More on Inspections

by James L. Goldsmith
December 2023

In a previous article, I discussed much of the inspection process including timeliness, renegotiating the agreement as a result of inspection findings, who should repair and use of the Reply to Inspections/Reports or Written Corrective Proposal. This article picks up with a discussion of advanced and/or interesting issues that pertain to inspections.

Can you prevent a buyer from using any particular inspector(s)? Some inspectors get a bad rap, deservedly or not. Listing agents often get to know the inspectors reputed to do “substandard” work or who always seem to find problems that don’t exist. Sellers have a right to limit who enters their property, and that includes inspectors. If a seller has a reason to disallow entry to any particular inspector, or if the listing agent suggests disallowing inspectors, that should be part of the agreement: “The following inspectors and inspectors from the following companies may not be present on seller’s property and may not perform inspections otherwise permitted under the terms of this agreement.” I’m not suggesting that this is a good idea, but if there is a legitimate reason to exclude someone, this is a way to do it.

A word of caution: Neither seller nor the listing agent should ever articulate the reasons for excluding a particular inspector. I once represented a listed agent who answered such a question by stating that the disallowed inspector was not capable nor qualified etc. The inspector then brought a defamation suit against the listing agent! It would have been sufficient to merely state that the seller has made the decision and that there will be no discussion about it. Keep in mind that disallowing anyone selected by the buyer to perform a task creates suspicion. Act judiciously.

Here is a question that came up frequently in the early days of our recent sellers’ market: Can I sneak my inspector into the home without electing an inspection contingency? I took a call from a home inspector several years ago when the market was very much favoring sellers and when the fear of Covid exposure put a damper on inspections. Buyers were worried that an offer with an inspection contingency would lose out to an offer without one, and overnight the ubiquitous home inspection was a near relic. The inspector wanted to know if he could redirect his business practice to one that had him accompany families on their initial tour of a home where he would take notes and give an opinion. A trained eye is better than going blind or nearly so. He wondered if he had to announce his presence as an inspector or merely blend in with the family (old Uncle Harry).

You may be thinking that the Agreement of Sale limits who may enter the home pre-settlement…assuming you are using a standard form. But, since we are talking about a pre- agreement visit, there is no such limitation, at least not by contract. A lie is a lie, however, and if there is misrepresentation, the buyer agent may face a violation of the Code of Ethics. I think the better approach is to ask for permission. A seller and his agent may reason that a buyer looking and walking away is better than a buyer looking, negotiating an agreement of sale, and then walking away from the property. Anyway, it is worth asking whether an inspector can accompany a buyer on the initial visit.

Another question is what gets inspected when a contingency is elected? Read the agreement of sale. The general home inspection is pretty much wide open to the property’s structural components. However, one should not assume that outbuildings are included. The better practice is to agree in writing that the inspection will extend to outbuildings, fences or whatever it may be that the buyer seeks to have examined.

How invasive may the inspection be? The agreement, of course, controls. Generally, it is best to assume that unless otherwise agreed in writing, inspections are non-invasive, meaning that framing, cove or other molding and the like are not to be removed, nor holes poked in surfaces (a camera poked through a sewer lateral is not what I would consider “invasive” until a court tells me otherwise).

As always, keep your cards and letters coming. I would like to hear what inspection issues you have had and should I use them here, I’ll change the names to protect the innocent, and guilty

Mr. Goldsmith is an attorney with Mette, Evans & Woodside and serves as outside legal counsel to PAR. A substantial portion of his practice is dedicated to providing advice and counsel to real estate licensees. He and his firm represent and defend real estate salespersons and brokers in civil lawsuits and licensing claims across the Commonwealth. Jim also defends Realtors® in disciplinary hearings conducted by the Real Estate Commission. Jim was one of the voices of the PAR Legal Hotline for the first 27 years following its inception in 1992.

Share this page: