CONNECTING YOUR REPORT TO THE LAW
Most home inspectors I represent in legal matters have a fantastic working knowledge of the standards of practice applicable to their work. Some can recite it chapter and verse, while others can articulate it in their own words. Overall an inspector’s knowledge of the applicable standards usually is not an issue in dispute in any of the lawsuits where I am called upon to represent the home inspector. The incorporation of those standards, particularly in report writing, is critical to giving your client an understanding of how you do your job. Perhaps just as importantly, incorporating the standards can also eliminate ambiguity and confusion should you ever find yourself called to court to defend your actions.
Home inspection standards of practice can vary from state to state and from national organization to national organization. States fall into one of three categories in terms of how home inspectors are governed: regulated; hybrid and non-regulated. Regulated states are those that have a full set of standards of practice incorporated in a law or administrative code that detail how home inspections are to be performed and defines the terms surrounding the service. Most laws are modeled in some respect on national association standards of practice. Hybrid states are those that have some form of law or regulation “on the books” but it does not include a specified set of standards of practice, instead allowing the inspector to use the standards of a nationally accepted organization. Non-regulated states are simply those with no legal requirements for inspectors.
Regulated states often provide specific definitions for what constitutes a home inspection, what systems and components must be inspected, what must be described, what is excluded and what constitutes a reportable defect. It is critical that inspectors in regulated states be familiar with those regulations. However, in many cases I find that when I review the inspection contracts and reports provided to a client I see none of that terminology or regulation incorporated into the documents. Instead I see contracts that speak to a national association’s standards which have not been adopted by that state. I see reports that, instead of using the state mandated definition of a “defect”, use multiple categories of “issues” or “major defects” or “safety issues”, some or all of which might be reportable defects under that state’s law. This blurring of what is required by law causes confusion and ambiguity.
Many of the lawsuits against home inspectors that end up on my desk involve some allegation of confusion by the client caused by the contents of the report. Many times the confusion relates to how the inspector categorized the possible reportable defect. I have seen many instances where an inspection report that incorporates multiple tiers of definitions defects creates confusion as to what defects need to be addressed prior to the close of the real estate transaction. Rather than muddying the waters, why not simply use the terms your state is requiring you to use when you do your inspection? If your state defines what you are there to report on as a “material defect”, then gives you a definition of what that means, why not just use that definition to explain your findings to your client? This simple nuance in how you communicate your findings can eliminate a plaintiff’s ability to say they were confused by what you were telling them about the house and what they should do in response to that information.
Better still, when this method is incorporated it is easier to defend the content of the report in court before a jury or a judge. When the judge gives the jury the law to be applied to a case at the close of the trial, the judge will provide the jurors with those definitions adopted by the state in its home inspector regulations. When I can argue to that jury that you followed the applicable standards, and use how you report items as an example of that adherence, it shows that jury that you are knowledgeable about the standards applicable to your profession and that you discharged your duty to your client as required.
Incorporating the laws of a hybrid state to your report writing is a bit more difficult, but still attainable. Most hybrid states have definitions of home inspections, reportable defects, prohibited practices and what must be addressed in the inspection report, but lack a uniform set of standards of practice. Here the inspector can use national association standards of his or her choosing. Using the state provided definitions is still a good practice in a hybrid state, as the law the court applies to your inspection will still be provided to a jury at the close of a trial. The gaps in the law are filled in using the national association standards. You can modify your report format to add the state definitions and incorporate the standards you use to make the report easier to understand and correlate to the law.
In non-regulated states inspectors should look to their association standards for all of the terms and procedures used to report the results of the inspection. A jury in a trial in a non-regulated state will be permitted to consider the national association standards you used to determine whether you discharged your duty to your client appropriately. Matching your report format with the standards you use serves the same purpose as using state provided standards in your report.
I often tell my home inspector clients that they are not just professional home inspectors. They are also professional communicators. You can be a great home inspector, but if you cannot clearly and adequately communicate your findings you simply are not doing your job very well. Taking advantage of the resources like your state law or association standards can greatly reduce the chance of confusion on the part of your clients and provide proof to a judge or jury that you performed your service according to the required or generally accepted methods.