Theories, The Truth, Disclaimers, And Avoiding Litigation

The home inspection process is one of the few occupations where the professional

inspector purposely places himself/herself between a rock and a hard place. Think about it for a moment. There are pressures from all sides. The client expects a top-notch inspection, even though the inspector has no history of the property about to be inspected. The seller may have done their very best to try and conceal any or all defects, including recent repairs. The Inspector does not possess x-ray vision. The length of the inspection is somewhat limited and the reality of how much is being charged for the service also comes into play. The client is generally nervous and may not be paying attention to everything you say or even write; which may cause a problem if there is a difference in opinion. The realtor may have referred you and wants everything to go smoothly. The sellers agent is constantly looking at their watch, wanting the inspection to be over. They may even be talking to the buyers agent and client during the process. Your reputation is on the line, along with the realities that come along if you market to realtors in the first place. Yes, a rock and a hard place.

Most experienced inspectors are used to this pressure cooker. You manage by doing the very best inspection you can, communicating effectively with your client, recognizing those defects you have found, and being the leader all through the inspection process.

More than this, the inspector needs to understand the pitfalls they face. There are typically lawyers involved all along the process. From a legal standpoint, the client already has counsel familiar with the property, the players, the process, and your report.

Your state may complicate the process, by having laws on the books, which extend the length of time that an inspector is liable for something missed during the inspection. It may have clauses, which specifically prohibit any limitations of liability, whether negotiated equally or not. Your own inspection agreement may have clauses in it, which though legal, may be deemed as unenforceable.

There are many legal theories, which surround inspection agreements, and the inspection process itself. Every jurisdiction is different, and every situation is unique. For these reasons, its always advisable to seek legal counsel for legal matters.

Some basic things to remember start with truth in advertising. That is, the need to always be truthful, regarding your services and qualifications. Also, vague wording and unsubstantiated claims can come back to bite you in the end. Be careful with the claims, especially on your website. Disclaimers are also something to be careful with. While some disclaimers are useful others may be viewed as unconscionable. It is virtually impossible to disclaim everything.

Useful tools in avoiding litigation include mediation and arbitration. Any judge will tell you that he or she would rather have the sides settle out of court, rather than clog the court calendar. This is what settlement conferences are all about. But what if there was a way to avoid the lawyers, and the courts altogether. If one thinks about it, prior to a trial beginning, the judge may direct the plaintiff and defendant to sit down and try, one last time, to work things out. This resembles mediation, in that both sides sit with their attorneys and try and reach an amicable settlement.

by: jfarsetta

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