House Detective

The House Detective, by Barry Stone, Certified Building Inspector

Dear Barry: You often stress the importance of defect disclosure for sellers. But here in the commonwealth of Virginia, sellers do not have to disclose. They can simply disclaim or disclose defects in their homes, as they choose. Most sellers sign disclaimers stating that they are selling their house “as is” without having to divulge anything they know to be defective. It’s “buyer beware” in this state, and only the foolish buyers forego home inspections! Diana

Dear Diana: Thanks for calling attention to this legal circumstance in your state. Something should be done in Virginia to rectify an inexcusably out-of-date position with regard to real estate disclosure. Setting aside the opposing legal arguments, it is a matter of common decency and honest ethical behavior to inform a buyer of defects before selling a costly commodity. This is particularly true with a home because of the financial hardship that can result from undisclosed defects. Those who support limited disclosure could use some basic instruction in the differences between right and wrong. Until then, the absence of seller disclosure increases the need for qualified home inspectors in Virginia.

The House Detective, by Barry Stone, Certified Building Inspector

Dear Barry: I’ve made an offer on an unpermitted home that was red-tagged in 2001 by the county building department. The property is located in the mountains, surrounded by other unpermitted homes, and the real estate agent says the building department is not likely to require demolition, as long as property taxes continue to be paid. But this seems risky. The price for this property is tempting, but I don’t want to get stuck with a vacant lot. When a home has been red-tagged, can the building department eventually order its removal? Mark

Dear Mark: In most cases, municipal building departments don’t require demolition of unpermitted buildings. This, however, does not mean they can’t or never will do so. Building departments are empowered to enforce the letter of the law. If future policy changes should incline them toward rigid enforcement, they could order the removal of substandard structures that have been red-tagged. Conditions that could prompt such a decision might be major construction defects in the building, zoning violations, noncompliance with water and septic requirements, or the capricious imposition of authority by an over-zealous bureaucrat.

Demolition, however, would be a worst-case scenario. A more likely enforcement position would be to prohibit occupancy of the dwelling until it is permitted, inspected, and approved.

A prudent approach, before you sign a purchase contract, would be to visit the county building department and to discuss the situation and possible options with the chief building official. What you need is clarification of their policy toward properties of this kind. Ask the building official about an as-built permit. Find out how much the permit process might cost and what the chances are of obtaining approval for the building. You’ll also need a list of defective conditions likely to be cited by the building department. So be sure to hire an experienced home inspector for an evaluation of the building.

Buying a red-tagged home has it’s risks, but the greatest of these is to proceed without a full knowledge of the situation.

The House Detective, by Barry Stone, Certified Building Inspector

Dear Barry: My son lives in our back yard guest house with a ventless gas heater. Twice this past week, he has gotten sick at night. Both times, he became congested and got chills even when it wasn’t that cold. Could this be caused by the heater? Darrell

Hello Darrell: If your son’s sickness coincides with nighttime use of a ventless gas heater, you should have your doctor examine him immediately for symptoms of carbon monoxide exposure. You should also have the gas company test the furnace for carbon monoxide emission. And regardless of their findings, you should replace the heater with one that is vented to the exterior. And be sure to install a carbon monoxide detector in the room where your son sleeps.

The House Detective, by Barry Stone, Certified Building Inspector

Dear Barry: In a past article, you said, “It is not legal for a clothes dryer exhaust vent to terminate within the confines of a building….” and you cited Section 504.3.1 of the Uniform Mechanical Code. Does this mean that the dryer vent diverters sold in hardware stores and used to provide extra heat in a home are illegal too? Marshall

Hello Marshall: Several companies are currently marketing clothes dryer vent diverters. These fixtures consist of a vent duct connection and a small water reservoir. As the dryer exhaust passes through the diverter, the moist air from the clothes dryer vents into the room, while the lint is captured by the water in the reservoir. Manufacturers such as Dundas Jafine praise these devices as sources of indoor heat in winter. Advertising claims include “No need to drill holes to vent your dryer….” and “Ideal for apartments, condominiums and mobile homes.” What they fail to mention is that the building and mechanical codes specifically require that clothes dryers be vented to the exterior.

There are three primary reasons for exterior venting of a dryer. With a gas dryer, the primary issue is safety because the exhaust contains combustion byproducts that could be dangerous to breathe if vented into a home. The manufacturers of dryer vent diverters are aware of this and only recommend use with electric clothes dryers. But the likelihood that some homeowners will install diverters with gas dryers is undeniable.

Another problem with dryer vent diverters is moisture condensation in homes. All of the wetness in the clothes that were just washed is being expelled from the dryer vent. In dry climates, this added air moisture might be an advantage. In areas with moderate to high humidity, the moisture from a dryer could promote condensation and the growth of mold.

The third problem is the potential for lint build-up in the home; a potential fire hazard. This can occur if the water level in the reservoir is forgotten and allowed to evaporate. Lint can then bypass the diverter and vent into the home.

The building code prohibits the installation of unapproved fixtures in mechanical systems, but it does not prevent manufacturing companies from producing and selling such items. Other examples of products that enable homeowners to violate the building code are corrugated connectors for the drain pipes under sinks, submersible refill devices for toilet tanks, and electrical outlet adaptors that enable you to insert three-prong plugs into two-prong wall receptacles.

The free market allows these devices to be made, but the authors of the building code have good reasons not to sanction their use.

The House Detective, by Barry Stone, Certified Building Inspector

Dear Barry: In a recent article, you stated that it was an agent’s responsibility to recommend a home inspector. I argue that such a recommendation is a clear conflict of interest. The agent’s interest is in closing the sale and getting a commission check. The home inspector’s interest is in future referrals from the agent. No matter how you cut it, that kind of relationship compromises a home inspector’s integrity. I’ve had two bad experiences with home inspectors who were recommended by real estate agents, and that has taught me to shop for my own inspector. That’s the kind of advice you should be giving your readers. Al

Dear Al: The article you refer to involved an agent who advised her buyers not to hire a home inspector. The subject of that column was to condemn that kind of unethical practice. The point was not that an agent should “recommend a home inspector,” but that agents should advise every buyer to have a home inspection.

A repeated subject of this column has been the complex issue of inspector referrals by agents and brokers. Some articles have discussed agents who advise against having home inspections, while others have shined the spotlight on those who refer marginally qualified inspectors to their clients. The referral relationship between agents and home inspectors is not what compromises an inspector’s integrity. Referrals merely test the integrity that an inspector may or may not inherently possess. Inspectors who skew the findings of reports to promote future referrals are condemned by their own lack of common decency, not by the conflict of interest posed by real estate agents. Home inspectors with well-founded values serve the interests of homebuyers, not the pressures imposed by agents.

These same ethical standards for disclosure can be applied to agents and brokers. Those who are truly honest and ethical promote full disclosure and recommend the most qualified inspectors. Those who lack these values betray the interests of their clients by recommending unqualified inspectors or by convincing their clients to forego an inspection; all for the sake of a commission check.

In the real estate marketplace where I do business, there are sufficient numbers of ethical agents to fill the schedule of an honest and meticulous home inspector (most of the time). Whether this is true everywhere is difficult to say. But the bottom line is this: Any home inspector who abbreviates the thoroughness or accuracy of an inspection report for the sake of agent referrals has essentially stolen the money of the homebuyers who paid for the inspection. Likewise, any agent who advises against having an inspection, or who recommends marginally qualified home inspectors, or who labels the best inspectors as “deal killers,” is no better than a bar room grifter in professional clothing.

The practice of uncompromised defect disclosure is the ethical heart and soul of real estate related professions. It measures equally the moral worth of agents, brokers, and home inspectors. Anyone who devalues that practice should do some serious soul searching or should simply find another line of work.

The House Detective, by Barry Stone, Certified Building Inspector

Dear Barry: We had a large custom home built by a contractor about three years ago. Since then, we’ve had three on-going problems. First, the bullnose wall corners throughout the house continue to separate from the drywall, even around the windows. The drywall subcontractor has been here repeatedly. But he only fixes the places where separation has become visible, and the places he fixes look obviously patched. Second, the stucco finish on the outside of the house keeps chipping and crumbling off. We pointed this out to the contractor when the house was new. He said this was typical for new stucco. But the stucco finish has continued to crack, crumble, and separate ever since. And third, there is a terrible smell coming from the septic tank since we moved in. When we first complained, the subcontractor repaired a broken underground pipe, but this has not eliminated the awful smell. The builder said it would go away but it has continued for three years. With each of these issues, the builder just makes excuses. He says that his liability expired after one year, and he never admits that these are serious problems. I am totally frustrated and hope that you can give me some direction. Please help. Ginny

Dear Ginny: The defects you describe are totally unacceptable and are not normal for a properly constructed home; especially a custom home. A contractor who excuses defects of this kind is unworthy of trust or respect.

If the bullnose wall corners are separating from the drywall, then they were not adequately nailed when the home was built. Proper repair means renailing every bullnose corner in the house, followed by patching and retexturing by a qualified craftsman. If done by a competent drywall finisher, the repairs should not be visibly discernible.

If the stucco had been properly applied, delamination of the finish coat would not be occurring. The cracking and crumbling you describe indicate substandard workmanship, and the builder is responsible for that defect. What’s more, his liability did not end after one year because the defects were reported to him while the one year warranty was still in effect.

The sewer gas smell from your septic system indicates a significant health safety violation that needs to be addressed fully and immediately. It is not a matter to be dismissed with lame excuses. Some aspect of the septic system is defective and needs to be corrected.

Here are my recommendations:

1. Hire an experienced home inspector to thoroughly evaluate the property. In addition to the three issues you have listed, a qualified inspector will disclose construction defects you have not yet discovered. A detailed home inspection report will document all apparent construction defects in a way that will provide leverage in dealing with the builder.
2. Hire individual specialty contractors to evaluate the problems you have listed: a drywall contractor to assess the bullnose problem; a stucco contractor to evaluate the stucco problem; and a septic contractor to inspect and evaluate the problem with sewer gases. All of these contractors should provide written assessments of these issues and bids for proposed repairs.
3. Get some legal advice from an attorney who specializes in construction defect law.

In the final analysis, you don’t want the builder to repair the construction defects because you can no longer invest confidence in the integrity of his work. Instead, you want him to pay the contractors you hire to make proper repairs.

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 find it hard to understand why home inspectors refuse to walk on concrete tile roofs. I know handymen, cable guys, chimney sweeps, and others who walk on tile roofs all the time and never break a single tile. But home inspectors routinely wimp-out on tile roof inspections, choosing to inspect from the ground, sometimes using binoculars. In my opinion, inspectors who do this are shortchanging their customers. To put it bluntly, there is no way to perform an adequate inspection of roofing tiles from the ground. To do a competent inspection, it is necessary to walk on the roof. What is your opinion on this? Brad

Dear Brad: You raise some valid issues about tile roof inspections, but clarification is needed on a few points. It is true that the best roof inspections include a walk on the roof. It is also true that roof tiles don’t break easily underfoot. Nevertheless, nearly all home inspectors refuse to walk on tile roofs, and here is the reason why:

The majority of tile roofs have one or more broken tiles. In most cases, these are not visible from the ground and are unknown to homeowners. When a home inspector walks on a tile roof that is believed to have no broken tiles and then reports that some broken tiles were observed, the inspector can then be blamed for breaking those tiles in the course of the inspection. This has actually happened to a number of inspectors and is the reason that nearly all home inspectors use other inspection methods for tile roofing.

Fortunately, it is possible, in most cases, to conduct a thorough roof inspection without walking on the tiles. On single story buildings, a competent inspector can place a ladder against the eaves at various places around the building, providing full view of all or most roof surfaces. A comprehensive evaluation of roofing tiles can then be performed from atop the ladder. With second story roofs, decks and balconies enable ladder placement against the eaves. For second story roofs that can only be inspected from the ground, a good pair of binoculars provides an adequate close-up view of the tiles in most instances.

In the minority of cases where the tiles are not viewable by these any of these methods, the inspector should report that the roof inspection was limited and that further evaluation by a roofing contractor is advised.

Dear Barry: The home we just purchased has a swimming pool that leaks badly, but we were not told about this leak before we bought the property. The repairs are estimated to be several thousand dollars. Do we have any recourse against the sellers for not telling us about this problem? Rod

Dear Rod: Whether you have legal recourse against the sellers depends upon the disclosure laws in your state. In most states, full disclosure of known defects is a requirement.

If the sellers lived on the property, they must have known the pool was leaking because the water level would have gone down continually. The sellers should be formally notified about this breach of disclosure. If they are unwilling to address the issue, you should consult an attorney for advice.

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.