Many years ago, in the pursuit of money and a better way of life, I gave up teaching and became a building inspector. In those days, the inspection industry was growing rapidly and inspectors were in high demand. Soon, I had more work than I could handle and the money kept rolling in. But this was in California, where the threat of frivolous lawsuits was spreading among inspectors like a disease. Everyone felt vulnerable, but few wanted to talk about it. Attorneys must have felt like Midas; everything they touched turned to gold.
Inspectors spend only a few hours at a property, but when they leave, they carry with them the tacit responsibility for everything on that property. In fact, for as long as three or four years, they remain vulnerable to the legal assault of unhappy clients and corrupt attorneys. As one senior insurance executive confided in me after a few beers: “Lawsuits are a numbers game. It’s just a matter of time.” I remember sipping my beer and nodding in silent dismay.
I’ve written extensively about this threat, but it’s easy to understand how it came to be and why it won’t go away any time soon. Most inspectors are aware of this and elect to carry errors and omissions insurance. However, such insurance not only protects against lawsuits, but it also invites them. It gives inspectors figuratively deep pockets and makes them attractive targets.
We could complain about how easily the legal system can be corrupted, as I have done for years. You might think that insurance companies would defend the innocent and fight frivolous and spurious lawsuits, but they don’t and they won’t. It’s far cheaper for them to settle with scoundrels than pay the exorbitant cost of defending the innocent. Money talks.
I’ve referred to this elsewhere as “perfectly legal extortion,” which is an abstract phrase that’s not mine and fails to convey the pain of frivolous lawsuits. If you don’t believe this or feel I’ve overstated it, you should probably stop reading, but if you need proof, you can read about lawsuits in my book Inspect and Protect, which is available at lulu.com. It will cost you time and money, and likely depress you. Some examples are so outrageous as to defy belief, which is why I included legal documentation.
So, what can we do about this continuous threat? First, there must be the desire to change, but change is difficult and often requires a trauma, like a lawsuit, and then a modicum of trust. Anyway, try to suspend any doubt and disbelief you may have for a while, and I’ll do my best to explain what I mean, and keep the explanations short and simple. But first, a caveat.
Out of respect for the legal profession and decent attorneys, I must state that many lawsuits are legitimate and serve justice, but what I’m going to describe are the frivolous ones and the way they can be avoided. I say “avoided,” because only tort reform can stop them and also, because once you’ve been named in a lawsuit, you’ve already lost—you’ve lost your deductible, your premiums will probably increase, your coverage could be cancelled, and you’re going to lose time and therefore money, as well as any real faith you may have had in the legal system.
Careful report writing can help
Avoiding lawsuits requires a sophisticated report-writer and a commitment to take a series of premeditated steps or, more precisely, a combination of interrelated and carefully constructed narratives that lead to irrefutable and, therefore, easily defensible truths.
Here’s the concept:
As inspectors, we are only on site for a few hours, but our reports are the product of that time, and memorialize our actions and evaluations. So, in a sense, they’re “the truth, the whole truth, and nothing but the truth.” They’re obviously intended to be read carefully by clients, but they’re sometimes read extremely carefully by disgruntled clients and corrupt attorneys. For this reason, it would be nice if inspectors were blessed with encyclopedic knowledge, instant recall and superior writing skills. But the chance of anyone possessing all these skills is highly unlikely.
Let’s return to the concept which, among other things, involves industry standards and contracts, as well as a series of interrelated narratives functioning as testimony to a truth. We’ll also consider the power of words and the art of communication.
Industry standards are general and represent groups of people, whereas contracts are specific and represent individuals. Both should be viewed as a first line of defense against lawsuits. Industry standards were compiled by the best minds in the business and continue to evolve. They should be included as an integral part of a report, or they should be alluded to and recommended to be accessed and read as an adjunct to a report. They should also be alluded to in contracts, many of which were also compiled or reviewed and approved by the best minds in the business, and quite often by attorneys—not that those have any added merit. Regardless, many of them include exculpatory clauses that are required to be initialed.
I won’t say anything more about contracts, but I’ve read some clauses that are absurd and, although not useless, are likely to be ignored, including a popular one about returning a fee. But some are truly useful and have the power to prevent lawsuits. I had one in my inspection contract that was also required to be initialed and, although I can’t prove it, prevented lawsuits, I truly believe it did. Anyway, this is it. You are welcome to edit it and use it as your own:
I agree and understand that I should follow any and all recommendations for service or a second opinion by a specialist, and that by failing to do so, I will violate the terms of the contract and agree to hold Swift Inspections harmless for any subsequently alleged defects or deficiencies.
This clause is reasonable and has never been disputed, but what’s most relevant about it is this: I rarely found “things” on my inspections that were perfect, even on brand–new houses, and even fewer things that earned my complete approval.
Take roofs, for instance, which feature prominently in lawsuits, I rarely found one that didn’t need specialized service of some kind and, therefore, I selected a narrative that not only recommended service, but also a second opinion and an evaluation of the entire roof.
This is not only sensible, but strategic and best served my clients, because I’m not a specialist and, in this case, an approval by one was like conferring peace of mind and a warranty against leaks. But, more importantly, it also provided me with a perfect defense in accordance with the terms of my contract. So, keep in mind, selection of narratives is a step in a process involving multiple aspects of an inspection and a report.
My reports also alluded to industry standards, but the body of them began with the scope of my service, in which I defined myself as a generalist, described the difference between myself and a specialist (which is a difference in knowledge and the use of specialized instruments), and in which I stated precisely what I did and didn’t do. Next, I promised to respond to any concerns that my clients might have in the future and pledged to remain their consultant indefinitely. Yes, I said indefinitely and I meant it. It made my clients feel more secure, and very likely prevented disputes and even lawsuits. In addition, the scope of my service repeated things that were in the standards and in my contract, and which served to magnify irrefutable truths. Repetition is also strategic and substantiates meaning.
Furthermore, every individual section of my report began with a general description that educated clients, which I’d “polished” over many years and which printed automatically. They’re too long to quote, but they also expressed as irrefutable truths. Here are the first few lines from one on roofs so you can get a sense of it and see how it contributes to the concept:
There are different roof types and materials and different methods of installing them, but all have limited warranties and most eventually leak. Every roof is only as good as its waterproof membrane, which is concealed and cannot be examined without removing the material, and this is true of almost every type of roof.
This general description was followed directly by a detailed one about a specific roof type, which was also educational and printed automatically. You’ll probably notice the movement of the narratives is from the general to the specific, from the large to the small, but the movement concluded with an evaluation of a specific roof comprised of concise declarative sentences, and the same was equally true of grading and drainage, electrical, plumbing, and heating and air-conditioning, to name a few, each one of which appeared with a single click of a mouse.
I won’t go into detail about how valuable specialized instruments have become in avoiding lawsuits; however, I will say that my digital camera, laser level and moisture meter were among the most critical tools that I used in my inspections, and my computerized report-writer was by far the most important resource I had at my disposal.
Computers are a mechanism of storage and retrieval. My report-writer was not only a portable reference library, but it also gave me the ability me to select from a vast array of prewritten narratives to indicate, in this instance, how a roof was evaluated, and its apparent age and condition, which most sellers were likely to know more about than I did after my brief site visit. But don’t ever rely on the integrity of sellers, for which reason many of my evaluations referred to the responsibility of sellers. Regardless, few roofs were so perfect that I didn’t find some reason to recommend service or a second opinion. However, if I did happen to find one that was perfect—which, to me, meant perfect factory flashings, not mastic, and complete and professional gutters—this is one of many narratives I selected from my report-writer:
The roof appears to be __ years old, but this should be confirmed by the sellers or documented by permit research. It has a __ year design life and was likely guaranteed against leaks by the installer for three years. It should be kept clean and inspected annually, and particularly before the rainy system, but based on the appearance of it and its drainage system, it is performing as intended, as shown with representative pictures. However, this is not a guarantee against leaks, for which you’d need to have a local roofing specialist evaluate it before the close of escrow and issue a roof certification.
This is one of thousands of narratives in my report-writer to which I had instant access, and all of which could be edited and added to indefinitely. Feel free to take it and use it, but notice how the narratives work together to inform and educate clients, and lead to irrefutable truths about “things” and, in this case, the truth about roofs in general and a specific roof type. It’s a complicated story and a truth that should be irrefutable.
There are other equally important things such as health and safety, and the growing threat of mold, which after an alarming influx of lawsuits, became known as “the new asbestos.” Regardless, this is the reason my reports contained a great deal of information about mold and, also, clearly defined my responsibilities as a generalist as opposed to a specialist. Remember, it’s not enough to disclaim things just once in what some attorneys might dismiss as “boiler-plate” language. They must be addressed repeatedly and concisely in the reports to establish indisputable truths. An entire section of my reports was devoted to “health and safety.”
The importance of good communication
A report is all about communication between one human being and another. In fact, the word “communication” comes from a root word that means “to share.” I made a point of talking candidly with my clients before and after an inspection. I’d tell them of the pride I took in my work and not only of my intention to stand behind it, but to defend it fiercely and, finally, to represent them and only them in what was likely to have been one of the most expensive and intimate investments they’d ever made.
The different narrative types I’ve described made my reports quite lengthy, but my clients paid for a professional service, and deserved a comprehensive and educational report that would be hard to dispute even by an unscrupulous attorney. However, my report-writer did allow me to save space by summarizing “things” which, depending on their precise location, were rarely contentious and, which after a thorough inspection, met with my approval, such as living rooms, dining rooms, family rooms and bedrooms, although each type of room was preceded by an educational narrative. I never took the same option with kitchens and bathrooms, however, which can be dangerous places, and for which I wanted to test and comment on every single aspect. For example, if a tub or a tub/shower met with my approval, I selected a narrative such as the following:
The bathtub is functional but was not filled to the brim, which would be an irresponsible waste of water, and its overflow valve was not tested.
It’s all about the power of words and about a sincere desire to share, to communicate and to educate in the pursuit of truth.
The conclusion of the report
I ended all my reports with a letter to my clients, which was stored in my report-writer and printed it automatically. In the letter, I congratulated them on the purchase of their home, wished them health and happiness, and pledged to remain their consultant. I mentioned health and safety issues again, particularly those regarding small children, and I told them quite bluntly in advance that “roofs will leak, drain lines will become clogged, and components and systems will fail without warning.” Finally, I cautioned them to beware of anyone who uses inflammatory language or who defames inspectors, and about real estate agents who flaunt home protection policies while proclaiming: Don’t worry about a thing. If anything goes wrong, all you need to do is pay a small fee of $40 and they’ll come right out and fix it. If they can’t fix it, they’ll replace it.
Do you believe that? I never did and common sense tells us what’s more likely to happen.
You should always be prepared to defend your service, but to really appreciate what I mean about avoiding frivolous lawsuits, you’d need to see one of my illustrated full reports and its summary, and to take the time to not only read them, but to study them and ask questions. If we could share a computer screen, I’d show them to you. Perhaps we will someday share a screen because I’m considering offering seminars on avoiding lawsuits or perhaps conducting an online seminar if enough inspectors express an interest. In summary, it’s all about the power of words and about a sincere desire to share, to communicate and to educate in the pursuit of truth. Justice is merely an ideal, but it’s a noble one indeed.
I’m retired now, in Idaho, and spend time outside reading, listening to birds, and watching families of deer and wild turkeys as they forage. But for a few years, and in the pursuit of an ideal, I’ve also been working on inspection software with multiple “libraries.” So, if you want to talk about inspections and the way to avoid lawsuits, give me a call. However, my legal advice is given in the spirit of fraternity and has no authority. Always remember that justice is worth fighting for and, in the words of an ancient Asian proverb: “The feathers come first, then flight.”
The opinions expressed in this article are those of the author only and do not necessarily reflect the opinions or views of ASHI. The information contained in the article is general and readers should always independently verify for accuracy, completeness and reliability.
Keith Swift was born and raised in England and, after traveling through the Mideast and the Far East, he emigrated to the United States. He earned a doctorate in 1982 with a dissertation on the work of W.S. Merwin, who was appointed poet laureate in 2010 and died in March 2019. After teaching at California State University for a few years, Keith obtained a general contractor’s license, together with a certification in asbestos, and embarked on a career as a residential and commercial building inspector until retiring in 2016. He enjoys reading and writing and working with his hands, and sharing what he has learned with others. Contact him at Keithswift2@gmail.com