“No Visible Evidence” Language May Be Evidence Against You
We often see sentences in inspection reports that take this form:
"No visible evidence of [insert applicable defect]."
We have concerns about the words “visible” and “evidence.”
First, let us consider the word “visible.” The last thing an inspector wants is a lawsuit in which the disgruntled client alleges that the defect was visible at the time of the inspection. Even if the inspector ultimately prevails, the battle may be costly.
Most people would construe “No visible evidence of [insert applicable defect]” to mean that the defect doesn't exist. But what the inspector meant to convey is that the inspector didn't observe any evidence of a defect.
A court reviewing such language in a report may find that the language is ambiguous, and when a court finds an ambiguity in a document, the court will usually construe the ambiguity against the party that drafted the document (the inspector).
If an inspector says something was not visible, other people could argue saying that it is visible. In contrast, if an inspector says something was not observed by the inspector... no one can argue with that. An inspector’s duty isn’t to report on everything visible, but rather only those defects the inspector both observed and deemed (considered, thought of) to be "material" at the time of the inspection. A "material" defect is defined in the InterNACHI® Home Inspection Standards of Practice (www.nachi.org/sop).
Instead, consider using “indications.” For example, “I did not observe any indications of [insert applicable defect].” Better yet, “I did not observe any indications of [insert applicable defect] during my inspection.”
This reinforces the idea that an inspection is only a snapshot in time. It also restates that the inspector’s duty is to report only what the inspector both observed and deemed to be material... not everything that is visible.
