The Comparative Negligence Defense for Home Inspectors
by Mark Cohen, Esq., InterNACHI® General Counsel, and Nick Gromicko, Founder of InterNACHI®
Some home inspectors may never encounter an unhappy customer. We at InterNACHI® hope you never do. Eventually, though, many inspectors will. In those cases, in addition to accusing you of breach of contract and misrepresentation, your former client may assert that you were negligent.
One way an inspector can minimize potential liability and lay the foundation for a successful comparative negligence defense is to give the client as much information as possible prior to the home purchase. Provide the client with a thorough report -- including digital photos -- that clearly identifies any defects or issues that should be investigated further before he or she purchases the property. When the client later claims that s/he would not have bought the property if the inspector had noted a particular defect or concern in his report, the inspector’s lawyer wants nothing more than to hand the report to the testifying client and point out where the inspector did note the defect or claim.
Another must for the inspector is to require the client to read and sign a contract prior to the inspection. A contract signed after the inspection is meaningless. The contract should make the limited scope of the inspection clear. For instance, paragraph 3 of InterNACHI's Client Agreement
Unless otherwise noted in this Agreement
or not possible, we will perform the inspection in accordance with the current
Standards of Practice (SOP) of the International Association of Certified Home
Inspectors (InterNACHI®), posted at www.nachi.org/sop. If your
jurisdiction has adopted mandatory standards that differ from InterNACHI’s SOP,
we will perform the inspection in accordance with your jurisdiction’s
standards. You understand that InterNACHI’s
SOP contains limitations, exceptions, and exclusions. You understand that InterNACHI is not a party
to this Agreement, has no control over us, and does not employ or supervise
This paragraph alone can be invaluable if the customer who signed it asserts a claim against the inspector.
Similarly, paragraph 7 of the InterNACHI® model contract provides:
We do not perform engineering,
architectural, plumbing, or any other job function requiring an occupational
license in the jurisdiction where the property is located. If we hold a valid occupational license, we
may inform you of this and you may hire us to perform additional functions. Any
agreement for such additional services shall be in a separate writing.
Again, this one paragraph can prove
that the inspector told the client that he would not perform certain tasks. Because the inspector never agreed to perform those tasks, he cannot possibly have been negligent by failing to perform them.
One other thing an inspector can do to preserve the right to mount a comparative negligence defense is to give the client as much information as possible about how to maintain the home and look for issues after the purchase. Many new homeowners give little thought to maintaining their new home and assume it will always be in the same good condition it was in when they first moved in. If you tell a client what he or she should do after their purchase, and they fail to heed your advice, you have again laid the groundwork for a successful comparative negligence defense.
With the delivery of their inspection reports, many inspectors include a copy of InterNACHI's ultimate home maintenance manual, Now That You’ve Had a Home Inspection. This comprehensive guide takes homeowners through checklists and steps of the regular and seasonal maintenance of their greatest investment. This indispensable soft-cover book is also available in Spanish as a PDF download.
This book is offered to InterNACHI members at a discounted rate for bulk purchases so that they can offer them free to their clients. Find out more by visiting https://www.nachi.org/now.htm