When are home inspectors liable

Q: In some of your columns, readers ask if they have grounds for suing a home inspector. Your answer always seems to be "no." Could it be that you're providing cover for fellow inspectors?

A: Readers often write to complain about home inspectors and to inquire about legal liable. When asked if a home inspector can be justifiably sued, my answer has sometimes been yes and sometimes no, depending on the situation. If you've only read the no-columns, you've gotten the wrong impression.

A wry adage among home inspectors is that there are two kinds of inspectors: those who have been sued and those who will be. There are, however, specific circumstances that determine whether a home inspector is truly liable for a disputed claim.

When property defects are not reported during a home inspection, the inspector is liable if the defects are within the scope of the inspection and were visible and accessible at the time of the inspection. For example, a leaking drain below a sink is within the scope and in most cases would be visible and accessible. Roof damage is also within the scope and, with some exceptions, would be visible and accessible.

Inspectors who fail to report defects such as these could be subject to a lawsuit. However, if the bathroom was filled with storage so that the inspector could not inspect below the sink, or if weather conditions on the day of the inspection prevented the inspector from walking on the roof, the inspector would not be liable, if (and this is a big IF) the inspection report clearly states these areas were not inspected and that further inspection is recommended prior to close of escrow.

Conditions not within the scope of a home inspection are typically itemized in the inspector's contract and in the report. These include conditions that are not visible or accessible because they are underground or contained within the construction of the building (such as inside the walls). Other exclusions include matters of structural and geological engineering, infestation by wood-destroying organisms (such as termites), low voltage electrical systems, septic systems, water wells and more.

Additionally, most home inspection contracts specify mediation and arbitration, rather than lawsuits, but such limits are not enforceable in all states. Contracts may also include specific monetary limits on liability, but this is also not enforceable in all states.

Inspector liability can also be negated if the defects are repaired before the inspector has been notified about the problem. Home inspectors should have the opportunity to view disputed defects, to discuss whether they were within the scope of the inspection, whether they were visible on the day of the inspection, and whether they existed on the day of the inspection.

If a home inspector is notified by the homebuyer but fails to respond or to accept reasonable liability, pressure can be brought to bear, including litigation. This has been my recommendation in many past columns and will continue to be my advice to homebuyers whose inspectors are professionally negligent.

• Email Barry Stone, certified home inspector, at barry@housedetective.com.

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