Great court ruling for Texas inspectors.

[Russell J. Hensel]

Originally Posted by amiller

I guarantee all of my clients that there are NO guarantees in this life, especially from me for $300.

You don't guarantee your work? I do, all day everyday.

Why are you hung up on the $300? Is there a mandate in Texas to charge $300? Is there a mandate to charge any certain amount? If you feel you risk is worth more than $300, then charge what you feel it is worth, if people won't pay it then you are not giving the client value for their money.

[Eric C. Van De Ven]

Originally Posted by amiller

Just exactly what did you wake up smoking this morning?

Nothing.

Retherford, a TREC-licensed professional real estate inspector, was hired by Frank and Terri Castro to perform a home inspection of a residence that they had signed a contract to purchase. Retherford completed the inspection in March of 2008 and noted in the “Roof Structure and Attic” section that it was “Not Functioning or in Need of Repair” because there was water damage in the attic and also observed that there was water damage in two rooms of the house, but believed that the water damage was caused by condensation from the metal roof resulting from a lack of ventilation.

Retherford indicated that the water damage was not a serious issue in his inspection report, although he included photos of the relevant areas. In the report, Retherford also gave the Castros advice on how to fix the ventilation issues in the attic. Retherford noted that the roof covering was inspected but stated “No problems were noted.” The Castros purchased the house “as is.”

In October of 2008, in the first big rain after the Castros’ purchase, approximately three inches of rain fell and water started running down the wall of Castro’s residence in the same place where the water damage was noted on the inspection report. The Castros went up on the roof to look for problems and discovered loose screws on the roof, some of which were visibly noticeable and could be turned with their fingers.

In November of 2008, Castro took photographs of the roof from the attic which showed the same damage Retherford had included in his report.
The Castros repaired the roof in April of 2009 but could not afford to replace the roof entirely as recommended.

Prior to having the roof repaired, in March of 2009, the Castros had a second TREC-licensed professional home inspector to inspect the roof and ascertain why the roof was leaking. This inspector determined that many of the screws on the roof were loose and found black discoloration stains around the screw shanks in the attic, which he contended showed long-term water damage of more than twelve months’ age. The inspector observed screws that were sticking up out of the roof from the ground which he also believed had been in that state for at least a year.

The second inspector explained the proper method to inspect a metal roof and opined that the leaks would have been discovered if Retherford had the necessary experience and knowledge to properly inspect the roof, although he did not know Retherford or anything about his qualifications. Further, pursuant to TREC rules regarding home inspections the cause of the moisture was not required to be disclosed but that adequate ventilation would not have solved the problem of the moisture because it was actually caused by a leaking roof.

The individual who repaired the roof also testified that the black discoloration he observed in the wooden beams in the attic had to have been there for longer than twelve months and that he found approximately 200 screws of varying degrees of looseness on the roof out of approximately 1500 on the entire roof when his company repaired the roof.

[Aaron D. Miller]

Perhaps I should point out a few things here:

(1) This section of the forum is for Texas inspectors, if I am not mistaken. You seem to be 1186 miles east of the subject - in Flahdah.

(2) Condemning others in your profession is about unprofessional as it gets.

(3) Deciding in advance, based on hearsay from court records that someone is guilty is just like the tradesman that follows on the heels of an HI saying that he should have seen or done this or that. Cheap shot BS talk. A little decorum is in order here, in my opinion.

[Eric C. Van De Ven]

Originally Posted by amiller

Perhaps I should point out a few things here:

(1) This section of the forum is for Texas inspectors, if I am not mistaken. You seem to be 1186 miles east of the subject - in Flahdah.

(2) Condemning others in your profession is about unprofessional as it gets.

(3) Deciding in advance, based on hearsay from court records that someone is guilty is just like the tradesman that follows on the heels of an HI saying that he should have seen or done this or that. Cheap shot BS talk. A little decorum is in order here, in my opinion.

So because it is in Texas, it will never affect me? Is that what you are saying?
It is an open message board. Anyone can give a response to any post here.

Hearsay from court records? You mean "transcripts for an actual court case where evidence was heard and a ruling given"?

It is quite apparent that the inspector at the least, by his own testimony, offered a solution which was improper for the condition. That is unprofessional.

[Jim Hime]

Originally Posted by rhensel

What do I guarantee or what can I be sued for? For a fee of $300, I think I can be sued for anything I say and even more so, for things I don't say. The money has nothing to do with it, whether it be $300 or $30,000 it makes no difference.

But to me people have paid me to perform a professional service to ascertain the conditions of their house, as they are at the time of the inspection. If that is blatantly disregarded or if signifiant visual items are missed you should be sued.

You the nail on the head with that one.

I don't find it surprising inspectors in Texas have DTPA protection. Inspectors call themselves and advertise themselves professionals, the buyer looks upon them as a professional and they have a Texas issued professional license.

However, I hear other inspectors complain about realtor inspectors to which they may be themselves but are now being beaten up even more in low ball fees and empty reports in order to stay on a realtors list. It appears they never developed a client referral base and solely rely on what's thrown at them by a sales agent. It does not appear that the buyer is their true client.
Don't need a smell test on that one.

I can't describe it any better than this.

There are avenues to which one can sue an inspector in Texas instead of the (weak to worthless) DPTA approach which only costs all the litigants money because DTPA has been thrown out multiple times now. Few lawyers have that knowledge of the law when it comes to home inspections. Maybe they should read the interNACHI message board? Why wait until a court rules to what the lawyers should have already known? Negligence, breach of contract, breach of duty (to follow the SoP as discovered by the second guy), failure to...., etc. seems to be missed in the first go around.

P.S. - The Texas SoP requires inspection of roof covering fasteners at TREC 535.228(e)(3)(i). This sub-section header says... "The inspector shall..." ...(inspect and report deficiencies). It can't get any clearer than that. I believe the second guy said he could see deficient fasteners from the ground and by ladder so it does not appear there would be a "not accessible" departure provision.

[John Cahill]

Originally Posted by rhensel

I guess the question comes down to what do people expect for the fee.

Good points Russ. Perhaps the distinction is between what people expect versus what do they expect for the fee. I would guess they expect perfection but are unwilling in many cases to pay the fee. Therefore cheap inspectors proliferate.

[John Cahill]

Originally Posted by evandeven

In any event either intentionally or due to incompetence, he didn't fail the roof. He should be sued and lose.

Good points. My knowledge of the case is the buyer did not understand the ramification of the report. I have not seen the report but hear it did report many leaks and checked the roof deficient; it was briefly stated however.

It seems to be an argument of making the inspector responsible for determining client expectation, experience and comprehension. Most of that is excluded by the Standards.

It's an interesting case.

[Eric C. Van De Ven]

Originally Posted by jcahill

Good points. My knowledge of the case is the buyer did not understand the ramification of the report. I have not seen the report but hear it did report many leaks and checked the roof deficient; it was briefly stated however.

It seems to be an argument of making the inspector responsible for determining client expectation, experience and comprehension. Most of that is excluded by the Standards.

It's an interesting case.

Here is the ruling: Ruling

The problem I see for the inspector is that 1)he gave a diagnosis which was incorrect, and 2) the fact that he gave that diagnosis indicates he didn't know what he was looking at as far as the cause of what he saw.

Roofs do not require replacement 6 months to a year after an inspection under normal conditions. All of the issue that were noted by the other inspector/roofer were not noted by the inspector as it pertains to the roof covering.

Instead of saying what he did on the report, something along the lines of "there was evidence of a high moisture condition observed in the attic. Possible sources could be ventilation, roof leaks, et. Recommend calling licensed tradesmen....bla bla bla."

Granted, that is the lazy way to do it, but it might meet the minimum standards. If the inspector failed to meet the minimum standards, then again, he is in trouble.

The issue that bothers me is that some think that this is a great ruling as stated in the title. What the ruling does now is lets the lawyers know that taking this route isn't going to work. There are plenty of other ways to get sued and lose. I am sure the lawyer in this case will find one or two....

[John Cahill]

Originally Posted by jhime

There are avenues to which one can sue an inspector in Texas instead of the (weak to worthless) DPTA approach which only costs all the litigants money because DTPA has been thrown out multiple times now.

Good points Jim. It is interesting how the court interpreted aspects of DTPA. There remains exposure to the points you make.

I am not sure if insurance was involved. I suspect they would have settled.

The $300 I introduced was just a figure of speech. I did not intend to divert the topic.

It would be interesting if the contract was required to say "The inspector agrees to be liable for $xxxxxx regarding errors and omissions for the fee of $xxxxx. Can you guess how an inspector would fill it out and then the home buyer? Therein lies a problem. Managing expectations.

[John Cahill]

Originally Posted by evandeven

The problem I see for the inspector is that 1)he gave a diagnosis which was incorrect, and 2) the fact that he gave that diagnosis indicates he didn't know what he was looking at as far as the cause of what he saw.

Roofs do not require replacement 6 months to a year after an inspection under normal conditions. All of the issue that were noted by the other inspector/roofer were not noted by the inspector as it pertains to the roof covering.

Instead of saying what he did on the report, something along the lines of "there was evidence of a high moisture condition observed in the attic. Possible sources could be ventilation, roof leaks, et. Recommend calling licensed tradesmen....bla bla bla."

Granted, that is the lazy way to do it, but it might meet the minimum standards. If the inspector failed to meet the minimum standards, then again, he is in trouble.

The issue that bothers me is that some think that this is a great ruling as stated in the title. What the ruling does now is lets the lawyers know that taking this route isn't going to work. There are plenty of other ways to get sued and lose. I am sure the lawyer in this case will find one or two....

Para 1 - I think the ruling was based on the consideration of opinion versus fact. It was an opinion.

Para 2 - True but oddly Texas excludes remaining life statements.

Para 3 - Texas has a mandatory form. It instructs the buyer to have all items indicated deficient inspected by a specialist. The form states "When a deficiency is reported, it is the client’s responsibility to obtain further evaluations and/or cost estimates from qualified service professionals. Any such follow-up should take place prior to the expiration of any time limitations such as option periods. Evaluations by qualified tradesmen may lead to the discovery of additional deficiencies which may involve additional repair costs. Failure to address deficiencies or comments noted in this report may lead to further damage of the structure or systems and add to the original repair costs". I suppose "had the buyer done that would the problem have been fully revealed?"

Para 4 - The Standard is grossly flawed. It can be argued every which way. Hmmm, maybe that is not a flaw?

Para 5 - You are right "lots of ways to get sued".

[Eric C. Van De Ven]

I think the ruling was based on the consideration of opinion versus fact. It was an opinion.

The "Opinion" is part of the legal document and is part of the ruling. Generally in law, things get worded like this "It is the opinion of the Court that due to the circumstances of the case.......". The opinion lays out the reasoning for the ruling.

A statement that is prepared by a judge or court announcing the decision after a case is tried; includes a summary of the facts, a recitation of the applicable law and how it relates to the facts, the rationale supporting the decision, and a judgment; and is usually presented in writing, though occasionally an oral opinion is rendered.

Court opinions are the pronouncements of judges on the legal controversies that come before them. In a common-law system, court opinions constitute the law by which all controversies are settled. Attorneys analyze prior opinions on similar legal issues, attempting to draw parallels between their case and favorable court opinions and to distinguish unfavorable opinions. Judges study relevant opinions in rendering their decisions.

The majority of court opinions are not released for publication. Those that are released by the courts are collected in law books called reporters. Each state has at least one reporter that contains the opinions of its courts, and the nation has several reporters that contain the opinions of the federal courts.

Para 2 - True but oddly Texas excludes remaining life statements.

This has nothing to do with life expectancy. It has to do with following the Texas SoP and inspecting the roof properly. Any roof I have ever failed never had anything to do with age.

Para 3 - Texas has a mandatory form. It instructs the buyer to have all items indicated deficient inspected by a specialist. The form states "When a deficiency is reported, it is the client’s responsibility to obtain further evaluations and/or cost estimates from qualified service professionals. Any such follow-up should take place prior to the expiration of any time limitations such as option periods. Evaluations by qualified tradesmen may lead to the discovery of additional deficiencies which may involve additional repair costs. Failure to address deficiencies or comments noted in this report may lead to further damage of the structure or systems and add to the original repair costs". I suppose "had the buyer done that would the problem have been fully revealed?"

The problem in this case is that the inspector noted a problem and said it was caused by something other than what it was. It may be the Clients responsibility, however, if the Client wasn't given factual information, what is the Client supposed to do?

Para 4 - The Standard is grossly flawed. It can be argued every which way. Hmmm, maybe that is not a flaw?

I think Texas has one of the best SoPs out there. At least you guys have one

Para 5 - You are right "lots of ways to get sued".

And the best thing to do is to eliminate as many of those ways as possible.

[Jim Hime]

Doing a cheap inspection or even a free inspection does not relieve one of the duty and responsibility encumbered upon a real estate inspector in Texas to follow the SoP (which is a whole other topic in itself). That report needs to stand on its own merits for at least 4 years and some cases more. The cheap inspection/inspector will eventually get snake bit by the next inspector. What he/she loses even more is the loss of a referral from that buyer as the interest to serve the agent in order to stay of the short list out-weighs the legal responsibility to serve the buyer.

The "leaking roof" buyer may have been better off to file a complaint and list the SoP violation(s) based on the help of the second guy and roofer, have the inspector go through the "matrix" and if credible take the disciplinary action ruled against him and then sue. There is no better witness than having a ruling from a state commission that holds your license stating you "failed". The E&O carrier will never let that one go far without settlement. That buyer threw away a lot of money on a lawyer that should have known the exceptions to DPTA and the inspectors lawyer spent his money instead of stopping it (DPTA) from the beginning. Lack of legal knowledge by lawyers or, who got the pay day?

[Jim Hime]

Fairly good article informing sales agents to do their job and let inspectors do theirs.

http://www.frascona.com/resource/oef202pass.htm

[Richard W. Washington]

Great article Jim.

[Dan Bowers, CMI]

I think its really cool that the 2nd inspector could tell the screws had been loose for over 12 months NOT 10 months. NOW thats a top notch inspector OR maybe a TOP NOTCH expert witness ..... Mr Attorney HOW LONG do I need to say they've been loose ..... NEATO