Visibility

[Chris Bernhardt]

How far do we have a duty in descibing the extent of what was and was not visible for inspection?

For example in new construction the plumbing is just about wholly not visible as it's either covered or buried in insulation.

While mining administrative law decisions for home inspections I found several similar cases where an inspector was cited for negligence for not making it clear to the client what his satisfactory opinion was based on when the item of inspection was not substantially visible.

Usually the case was that the inspector indicated that the system was OK but didn't explain why when he couldn't see it.

In one case, for example. the inspector was cited for negligence for indicating that the plumbing system was OK when in fact he couldn't even see it!

The Respondent was obligated to advise the claimant that he could not visually inspect the plumbing because of the insulation, and his failure to do so was negligent.

Chris, Oregon

[randynavarro]

How far do we have a duty in descibing the extent of what was and was not visible for inspection?

I would think the limitations of accessibilty and visibility would be outlined in the Inspection Agreement.

[kurt]

What was wrong w/the plumbing system?

I guess I "deal" w/it by describing my inspection as visual, no dismantlement or demolition, no guarantee against latent defects, etc.

Does it protect me? Probably not.

[SonOfSwamp]

I doubt that the plaintiffs could prove negligence if the HI gave adequate warning, or anything close to adequate warning.

If we read the whole report, I'd guess that we'd find a recurring theme of the HI saying things were OK whether they were OK or not, and giving no common-sense explanations of how he decided that the blessed things were actually OK.

The plaintiff's lawyer probably argued that this HI blessed everything without actually looking at it, and used the HI's own words to buttress his argument. I'd bet that the HI used a canned fill-in-the-blank report full of wishy-washy boilerplate, and I'd bet he thought that the boilerplate would cover his backside, because, after all, it came with the software...

And of course, I'm just speculating, so I could be wrong...

WJ

PS: If the HI had followed my oft-repeated rule that an HI must write words that can't be misunderstood, everything would be copacetic. All he needed was something simple, like: "Most of the plumbing is hidden in the walls and underground. I couldn't see these hidden pipes, so I don't know their condition."

[Chris Bernhardt]

I would think the limitations of accessibilty and visibility would be outlined in the Inspection Agreement.

Well that's just it. We all say that we are performing an inspection based on what is visible and readily accessible.

What the decision indicates (unless I got this all wrong) is that there is an assumption that your opinion is based on the fact that you viewed a substantially exposed to view system or component unless you say otherwise.

How is it logical for an inspector, performing a basically visual inspection, to indicate that the plumbing buired in insulation is satisfactory when he can't view the plumbing?

I have been checking a few sample reports to see how other inspectors are handling this. Hausdok directly addressed the visibility of the plumbing in his report but several others here didn't including myself.

Chris, Oregon

[kurt]

If an inspector makes fundamentally incorrect assumptions and statements about a component (in this case, plumbing), how would it "protect" the inspector to say "I couldn't see the plumbing that was in the walls/insulation/earth(?).

If one operated all the plumbing fixtures & controls, and found nothing wrong and stated such, would the inspector be held negligent if there were latent defects hidden in a wall?

I think there are too many conclusions being drawn from too little information. I tend to agree w/Walter about the report. I suspect that if we could read the report, it was full of inconsistencies and contradictions. I have to believe there was something obviously wrong w/the plumbing, the guy said it was OK, and then he got burned. I don't know about anyone else, but I've never gotten trouble by being correct and accurate.

I have never specifically indicated anything in any report about my not being able to see a component that is built into walls, floors, or ceilings, or otherwise completely inaccessible. I suppose it could get me if I really blew the report in some other way, but I find it hard to believe that I would be found negligent simply because I didn't describe something as being hidden in the walls.

Wouldn't this be adequately covered by some form of blanket statement as in "I can't inspect system components that are hidden behind walls, floors, or ceilings"?

[Bill Kibbel]

I've never given it much thought until now. Fortunately, every time I'm dictating a sentence that describes the general condition of a material that is in-and-out of view in a building I automatically use:

• "Where visible, ..."
• "Where I could get to it,..."
• "..., where exposed."
• "Where I can see the ____,..."

It's pretty simple and it seems quite clear.

[Jim Katen]

Originally posted by Chris Bernhardt

. . . While mining administrative law decisions for home inspections I found several similar cases where an inspector was cited for negligence for not making it clear to the client what his satisfactory opinion was based on when the item of inspection was not substantially visible.

Where did you find these? I'd like to see them.

The Respondent was obligated to advise the claimant that he could not visually inspect the plumbing because of the insulation, and his failure to do so was negligent.

That's a bullshit decision. Here's why:

1. Oregon home inspectors are required to observe readily visible and accessible installed systems and components . . . (812-008-0202(2)(b))

2. There is no requirement to observe systems and components that are not readily visible and accessible or to disclose that concealed systems and components are concealed.

3. Concealed systems and components are not within the scope of the home inspector's job.

4. Therefore, it's not possible for the home inspector to be negligent in regard to them.

If we had to disclose every concealed condition in a home, our reports would be very long and very useless.

- Jim Katen, Oregon

[paul burrell]

It does not matter what's excluded in your agreement or what your contract says what matters is what the judge decides.

TRUE STORY:

A seasoned inspector friend of mine inspected a crawl space which was dry with no signs of moisture problems. A few years later 4 or 5 the buyer sued him after the crawl flooded. The judge said the inspector should have told the buyer that the crawl might leak in the "future" and awarded the buyer $20,000 for foundation repairs.

A contract or a persons word used to mean something. Apparently not much anymore. Today's society dances to a tune of which I am not familiar.

Paul B.

[SonOfSwamp]

Originally posted by paul burrell

It does not matter what's excluded in your agreement or what your contract says what matters is what the judge decides.

TRUE STORY:

A seasoned inspector friend of mine inspected a crawl space which was dry with no signs of moisture problems. A few years later 4 or 5 the buyer sued him after the crawl flooded. The judge said the inspector should have told the buyer that the crawl might leak in the "future" and awarded the buyer $20,000 for foundation repairs.

A contract or a persons word used to mean something. Apparently not much anymore. Today's society dances to a tune of which I am not familiar.

Paul B.

Well, then, GA HIs need to put some impossible-to-misunderstand words into their contracts and reports. Something like: "It's not unusual for water to get into a crawl space. There are few, if any, leakproof boats, and, to the best of my knowledge, no leakproof crawl spaces."

I'm speculating again, but I'd bet that the unfortunate HI had wishy-washy, passive-voice, it's-screwed-up-but-it's-OK boilerplate all over his contract and report, probably on every page, and relating to every component. When judges and lawyers find such language, it riles 'em, and the guy with the wishy-washy boilerplate pays. That's what happens when an HI writes his documents in a way that disowns the HI's work.

The cure: HIs need to drop their timid writing styles, and be direct. And correct.

WJ

[kurt]

There's also the experience of changing perceptions. At one time, folks expected to get water in their bsmt./crawlspace, and didn't care.

I well remember going in dirt floor crawlspaces years ago, and if it was dry, and looked like it had always been dry, I'd never talk about it. Now we know about VR's, building science, moisture migration, vapor drive, etc. We know more, so we have to talk more.

[Chris Bernhardt]

Wouldn't this be adequately covered by some form of blanket statement as in "I can't inspect system components that are hidden behind walls, floors, or ceilings"?

Well I guess it comes down to what W.J. says about adequate warningid="blue">.

In any one building the plumbing system, for example, may be either substantially exposed to view or hidden. The inspectors performing a pretty much a visual inspection with the intent to provide his or her opinion on the system or component. How is it reasonable for the inspector to indicate the system was OK when he could not see it?

The distinction I am asking about is there an assumption that our opinion is based on observing a system or component which was reasoned by the client to be exposed to view and do we have a duty to adequately warn id="blue">the client that our opinion is limited to inferences when the system or component was not directly viewable?

And if so then what does adequately warn id="blue">mean for any one system or component of the inspection?

Chris, Oregon

[SonOfSwamp]

Originally posted by Chris Bernhardt

And if so then what does adequately warn id="blue">mean for any one system or component of the inspection?

Chris, Oregon

We'd be able to discern a lot more if we had these HIs' reports in front of us. Clearly, any judge, jury or high-functioning moron knows that if a pipe's buried in a wall, nobody knows what's going on with the pipe.

However, if one reads a typical HI report, or runs across some HI boilerplate here at TIJ or elsewhere online, we can see the recurring theme of HIs using soft-sell, passive-voice, it's-screwed-but-it's-OK reporting language.

Such language is a pollutant; it destroys the writer's credibility. Soft-sell InspectorSpeak been employed for 30+ years, not in an effort to inform, but in an effort to brush aside concerns, mislead and comfort buyers, etc., all to the benefit of RE salesfolk.

It's catching up to us. And rightly so. Just as the founding-father HIs would've served the biz better by making their pitch directly to homebuyers (not RE agents), they/we would've served the biz better by teaching HIs how to communicate in writing, in a way that protects the HIs and serves the customers.

As my daddy, Jabo Jowers, would've said: "Y'all did it to your own selves."

WJid="blue">

[paul burrell]

Good suggestions all thanks. However I think it would be wise to include in report that the entire structure including all mechanical systems will fail in the future even the ones that are operating on day of inspection.

Would this be enough CYA or did I miss something.

Paul B.

[hausdok]

Hi,

I told a client two days ago that from the very first day that the first owner got the keys that the house she is buying has been trying to break down, that the only way to prevent it from winning is with constant on-going periodic maintenance of the house and every one of its components, and that she needed to understand and accept that fact.

I've never seen a house, by itself, get better - they always get worse.

Staying out of trouble in this business really only boils down to managing the client's expectations and then doing the right thing.

ONE TEAM - ONE FIGHT!!!

Mike

[SonOfSwamp]

Originally posted by paul burrell

Good suggestions all thanks. However I think it would be wise to include in report that the entire structure including all mechanical systems will fail in the future even the ones that are operating on day of inspection.

Would this be enough CYA or did I miss something.

Paul B.

I think it would be way too much CYA. When an HI focuses a customer's attention on the HI's feverish efforts to cover his own backside, the customer loses confidence and looks hard for HI screwups. If the HI ends up in court, the CYA language is likely to get the HI beat upside the head with the hammer of justice.

IMHO, the best way to CYA is to make it appear that the last thing on your mind is Cing your A.

WJid="blue">

[Jim Katen]

Originally posted by SonOfSwamp

. . . IMHO, the best way to CYA is to make it appear that the last thing on your mind is Cing your A.

WJ

My litany: Cover you client's ass and yours will be covered automatically.

- Jim Katen, Oregon

[charlieb]

Originally posted by Jim Katen

Originally posted by SonOfSwamp

. . . IMHO, the best way to CYA is to make it appear that the last thing on your mind is Cing your A.

WJ

My litany: Cover you client's ass and yours will be covered automatically.

- Jim Katen, Oregon

I tell folks I'm a selfish man. I'm going to protect my family. The best way I can do that is to protect yours.

[dbyers]

Originally posted by inspecthistoric

Where visible, ..."

"Where I could get to it,..." "..., where exposed." "Where I can see the ____,..."

It's pretty simple and it seems quite clear.

I agree with Bill. If you state that the plumbing system is in good condition overall and your client and his attorney and the judge are willing to believe you meant the stuff inside the walls, then even if you have stated that this is a visual inspection in 20 other places of your report and contract: You must qualify a summary remark by saying "the visible plumbing...".

[Chris Bernhardt]

My litany: Cover you client's ass and yours will be covered automatically.

- Jim Katen, Oregon

What about the case of an addition, you enter the attic of the original house and you traverse down the thermal canyon til it ends before you can get to the addition opening.

In the past I would have just thought to tell the client basically that, but in keeping with adequate warning (I mean whats the difference between this and not recommending a sewerscope) should an HI provide a warning?

The insulation in the attic is undisturbed; as a result, I did not enter the attic. If you want the attic spaces inspected, you'll have to get permission from the seller, have a path thru the insulation provided down to the framing and thru the spaces you want inspected, and then after the inspection hire an insulation company to restore the insulation.

Who knows? Maybe the addition framing or insulation is messed up. Maybe there is a roof leak or inadequate ventilation and the roof decking covered in mold.

Chris, Oregon

[hausdok]

Hmm,

Undisturbed insulation has never stopped me. I just plow through it, do the inspection, and then back out - smoothing it as best I can as I go. I just figure that, if Rufus from the cable company can get in there to run a cable, I need to get in there to inspect it.

OT - OF!!!

M.

[Chris Bernhardt]

Undisturbed insulation has never stopped me. I just plow through it, do the inspection, and then back out - smoothing it as best I can as I go. I just figure that, if Rufus from the cable company can get in there to run a cable, I need to get in there to inspect it.

Hmm, two problems with that. First there is an element of safety of not being able to see where to plant your feet and second the risk of damaging the insulation or worse.

I know you said plow so do you rake the insulation away out in front of you or just step right thru it?

I have had sellers pissed off at me because I reported non-uniform distribution and came back and said that I was the one who did it since nobody else has been up there to do it since it was installed and they requested that I not disturb it on reinspect. I told my client I couldn't verify that the insulation was repaired at the request of the sellers.

Just the other day I had a seller make me promise that I would not walk thru his insulation in the attic!

Also there was another time a while back with an old house with those stupid cellotex ceiling panels glued or nailed to the joists where even stepping on the joists my foot compressed the insulation and popped a tile. What a mess that was!

This whole thing sounds rediculous until a client inherits a big problem in an area you did not inspect and one that you did not disclaim and provide adequate warning for.

Chris, Oregon

[hausdok]

Knock, knock,

Earth to Chris! Earth to Chris!

Chris, I love ya, Guy, but I don't think you're thinking this through very carefully.

First, you have to feel around first before you put your weight on anything in an attic - that's just the way it is. I prefer doing it on hands and knees. That way, using my hands I'm better able to tell what I'm going to be placing me weight on. Yeah, I get a little bit of insulation on me, but it's nothing that the vacuum can't handle when I climb down - besides, by distributing my weight over 4 points instead of one, there's less likelihood that something that's structurally weak is going to collapse beneath me. Being a rather, uh, er, "stout" fellow, I have to pay attention to that.

Damage the insulation? I could understand that if we're talking about foamed-in-place stuff but not when we're talking about batts or the typical blown-in stuff. Just back out carefully and fluff the stuff up and smooth it out again. Sure, it takes longer than the actual attic inspection, but you don't miss stuff that way.

I couldn't care less if a seller wants to blame me for insulation that's unevenly distributed; the absurdity of such an accusation will be pretty obvious to everyone involved - including the seller, once it's uttered. There's usually plenty of evidence up there to show that it was the guy who installed the cable, the alarm system, the bath fan, etc., or it was never done right in the first place. I know that I'll redistribute and re-loft the areas I walk through, so I'm not reporting those areas as being unevenly distributed anyway.

If sellers ever told me that they didn't want me to disturb the insulation in an attic, I'd ask them how they expect their own inspector to inspect the home that they'll be buying when they move out of the one they're selling. If the seller insisted on remaining a peabrain, I'd tell the buyer that the entire attic and everything in it, including the framing and the underside of the roof, wiring, ventilation, etc., was excluded from the inspection because the seller had just made it inaccessible. No skin off my nose - it's just less for me to include in my report - I'll still charge the same amount and, as far as I'm concerned, will be freed of any liability for any attic issues or roof issues that were left undiscovered because it was inaccessible.

If you're stepping on a truss web caused the ceiling to pop off you can be sure that it has nothing to do with you stepping on the truss web - the damned thing wasn't secured properly in the first place or there's something up with that truss web (You said "joist" but I think you meant truss web - no?). If it isn't you that causes it to pop off, it'll be the cable guy, or the.....

Let's get serious here; all manner of folks must be able to get in and out of the attic - alarm installers, pest guys, cable guys, electricians, sometimes even plumbers when you've got slabs or PEX, the homeowner when they occasionally check their attic out (You do tell them to occasionally check conditions in their attic and crawlspaces, no?). It's up to the folks that move through an attic to redistribute the stuff when they back out.

I just don't understand how anyone can not inspect an attic because they don't want to disturb blown-in insulation when disturbing it is going to be a simple fact of life sooner or later during the life of a home. Hell, builders know that - I've done hundreds, maybe even thousands of new home inspections, and I've never had a builder complain that I messed up the insulation in an attic by walking through the attic. They know I have to look at stuff and they know there's no way to do it without disturbing the insulation - unless one is Chris Angel, of course.

What do you do when there's an L-shaped attic and the hatch is at one end of one leg of the L? Disclaim everything over that other wing? What happens if the buyer climbs up in there after he's bought, finds $10,000 dollars worth of damage or uncompleted work? I can understand it if the seller has made it impossible, as in the example above, but if the seller hadn't objected it's my opinion that you could get sued?

Are you really going to sit there in front of a judge and say, "I couldn't inspect the area over that wing because I didn't want to disturb the blown-in insulation." You gotta know that the other side will be prepared to make the argument that as an "expert" you should be able to do so without ruining the insulation, since the cable guy, the alarm guys, the electricians,......

ONE TEAM - ONE FIGHT!!!

Mike

P.S.

Wow, just posted this and saw how long it is. Jeez, the ability to type fast can be a curse sometimes. It makes it look like I'm a windbag. Oh,wait a minute, I forgot - I AM!

[Chris Bernhardt]

Ok, well then, maybe I'm another victim of HI folklore.

Do any of the other brethren second Hausdok for carefully plowing thru the insulation in attics and then restoring it on your way out?

I know of a number a big name inspectors around my parts who will not enter an attic where the insulation is either covering the view of the framing or for reasons that it damages the loft of the insulation and they also don't necessarily exclude the attic as inaccessible. They just report they viewed it from the attic access.

Chris, Oregon

[Bain]

I plow through, and not once have I ever tried to restore the insulation. The first time a seller raises Cain, though, I'll likely start fluffing the stuff back into place.

I like to check out every square inch of attics. I've found tons of leaks that never would have been apparent from atop the roof. And whether it's trusses or ceiling joists, you sort of unconsciously train yourself to take 16" or 24" steps.