Frivlous Law suit

[Charley L. Bottger]

I heard second hand about an attorney that was selling a 5 million dollar home that had infrared imaging performed by a thermographer Non- HI and massive moisture intrusion was located and the owner/Attornery is sueing the thermographer based on his opinion that infrared is invasive. I am trying to get more factual information about this case going to be interesting to see how this plays out.

[Jim Seffrin]

Charlie:

Since 1984, I have been involved in numerous legal cases where thermographic inspections were used to document the condition of roofs, building envelopes, and building subsystems. In cases where thermal imaging was used in a civil action, I have worked in the capacity of an expert for both plaintiff and defendant. I have never heard of a case like the one you mention here.

Prior to any real estate transaction, potential buyers have a right to inspect the subject property for condition. Since buyers often lack technical expertise, experts are often engaged to assess the condition of property prior to sale. Depending upon the property, thermography may be used to help detect evidence of latent moisture within roofs and/or walls.

Something seems to missing in this story for two reasons:

1. Generally, opinions provided by an expert in the conduct of their investigation are not actionable. If a seller disagrees with a buyer's expert, s/he is free to engage an expert of their own to refute questionable data.

2. The notion that thermal imaging is 'invasive' refers to the use of thermal imaging in criminal investigations. In 2001, a ruling by the US Supreme Court in Kyllo v. US held that the use of a thermal imaging device to monitor the radiation of heat from a person's home was a "search" within the meaning of the Fourth Amendment, and thus required a warrant. Since this decision, a search warrant is required to collect thermal imagery of property when it is to be used as evidence in criminal cases. This requirement does not apply to thermal imaging used in assessing the physical condition or thermal performance of buildings or structures.

The above notwithstanding, it is possible to get sued for anything. However, I doubt that it would get very far and is probably not worth the trouble even if an expert's findings were inaccurate.

Should you determine the name of the thermographer in this story, please give him my number.

[Charley L. Bottger]

Jim
I agree with you it sounds crazy but on the other hand IR is little known here in Okla as one other HI and myself are the only ones using it state wide. It was the ED of the local HI association that was giving me my little information I have about this. I am trying to get a better source of info as you stated anyone trained in IR knows it is not invasive. If this is a true story I will try to get the thermographers name and pass it on to you. All I was told is that he is a thermographer that scans for insurance companies/hospitals.
Thank you for your response.

[jvogan]

Charley, Jim is absolutely right. It sounds as though they are trying to get a criminal ruling to apply to a civil case. Kyllo set the standard in thermal imaging cases (criminal). We (the police) used to be able to simply suspect someone had an indoor marijuana growing operation, and fly over it or sneak up behind it and do a thermal scan to detect excess heat radiating from the structure as opposed to other houses/structures in the neighborhood. It was determined to be an "invasive" search of the property, thus requiring a search warrant. I was in Arizona getting my thermographer certification when the case was being heard. It pretty much relegated the (at the time) $13k IR cameras the DOD gave us to search and rescue operations.

Sounds to me like this attorney is trying to flip this ruling over to the civil side of the law and claim his house was "illegally" searched by the thermographer. Based on what little I have heard about the case on this board from you, I don't think it will fly, but you know attorneys...they are looking for a settlement, not a decision! Keep us posted. Do you know what state or court this case is being heard of? I would like to follow it. Thanks for bringing it up!

[Barry Adair]

I've been threatened by sellers, listing agents, and their attorneys with "further action" never have seen or heard of any follow up actions by any of them. Just verbal threats and IR wasn't involved.

Actually had a seller call me and request recant/release if they paid me to make my report disappear. I guess if I collected a fee from them and had them sign a release this somehow in their mind would absolve them of any wrongdoing and they could take the immoral high ground with disclosure.

This will be interesting if factual, keep us posted.

[Brian A. MacNeish]

Originally Posted by badair

I've been threatened by sellers, listing agents, and their attorneys with "further action" never have seen or heard of any follow up actions by any of them. Just verbal threats and IR wasn't involved.

Actually had a seller call me and request recant/release if they paid me to make my report disappear. I guess if I collected a fee from them and had them sign a release this somehow in their mind would absolve them of any wrongdoing and they could take the immoral high ground with disclosure.

This will be interesting if factual, keep us posted.

Since you're still a working man, I assume the "pay" (off) was not enough to retire on and you refused it! Damn, Barry, that kind of morality will always keep us poor!!

[Ron C. Bibler]

We have an guy out hear that works for law firms. He told me of a case he had work on with a HI did an IR inspection. Main point was the HI noted one item in his Image but over look another. it cost Him $ 6,000 I think some of this goes to the point what camera are you using. if you image a home with a 120X120 and have a very small item in the image that was not visible and another guy working for a law firm has a T400 with 320X240 the obiject is visible in his camera. are you at fault ? thats the question.

Best

Ron

[William J. Decker]

Given the recent heavy rains in our area, I have done many water intrusion / mold studies recently. Some 6 buildings (2 "Lincoln Park Townhouse" style SFH and four 3 unit condos, all built within 1 1/2 years) will be or have already been torn down because of REALLY bug water intrusion through the walls and incrediblly high mold infestation. All were covered with split block (back and sides) that the builder never sealed. Also, limestone coping stones on the parapet walls, with NO flashing.

(BTW: Split faced block was, last week, banned fron new construction, in Chicago. Finally!)

In all of these (and a couple more coming down the pike) there was or will be litigation. The IR was only a contributing tool, not the final one (the lack of flashing and sealing was the cause). IR is just one tool to be used and should NEVER be the entire evidence resting on the diagnosis.

But, it means inspections and money for me.

Some of the contractors have threatened to sue me for my results. My lawyer says that they have no case, grounds or standing. Being licensed, I have "expert witness" standing automatically.

Hope this helps;

[Joe Farsetta]

Jim wrote:

potential buyers have a right to inspect the subject property for condition

This statement is, in fact, false.

The buyer has the right to ask permission to have the home inspected. It is up to the seller whether to grant that permission or not.

That is the truth of the matter. The buyer has no "rights" to anything, as they do not own the property.

Over the past few months, I have been repeating that the use of infrared thermography on home inspections will open up a new set of torts, based on the use/misuse of the technology, along with interpretations, training, equipment, and marketing.

This latest spin is quite interesting, and may indeed have legs. If the use of infrared thermography is not recognized as a part of a minimum standard for performing a home inspection by any HI association, then the question may become whether the seller KNEW that said technology would be in use at the time the permission was granted.

If there is existing legal precedent stating that the technology had been deemed invasive by the courts, then the larger question becomes whether a seller can bar its use.

Remember, most disclosure laws state that the seller is legally obligated to disclose those defects he/she knows exist. Thermography opens an entire new potential can of worms.

So, dont be so quick to dismiss this story as urban legend, or having no chance.

[Ron C. Bibler]

Joe you make some excellent points. I see this as something that can go one way orther other for a HI.

( This latest spin is quite interesting, and may indeed have legs. If the use of infrared thermography is not recognized as a part of a minimum standard for performing a home inspection by any HI association, then the question may become whether the seller KNEW that said technology would be in use at the time the permission was granted )

Joe my question to you is can the same be applyed to a moisture meter?

Or one of these Thermal temp guns?

Best

Ron

[mnahrgang]

If this was in the St. Louis area, the seller wouldn't have an argument if the standard (local) contract was used. It states that the buyer can (at their expense) have inspections performed that are "including, but not limited to,..." So a thermal inspection would fall under the "not limited to" portion of the contract.

I would think that most "standard" RE contracts have something similar to that.

[Joe Farsetta]

It depends on the state, Mark.

For instance, here in NY the inspections are typically performed PRIOR to contracts being signed. In addition to this fact, and as it pertains to legal rights afforded to inspectors (even municipal inspectors), absent of a warrant, an inspector has no legal authority to enter into or onto a property unless invited by the owner. An owner can demand an inspector (even municipal inspector) leave the property at any time and without consequence.

I, myself, threatened a municipal nspector who stepped onto my property with arrest for tresspassing if he did not immediately leave. I had the State Police on spped dial for that particular occasion

All I am saying is that things will likely get interesting in the near future for all of us!

[Dan Bowers, CMI]

Just got a call from fellow NACHI member telling me that in a recent inspection he had discovered mucho wood rot. The buyer did not go forward AND now the seller is trying to sue the buyer for not closing.

The HI knows, because the buyer called him wanting BIGGER pictures, etc to use for proof OR court. Bigger than in his report AND wanted them on CD's so they could ....................

This market is gonna be real interesting as more and more deals drop.

[Ron C. Bibler]

Call your friend back. a.s.a.p. Tell him to have the buyers attorney ask for Photos and things that way your friend in under the attorneys protection...

Other wise your friend is exposing him self... He should only and always refer to his report and say nothing else. they ask a Q. he replys lets look what the report stated.

Best

Ron

[Charley L. Bottger]

In Oklahoma the Real Estate listing agreement when signed by the owner gives permission for a inspection of the property and is not specific as to what type of inspection or the type of test equipment to be used while conducting an inspection. I could see where a lawyer could twist this to an invasive inspection and that is why I posted this thread and am trying to get more info, one never knows what some Judge will allow especially when the good ole boy rules come into play. I am reasonably sure as the IR cameras are more commonly used in a home inspection there will be cases in court.