Home inspector goes to small claims court

Q. I've been a home inspector for about two years, so I'm still learning. Unfortunately, I just learned a very hard lesson after doing a free walk-through inspection as a favor for a real estate agent who was buying a high-rise condo. Eight months later, he is suing me because he found fogging between the panes of a large dual-pane window. The controversial window is on the 15th floor, and the cost to replace it is $2,500. The agent had the window replaced before notifying me of the problem, and now he expects me to pay for it. We're scheduled for small claims court next month, and I'd like some advice in presenting my side of the story to the judge.

A. Welcome to the enervating world of home inspection and real estate disclosure. Good deeds, as they say, may not go unpunished.

As this is not a legal advice column, I can only counsel you as a layman and a home inspector. Additional advice from an attorney is strongly advised before representing your side of the story in court.

Since you did the inspection as a favor, you probably do not have a signed contract to specify the scope of the inspection or the limits of liability. Nevertheless, here are some effective points that can make a positive difference when presenting your case to the judge:

• This was not a paid home inspection but merely a casual walk-through, performed as a personal favor, and therefore is not subject to the same standards as a full home inspection.

• You inspected the windows, and no evidence of a faulty dual-pane seal was apparent at that time.

• The agent also did not see the window defect prior to purchasing the property, indicating that the defect was not apparent or was nonexistent at that time.

• The agent is alleging that the window defect pre-existed the purchase of the property, but there is no way for him to prove that such was the case.

• It is common knowledge in the home inspection business that fogging between window panes is not always visible, depending upon variations in lighting and temperature.

• The eight-month time lapse between purchase of the property and discovery of the window defect indicates that the window seal may have failed after the property was purchased.

• You were never given an opportunity to reinspect the failed window prior to its being replaced. It is common knowledge among real estate agents that home inspectors should be called to reinspect a defect prior to making repairs.

• If the agent appears in court without an expert witness who is a professional home inspector, be sure to point out to the judge that the plaintiff has no expert witness who is qualified to testify regarding the standard of care for a home inspection.

Be sure to practice your presentation of these points, use notes in court so you won't leave anything out, and spend an hour with an attorney for additional advice on presenting your case.

• To write to Barry Stone, visit him on the web at www.housedetective.com, or write AMG, 1776 Jami Lee Court, Suite 218, San Luis Obispo, CA 94301.

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