Do you actually read the entire inspection contract your Home Inspector is requiring you to sign? Well you really should and you might be surprised what is in there!
Almost every Home Inspector will present you will a service contract for you to sign and agree to. This is good for both you and the Inspector since a properly drafted contract will spell out the responsibilities of both party’s. The Home Inspector will also list their exclusions and disclaimers which unfortunately is a necessary thing to do. You will know what to expect and the Home Inspector is now bound to perform the services they list there. But do you really read through that contract through? You should be because I have seen some pretty incredulous contracts that attempt to throw away your rights as a consumer!
During a recent conversation online I came across this incredulous contract that a Home Inspector actually requires his clients to sign. What was totally unbelievable was the attempt at limiting the Inspector’s liability to almost nothing in the event he was “careless or negligent” in performing your home inspection. The main phrase in that contract is as follows.
“DUE TO THE NATURE OF THE SERVICES WE ARE PROVIDING, IT IS DIFFICULT TO FORESEE OR DETERMINE (AT THE TIME THIS AGREEMENT IS FORMED) POTENTIAL DAMAGES IN THE EVENT OF NEGLIGENCE OR BREACH OF THIS AGREEMENT BY US. THUS, IF WE FAIL TO PERFORM THE SERVICES AS PROVIDED HEREIN OR ARE CARELESS OR NEGLIGENT IN THE PERFORMANCE OF THE SERVICES AND/OR PREPARING THE REPORT, OUR LIABILITY FOR ANY AND ALL CLAIMS RELATED THERETO IS LIMITED TO THE FEE PAID FOR THE SERVICES (UNLESS CONTRARY TO STATE LAW), AND YOU RELEASE US FROM ANY AND ALL ADDITIONAL LIABILITY, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY. THERE WILL BE NO RECOVERY FOR CONSEQUENTIAL DAMAGES. YOU UNDERSTAND THAT THE PERFORMANCE OF THE SERVICES WITHOUT THIS LIMITATION OF LIABILITY WOULD BE MORE TECHNICALLY EXHAUSTIVE, LIKELY REQUIRE SPECIALTIES AND WOULD COST SUBSTANTIALLY MORE THAN THE FEE PAID FOR THIS LIMITED VISUAL INSPECTION. YOU UNDERSTAND THAT YOU ARE FREE TO CONSULT WITH ANOTHER PROFESSIONAL IF YOU DO NOT AGREE TO THIS PROVISION.”
I was totally floored when I read that paragraph! The bold and underline is my highlight but in this contract the entire paragraph has been placed in bold to stand out so you do not miss it. I’m certainly not an Attorney but anyone with even a limited exposure to contracts can understand what is happening here. This is my opinionated interpretation of this liability limiting paragraph.
“I really don’t want to be at your inspection! I would rather be home drinking beer and watching the ballgame. So I will walk around the house you’re buying and do whatever I feel like and do it QUICK so I can get out of there. Since I will purposely perform the inspection in a negligent manner you’re going to get screwed buying this house. When you finally figure that out all you can come after me for is the amount of the inspection fee!”
Many Inspectors will have some type of similar sounding liability limiting phrase in their contracts but not to this extent! What stands out in this one, and even I have rarely if ever seen, is the outright attempt at trying to waive liability if the Inspector is even aware that he is performing in a careless and negligent manner! That takes some real “Stones” to even put something like this in a contract!
Notice the following phrase also in that paragraph.
“YOU UNDERSTAND THAT YOU ARE FREE TO CONSULT WITH ANOTHER PROFESSIONAL IF YOU DO NOT AGREE TO THIS PROVISION.”
The laws we have are very incongruous regarding the rights of a business to have you sign away any consumer protection rights. To help this Inspector further make sure his contract does not get thrown out in a court case he is basically telling you if you don’t like this stipulation then find another Inspector! You have an option to walk away from this Inspector but if you choose not to you may well have signed away any consumer protection rights.
This very same contract was riddled with other “Gotchas” to include these, in my opinion, egregious terms.
“and hereby waive trial by jury”
This particular one prevents you from having a jury that might well have experienced a bad Inspector and would have sided with you.
“You will have no cause of action against us after one year from the date of the inspection.”
Texas law allows for a four year discovery period which means you would normally have up to four years to find out you were screwed by this Inspector. Of course with this Inspector I would fully expect you would find out much earlier than that for most things. However here the Inspector is attempting to limit your discovery time which might fly in a court case if other circumstances could prove it was a warranted stipulation by the Inspector.
“If a court finds any term of this Agreement ambiguous or requiring judicial interpretation, the court shall not construe that term against us by reason of the rule that any ambiguity in a document is construed against the party drafting it. You had the opportunity to consult qualified counsel before signing this.”
Here the Inspector IS having you sign away your right to claim you did not fully understand the contract since the Inspector is stating you had the opportunity to have an Attorney review the contract before you signed it. In other words if this Inspector provides you the contract before the inspection to review (not on site the day of the inspection) the Inspector is saying here you should have had an Attorney review it and advise you before you signed and since you chose not to then it is all your fault!
It is so sad that we have degenerated to this point in our society that the consumer is being treated as nothing more than a sheep to be sheared! The only way to prevent being sheared by this or any other Home Inspector is to obtain a copy of the contract in sufficient time to read it thoroughly. If you have questions ask the Inspector and hopefully they will provide you with an explanation. However if you run into a contract like this one I would not even bother with that Inspector and immediately looked for another!
PS Inspection & Property Services LLC is a full service home inspection and light commercial inspection company servicing the entire Dallas and Fort Worth, Texas metroplex as well as all areas around them. If you are located outside of these areas I can still help service your needs so call to see how. I strive for the satisfaction of my clients in everything I do. The services offerings include:
Buyer home inspections
New Home Warranty Inspections
New Home Draw Inspections
Home Maintenance Inspections
Home Remodeling Inspections
Rental And Renter Inspections
Infrared Thermal Imaging Inspections
Whole Inspections Or Inspections Customized To Your Needs
If you have an inspection need we can customize an inspection for it. Please visit our main site at PS Inspection & Property Service LLC.