Author’s note: The material in this article is based on our experiences in the home inspection industry during the past 39 years and is not meant as a substitute for professional legal advice.
A written complaint from a client should be taken seriously. The letter may come directly from your client or it may be from the client’s lawyer. First, read the letter very carefully and then pull the report. Letters require the same thought process as calls—find out if the problem is within the scope of an inspection and if the report addresses the problem.
We have found that the best approach is to phone the client directly, even if the letter came from a lawyer.
Here are the reasons why we like this approach:
- Calling has no downside. If the client does not want to speak with you and wants the lawyer to handle it, the client can just say so.
- There is a chance that you can re-establish your relationship with the client and meet him or her face to face.
- It’s difficult to get an accurate gauge of emotion from a letter. The client may be very upset or the client might know that he or she is taking a long shot.
- The client may have been very upset when writing the letter or when passing the issue along to the lawyer, but the client may have cooled off during the time it took for the letter to reach you. The client may be willing to talk to you about resolving the problem.
- It is harder to be unreasonable when you are speaking to someone than when you are writing to them. It’s harder still during a face-to-face meeting.
When you call, follow the procedure for handling complaint calls that we described in our article “Handling Complaints, Part 1” in the October issue of the Reporter. Gather information, then set up a revisit, if appropriate. Remember that the closer you are to someone, the harder it is for that person to be hostile toward you.
You also can use the clauses in your Inspection Agreement to point out items that are clearly not your fault. For instance, if you get a letter of complaint about a central vacuum system that broke on the day the owners bought the house, your letter would empathize with the client, but reiterate that central vacuums are not within the scope of home inspections. You then can refer to the agreement that the client signed regarding the limitations of the inspection.
Written Complaints from Lawyers
If a lawyer sends you a letter on behalf of your client, you could turn the issue over to your insurance company or to your lawyer. Our feeling is that this tends to escalate things and takes control of the situation out of your hands. This may be the right thing to do if you are not comfortable dealing with complaints, but it also can be expensive. You will have to make a business decision about this.
Many errors and omissions (E & O) insurance policies require you to inform the insurance company upon receipt of a complaint that might lead to a claim. Check your policy.
At Carson Dunlop, we call the client directly, regardless of whether we receive the letter from the client or a lawyer. We have found that calling the client improves our chances of defusing the situation.
Note: Some E & O insurance companies may not want you to do this for fear that you will say something that weakens their defense. Check with your insurer.
If you choose to respond to the lawyer rather than to the client, do it in writing, not over the phone.
If you live in the United States, use the “for settlement purposes only” clause. If you live in Canada, use the “without prejudice” clause.
You can be sure that the lawyer has heard only one side of the story. The client will have described the situation in the most dramatic fashion possible to support the argument. The lawyer is clearly at a disadvantage. You should assume that the lawyer has not seen the report or the inspection agreement. You must respect client confidentiality. Only discuss the report with the lawyer or attach a copy of the report and the inspection agreement if you’ve received the client’s permission first. You may point out the agreement, limitations and limitation of liability, if applicable, as well as any arbitration clauses that your client may have signed.
We have found that there is a higher risk when we communicate directly with the lawyer. A lawyer may feel that it doesn’t matter if the client doesn’t have a logical and rightful claim because the insurance company may pay out anyway, assuming that you have insurance. Clients and lawyers may spend some time and effort finding out if you have E & O insurance.
Performing the Revisit
Although you can deal with some complaints over the phone, you may determine that you should revisit the home. Here are some tips for revisiting a home.
Take the report, standards and contract with you:
There is a good chance that the client will not have the report available at the revisit. You need this information in case you have to point out that you did cover specific things during the inspection. It is also common that when you get to the home, the client has come up with other issues as well. For example, the original complaint may be about a shower stall that leaks. The client might be so upset about it that he or she starts to doubt the quality of all the information you provided. The client starts to see defects everywhere, real or imagined, within scope or out of scope, inspected or not. This kind of reaction is entirely understandable, but you will be more ready for it if you have brought with you the inspection report, the ASHI Standard of Practice and your inspection agreement.
Review the report, your booking information and the inspection agreement before going to the home. You need to know your report and the circumstances related to the inspection. Who attended the inspection? What was the weather like? Did the client have any specific concerns? And so on.
Give direction and be helpful:
When we arrive at a revisit, we go into our helpful and trusted advisor role. Often, this role is enough to satisfy a client who has a complaint. In our experience, many problems can be solved easily with a little common sense. The problems are often smaller than the client believes them to be. Your advice may include options that a contractor is unwilling to try because those options won’t make the contractor much money.
Document your visit:
Taking photographs or video is a good idea. If you are unable to come to an agreement with the client, having this evidence will be helpful. You don’t want the client to fix the problem, leaving you with nothing to show what it looked like before.
Don’t bring fancy equipment:
Don’t bring any equipment to the revisit that you didn’t use in the original inspection. Let’s say you are investigating a complaint of a damp basement. If you used a moisture meter during your inspection, bring your moisture meter. If you didn’t use a moisture meter during this inspection, don’t pull one out during the revisit. Your client will wonder why you didn’t use it in the first place.
Meet with contractors on site:
If there is a contractor involved, ask for the contractor to be there during the revisit. This is helpful for a few reasons:
- It’s a good idea to form a professional relationship with the contractor. This contractor is probably telling your client that the inspector should have seen the problem. If the contractor is there, you have the opportunity to tell the contractor that there was snow on the roof at the time of the inspection and that your original report recommended further evaluation by a roofing contractor in the spring. This helps to get the contractor on your side.
- You have the opportunity to bounce ideas off the contractor. If the contractor has indicated the need to replace some component, you can ask how much it would cost to repair.
- The contractor will have a tougher time being hostile to you in person.
- The client is not an effective communication conduit between you and the contractor.
It’s better to speak to the source. You may look at your list of questions and ask the contractor to answer several of them. For example, it’s often revealing to learn how the contractor found the rotted bathroom subfloor. If it was found after the toilet was removed and the vinyl floor covering was pulled off, you may say that it was not visible during the inspection. If it were visible, why didn’t the contractor tell the client that the subfloor was rotted before starting any work?
Don’t decide on site:
Once you have finished your revisit and collected information, you don’t have to give your client a decision about your position on the spot. Tell your client that you will get back to him or her at the end of the day or the following day. This gives you time to collect your thoughts, consult with a colleague or do some research. You then can complete your consultant role and advise your client on how to correct the problem, if appropriate. Η
In a future edition of the Reporter, watch for Part 3 of this series.
Carson Dunlop - Consulting engineering firm devoted to home inspection since 1978. www.carsondunlop.com.