During a real estate transaction, when buying a residential property, purchasers often decide to obtain an optional home inspection to satisfy themselves of the property’s condition and to avoid unpleasant surprises. The job of a home inspector involves looking for visual signs that a home needs repairs or upgrading – for instance, by noting signs of water damage, soil movement, cracks, the poor/aged condition of plumbing and electrical services, signs of improper or inadequate insulation, and signs of mold, mildew or ventilation problems.
What happens if you retain the services of a home inspector, but find that there are defects in your home after purchase? You may be able to bring a claim against the home inspector for negligence and breach of contract. The negligence of a home inspector can include: not reporting defects which were within the scope of the inspection; exaggerating or downplaying an issue in the property or in the inspection report; or otherwise making inaccurate findings in the inspection report.
However, the liability of a home inspector depends on: (a) the terms of the contract, which may include waivers of liability for the inspector and can state, for instance, that the inspector’s liability is only limited to the cost of the inspection; and (b) whether the defect that they failed to discover is obvious or hidden.
A home inspector would only be liable in the case that the defect is patent – i.e., a defect that is visible and accessible, or is ordinarily discoverable during reasonable inspection and investigation. This means that a home inspector is not required to use destructive measures that could cause property damage in order to discover it.
It may also be worth noting that not all exculpatory clauses are enforceable, and you may nevertheless have legal recourse for the inspector’s mistake in certain situations, even where the contract includes a waiver.
Please give us a call at 416-221-9343 for a free consultation.