Home inspector liability

We take a lot of HotLine calls having to do with (allegedly) poor home inspections. Members and their clients want to know whether the home inspector is responsible for failing to detect and report a defect. Like any allegation of malpractice, liability will attach only when the practitioner’s conduct can be proved to have fallen below applicable standards.

In the case of a home inspector, the standard is what the reasonably prudent home inspector would have done and found under similar circumstances. The best way to asses whether malpractice occurred is to obtain the opinion of a qualified home inspector (preferably one who is articulate and with extremely high credentials) to assess the facts that would have been present when the inspection was preformed and to render an opinion as to whether the reasonably prudent inspector would have discovered the problem.

In order to be actionable (the basis of a suit) the negligent inspection has to have been a direct cause in the ultimate harm suffered by the buyer. In other words, the negligent home inspection is of no consequence if the defect would not have been discovered even if a professionally, responsible inspection had been performed.

When asked if a home inspector bears liability for an undisclosed defect, buyer should be pointed in the direction of legal counsel. Keep in mind that limitation of damages clauses are frequently found in home inspection contracts. Depending upon the circumstances, these may or may not be enforceable, but they are clearly provisions that have to be reckoned with by legal counsel on behalf of a buyer.

I presume that most REALTORS® have favorite home inspectors. You probably have read enough reports who performs comprehensive examinations and who is articulate in describing the defects that are found. Do you recommend these inspectors?  Why/why not?