House Detective

The House Detective: by Barry Stone, Certified Building Inspector

Dear Barry: When we bought our home, the sellers said that everything was functional, which included the central heating and air conditioning system. On the day of our home inspection, the summer temperature was over 90 degrees outside, so the inspector tested the air conditioning but not the heat. Yet his inspection report said that the entire HVAC system was functional. Well, it turned out when winter came that the furnace would not work. The heating contractor we called found several problems, including a cracked heat exchanger. So now the furnace has to be replaced. Who is responsible to pay for this? George

Dear George: The sellers could be liable if the furnace was inoperative or had obvious defects while they owned the property. But that may not be provable. The sellers may in fact have been unaware of any furnace problems, even though it was defective at the time. The home inspector, however, is clearly liable for approving the condition of a furnace without testing it and without recommending further evaluation.

Operating and inspecting a furnace is standard procedure for home inspectors. If an inspector does not operate a heating system, because of hot weather or for any other reason, the report should clearly state that the system was not tested. The condition of the furnace should then be regarded as an unresolved issue, and the inspector should recommend further evaluation prior to close of escrow. A home inspector who discloses a system as functional when it has not even been operated is grossly negligent and should be held to account for that professional breach.

You should notify the sellers and the home inspector of this situation and insist that they take some responsibility for replacing your furnace.

The House Detective: by Barry Stone, Certified Building Inspector

Dear Barry: As a home inspector for many years, I’ve been caught in the “you-broke-it,–you-pay-to-fix-it” bind. My question is simple: When is a home inspector responsible for things that break? Tile roofs are not designed to be walked on, so a home inspector should pay for tiles that break under foot. But I’ve been asked to repair wood trim because I pushed my finger through some dryrot. I’ve paid for faucets that would not turn off after being operated, for a garage door that disconnected from its track when I tested it, and for a casement window that fell from its frame when opened. Is it right for home inspectors to bear the costs of such repairs? Marshall

Dear Marshall: Your dilemma is the common experience of most home inspectors. Nearly all can relay stories of unfair liability; of fixtures that chose the moment of the inspector’s touch to leak, break, disassemble, or otherwise fail to function.

There was the main water shutoff valve that wouldn’t reopen after the inspector turned it off. The inner parts of that 30-year-old valve were totally corroded, awaiting the moment when some unsuspecting soul would turn it off. That someone was the home inspector; so he had to buy a new valve.

There was the old garage door opener that would not reverse and might have injured or killed someone caught beneath it. When the home inspector tested it, his resistance caused the chain to break. The old opener needed to be replaced anyway because it did not comply with current child safety standards. But because it broke when tested, it became the home inspector’s responsibility.

There was the microwave oven, which, according to the seller, had worked that morning. But when tested by the home inspector, it was suddenly unresponsive to the control buttons. All the inspector had done was press the time controls, but his presence when the fixture died was enough to require his purchase of a new unit.

There was the forced air furnace that worked perfectly during the course of the home inspection but was suddenly inoperative that evening when the homeowner returned from work. All the inspector had done was turn it on, watch it run, and turn it off. But he was the last one to operate the old system prior to its unexpected expiration. So, repair costs were demanded of the inspector.

And of course, there is the touchy subject of tile roof inspections. Obviously, a home inspector should pay for tiles that are broken during the inspection. But what about the inspector who discovers tiles that are already broken and is then accused of having broken those tiles?

These situations are the real-life experiences of home inspectors who perform their professional duties in an honest and diligent manner. There are times when home inspectors are truly liable for damages that occur in the course of an inspection. But there are as many cases where liability is unfairly imposed on home inspectors. In many instances, inspectors pay for these arbitrary claims, simply to main good customer relations. Justice and equity can be desired in these situations, but can only be found on a hit-and-miss basis.

The House Detective, by Barry Stone, Certified Building Inspector

Dear Barry: When we bought our home just over a year ago, we hired a home inspector and addressed all the issues he disclosed. The listing Realtor, at the time, gave us a letter stating that the furnace had been cleaned. But last month, we awoke to a house full of smoke because the heater burned out. The heating contractor we called said he had inspected the furnace one year earlier and had told the Realtor that the system had major problems. He recalled her being angry and saying that she’d call another contractor. She never mentioned any of this to us, so now we’re stuck with a worthless furnace and are probably lucky to be alive. What should we do, and who should we contact? Dianne

Dear Dianne: The conduct of the Realtor, as you describe it, is beyond unethical: It amounts to criminal negligence. It involves failure to disclose major furnace problems that could have endangered the lives of your family.

Of further concern is the home inspector’s failure to disclose major furnace problems. He may have been professionally negligent, depending on what conditions were visible at the time of the inspection. But this barely compares with the deliberate concealment by the Realtor.

Here are a few things you can do:

1) You can obtain a letter from your heating contractor, documenting his encounter with the Realtor when he discovered major problems with the furnace.

2) You can have your home reinspected to test the overall thoroughness of the original home inspection. This time, find someone with many years of experience and a reputation for thoroughness.

3) You can have an attorney notify the Realtor that she is liable for replacement of the furnace and could face further liability for deliberately concealing a significant safety hazard.

Agents of that caliber should not be allowed to practice real estate.

The House Detective by Barry Stone, Certified Building Inspector

Dear Barry: We purchased a home about a year ago and had it inspected. But we think our home inspector missed a problem with the forced air furnace. When the weather turned cold, we began using the heating system, and within a week we noticed black soot around the house. We thought it might be coming from the fireplace, so we had the chimney swept and we cleaned up the house. But the black soot soon came back. We cleaned the house again, but the soot came back again. Do you think our home inspector should pay to have the furnace fixed? Scott

Dear Scott: Whether the home inspector is liable for the faulty furnace depends on whether there was visible evidence of a furnace problem on the day of the inspection. For example, if there was soot in the burner chambers, in the flue pipe, on the flue cap, or at the air registers, these would have been red flag symptoms for a competent home inspector. If the flame pattern or flame color at the burners was abnormal, if there was rusted hardware in the furnace, if any signs of deterioration or damage were apparent, those conditions should also have alerted your inspector. If such conditions were apparent, further evaluation by a licensed HVAC contractor should have been recommended in the inspection report.

Of greater importance than the question of liability, however, is the matter of safety for everyone in your home. If the furnace is emitting soot, it may also be venting carbon monoxide, and that would extremely dangerous. Therefore, the furnace should not be used until it has been thoroughly evaluated by a licensed HVAC contractor. At the same time, you should notify the home inspector of these concerns and ask that he reinspect the furnace. If you can coordinate that reinspection with the HVAC contractor’s evaluation, that would help to clarify questions of liability.

Dear Barry: Last year, we bought a home from a nationally known developer. They offered us several optional upgrades, including a covered patio with plumbing and electrical connections for an outdoor kitchen; all for $1,800. Now that we’re ready to install the grill, the building department says that a barbecue pit under an overhanging roof is not legal. We would never have purchased this option if we had know the cooking fixture could not be installed. Do we have recourse? Bill

Dear Bill: A professional builder should know better than to sell an option that is not permissible by code or by local building ordinances. But you’d better check the fine print in the contract, because it may give them an “out.” On the other hand, a small claims judge might take a different view of the matter and override what could be an unfair contractual provision. You might also file a complaint with the state attorney general’s office to see where you stand according to state law.

The House Detective by Barry Stone, Certified Building Inspector

Dear Barry: I recently bought my first home and was extremely proud of myself because I’m just 23 years old. I found an older home that needed some work and hired a home inspector who was recommended by my Realtor. The inspector found a few minor problems, so I bought the house. But 5 months later, the heating system failed. The repairman said the heat exchanger was cracked and was giving off carbon monoxide. If my home inspector had told me this, I could have had the sellers replace the furnace, or I could have bought another house. What can I do now? Julie

Dear Julie: If you haven’ already replaced the damaged furnace, you should contact your home inspector immediately and request a reinspection of the heating system. If the crack or any related defects are visible and accessible, then the home inspector would be liable for failing to disclose those conditions.

In many cases, cracks in a heat exchanger are located within the dark recesses of a furnace and are not visible to a home inspector. Sometimes, however, there are symptoms that can alert a home inspector to potential problems with the heat exchanger, such as irregular flame pattern, abnormal flame color, or soot near warm air registers or inside the flue pipe.

The big question, therefore, is whether faulty furnace conditions were visible at the time of the inspection. If so, then the inspector would bear some liability for negligence. Be aware, however, that the degree of liability could be limited by the wording of the inspection contract, by state laws, and by the inspector’s willingness to take responsibility for the consequences of a professional error.

Dear Barry: We are first-time homebuyers and have made an offer on the condo we are presently renting. We’re trying to decide whether to get a home inspection, and several friends have advised us to save our money. They say we can do away with it because the condo is priced very low and the equity will more than cover the cost of needed repairs. Are we taking a big risk if we buy without having an inspection? Jean

Dear Jean: My email box is littered with laments from homebuyers who bought homes without having them inspected. In many cases, their decisions were based on well-meaning advice from friends and relatives or inexcusable advice from misguided agents.
The reasons given for bypassing an inspection are numerous and always erroneous. For example, your friends say the equity in your condo will enable you to pay for needed repairs. But how will you know what those repairs are if you don’t hire a qualified home inspector? If there are problems with the electrical wiring, the plumbing, or the heating system, symptoms may not be evident until serious consequences occur.

Regardless of low price and high equity, you need to know the true condition of the home you are buying. You need to know that systems are not only functional, but safe and in compliance with applicable building standards. You’re preparing to buy a commodity that costs hundreds of thousands of dollars. Spend a few hundred dollars to protect that investment. But before you do, be sure to find the most qualified and experienced home inspector available.

The House Detective by Barry Stone, Certified Building Inspector

Dear Barry: When we purchased our home, the home inspection report listed the furnace as “serviceable.” After moving in, we had problems with heating, so we called a heating contractor. He said we have a Premier furnace that was recalled because of major safety problems. So now we have to buy a new furnace. Our Realtor says the home inspector is responsible. But the home inspector says he can’t be expected to know about every product that’s been recalled. Is the home inspector liable for having approved the furnace, or are we stuck with the expense ourselves? Jessica

Dear Jessica: Home inspectors, in most cases, are not liable for product recall notices. But the Premier furnace matter is not a typical recall. It is probably the most widely publicized, most well known recall to occur in many years. It has been a frequent subject of discussion among home inspectors, and even among Realtors, since 1999, the topic of seminars, trade journals, even newspaper articles.

It would be difficult for a home inspector to have missed the issue, unless he were new to the inspection business. For a qualified home inspector, failure to recognize a Premier furnace as a potential safety hazard constitutes professional negligence.

It should be noted, however, that not all Premier furnaces are subject to the recall. This only applies to models equipped with nox rods in the burner chambers. These fixtures can be identified by the “x” at the end of the model number. On the other hand, Premier models that are not subject to the recall often have problems with the venting of combustion exhaust. A home inspector who carefully examines furnaces while they are in operation would notice this.

Your home inspector should reconsider the matter of his liability and let this be a professional learning experience.

The House Detective by Barry Stone, Certified Building Inspector

Dear Barry: My daughter just purchased an 85-year-old house. The sellers disclosed that the gas furnace was in working order. After moving in, we had a furnace repairman check the system to make sure that everything was ok. It turned out the furnace is not up to code and will need to be replaced. Are the sellers liable for the cost of replacement? Craig

Dear Craig: If the furnace is unsafe or inoperative, the sellers could be liable, depending on whether they were aware of the problem. But there is an inconsistency in the repairman’s findings, as you described them.

Furnace replacement is necessary if the fixture or its components are damaged or deteriorated. Lack of code compliance is typically a matter of improper installation and is usually correctible. Three pertinent questions for the repairman are, “What, exactly, is wrong with the furnace? What are the specific code violations? And can the furnace be made to operate safely?” An additional question for you and your daughter is, “When you say ‘repairman,’ do you mean a licensed HVAC contractor?” If not, you should get a second opinion from a qualified professional.

The next issue is whether your daughter hired a home inspector before she bought the property. If not, she made a crucial error. In that case, a home inspector should be hired now to determine what other defects remain undisclosed. If she did hire an inspector, why was the furnace problem not discovered at that time? The answer to that question would depend on the nature of the furnace issues, whether the defects were visible at the time of the inspection, and whether the furnace is truly faulty.

Again, specific details regarding the alleged defects are needed.

The House Detective by Barry Stone, Certified Building Inspector

Dear Barry: When I purchased my home, it was the middle of the summer and very hot, so my home inspector did not test the forced air furnace. Months later, when the cold weather arrived, I found the heater to be inoperative, and the contractor I called said the system is unsafe. The repair costs are more than I can afford. Should I go after the inspector for negligence, the sellers for nondisclosure, or both? Chris

Dear Chris: The home inspector may or may not have been negligent, depending on what was stated in the inspection report. Furnace inspections are among the most important aspects of a home inspection because of the potential for hazardous conditions and the high costs of repair or replacement of equipment. Home inspectors should operate and inspect them, regardless of the weather. Unfortunately, some thermostats are unable to activate a heating system when the air temperature is above 90 degrees. But this does not mean that the furnace inspection should simply be dismissed.

If a home inspector, for any reason, is unable to operate a furnace, the inspection report should recommend reinspection prior to close of escrow or evaluation by a licensed heating contractor. If your inspector did neither, then he was negligent and could be liable for the cost of repairs. You should contact him in this regard.

Of equal concern is the question of disclosure by the sellers. If the heating system was inoperable before the property was sold and the sellers were aware of that fact, they should have disclosed this to all concerned parties. Failure to provide such disclosure could render them liable. On the other hand, it is possible that they had no knowledge of the problem. For example, if the home had been used as a rental or had been vacant for a prolonged period, the sellers may not have known that the furnace was inoperative. In any event, the sellers, along with the home inspector, should be notified that this problem has come to light.