House Detective

The House Detective by Barry Stone, Certified Building Inspector

Dear Barry: I’ve been a Realtor for over 10 years and am a strong believer in home inspections. But recently, I had a situation with another agent who does not share my view. This agent represented a buyer for one of my listings, and the three of us were together at the property. The buyer had waived the right to a home inspection in the purchase contract. So I asked her, “Are you sure you don’t want a home inspection?” A few minutes later, the agent cornered me in another room and said, “Don’t you ever say that to one of my clients again!” She was visibly angry and let me know that home inspections create nothing but trouble. She said it was up to buyers to beware when buying a property. I can’t believe there are still agents who think like this and would appreciate your comments. Catherine

Dear Catherine: It is difficult to believe that an agent today could hold such long outdated views. Since the late 1980s, home inspections have been the focus of articles and seminars by the National Association of Realtors and by many of the state regulatory agencies that license real estate professionals. Home inspections have been promoted as an essential component of residential purchase transactions. The emphasis on legal liability, codes of ethics, and the need for disclosure has been unrelenting. Yet some agents remain unconvinced.

When agents advise their clients to forego a home inspection, the problem is two-fold: First is the issue of professional ethics. Some agents argue that they are not required to protect the interests of their buyers because sellers pay their commissions. That is a separate legal issue. Advising buyers to protect their financial interests is simply the right thing to do. It is the way that each of us wants to be treated in business. Agents who advise against home inspections should consider how the picture would look if they were the buyers and were being misled in this way.

For those who are not persuaded by moral arguments, there is a good selfish reason to recommend home inspections: the avoidance of liability. When undisclosed defects are discovered after the close of escrow, financial claims and lawsuits can result. A thorough home inspection reduces the likelihood of this kind of liability. Realtors who have no interest in protecting their buyers should consider this for their own financial wellbeing.

As for the “buyer beware” cliché — it is outmoded and unjustified. In essence, it declares that “I, your agent, am here strictly for the commission check. It is your job, as buyers, to protect your own interests; so don’t look to me for assistance in that pursuit. I’ll smile warmly, shake your hand, and give every outward appearance of working on your behalf, but as far as I’m concerned, you are totally on your own. If you discover major defects after the close of escrow, don’t call me. It’s not my problem. It was your choice not to hire a home inspector. Never mind that I advised you to make that choice.”

In another respect, however, the “buyer beware” policy has some validity. It should be invoked as a warning to beware of agents who say, “buyer beware.” Whether they realize it or not, they are jeopardizing the financial interests of their clients while exposing themselves to possible litigation.

The House Detective by Barry Stone, Certified Building Inspector

Dear Barry: I’ve been a Realtor for less than a year. As a new agent, my biggest concern is liability and lawsuits for undisclosed property defects. When I studied for my real estate license, much was said about the risks of nondisclosure. They taught us about disclosure forms, the kinds of things we should disclose, the importance of home inspections, and much more. What advice would you give a new agent regarding disclosure? Bob

Dear Bob: As they told you in real estate school, disclosure has become the central aspect of the realty profession. As you apply those teachings, remember that defect disclosure has two essential components; reducing liability (the legal component) and representing the interests of clients (the ethical component). Unfortunately, there is too much emphasis on the first of these principles, at the expense of the other. Many agents cover the legal bases and perform the recommended procedures for avoiding liability, but without a full commitment to the basic idea of maximizing disclosure to homebuyers.

Articles in Realtor magazines often address this important subject, but they focus primarily on the legal approach, rather than the ethical one. For example, articles encourage agents to recommend home inspections in general, but warn them not to suggest a particular inspector. The gist of this advice is to avoid liability for a faulty home inspection. Instead of choosing an inspector for their clients, agents are advised to provide a list of inspectors from which clients can make their own choice. In theory, this relieves the agent of liability if the inspector does a poor job. If a major defect is overlooked, it is the client, not the agent, who chose the inspector. From a legal perspective, there is some wisdom in this prescription, but an essential element is missing.

Absent from this approach is the suggestion that referral lists should contain only the most qualified, most experienced, most thorough home inspectors available. The emphasis is on the legal aspect of liability, rather than the ethics of promoting top-level disclosure. This is why novice home inspectors, regardless of inexperience, are often named on these referral lists.

Most agents are familiar with local home inspectors and know who among them are the most qualified and thorough. Agents who are truly ethical and prudent gravitate to the best home inspectors and bravely recommend them to their clients. Agents who are fearful of detailed inspections often mislabel the best home inspectors as “deal breakers” or “deal killers.” This is a grave ethical error. By withholding the names of those inspectors from their clients, they are as guilty of nondisclosure as someone who hides a cracked foundation or a leaky roof.

The full answer to disclosure liability is not contained in legal forms and procedures. It resides in a total commitment to inform homebuyers of every significant issue. Every known defect should be disclosed in writing, and the most thorough home inspectors should be seen as allies, not threats, in the disclosure process.

As you continue your real estate career, remember that the only property defects that create liability are the ones that are not disclosed. So be a proactive discloser, and affirm that commitment by recommending the best home inspectors to all of your clients.

The House Detective by Barry Stone, Certified Building Inspector

Dear Barry: Last year, I bought a brand new home. Within months, the concrete pavement began to crack. When I reported this to the builder, he sent a repairman who applied a thin layer of cement over the driveway, porch, and patio. Now this topping is cracked, and pieces of it are breaking off everywhere. Another contractor gave me a bid of $4700 just to replace the driveway. Now that my one-year warranty has expired, do I have recourse against the builder? Lynda

Dear Lynda: The builder’s liability did not end when the one-year warranty expired because you reported the defective concrete while the warranty was still in effect. The fact that the builder “attempted” to correct the problem does not absolve him of liability. His obligation was to rectify a construction defect, not to make a substandard pretence of repair.

Anyone with a professional knowledge of concrete knows that you cannot apply a thin overlay of cement and expect it to adhere or to remain intact, especially on pavement that bears the weight of moving vehicles. Cracking and detachment of the added cement were predictable and inevitable.

If the concrete needs replacement, your builder may need convincing to accept that expense. If he is unwilling, you should seek legal advice from an attorney who specializes in construction defect law. You should also obtain a detailed inspection report on the entire property from a qualified, experienced home inspector. Who knows what other defects remain to be disclosed?

Most people who buy new homes do so without hiring a home inspector. They assume that a brand new home is unlikely to have defects and that the builder’s warranty eliminates the need for an inspection. Both assumptions are false. All new homes have defects, and you can’t take advantage of the warranty if you don’t know what the defects are. An inspection report now will inform you of defects not yet discovered and will enable you to submit a full package of repair demands to the builder.

Dear Barry: Six months ago, I sold my penthouse condominium. The roof had some leak problems that were never corrected by the builder, but I sold the property “as-is.” Lately, we’ve had some heavy rains, and now the buyer wants me to repair the roof, even though he agreed to an “as-is” purchase. Am I responsible for repairing the roof? Mike

Dear Mike: In today’s real estate market, “as-is” no longer means what it did in the past. “As-is” used to mean “take it or leave it and buyer beware.” Today it means “here is a complete list of the defects for your acceptance or refusal.”

If the “as is” purchase of your condo was made with the fully disclosed understanding that the roof needs repairs, then the buyer is responsible for the roof. If he was not told that the roof had outstanding defects, then you are liable for nondisclosure and should assume responsibility for roof repairs.

The House Detective by Barry Stone, Certified Building Inspector

Dear Barry: I have several complaints about my home inspector. Throughout the inspection, he was shadowed by the seller and the listing agent, so I could never speak freely with him, even though he was supposed to be working for me. During the inspection, I expressed concern about the air conditioner, but the seller said it had recently been fixed. So the inspector said nothing about it in his report, and now I’m stuck with an A/C system that doesn’t work. Finally, he reviewed the report with the seller and the listing agent, rather than privately with me. And my own agent didn’t even attend the inspection. Is this the way a home inspection is supposed to be? Chuck

Dear Chuck: If handled properly, this is not the way a home inspection should be. Your home inspector is your private consultant. Sellers and their agents are usually entitled to a copy of the inspection report, but they should not dominate the inspection process itself. Most home inspectors have had situations of this kind, with sellers, listing agents, and others following them from beginning to end. It is not an inspector’s favorite way to work, but inspectors try to make the best of it when it can’t be avoided. However, a good inspector always finds a moment to take the buyer aside and explain that a private review of the report can be done when the inspection is over. Your inspector apparently erred in this respect.

As for the air conditioner: Whatever assurances the seller gave your inspector should have had no bearing on the inspection. The inspector should have conducted a standard review of the A/C system and should have operated it to make sure that it was functional. If the seller disclosed having repaired the system, the inspector should have advised you to obtain a copy of the receipt for that work from the seller.

Your agent’s report card also shows low marks. If you had been properly represented, your agent would have been present at the inspection. Your agent’s job was to make sure the seller and the listing agent left you and your inspector alone during the inspection.
You should notify the seller, the agents, and the home inspector of the faulty A/C system and insist that it be repaired. The seller should also provide a copy of the receipt for whatever work was supposedly done.

Dear Barry: We purchased a brand new home about nine years ago. Two years later we noticed hollow sounds when we walked on the tile floors. After another two years, some tiles began buckling up, and more became loose. The builder re-cemented the lifted tiles but loosening continued, and some even cracked. What could be causing this problem, and what is the solution? Janice

Dear Janice: When tiles loosen and pop up, as you describe, a common cause is lack of expansion gaps at the walls. Ceramic tile flooring should be installed with a 1/4 inch gap at each wall to allow for expansion due to changes in moisture and temperature.
Without these gaps, expanding tiles press against the sill plates at the base of each wall. Pressure increases until tiles begin popping up and cracking. To determine if this is the problem in your home, remove some baseboards to see if gaps were provided by the tile installer. If not, the builder needs to do some serious repair or replacement.

The House Detective - by Barry Stone, Certified Building Inspector

Dear Barry: In one of your articles, you painted an inaccurate picture of FHA appraisers. I agree that home inspectors are more qualified than appraisers to identify defects in a home, but FHA appraisers also have a role in identifying some of these problems. According to HUD standards, an FHA appraiser must look in the attic for signs of leakage, poor construction, and fire damage, inspect the foundation crawlspace for various defects, operate the heating, electrical, and plumbing systems, review the site drainage, and check many other issues. Our inspections are not nearly as thorough as a home inspection, but when we find evidence of a significant problem, we recommend that buyers hire a home inspector. I suggest you review the HUD Valuation Analysis of Single Family One to Four Unit Dwellings. David

Dear David: My comments about FHA appraisers were not intended to negate the importance or validity of your profession. Many homebuyers, however, are unclear about the difference between an appraisal and a home inspection. When they see an appraiser inspect the attic, the furnace, the electrical panels, etc., they sometimes assume that a home inspection would be redundant; that the FHA appraiser has fully evaluated the physical condition of the property. Then they’re surprised when problems are discovered after the close of escrow.

When buyers see their appraiser check the furnace, they may assume that the heating system has been evaluated and approved. Later, they’re surprised to find safety violations involving fire clearances, gas supply connections, and combustion air requirements.

When buyers see their appraiser check the attic, they may assume that pertinent conditions have been checked and signed off. Later, they’re surprised that the rafters need reinforcement, that the chimney is too close to combustible material, that the attic wiring is improperly spliced, that some of the water lines are substandard, or that the vapor barrier is on the wrong side of the insulation.

When buyers see their appraiser open the breaker panel, they may assume that electrical compliance has been verified. Later, they’re surprised to learn that circuits are over-fused, that breakers are double-tapped, that ground wires are not bonded, or that some wires have burnt insulation.

When buyers see their appraiser check the fireplace, they may assume that fire safety compliance was confirmed. Later, they’re surprised to know that the chimney liner is cracked, that the gas connector is substandard, that there is a gap between the mantle and the firebox lintel, or that the hearth is too close to combustible flooring.

When buyers see their appraiser check bathroom fixtures, they may assume that conditions are acceptable. Later, they’re surprised that bathtub windows are not safety glass, that hot and cold connections are reversed at the sink, that the toilet is loose on the floor, or that the shower pan leaks under the house.

And speaking of under the house: Since when do appraisers don a suit of overalls and crawl the length and breadth of a sub-area? When buyers see their appraiser peek into the access opening, they may assume that conditions in that area have been evaluated. Later, they’re surprised about faulty ground drainage, about pipes that are corroded or leaking, about piers that are displaced, or air ducts that are disconnected.

HUD should set realistic standards for FHA appraisers. Instead, this federal agency has required FHA appraisers to perform tasks that are beyond the scope of their expertise. This increases professional liability for appraisers, while giving a false sense of security to uninformed homebuyers. Bureaucracies should allow appraisers do what they do best: determine the market value of property; not evaluate building systems. Instead of inspecting for defects, FHA appraisers should advise homebuyers to hire qualified home inspectors; not merely when defects are observed, but in every case. This will better serve the interests of the home-buying public, while reducing the liability of FHA appraisers.

The House Detective by Barry Stone, Certified Building Inspector

Dear Barry: We live in a 6-unit apartment building, and the dryer exhaust ducts for all six of the laundry rooms blow into my attic. Every few months, the landlord’s maintenance man goes into the attic to remove the lint that clogs the neighbor’s dryer vents. He insists that this is not a problem, but I’m afraid it is causing the moldy smell in our apartment. What is your opinion of this situation? Wendy

Dear Wendy: It is not legal for a clothes dryer exhaust vent to terminate within the confines of a building, either in the foundation crawlspace or the attic. Section 504.3.1 of the Uniform Mechanical Code states that: “Moisture-exhaust ducts for domestic clothes dryers shall terminate on the outside of the building…”

There are two reasons for this requirement: 1) Moisture condensation can promote the growth of fungus or mold; 2) The accumulation of lint can pose a fire hazard. Therefore, someone should extend the dryer vents in your building through the nearest exterior wall or through the roof.

The moisture from six laundries could definitely be causing mold or fungus growth in your attic. To determine possible mold infection, a professional mold consultant should conduct a thorough survey of your home to determine the types of mold that may be present and the proper means of remediation if hazardous mold is found. At the same time, a pest control operator should inspect the attic for fungus infection of wood framing and resultant dryrot.

The House Detective by Barry Stone, Certified Building Inspector

Dear Barry: Our home is nearly a year old. Before we bought it, my husband pointed out to the builder that the french doors were poorly fitted and needed to be repaired. The builder said he would take care of it, but he never did. We’ve continued to ask, but the doors remain the same. Recently, we threatened him with legal action. He just got mad and said, “You just took the game to a new level!” Now he won’t even talk to us. Recently, we had a home inspection, and the inspector agreed that the doors were poorly installed. How can we resolve this situation? Victoria

Dear Victoria: The builder has declared his readiness to work with you on what he calls “the next level.” So let the next level begin. Step one is to document all future communications, the first of which is to send him a certified letter. Inform him that you have made repeated requests to have the door defects repaired and that this is your final demand. Let him know that he has 30 days to complete the necessary work; that if the work is not completed by that time you will hire another contractor to repair or replace the doors and will take legal action to hold him responsible for the costs of those repairs.

In the meantime, get written repair bids from reputable door contractors. If the builder fails to perform, take him to small claims court and get a judgment for the repair costs indicated on those bids. But before you proceed, spend an hour with an attorney who can advise you on the preparation and presentation of your case.

The House Detective by Barry Stone, Certified Building Inspector

 Dear Barry: We are concerned about the safety of our ventless gas fireplace. We use it a lot, and a black film has recently appeared on the glass panel, as well as on our windows. What should we do? Barbara

Dear Barbara: The first think to do is stop using the fireplace and report the problem to a qualified fireplace specialist for evaluation and repair.

When a gas-burning fixture produces a black residue, that is a symptom of incomplete combustion and faulty exhaust venting. It means that combustion byproducts are venting into your home, and this is potentially dangerous, depending on whether these byproducts include carbon monoxide.

After your fireplace is professionally serviced, read the owners manual before resuming use. The manufacturer’s instructions may advise not using the firxture for periods of more than two hours. The manual may also recommend that a nearby window be kept open while the fireplace is in use to dilute exhaust with fresh air.

Ventless gas fireplaces are vigorously defended by their manufacturers as being incapable of abnormal combustion. In past articles, I’ve expressed the view that no manmade product is, or ever can be, 100 percent foolproof. Your situation appears to support that opinion.

The House Detective by Barry Stone, Certified Building Inspector

Dear Barry: When we bought our house, the home inspector said we have copper water pipes. But when we installed a new dishwasher, we learned that the pipes are polybutylene plastic. Two plumbers have said these lines should be replaced to prevent leakage. Worse still, our insurance company got involved and will cancel our policy unless we repipe the house. The home inspector did not have us sign a contract, so there appears to be no limit to his liability. But we’ve heard that he is no longer in business. If we can track him down, how can we make him pay for the repairs? Stacey

Dear Stacey: You apparently hired a home inspector who is not a true professional. Therefore, you may not be able to make him pay for repairs. The fact that he missed such an obvious condition as polybutylene pipe, that he did not have a standard home inspection contract, and that he is no longer in business, indicates that he is a “fly-by-night” inspector.

Polybutylene is commonly recognized by home inspectors as substandard water pipe because the lines are prone to cracking, and the connections often leak.

Your first step is to locate the inspector, if possible, and to notify him of your concerns. Invite him to your home for a reinspection of the plumbing. You should also get some bids for repiping so that you can document the likely cost of repair. And be sure to get some advice from an attorney so that you will know what remedies are available to you by law.

If the inspector is still available but is unwilling to address the problem, you may be able to get a judgment against him in small claims court. That might not cover the entire cost of repiping, but it could pay a large part of it, assuming that the inspector has any assets to collect.

Finally, if the home inspector was recommended by your agent or broker, that person shares responsibility for the lack of competent disclosure and should be notified accordingly.

The House Detective by Barry Stone, Certified Building Inspector

Dear Barry: I hired a home inspector before buying my house. He was supposed to find the defects. After moving in, I discovered that the shower in the basement has no drain connection. During the inspection, the inspector turned the shower on briefly, but he didn’t find any problem with it. Now it appears that the shower is a manufactured stall that was set in place on the basement floor, connected to the water lines, but not to the sewer drain system. Instead, it is located near a clogged floor drain. The first time I used the shower, the water ran onto the basement floor and began to rise. I’ve called the former owner, but he denies any knowledge of the problem. The plumber’s estimate to repair this mess is about $3000. Do I have recourse against the former owner or the home inspector? Sharon

Dear Sharon: Before we consider recourse, let’s review this lack of disclosure. The seller claims he was unaware that the shower drains onto the basement floor. To accept this, we must believe that the shower was never used or even cleaned during the time that he owned the property.

Equally surprising is the home inspector’s failure to identify the drain problem during a professional inspection. To gain some perspective on this lack of discovery, we should review the normal procedures for a shower inspection. Although not all inspectors employ the same sequence of techniques, a thorough shower inspection would be somewhat as follows:

The inspector begins by verifying that hot water is plumbed to the left side of the faucet. The shower, therefore, must run long enough for hot water to reach the showerhead. All the while, water is flowing down the drain. When the hot water has arrived, the inspector adjusts the shower to a normal mixture of hot and cold. With warm water flowing from the head, the toilet is flushed and the sink faucet is turned on to check for variations in flow and temperature at the shower. Had your home inspector conducted this type of inspection, water would have been visible and rising on the basement floor. If he did not see water on the floor, then the extent of his evaluation must have been very limited.

As for recourse, here are some suggestions: Invite the home inspector to reinspect your shower, and ask him to explain why the lack of a drain connection was not discovered during his initial inspection. Notify the seller again, but this time in writing and by certified mail. Inform him that his lack of disclosure is unacceptable and that full payment for drain repair is expected. If neither is willing to address the problem, you can file a complaint in small claims court. If you choose that path, spend an hour with an attorney for advice on your presentation in court.

To strengthen your case, have your home reinspected by a home inspector who has many years of experience and a reputation for thoroughness. Call several real estate offices in the area and ask who is the most nit-picky of all the local home inspectors. A reinspection may reveal additional defects not found by the first home inspector.