seller's disclosure statement/negligent inspector

[skijem]

Prior to purchasing our home, eight months ago, we hired an ASHI certified inspector to inspect a six year old home we were interested in purchasing. We met him at the property for the inspection. He never indicated that there was a problem with the roof. His report, sent later, states he walked on the roof and the overall condition of the roof, as well as the flashing fascia, soffit, gutters and downspouts, were listed as being satisfactory. The seller's disclosure statement says the roof has never been repaired or replaced and the roof never leaked. The seller's were the original and only owners. We have only lived in the home for 6 1/2 months and during a storm, last week, suffered substantial damage to our interior drywall and carpet. The room this happened in is an addition built by the seller 4 years ago. We have had several contractors look at the damage and all agreed that there is no doubt that the roof had experienced leaking in the past and they showed us were several attempts to repair (obvious patching) the roof had been made in the past. They also agreed that the inspector should have picked up on this because the roof is blatently defective, and because the downspouts, gutters, fascia and soffit were installed incorrectly. They also said there are so many problems with the structure that even if they would fix the roof, we would still experience leaking around the windows, etc. A few suggested that it would be easier to rip off everything and start over than to patch and keep patching all the areas that are collecting water and entering the home. They also found exposed rotted wood on the ground against the house that is part of the same structure. I called an impartial ASHI inspector to the home to see if he could detect the problems. After coming from the roof, he said that the past leaking is evident by the repairs and the kind of repairs they made (exactly where our leaking occured). He said that any inspector should have noticed how poorly this addition was built including the shingles not even being placed correctly, exposed wood and nails, etc. I called the original inspector to come back and look at the roof. He stated he still saw no problem with it and also made the comment that if he were to point out every problem that may leak, the realtors would be angry at him for breaking up deals and he would be out of business. Our realtor, who was a buyer's agent, said there was not much he could do to help us. We have lost our insurance coverage for this room, until the roof is replaced, and the ins. co. will only pay for the interior damage because the roof was not damaged by the storm but was defective. Basically, we're looking at receiving, after our deductible, about $800.00 plus dollars for a project temporarily estimated to run well over $8,000.00. This small amount of money won't even begin to cover all the inside damage. Who are we most likely to recover from, the incompetent inspector, the deceitful seller's, both or nobody. The inspector has a limitation clause that states that refund will be limited to the cost of the inspection, $220.00, if the client is not satisfied with the inspection. Is there a difference in not being satisfied and the inspector, according to several contractors and the ins. adjuster,
being negligent? If we had known of a problem or potential problem on the roof, we would have had a contractor out to estimate the repair cost and offered the seller's less money. As a result of the seller's dishonesty and negligence of the inspector, we are left with having all these additional costs and having paid the full amount of the house the seller's listed it for. This doesn't make us happy given there were anticipated expenses we let slide and paid for already, like $4,000.00 in new carpeting to replace the indoor/outdoor they previously had in. Personally, even if we would win in small claims, against the seller's, I don't think we'll ever see the money. Any help would be appreciated.

 

[HomeGuru]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by skijem:
Prior to purchasing our home, eight months ago, we hired an ASHI certified inspector to inspect a six year old home we were interested in purchasing. We met him at the property for the inspection. He never indicated that there was a problem with the roof. His report, sent later, states he walked on the roof and the overall condition of the roof, as well as the flashing fascia, soffit, gutters and downspouts, were listed as being satisfactory. The seller's disclosure statement says the roof has never been repaired or replaced and the roof never leaked. The seller's were the original and only owners. We have only lived in the home for 6 1/2 months and during a storm, last week, suffered substantial damage to our interior drywall and carpet. The room this happened in is an addition built by the seller 4 years ago. We have had several contractors look at the damage and all agreed that there is no doubt that the roof had experienced leaking in the past and they showed us were several attempts to repair (obvious patching) the roof had been made in the past. They also agreed that the inspector should have picked up on this because the roof is blatently defective, and because the downspouts, gutters, fascia and soffit were installed incorrectly. They also said there are so many problems with the structure that even if they would fix the roof, we would still experience leaking around the windows, etc. A few suggested that it would be easier to rip off everything and start over than to patch and keep patching all the areas that are collecting water and entering the home. They also found exposed rotted wood on the ground against the house that is part of the same structure. I called an impartial ASHI inspector to the home to see if he could detect the problems. After coming from the roof, he said that the past leaking is evident by the repairs and the kind of repairs they made (exactly where our leaking occured). He said that any inspector should have noticed how poorly this addition was built including the shingles not even being placed correctly, exposed wood and nails, etc. I called the original inspector to come back and look at the roof. He stated he still saw no problem with it and also made the comment that if he were to point out every problem that may leak, the realtors would be angry at him for breaking up deals and he would be out of business. Our realtor, who was a buyer's agent, said there was not much he could do to help us. We have lost our insurance coverage for this room, until the roof is replaced, and the ins. co. will only pay for the interior damage because the roof was not damaged by the storm but was defective. Basically, we're looking at receiving, after our deductible, about $800.00 plus dollars for a project temporarily estimated to run well over $8,000.00. This small amount of money won't even begin to cover all the inside damage. Who are we most likely to recover from, the incompetent inspector, the deceitful seller's, both or nobody. The inspector has a limitation clause that states that refund will be limited to the cost of the inspection, $220.00, if the client is not satisfied with the inspection. Is there a difference in not being satisfied and the inspector, according to several contractors and the ins. adjuster,
being negligent? If we had known of a problem or potential problem on the roof, we would have had a contractor out to estimate the repair cost and offered the seller's less money. As a result of the seller's dishonesty and negligence of the inspector, we are left with having all these additional costs and having paid the full amount of the house the seller's listed it for. This doesn't make us happy given there were anticipated expenses we let slide and paid for already, like $4,000.00 in new carpeting to replace the indoor/outdoor they previously had in. Personally, even if we would win in small claims, against the seller's, I don't think we'll ever see the money. Any help would be appreciated.<HR></BLOCKQUOTE>

You have 2 claims with respect to the roof problems:

1) against the Seller for misrepresentation as to the condition of the roof.

2) against the ASHi home inspector for completing a home inspection that was substandard and inferior to the ASHI Standards of Practice.

You need to hire an experienced real estate attorney to file a complaint against the parties as this is not a small claims action. A good attorney will know how to go after the inspectors' errors and ommissions insurance (if he has any) and sidestep the limit of liability clause.

You may consider getting another home inspection done for peace of mind due to the incompetence of the first inspector. You should file a complaint with the ASHI local/State chapter and the State if there is a home inspection license required. The home inspector is working for you the buyer and is required to conduct a complete inspection pursuant to the ASHI Standards of Practice and Code of Ethics. And report ALL findings to the Buyer as the client. The inspector should not be concerned with what the Realtor thinks, killng the deal and/or losing jobs from the Realtor. The home inspectors main objective is to do the best job possible for the buyer client and not worry about appeasing the Realtor to possibly get future home inspection jobs. This inspector clearly lacks competence in the industry, lacks professionalism and his attitude clearly sucks.

 

[skijem]

Thank you very much for your help and time. I am impressed that one would offer their services in this manner. I have enjoyed reading many of the other messages posted. Although unfortunate, it's good to know that I'm not alone in misery.

 

[hopeful]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by skijem:
Thank you very much for your help and time. I am impressed that one would offer their services in this manner. I have enjoyed reading many of the other messages posted. Although unfortunate, it's good to know that I'm not alone in misery.

<HR></BLOCKQUOTE>
One thing I will point out, an inspector is not there to point out installation problems, in fact our bylaws require that we only write up items that are performing or not performing their function. A gutter could be improperly installed but still be performing its function. A roof could be put on wrong but as long as its not leaking, its performing its function. Our contract for buyers clearly states that we do not check for installation or warranty of an item. Now evidence of a leaking roof is another matter. If the inspector had access to the attic and could CLEARLY see into the areas that were leaking and evidence of water penetration, then he should have written that up.

 

[HomeGuru]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by hopeful:

Originally posted by skijem:
Thank you very much for your help and time. I am impressed that one would offer their services in this manner. I have enjoyed reading many of the other messages posted. Although unfortunate, it's good to know that I'm not alone in misery.

<HR></BLOCKQUOTE>
One thing I will point out, an inspector is not there to point out installation problems, in fact our bylaws require that we only write up items that are performing or not performing their function. A gutter could be improperly installed but still be performing its function. A roof could be put on wrong but as long as its not leaking, its performing its function. Our contract for buyers clearly states that we do not check for installation or warranty of an item. Now evidence of a leaking roof is another matter. If the inspector had access to the attic and could CLEARLY see into the areas that were leaking and evidence of water penetration, then he should have written that up.

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Response By HomeGuru:
The HomeGuru talked about home inspection Standards of Practice and not By-Laws. www.ashi.com Home inspectors should point out installation problems and not just items performing or not performing.
Not identifying defective and faulty installation of components would be a service failure to the homebuyer. A roof not leaking but installed improperly and therefore will cause a leak, will be a future problem that the buyer could ask the Seller to fix. A firewall functions, but if not installed and terminated corectly will be a problem if there is a fire due to the compromised condition of the fire rating. Old galvanized pipes may work and the inspector should not only report that the pipes are working but that due to the age, there may be corosion on the interior of the pipes and therefore cause restriction of the water flow, aluminum wiring may function but the inspector should let the Buyer know the history of, and problems with this type of wiring, double-lugging of a nonlisted circuit breaker in which the breaker functions: only an incompetent home inspector would accept the functionality without disclosing that the circuit breaker is not listed for a connection of more than one wire etc.

If you take one single component such as the roof, it is obvious that inspecting for proper installation is one of the major factors of the inspection. Just noting the type of roof, sheathing and roofing material is not sufficient. Roof framing, sheathing, roof covering, flashing, skylights, roof penetrations etc. should all be inspected for proper installation as well as age, general condition and defects.

While it is not the home inspector's reponsibility to inspect the components to verify if any item was installed in accordance with the manufacturers specifications and warranties, confirmation that the item was NOT installed pursuant to generally acceptable industry standards would be the information that the Buyer would need for property condition due diligence.

[This message has been edited by HomeGuru (edited July 07, 2000).]

 

[skijem]

Thank you Hopeful for your input. I take it you are an inspector. I would like to ask you a few questions.

1. How would you know if an improperly installed gutter is performing its function unless it were raining at the time of inspection?

2. If you don't know, what basis would you have to write in a report that the gutters are "satisfactory."

3. If your job is not to report to the potential buyers that the gutters, etc. are not installed correctly, what good are you?

Let's face it, I can see for myself there's a roof and gutter out there. I hired and paid an inspector for his exptertise to discover and report defects to me, not assume the defects are not leaking. If an inspector is going to assume, then I think he has an obligation to his client to err on the safe side and report his findings, not assume it's functioning or "satisfactory."

The room that is defective is an addition to our family room and does not have an attic over it. The defects and evidence of previous leaking were right before this inspector's eyes and he didn't report this.
The contractors who came out to look at the damage pointed out the patching in several places that were attempts to stop leaks in the past.

To sum this up: If an inspector walks on a roof and sees patches from previous leaks, exposed nails, extensive caulking and ill fitting pieces and chooses to discount it by not saying anything then I would say the inspection was worse than worthless. I paid and relied on his "professional" opinion to safeguard the biggest purchase I'll ever make in my life.

 

[HomeGuru]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by skijem:
Thank you Hopeful for your input. I take it you are an inspector. I would like to ask you a few questions.

1. How would you know if an improperly installed gutter is performing its function unless it were raining at the time of inspection?

2. If you don't know, what basis would you have to write in a report that the gutters are "satisfactory."

3. If your job is not to report to the potential buyers that the gutters, etc. are not installed correctly, what good are you?

Let's face it, I can see for myself there's a roof and gutter out there. I hired and paid an inspector for his exptertise to discover and report defects to me, not assume the defects are not leaking. If an inspector is going to assume, then I think he has an obligation to his client to err on the safe side and report his findings, not assume it's functioning or "satisfactory."

The room that is defective is an addition to our family room and does not have an attic over it. The defects and evidence of previous leaking were right before this inspector's eyes and he didn't report this.
The contractors who came out to look at the damage pointed out the patching in several places that were attempts to stop leaks in the past.

To sum this up: If an inspector walks on a roof and sees patches from previous leaks, exposed nails, extensive caulking and ill fitting pieces and chooses to discount it by not saying anything then I would say the inspection was worse than worthless. I paid and relied on his "professional" opinion to safeguard the biggest purchase I'll ever make in my life.<HR></BLOCKQUOTE>

*************************************
My response:

1. the true performance would of course be for the inspector to witness the gutter functioning during heavy rain, but absent that, it would be the inspectors judgement based on the quality of installation by inspecting the troughs, joint connections, downspouts and observing the condition of the gutters from the ground and the roof. If one of the troughs say were sloped incorrectly, it would not function properly and this condition must be reported on the inspection report.

2. the report that stated that this component was rated as Satisfactory was probably based on the inspectors opinion of the condition as noted and not based on a satisfactory function of the component as tested, because the component was not tested.

3. precisely my point. Especially in a situation where there is no real test completed to determine the true functionality of this component, it is even more imperative that the inspector observe the component to determine if the item inspected was installed properly.

You have raised a valid argument and I agree with you. In your situation, the inspector was required by ASHI Standards of Practice to report the actual condition of the roof and also to recommend to you as the Buyer, to hire a licensed roofing contractor for further evaluation.

From the information that you have provided, this inspector not only has a bad attitude and a conflict of interest, but did not inspect your home following the ASHI Standards of Practice and Code of Ethics. Since the inspector appears to have allegiance with the real estate agent, this agent needs to be informed of your problem. If your agent referred this inspector to you, the agent may have third party liability.

 

[skijem]

Thank you for your previous help. I have been researching Pennsylvania case law regarding these issues and I am confused on some topics.

1. If I were to sue the previous homeowners for fraud/misrepresentation, there seems to be a loop hole in the law that allows the seller's to lie on the disclosure form if they don't overtly hide the defect they're lying about. Ex: Seller's state on disclosure form that the roof never leaked and they never repaired the roof. The roof has been proven to have been repaired due to past water leaks. No problem, right? Wrong...the law can be construed to say
(and it has been successfully argued) that the sellers are not guilty of fraud/misrepresentation because the patches on the roof were visible and therefore not concealed and the inspector and/or Buyer should have noted this. It doesn't seem logical that just because the inspector didn't do his job that the sellers got away with fraud and the full purchase price. I am concerned with the expense of litigation when the law appears to be in favor of fraud. Basically, if you have a defect and it's out in the open, then it doesn't matter what seller states on disclosure.

Question: Is there any way to get around the argument that the sellers do not have to reveal on the disclosure statement any defect that is visibly obvious? Is there any law that provides for recovery of attorney fees/expenses and other legal costs (witnesses, etc.)? All consumer type law appears to be aimed at merchants rather than private party sales.

2. The pre-inspection agreement we signed states that any dispute relating to this agreement shall be submitted to final and binding arbitration under the rules of the Construction Arbitration Service.

Question: If the inspector breached his contract by not following the ASHI guidelines and did not report the defects, are we still obligated to go to Arbitration under this breached contract? Again, is there any relief for the Buyers to recover legal fees and costs?

After much investigation into this, it appears that I may spend close to, if not more than, the amount I would expect to recover in pursueing these people. I don't want to spend X dollars to recover X dollars. This is a practical attempt to recover the money necessary to put our room back to the condition in which it was represented to be in 6 1/2 months ago.

At this point, it almost seems like the only way to get back what I lost is to pursue this on my own. Not to whine about it, but it comes down to the sad realization that this is why people screw other people. Even if you win, you still lose because the fraudulent and/or negligent parties are not required to reimburse you for legal expenses.

Thank you for any advise on any avenues that open up the chance for recovery of legal fees. Also, if I am incorrect on the above issues of seller's liability, I'd appreciate any new case laws I can review.

 

[HomeGuru]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by skijem:
Thank you for your previous help. I have been researching Pennsylvania case law regarding these issues and I am confused on some topics.

1. If I were to sue the previous homeowners for fraud/misrepresentation, there seems to be a loop hole in the law that allows the seller's to lie on the disclosure form if they don't overtly hide the defect they're lying about. Ex: Seller's state on disclosure form that the roof never leaked and they never repaired the roof. The roof has been proven to have been repaired due to past water leaks. No problem, right? Wrong...the law can be construed to say
(and it has been successfully argued) that the sellers are not guilty of fraud/misrepresentation because the patches on the roof were visible and therefore not concealed and the inspector and/or Buyer should have noted this. It doesn't seem logical that just because the inspector didn't do his job that the sellers got away with fraud and the full purchase price. I am concerned with the expense of litigation when the law appears to be in favor of fraud. Basically, if you have a defect and it's out in the open, then it doesn't matter what seller states on disclosure.

HomeGuru response: the PA disclosure law indeed does have some loopholes, but was not created to protect the Seller and allow the Seller to lie and get awa with it.

Question: Is there any way to get around the argument that the sellers do not have to reveal on the disclosure statement any defect that is visibly obvious? Is there any law that provides for recovery of attorney fees/expenses and other legal costs (witnesses, etc.)? All consumer type law appears to be aimed at merchants rather than private party sales.

2. The pre-inspection agreement we signed states that any dispute relating to this agreement shall be submitted to final and binding arbitration under the rules of the Construction Arbitration Service.

Question: If the inspector breached his contract by not following the ASHI guidelines and did not report the defects, are we still obligated to go to Arbitration under this breached contract? Again, is there any relief for the Buyers to recover legal fees and costs?

HomeGuru response: the binding arbitration clause makes you obligated to arbitration unless a good attorney can argue against it. It would depend on the arbitrators decision as to what party pays for legal fees and costs.


After much investigation into this, it appears that I may spend close to, if not more than, the amount I would expect to recover in pursueing these people. I don't want to spend X dollars to recover X dollars. This is a practical attempt to recover the money necessary to put our room back to the condition in which it was represented to be in 6 1/2 months ago.

At this point, it almost seems like the only way to get back what I lost is to pursue this on my own. Not to whine about it, but it comes down to the sad realization that this is why people screw other people. Even if you win, you still lose because the fraudulent and/or negligent parties are not required to reimburse you for legal expenses.


HomeGuru response: you hit the roofing nail on the head. Even if you win, you lose.


Thank you for any advise on any avenues that open up the chance for recovery of legal fees. Also, if I am incorrect on the above issues of seller's liability, I'd appreciate any new case laws I can review.<HR></BLOCKQUOTE>

 

[skijem]

Thanks Homeguru for your answers. Sad, but true, I think it is better to sink my money into getting this room rebuilt than legal expenses and other costs to pursue this. I will have to look at this as a bad learning experience. While I save for a new room, I will continue to stand in awe of my newly inherited "Japanese waterfall" located in the family room. The sellers proclaimed to be devout Christians. (LOL) I guess the only thing that would make this more "comical" is if Jesus Christ, himself, would appear under that waterfall proclaiming, "this was meant to be." You know, before this happened, I was also thinking of putting a fish pond inside that room. To look on the bright side, I can probably throw some cement down and get free pond water and a non-electrical waterfall. Maybe I'll stick a palm tree or two in there as well, just for fun.

Thank you for your help and time with this matter. I think I've come to my conclusion:

case closed.

 

[HomeGuru]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by skijem:
Thanks Homeguru for your answers. Sad, but true, I think it is better to sink my money into getting this room rebuilt than legal expenses and other costs to pursue this. I will have to look at this as a bad learning experience. While I save for a new room, I will continue to stand in awe of my newly inherited "Japanese waterfall" located in the family room. The sellers proclaimed to be devout Christians. (LOL) I guess the only thing that would make this more "comical" is if Jesus Christ, himself, would appear under that waterfall proclaiming, "this was meant to be." You know, before this happened, I was also thinking of putting a fish pond inside that room. To look on the bright side, I can probably throw some cement down and get free pond water and a non-electrical waterfall. Maybe I'll stick a palm tree or two in there as well, just for fun.

Thank you for your help and time with this matter. I think I've come to my conclusion:

case closed.<HR></BLOCKQUOTE>

Although you have closed the case mainly with respect to going after the Seller for nondisclosure, I would still encourage you to file complaints against the home inspector. Notwithstanding the binding arbitration clause in the home inspection agreement, you are free to file a complaint with the BBB, local and national ASHI chapters, State home inspector licensing/certification department (if home inspectors are regulated in your State) etc. If the home inspector is a member of any other associations, complain to these organizations also. Some home inspectors belong to the local home inspection association, local Board of Realtors, contractors and building associations etc.

I hope you do not have to use bucket # 17. There are various types of roofing materials for flat roofs that work. Select a good proven product and a reputable roofing contractor. Good luck and until the new roof is completed, enjoy the indoor waterfall.