song by George Strait called Steel Horses. Besides Steel horses sounded so much politer and purtier than sayin "they waz ridin hogs" see my point?

Brian I'm sorry but I don't see your point!! I have been riding HD for a long time, I'm a member of "HOG" I know some of the boys and I have never heard of steel horses or the song!!

[Brian Jones]

Originally Posted by mkyriacou

Brian I'm sorry but I don't see your point!! I have been riding HD for a long time, I'm a member of "HOG" I know some of the boys and I have never heard of steel horses or the song!!

Mario............sorry, I mis-quoted the song, it's called "Cowboys Like Us".
As to HD bein called a hog, I know this. My previous post was an obviously poor attempt at humor.

[George A. H. Luck]

"I have been riding HD for a long time, I'm a member of "HOG" "

Mario, is that why they call it "Hog Town" ?

[Rudolf Reusse]

I like to know how home inspectors can legally be held responsible for defects that have developed years after the initial inspection. The released Inspection results are supposed to be based on visual observations only - and only have to reflect the conditions as observed at the time of inspection. Most of the inspected components and equipment of a home are subject to wear and tear - and it seems reasonable to assume that the reported conditions can change at anytime.

If I would ever receive a complaint one year after I conducted the inspection - I would not even engage the services of a lawyer - but would defend myself. Unless I am accused of having overlooked an abandoned in-ground fuel tank - I believe that I have some valid arguments to even convince a biassed judge to see it my way. I am therefore not concerned whether one of my pre-purchase inspection reports is being used to promote the condition of the home as observed five years ago.

However - "Pre-listing Inspections" are in my view an entirely different kettle of fish.

RUDOLF REUSSE - Home Inspector since1976 - TORONTO

[Roy D. Cooke, Sr]

Originally Posted by gluck

"I have been riding HD for a long time, I'm a member of "HOG" "

Mario, is that why they call it "Hog Town" ?

Not quite it came from all the abattoirs



A pen of hogs at the William Davies Company, circa 1920. Although the vast pork processing plants are long gone, Toronto's nickname of "Hogtown" remains.

The name Toronto has a rich history
people who where born in Toronto pronunce it taraana.


...Cookie

[Mario A. Kyriacou, CHI]

Originally Posted by gluck

"I have been riding HD for a long time, I'm a member of "HOG" "

Mario, is that why they call it "Hog Town" ?

That's funny George!! You know that is not why!

"HOG" = Harley Owners Group
http://www.harley-davidson.com/wcm/C...key=1594884832

[Mario A. Kyriacou, CHI]

Originally Posted by bjones5

Mario............sorry, I mis-quoted the song, it's called "Cowboys Like Us".
As to HD bein called a hog, I know this. My previous post was an obviously poor attempt at humor.

No problem my friend!!

[Mario A. Kyriacou, CHI]

Originally Posted by rcooke

Not quite it came from all the abattoirs



A pen of hogs at the William Davies Company, circa 1920. Although the vast pork processing plants are long gone, Toronto's nickname of "Hogtown" remains.

The name Toronto has a rich history
people who where born in Toronto pronunce it taraana.


...Cookie

Roy,

I have news for you my friend, people that were NOT born or raised in Toronto (usually) pronounce it Taraana!!!

[bmullen]

Originally Posted by Rudolf Reusse

I like to know how home inspectors can legally be held responsible for defects that have developed years after the initial inspection. The released Inspection results are supposed to be based on visual observations only - and only have to reflect the conditions as observed at the time of inspection. Most of the inspected components and equipment of a home are subject to wear and tear - and it seems reasonable to assume that the reported conditions can change at anytime.

If I would ever receive a complaint one year after I conducted the inspection - I would not even engage the services of a lawyer - but would defend myself. Unless I am accused of having overlooked an abandoned in-ground fuel tank - I believe that I have some valid arguments to even convince a biassed judge to see it my way. I am therefore not concerned whether one of my pre-purchase inspection reports is being used to promote the condition of the home as observed five years ago.

However - "Pre-listing Inspections" are in my view an entirely different kettle of fish.

RUDOLF REUSSE - Home Inspector since1976 - TORONTO

Rudolph:

That's all well and good and I'm sure you could make great arguments, as can any of us. However, the reality is that the courts have no desire to ensure fairness or justice. They just want a resolution and don't care which pocket the money comes from. I could certainly have stuck it out and fought harder, but even if I had won, I would still likely have to pay at least $ 20,000. in legal fees plus many days away from work. Courts around here are very reluctant to award fees to defendants of court cases.

As Roy said earlier, 'You've got to know when to hold them and you've got to know when to fold them.'

It's a sad reality that new inspectors must be aware of.

Bill Mullen

[Mario A. Kyriacou, CHI]

Originally Posted by bmullen

Rudolph:

That's all well and good and I'm sure you could make great arguments, as can any of us. However, the reality is that the courts have no desire to ensure fairness or justice. They just want a resolution and don't care which pocket the money comes from. I could certainly have stuck it out and fought harder, but even if I had won, I would still likely have to pay at least $ 20,000. in legal fees plus many days away from work. Courts around here are very reluctant to award fees to defendants of court cases.

As Roy said earlier, 'You've got to know when to hold them and you've got to know when to fold them.'

It's a sad reality that new inspectors must be aware of.

Bill Mullen

All very good points Bill. I guess my principles would have cost me huge!!

[bmullen]

Originally Posted by mkyriacou

All very good points Bill. I guess my principles would have cost me huge!!

Thanks, Mario, but principles and good intentions don't pay the bills. I have been to court a number of times on both sides. If I think I have even a slim hope of winning, I will get down and dirty. I hate to lose at anything, but at some point a person has to weigh all the risks, business losses, etc. and make a tough decision.

My 'principles' have cost me huge in the past. Some day I''ll tell you about the $ 18,000. payout in 1999. That Case proved it doesn't pay to go to court against a church minister, especially when the judge is in his congregation. (I found that out much later)

Isn't life fun ???

Bill Mullen

[Raymond E. Wand]

For your legal enlightenment and entirely from a Canadian point of view:

¶ 17 The broad purpose of securing a residential home inspection is to provide to a lay purchaser expert advice about any substantial deficiencies in the property which can be discerned upon a visual inspection, and which are of a type or magnitude that reasonably can be expected to have some bearing upon the purchaser's decision-making regarding whether they wish to purchase the property at all, or whether there is some basis upon which they should negotiate a variation in price. Broadly speaking, it is a risk-assessment tool.

¶ 18 In Seltzer-Soberano v. Kogut, [1999] O.J. No. 1871 (Ont. Superior Court of Justice), Justice Wright said (at paragraph 6):

The usual house inspection is general in nature and is performed by a visual inspection. A house inspector cannot be held responsible for a problem which is not readily apparent by a reasonable visual inspection. A house inspector would be held to a different standard of responsibility if requested to respond to a specific question, i.e., "we want to know if there is any evidence of termites in this house?" If that specific question was asked of a house inspector, the inspector, unless expert in that area, would probably tell the proposed purchaser to consult a pest control company.

¶ 19 In Drever v. Eaton, unreported, November 14, 2000, Victoria Registry No. 28199 (Provincial Court), my colleague Judge Filmer dealt with a claim against a home inspector, and mentioned in passing:

(The home inspection) was not being used as an assurance of the structural integrity of this building. To do that for $200 would be a fool's errand, in my view.

¶ 20 While I suggest there are obvious limitations to what one can expect from home inspections of the type undertaken in this case, one also needs to be mindful of the responsibility which is taken on by the home inspector. Persons who hold themselves out to the community as professionals prepared to provide advice for a fee - accountants, lawyers, engineers, architects, physicians, and other professionals immediately come to mind - must know that in marketing and providing their services, they invite reliance upon their advice and, in doing so, they create a risk that their client will suffer harm if the professional falls short of the standard of care which reasonably may be expected of that category of professional in the particular circumstances, and their advice is wrong.

¶ 21 The home inspector in the context of the average residential home inspection is involved in an inherently risky business. The inspector invites reliance. If prospective home purchasers did not believe they could secure meaningful and reliable advice about the home they are considering purchasing, there would be no reason for them to retain the inspector. The matters about which the inspector is asked to opine - for example, roofs, foundations, and other basic home systems - are of interest to the purchaser precisely because they are the aspects of the home which would give rise to the greatest financial exposure were they to be discovered to be defective after completion of the purchase.

¶ 22 ......................What is the test in law for "negligence" in the context of home inspections?

¶ 23 Because the core of the service provided by the home inspector is the advice given regarding the condition of the home, claims against home inspectors in superior courts have been pleaded and considered by the court in the context of the tort of negligent misrepresentation. The five elements to be proven in that tort, as articulated by the Supreme Court of Canada in Queen v. Cognos Inc. 1993 CanLII 146 (S.C.C.), (1993) 99 D.L.R. (4th) 626, are well established:

1. there must be a duty of care based on a special relationship between the parties,

2. the representation made by one party to the other must be false, inaccurate or misleading,

3. the representation must be made negligently,

4. the person to whom the representation is made must have reasonably relied on the representation and,

5. the reliance must have been detrimental to that person with the consequence of his suffering damages.

¶ 24 The third requirement that "the representation must be made negligently" one presumes will fall to be determined by application of the test applicable to other types of "professional negligence", namely, that the home inspector failed to meet the standard of care expected of a reasonably prudent home inspector in those circumstances and at that time.

[204] In my view, Mr. Rubarth owed Ms. Gesner a duty of care. In the seminal decision of Hedley Byrne & Co., Ltd. v. Heller & Partners, Ltd., [1963] 2 All E.R. 575 (H.L.) Lord Morris dealt with the issue of the duty of care in the context of negligent misrepresentation and stated at p. 594:

My lords, I consider that it follows and that it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise. The fact that the service is to be given by means of, or by the instrumentality of, words can make no difference. Furthermore if, in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his skill or on his ability to make careful inquiry, a person takes it on himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should or should know, will place reliance on it, then a duty of care will arise.

[Vern Mitchinson]

"The client agrees that no liability shall accrue to Home Choice Inspections Ltd. from anything herein contained and in particular agrees to hold harmless Home Choice Inspections Ltd. from any liability for damages or faults occurring to premises after the date of the inspection and any liability resulting from damage, faults, hidden or observed at the time of this inspection. The client agrees that this report is issued solely for the guidance of the client and is not intended as a warranty or appraisal.
This report is provided solely for the use of the client regarding such items as are listed herein and no other person shall have any claim with respect to any item contained in the report. This report is intended as an inspection report only and does not purport to deal with matters of title, survey, compliance with local, municipal, provincial or federal laws, regulations, bylaws and ordinances. This report shall not be regarded as dealing with any defects, faults, omissions or other matters which do not come to the notice or knowledge of the inspector at the time of the inspection and is limited strictly to such items as are referred herein."

The above clauses are from my agreement. From what has been said so far any clause will be disregarded by the courts. If this is so what's the point of having an agreement and is there any protection of these clauses?

[Steve C. Horvath]

Originally Posted by Raymond E. Wand

Well I know for a fact that reports that the sellers had conducted for themselves when they purchased the house are often left out on the table for anyone to see coming through for a showing.

I also know that my reports are likely used in the same manner.

The liability is everywhere, all it takes is one disgruntled person who perceives a wrong and has a few bucks kicking around to start the wheels in motion.

I agree. These are the type of examples errors and omissions insurance agents like to quote; but be aware, most of the time this type of insurance is not worth acquiring, as the fees are high as well as the deductable which is usually $2500 or higher. I personally think that these are legalized scams.
As for disclaimers a lawyer friend of mine told me that a contract is as good as the people who made it, therefore you can provide any disclaimers you want; but if some one wants to sue you they will. The disclaimers may make most people think prior to starting a suit; thus some suits can be avoided, that is why I use them in my contracts and inspection reports.

[Raymond E. Wand]

You cannot contract your way out of negligence. However you can contract your way out of the other terms in your contract provided the contract and limitations of liability are brought to the attention of your client.

If you are found negligent thats when your insurance should provide you relief, but it should not be providing relief by way of settlements prior to court to the plaintiffs. Unfortunately insurance seems to have become an expensive warranty for the inspectors.

CONTRACTUAL EXCLUSIONS OF LIABILITY

[311] Mr. Rubarth testified that his typical practice in 2002 was to meet the client on the day of the inspection at the property that the client was intending to purchase. At that time, he would briefly review the type of inspection that he was going to perform and would ask the client to review and sign a document entitled “Pre-Inspection Agreement”. After the client paid Mr. Rubarth’s fee, Mr. Rubarth would then perform the inspection.

[312] The Pre-Inspection Agreement that Mr. Rubarth typically asks his clients to sign explains the type of inspection that will be performed and contains a number of clauses which purport to limit the inspector’s possible liability. Included in the Agreement are the following terms:

3) This inspection is not intended to be technically exhaustive nor is it considered to be a GUARANTEE OR WARRANTY, EXPRESSED OR IMPLIED, REGARDING THE CONDITIONS OF THE PROPERTY, ITEMS AND SYSTEMS INSPECTED AND IT SHOULD NOT BE RELIED ON AS SUCH. The Inspector shall not be held responsible or liable for any repairs or replacements with regard to this property, systems, components, or the contents therein. Company is neither a guarantor or insurer.

4) The client understands and agrees that the liability of Cornerstone Inspections, its employees and agents, is limited to the inspection fee.

[Emphasis in the original]

[313] In this case, Ms. Gesner was in New Brunswick at the time of the inspection of the home. As a result, she was not asked to sign the Pre-Inspection Agreement before the inspection took place. Rather, Mr. Rubarth sent her a copy of this document (along with the copy of the report and his invoice) after the inspection took place. The Pre-Inspection Agreement was never signed by Ms. Gesner.

[314] In my view, this Pre-Inspection Agreement did not form part of the contract between Ms. Gesner and Mr. Rubarth. Mr. Rubarth did not discuss the limitations set out in this document with either Ms. Earle (Ms. Gesner’s real estate agent), Ms. Gesner or Mr. Lane prior to the inspection being done. The agreement was not sent to Ms. Gesner until after the inspection was completed. It was never signed by Ms. Gesner. The exclusions of liability set out in this document did not, in my view, form part of the contract entered into between Ms. Gesner and Mr. Rubarth. Even if I had found that these exclusion clauses did form part of the verbal contract between these parties, I would not have applied them in the circumstances of this case for the reasons set out in Brownjohn v. Ramsay, supra.