The following article is provided as a service by Business Risk Partners and their claims administrator, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP. Please note that this bulletin is merely a general discussion of topical matters involving professional home inspectors, and is not and should not be construed as legal advice of any kind. Further, as laws differ from state to state and because the law related to the home inspection industry changes regularly, please consult with an attorney in the proper jurisdiction to obtain legal advice on any particular matter.
The written report that you provide to your client is going to memorialize what you saw and what you told the client. If a dispute arises, it will become Exhibit 1. A quality inspection report can be an effective tool in your risk-management arsenal.
Five basic steps to reducing liability in report writing:
1. Think through your ideas before you begin writing.
Focus on exactly what needs to be said and what the client needs to understand. Before writing, think through whether a particular problem is minor or major or is a safety hazard.
2. Keep it simple.
Report in short, specific, sentences. Long, drawn-out explanations may create confusion and increase the client’s anxiety.
3. Avoid technical jargon the client may not understand.
Speak and write in easy-to-understand, everyday language. The client should not have to be a contractor or home professional to understand the report.
4. Avoid confusing reporting formats.
Produce a neat, fully typed report that logically breaks down the different areas of the home. Consider whether the client can find the information he or she needs quickly, and whether there is enough detail in the report to be helpful. Will the client know what you are talking about? Checklists and “yes/no” answers do not provide enough information for the client to make educated decisions about the home. Expand on the “yes/no” answers — explain.
5. Include in detail all the following information:
What you inspected, how it was inspected, what condition it was in, what you could not inspect (and why) and what further action the client should take (e.g., retention of an expert to review a particular area and/or potential problem).
To present a professional home inspection report, which, in turn, will reduce the likelihood of a claim, the following elements are imperative:
1. Use correct grammar
2. Spell correctly
3. Provide complete explanations
4. Have the report reviewed by someone else
5. Get your facts right
– It is better to say, “I don’t know” than to be wrong.
– But if you don’t know something, be sure to tell the client when you will have the information for him or her.
6. Never speculate on future life expectancy
7. Never quote code and/or law
8. Never operate outside your expertise or standard of operation
– Do not comment on engineering issues if you are not an engineer
– Do not comment on environmental issues if you don’t hold the proper certifications
– Do not comment on pest control if you are not a licensed pest control expert
The last point is particularly important. We recommend you stay within the scope of the terms of your agreement. For example, even if you are a qualified termite inspector, don’t go digging for evidence of termites if the client hasn’t agreed to that inspection; in other words, hasn’t retained you for that purpose. If you do so, you’ve assumed an unlimited duty to inspect for termites and can be held liable for it. On the other hand, don’t ignore the obvious. For example, if there’s clear evidence of termite damage, we suggest you report it, but be sure to qualify it, such as:
“Damage noted in porch pillars. May be evidence of the presence of termites or wood-boring insects. Recommend that the home be inspected for termites by an expert.”
This way, it’s clear that you weren’t specifically inspecting for termites. In this scenario, you have also made it clear that there is something wrong with the porch pillars that needs attention.
Regarding the crack in the foundation – NOTE it, but don’t opine beyond your expertise:
“Crack noted in the north wall of the foundation. It is recommended that the home be inspected by qualified structural engineer.”
“Crack noted in the north wall of the foundation. Appears to have been there for quite some time; does not appear to have any impact on the structural integrity of the home.”
Regarding the water damage on the wall — NOTE it, but don’t opine beyond your expertise:
“Dry water (after you check the area with a moisture meter) damage noted on the wall. Might be evidence of roof leak. Inspector confirmed area dry with moisture meter and noted that the weather has been sunny and dry for last week. Roof should be inspected by a qualified roofer.”
“Water damage noted on the wall. Appears to be dry, with no evidence of recent water intrusion.”
One final thing that’s often overlooked: Specifically document what you could and couldn’t see in your report. “Crawl space 80 percent non-visible and not inspected” may mean something to you, but it means nothing to the client. On the other hand, “Unable to inspect majority of crawl space because there were boxes of homeowner’s personal items obstructing the crawlspace” tells your client what you saw. It also reminds you why you didn’t look in the crawlspace if the inspection becomes an issue down the road.
The message is that to reduce liability, the more detail the better — be specific and remember your limitations.