Turmoil At The Top?

[George A. H. Luck]

A Canadian Federation of Independent Home Inspectors contact inside O.A.H.I. has sent in the proposed inspection contract being pushed upon the lucky members. by some of the 'powers' within that organization. As many of you will remember, an attempt to do this same thing a few years ago caused quite a stir and not a little dissension in the ranks. Could a new call for all O.A.H.I. inspectors to declare their lack of insurance be far off . . . again?

O.A.H.I. continues to spin it's wheels.

Read the latest contract proposal below-
* * * * * * * * * * * * * * * * * * * * * *

Please review the second version of the Visual Pre-Purchase Home Inspection Agreement on the Knowledge Cafe titled 'Provincial Contract ver. 2' and add any comments that you wish by September 10th 2006 at which point a committee of members and directors will review the agreement and comments and construct a final copy for use.

Please note that the Draft is for discussion purposes only and no reliance should be placed on the document.


THIS IS A DRAFT FOR DISCUSSION ONLY
NO RELIANCE SHOULD BE PLACED ON THIS DOCUMENT<SPAN style="COLOR: midnightblue; FONT-FAMILY: Verdana">

VISUAL PRE-PURCHASE HOME INSPECTION AGREEMENT

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[phinsperger]

....

[George A. H. Luck]

Please review the second version of the Visual Pre-Purchase Home Inspection Agreement on the Knowledge Cafe titled 'Provincial Contract ver. 2' and add any comments that you wish by September 10th 2006 at which point a committee of members and directors will review the agreement and comments and construct a final copy for use.

Please note that the Draft is for discussion purposes only and no reliance should be placed on the document.
THIS IS A DRAFT FOR DISCUSSION ONLY
NO RELIANCE SHOULD BE PLACED ON THIS DOCUMENT

VISUAL PRE-PURCHASE HOME INSPECTION AGREEMENT

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This Visual Pre-Purchase Home Inspection Agreement [the "Agreement"] is made this of , 200_ between: (month) (year) day (date)
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Client Name: Client Address: Client Tel/Fax No:
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Client E.-mail.
[Hereinafter the "Client"]
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-and
Inspector:
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Inspector Address: Inspector Tel/Fax No: Inspector E-mail:
[Herein after the "Inspector"] [Collectively, the Client and the Inspector are known as the "Parties"]
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Instructions for completion: This Agreement must be read in its entirety for the Parties to fully understand the Visual Pre-Purchase Home Inspection, its terms, conditions, limitations and exclusions. This Agreement must be signed and initialed, where applicable, by the Parties, prior to the start of the Visual Pre-Purchase Home Inspection if the Client wishes the Inspector to proceed with the Visual Pre-Purchase Home Inspection. The signatures/initials confirm that the Parties' understand, accept and will be bound by the terms, conditions, limitations and exclusions contained in this Agreement.

Preamble of this Agreement

1) The Client has asked the Inspector to conduct an inspection of the home on the property located at [hereinafter the "Property"];
(Identify precisely the municipal address of the property)

2) The Inspector is willing to conduct a brief but attentive, non-intrusive, visual inspection of the Property [hereinafter the "Visual Inspection"] of certain readily accessible systems and components of the Property on the terms, conditions, limitations and exclusions detailed in this Agreement in order to provide the Client with a better understanding of the condition of the Property, as observed at the time of the visual inspection;
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<>3) The Client accepts that he/she can have the inspection carried out by another home inspection service if he/she is not prepared to have an inspection carried out on the terms, conditions, limitations and exclusions proposed by the Inspector;

4) The Client accepts that the Inspector will only conduct a Visual Inspection of the Property on the terms, conditions, limitations and exclusions detailed in this Agreement, which includes the Standards of Practice of the Ontario Association of Home Inspectors for the fee specified.
(Client's initials) (Inspector’s initials)

General Terms of this Agreement
5) This Visual Inspection is conducted in accordance with the OAHI (Ontario Association of Home Inspectors) Standards of Practice, including its terms, conditions, limitations and exclusions. The OAHI Standards of Practice are hereby incorporated by reference in this Agreement. A copy of the OAHI Standards of Practice is attached to this Agreement. <>
6) This Visual Inspection will not include other inspection services, systems or components or the inspection of any item that is not required to be inspected pursuant to the OAHI Standards of Practice unless specifically enumerated and detailed in this paragraph, below:

This Visual Inspection will not specify repairs that must be completed to the Property.
<> 9) The Parties accept that the full scope of the Visual Inspection may not be able to be conducted and inherent problems with the Property may not be identified due to the following factors: seasonal conditions when this Visual Inspection is conducted; the weather conditions in the days preceding and on the day of the Visual Inspection; the interaction of weather conditions and materials used in home construction; the fact that the Client is not the existing owner of the Property; the existence of hidden or latent conditions; and, other limitations and exclusions caused by the non-intrusive, visual nature of this Visual Inspection.

10) This Visual Inspection is not exhaustive. The fee charged for this general Visual Inspection is less than that of a technically exhaustive inspection, which would involve a number of professionals, a longer inspection and a significant increase in the cost of the inspection. If the Client wishes a more comprehensive inspection or reporting, which would require more time or a specialized or detailed review, the Client would be required to pay additional fees for those services with the appropriate professional, independently of this Agreement.

<> 11) At the conclusion of the Visual Inspection, or within the agreed upon time, the Inspector will provide to the Client a written report of the Visual Inspection [hereinafter the "Report"]. The Client agrees to read the Report in its entirety to put the Visual Inspection, its terminology and its terms, conditions, limitations and exclusions in the proper context prior to taking any further step in dealing with or relying on the Report or Visual Inspection, including prior to waiving any conditions in a purchase transaction of the Property and/or proceeding with a purchase transaction of the Property.

12) If the Inspector and/or the Report recommend(s) further action or investigation, including, but not limited to, consulting with a specialized expert(s), the Client agrees to do so at his or her expense prior to taking any further step in dealing with or relying on the Report or Visual Inspection, including prior to waiving any conditions in a purchase transaction of the Property and/or proceeding with a purchase transaction of the Property.
(Client's initials) (Inspector's initials)

12) Water/moisture leaks, seepage, seasonal runoff and/or drainage problems are often only visible during or after a certain amount of precipitation. The Parties accept that it may be impossible in most instances to observe water/moisture leaks, seepage and/or drainage problems unless the Visual Inspection is conducted during or immediately after sufficient precipitation to reveal such problems or under the circumstances which trigger such deficiencies.

<> 13) The Parties accept that the Inspector is not responsible for discovering or reporting on the presence or absence of mould, mildew and fungi or any other environmental condition as it is not within the scope of this general Visual Inspection. Furthermore, the Parties accept that the Inspector is not responsible for any damages that arise from or is related to mould or mildew, even if the mould or mildew is a direct consequence of a condition upon which the Inspector is required to report as set forth in this Agreement.

14) Notice of Claim - The Client acknowledges and agrees that any claim(s) or complaint(s) arising out of or related to any alleged act or omission of the Inspector in connection with this Visual Inspection shall be reported to the Inspector, in writing, within ten (10) business days of its discovery. Unless there is an emergency condition, the Client agrees to allow the Inspector a reasonable period of time to investigate the claim(s) or complaint(s) by, among other things, allowing a re-inspection of the Property by the Inspector before the Client, or anyone acting on the Client's behalf, repairs, replaces, alters or modifies the system or component that is the subject matter of the claim or complaint. The Client acknowledges and agrees that any failure to so notify the Inspector and allow the Inspector adequate time to investigate shall be deemed to have destroyed evidence that would have assisted the Inspector in documenting and understanding the claim or complaint.
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15) Arbitration - Any dispute arises directly or indirectly from this Agreement, any disagreement relating to the performance thereof, shall be resolved by arbitration, to the exclusion of any court of law, conducted in accordance with the Rules of the Arbitration and Mediation Institute of Canada, before a single Arbitrator who is familiar with the home inspection industry. The decision of the arbitrator shall be final and binding and shall not be subject to appeal. All arbitration costs shall be shared equally.
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16) Applicable Law - This Agreement shall be construed and governed in accordance with the laws of Ontario.
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17) Confidentiality of Use and Collection of Information - The Client understands and agrees that the Visual Inspection is being performed (and the Report is being prepared) for the Client's sole confidential and exclusive benefit and use. The Report, or any portion thereof, is not extended to benefit any person that is not a party to this Agreement, including, but not limited to, the Property vendor(s) or the real estate agent(s) involved in any real estate
(Client's initials) (Inspector’s initials)
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Transaction. The Client consents to the collection of his or her personal information by the Inspector, required and used for the purposes of preparing this Agreement, the conduct of the Visual Inspection and the preparation of the Report. Any personal confidential information of the Client contained in this Agreement or collected during the Visual Inspection will not be disclosed to third parties without the Client's written consent, unless such disclosure is required by law or ordered by a Court of competent jurisdiction.

1 Severability and Entire Agreement: The Parties agree that in the event that an Arbitrator determines that any provision(s) in this Agreement is void, void able or unenforceable, the remaining portions of this Agreement shall remain in full force and effect. This Agreement in its entirety and any written, attached, executed Addendum contains the entire Agreement between the Parties. The Parties hereby acknowledge and accept that there are no other representations, warranties or commitments, except as are specifically set forth herein. This Agreement further supersedes any and all representations or discussions, whether oral or written, if any, between the Parties, their representatives, employees and/or agents relating to the subject matter of this Agreement. This Agreement may only be modified, altered or amended in writing and signed by the Parties.

19) Facsimile Execution and Counterparts: The Parties agree and accept that acceptance of the signed version of this Agreement can be delivered by facsimile or e-mail transmission and that execution in counterparts will be acceptable.
By signing below, the Parties acknowledge that they have read, understood and agreed to the terms, conditions, limitations and exclusions contained in this Agreement.

Date of Agreement:
(Date o fExazrtion of Agreenrnt by Inspector) (Date of Execution of Agreement by Client)
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Time of Agreement:
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(The Execution of Agreement by Inspector) (The Execution of Agreement by Client)
Inspector Name I HAVE READ EACH CLAUSE OF THIS AGREEMENT — I UNDERSTAND THAT IT LIMITS THE INSPECTOR'S LIABILITY

[George A. H. Luck]

Sorry About That. Darned Hurricane Rains Keep Knocking Out My Electricity!

[Roy D. Cooke, Sr]

Silly and too dam busy .
I can see giving this to a client and they saying WOW! I think we had better post pone the Inspection while I take this to my Lawyer.
I hope they take it to the OAHI lawyer to give them some advice .
OAHI BOD seem to get some strange ideas on how to make it harder to be a home inspector.
With thoughts like this it sure does make NACHI look good to me and others .
Roy Cooke .. RHI... CAHPI-ON ... Royshomeinspection.com

[Claude Lawrenson]

My take on this - sides with trying to have it's members adopt a "standardized" inspection agreement that will or could possibly dovetail with a E&O program.

[Claude Lawrenson]

I am not sure if it should be "termed" turmoil or simply - like reporting formats - that too was reviewed and not accepted. To me its a matter of choice - unless it is a condition dictated by the insuring underwriters.

It boils down to personal choice, or in the case of report systems the impact on proprietary reports in the marketplace. Unless there is a team of lawyers and eventually judges that will uphold such a "contract" - I would best have a lawyer "independently" review it, and see what is ones own best interest.

[Roy D. Cooke, Sr]

Unless I am mistaken there is no choice OAHI insists that you give the client a form stating that they know that the home inspector has no insurance and the Inspector must get it signed before the inspection .
As NICK keeps says NACHI is the only one to have the Home inspector pass a test before they do inspections . The NACHI policy on insurance is only that the inspector follow the rules of the state or province .
NACHI does not insist the client sign forms re insurance before the inspection .
Roy Cooke RHI CAHPI-ON Royshomeinspection.com

[Joseph Hagarty, CMI]

Roy:

Is E&O Insurance currently a Provincial requirement for Home Inspectors?

[Mario A. Kyriacou, CHI]

Originally Posted by jhagarty

Roy:

Is E&O Insurance currently a Provincial requirement for Home Inspectors?

NO. NOT YET,BUT I CAN SEE IT BEING A REQUIREMENT DOWN THE ROAD.

[Roy D. Cooke, Sr]

Originally Posted by jhagarty

Roy:

Is E&O Insurance currently a Provincial requirement for Home Inspectors?

No this has never been required by any Provincial Government that I know of.
Past experience with Home inspectors and Insurance companies has not been very good .
If a home owner has made a frivolous claim with no merit and the inspector does not want the Insurance company to settle .
They usually settle as the cheapest remedy .
Most HIs have $5,000:00 deductible and if it is a $7,500:00 claim the insurance settles raises the HIs cost by many dollars for three years and the Company makes more money and the HI losses .
This has led to much distrust from existing Home Inspectors so many do not carry E&O insurance.
Then we get the newer inspector who feels that to advertise insurance increases his chance of getting more Inspections .
They do not understand advertising insurance gives John Q public thoughts to go after the home inspector for silly things .
Roy Cooke .. RHI... CAHPI-ON.. Royshomeinspection.com

[rwand1]

OAHI tried this a number of years ago, and the standardized contract did not fly then. And most likely it won't fly this time. Franchisors will not use it. Multi inspector firms will not use it. Carson Dunlop will not use it. ISS will not use it. Sole proprieters will not use it. I would not use it.

The word VISUAL is mentioned too many times and is overly wordy!

conduct a brief but "attentive"

Brief but attentive?

Why would the SOP be included or referred to?

The insurance committee is on hiatus. I guess OAHI should appear to be doing something constructive.

Does this contract mean that OAHI members are experiencing higher then normal claims?

Does this mean many members cannot obtain insurance, thus the contract?

Arbitration? What if you don't want arbitration?

No limit of liabilty?

OAHI sent me a notice about this insurance contract and told me to go to the OAHI Discussion forum the CAFE to comment on this contract, but seeing as I am suspended from the CAFE I have been denied denial of service, even though I am a member in good standing. So see my comments above.

Thanks George for posting this. And thanks to CFIHI for posting it.

[rwand1]

Mario, et al:

We had all better be attentive to what is going on up here in Ontario. We should all be pushing and promoting licencing. We must as a group ensure that any licencing is done with inspectors input. Not just OAHI's input. We must demand and call for liability caps on our liability, we cannot let other interests control legislation that affects us. We cannot rely on OAHI to do the right thing. Nor can you rely on CAHPI to do the right thing.

[rwand1]

It boils down to personal choice, or in the case of report systems the impact on proprietary reports in the marketplace. Unless there is a team of lawyers and eventually judges that will uphold such a "contract" - I would best have a lawyer "independently" review it, and see what is ones own best interest.

Well if they had a lawyer write this up its a JOKE! Was it even reviewed by a lawyer? Like many things in OAHI you have to wonder where the legal advice is coming from.

Btw " a team of lawyers" do not uphold contracts, only courts can do that. I think this contract won't fly!

[phinsperger]

When I was with OAHI and they first came out with the requirement of disclosure of no insurance clause for our contracts, at first I thought it was a bit ridiculas. Then I saw the benifit behind it. Even though I am no longer with OAHI, I not only have that clause it my contract but it's the very first clause!

I have yet to have someone balk at it.