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  • Writer's pictureJohnson & Johnson Law

Done That: Our Home Inspection Malpractice Cases by Subject Matter

Updated: Aug 1, 2018

So how exactly did our practice come to emphasize consumer-side litigation against home inspectors? Well, there are a lot of reasons. In no particular order: (1) the Montana home inspection profession is completely unregulated, and regularly harms Montanans; (2) many Montana "home inspectors" lack training, education, or experience; (3) Montana home inspectors utilize limitation-of-damages clauses that purport to restrict your recoverable damages, no matter how large they might be, to the cost of inspection; and (4) as a profession, they're utterly lacking in bedside manner when it comes to admitting a mistake (expect that offense will be taken for having pointed out the error). And yes, of course we're painting with a broad brush here. We'll call it a "limited visual inspection" of the profession.

We've handled myriad home inspection claims and in 2015 tried Cause No. DV-14-257 (Fourth Jud. Dist.), obtaining a $300,000 jury verdict -- the largest-ever jury verdict under the Montana Home Inspection Trade Practices Act (the case settled confidentially after we filed our motion and brief for fees and treble damages under the Montana Consumer Protection Act). Here's a sampling of the subject matter we've dealt with in bringing home inspection cases and claims on behalf of our clients:

  • Roofing problems. Roofing problems typically involve the failure to identify the absence of flashing at roof penetrations, nail penetrations into the roof, and roofing beyond its useful life.

  • Structural problems (in many shapes and sizes). The structural problems we’ve seen and litigated include the failure to call out: (1) differential settlement, which often involves foundation cracking and displacement and soils subsidence, and often corresponds with out-of-plumb doors and windows and sloping floors; (2) compromised structural building materials, such as missing headers, over-cut joists, over-shimmed beams, dramatically-undersized supports and beams, and wood rot; and (3) bowed walls or compromised mechanical pits.

  • Evidence of prior water penetration. Water is a huge concern, and oftentimes, not a one-time-thing. The missed evidence we've encountered includes wood discoloration, rot, efflorescence (often seen as three-dimensional, white/chalky residue at sites subject to prior water penetration), rusted foundation metal, rust weep, and water wicking and staining on interior drywall.

  • Failure to thoroughly inspect (and report). Many inspectors, particularly those with a lot of experience, start to believe that they've "seen it all" and know where to look. This results in cut corners and the failure to visualize all components and systems called out for inspection. We've seen basement inspections conducted without activating overhead lighting, inspectors merely poking their heads through attic access points without disclosing that they'd never actually entered the space, the failure to inspect accessible crawlspace areas, and inspectors failing to note what they've left uninspected (which, unfortunately, makes it seem as though they inspected and found nothing).

  • Drainage and grading problems. Many inspectors will give you a "thumbs up" on grading and drainage even if the house sits at the bottom of a steep slope. Water always flows downhill. If that “downhill” runs away from your foundation walls, you’ve got “positive” drainage, meaning that water is being properly redirected. If there is no slope you own “neutral” drainage, which needs to be corrected. If the “downhill” runs towards the foundation walls this is a “negative” drainage situation that redirects exterior moisture to the foundation walls and promotes degradation of concrete, water penetration, erosion, and potential structural problems not to mention the havoc water creates once it finds its way inside with mold and water loss. More than once we've seen an inspector fail to connect the dots between exterior grading and drainage problems and evidence of interior water intrusion.

  • Mold. Most inspection agreements and standards of practice exclude mold testing but if an inspector actually observes evidence of potential mold, they need to call it out as a potential issue and recommend follow up. Many inspectors ignore visible mold because it falls “outside the scope” of their inspection. Make certain to confirm that your inspector will alert you to potential microbial growth if he or she encounters it.

Really, there's no shortage of bad home inspectors. BUT as we've repeatedly stated, good ones do exist. Do your homework and inspect your inspector. Check his or her online presence and reviews but do not rely exclusively on advertising – the industry is unregulated and full of incompetent inspectors who claim to be “the best.” Then interview your inspector and find out what level of experience he or she actually possesses. Are they a certified inspector? Who is the accrediting organization and what's required to become certified? Did they obtain hands-on training or just get a piece of paper from the internet? And perhaps most importantly, DO YOU HAVE INSURANCE? We can help once you've had a bad home inspection, but only you (and your realtor) can avoid inspectors who have no business being hired in the first place.

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