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| November - December 2009 Inspector eNews |
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November — December 2009 | Archives
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The Coalition of California Home Inspectors (CCHI) thanks the following Individuals and Chapters for their Contributions in 2009. CCHI also thanks the many attendees at CREIA educational events in 2009 who contributed through raffle donations.
CREIA’s Contract and Standards of Practice – A Perspective Bill Parker, our board president, has asked me to write about our Contract and Standards of Practice to help members gain a better perspective and understanding of these critical documents, how they developed, their purpose, and how they relate to your duties as a home inspector. It has been three years since our committee presented the current standards to the members at the CREIA conference in the summer of 2006. Many who missed that opportunity may still be looking for a better explanation for all the changes than they have gotten from their local chapters. This article and a couple that will follow should correct that and I want to start by taking a look at how the legal community has received the new Contract and SOP. To date, none of us on the Contract or Standards of Practice Committees have become aware of any legal challenges to any the provisions and all of the feedback that we have received from the legal community has been overwhelmingly positive. So, on that basis alone, I would say the effort has been a resounding success. Before the revisions were made we had feedback from the legal community that some of the provisions were putting our inspectors in direct jeopardy. We were told that we were putting a gun to our heads or at least shooting ourselves in the foot. We got feedback that it was easier to defend an inspector that used an ASHI contract and SOP, than our own. Well all that has changed and we never hear stories like that anymore. Every sentence, every word, every nuance was analyzed specifically from a legal perspective. In the state of California we have a unique legal environment and our Contract and SOP are directly tailored to reflect that reality. The most important provisions of California law are laid out in the Business and Professions Code Chapter 9.3, §7195 through §7199. Every one of us must be responsible for knowing and understanding these requirements. These provisions define what is required of a home inspector in California and are so important that how they impact and relate to our Contract and SOP will be the subject of a separate article in the next CREIA eNews. The process of revising the Standards of Practice was started by Jerry McCarthy, Duane McCutcheon, Al Virtue and myself. We were joined by George Harper, Steve Rush and Gary Sniffin with input from Bill Poulton, all the members of the state board, and many members throughout the state who took the time to get involved. Every word of the SOP and Contract was vigorously debated by very strong egos that managed to come to unanimous agreement after a grueling year long process that consumed a few of our lives. They were reviewed and approved by three lawyers –Kris Thompson, Dave Roberson and the legal team at Marian Allen – all of whom felt that decisive improvements were made from the previous edition. All comments from legal review were incorporated into the final version. As part of the overall process there was a point by point comparison between the ASHI SOP and contract and CREIA’s and the differences between the two where narrowed as much as possible in comparison to our previous SOP. California operates in a unique legal environment and this accounts for most of the remaining differences. The SOP and Contract went through membership review and over a hundred comments were received that resulted in many important changes. This resulted in the approval of the CREIA board with only one dissention that was over just one point – not including a standard tool list. Our intention from the beginning to end of the revision process was never to change the practices that most inspectors have been following. Our intensions were to streamline the SOP, make it as understandable as possible to the client, make it more concise, precise and dynamic, eliminate all internal conflicts, make it true to the Building and Professions Code, and make it legally defensible. One of the most profound improvements was to integrate the Standards of Practice directly with our contract and the importance of this one achievement cannot possibly be over estimated. Jerry McCarthy was the first to promote the idea that the SOP should be incorporated into the contract and be an integral part of it. The rest of us were initially skeptical but each of us eventually came around to understand the very real benefits of that concept and the lawyers all immediately supported the idea. What value is there if the SOP is not used and disseminated by us and understandable to the client? Just think how much more powerful it is to have the SOP as part of the contract rather than just being referred to in the contract. Now that our clients can be expected to read the SOP along with the contract they can no longer claim ignorance of the limitations. The importance of this change alone cannot be overstated. Every inspector should be strongly advised to provide the Contract and SOP as a package to their clients before the inspection or at the very least, at the beginning of the inspection. Every inspector should also be advised to print the contract and SOP at the beginning of each report and to make them an integral part of every report they print or send out in electronic format. This is the best way to make sure the inspector is not losing the protections provided by the contract/SOP. In fact we should probably all start referring to it as Contract/SOP so that everyone understands how integrated they truly need to be. Some people would like our standards to be more like a guide that an inspector can use, kind of like a field guide. The problem with this is that it has no logical conclusion and every effort in this direction just makes the SOP longer and longer. The SOP needs to be directed towards our clients not the inspector. It needs to be short and concise enough that we can reasonable expect our clients to both read it and understand it. It seems self-evident that if our clients can’t understand it and don’t read it, than it will not be as strong of a legal document. And this brings me back to the most critical point of all. Both our contract and SOP are, above all else, legal documents and every word was chosen with that in mind. It must be fair to our clients in setting out a reasonable scope of work and responsibility for the inspector. And it must be fair to the inspector in setting out reasonable limitations to what could otherwise be a very open-ended liability. We had to make a choice between a user friendly guide for inspectors and a concise document our clients can read and understand as well as a document that would hold up in court. We shortened the document to make it more usable and I hope everyone understands why we made this choice. We have gotten comments from some inspectors that they felt the standards were ‘weakened’ as they were condensed. The best way to address this issue is to use an example. The new standard simply states that you are required to inspect “water heaters”. The old standard included a lot more words: “Water heating equipment, including combustion air, venting, connections, energy sources, seismic bracing, and temperature-pressure relief valves”. Two words vs. 17. Did we change the standard? Our answer is an emphatic no. You must inspect all of those “components” to inspect the water heater “system”. There is just no need to list them all. None of those components were added to the excluded section. Any inspector who feels there requirement for inspecting a water heater changed needs to be set straight because I assure you that they would lose in a court of law or public opinion. Here is the reasoning for our decision to use two words rather than 17. This inclination to expand from simply listing the system to listing a longer list of components can be played out over and over again. I could show you in the old SOP a dozen places where it would make just as much sense to expand from two words to 17 so that we could list all the important components of other systems just like we were for water heaters. The old SOP lacked internal constancy in this way and we strove to analyze and minimize these inconsistencies as much as possible. Of course expanding each item this way would have expanded the entire SOP greatly rather than shrinking it. In fact, when taken to its logical conclusion, the SOP would have expanded exponentially. This example, as many possible others, should show that there is no change in the scope of an inspection for these items at all. There are some items that were previously excluded or considered options that are now included in our SOP. These are specifically: the major built-in kitchen appliances (stove, range hood, oven, dishwasher and garbage disposal) and garage doors and garage door openers. In addition, lot drainage issues are no longer limited to five feet and you should be looking at this issue more carefully than in the past. These expanded our scope of responsibility in ways we felt were in the best interests of our clients and reflected what most of our inspectors were already doing. I have one last subject to talk about in this article. Any standard of practice, by its nature, is the minimum that is required and should be considered a floor below which you can never go. You need to rise above this level and the more you do, the lower your potential problems. For instance our standards allow us to inspect a representative number of doors and windows. However, most inspectors inspect every window and door that is accessible and I feel that every one of you needs to do the same. The reason the SOP allows a representative sample is because we know that not every door or window will be accessible and this gives you some freedom from an absolute standard that would require you to inspect each one. I do not think you should abuse this escape clause and feel that each of us needs to make a reasonable effort to inspect each and every door and window. Each is unique and each has a unique potential for defects. In my next article we will look at this subject from a different perspective in relation to the critical safety issues. I am absolutely convinced that the better job that you do for your clients the less of a chance you will have a lawsuit. We know lots of inspectors that have gone a decade or more without ever being sued. We have others that seem to be dealing with a suit almost continually. I know that even the most conscientious can be sued by an unreasonable client, but on balance, the evidence is clear – rise to a higher standard and your liability will drop dramatically. To reiterate the main points of this article: The legal community and CREIA leadership has resoundingly endorsed the current CREIA Contract/SOP. CREIA is the only association with a Contract/SOP that is specifically written for California’s unique legal environment and is compatible with the California Building and Professions Code. Condensing and integrating the Standards of Practice into the Contract has made it more widely used, more understandable to the client, and more legally defensible. It is a mistake to ever send out a report that doesn’t have the Contract/SOP attached. The newer standards do not change the practices for most inspectors and the scope of our responsibility was actually increased, not diminished. The Standards of Practice should not be considered a field guide because that ideal had to be abandoned to realize all the other objectives. And last, any standards by their nature need to be considered minimum standards and you should strive to provide a higher personal standard for your clients – it will lower your liability and you will sleep better at night. This article is the first of several dedicated to a better understanding of our Contract and Standards of Practice. The next issue will have an article about the Business and Professions Code and its impact on home inspectors with a critical look at safety issues – both your safety and the clients. If you would like to participate in this discussion or would like to have any of your personal questions or concerns addressed, please email me directly. Submitted bySteve Johns, CREIA MCI, CNCS, All Pro Home Inspections.
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Congratulations! New Candidates Richard W Sarette New CCIs John L. Briere New Affiliates Ed Daher
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November — December 2009 | Archives
|
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The Coalition of California Home Inspectors (CCHI) thanks the following Individuals and Chapters for their Contributions in 2009. CCHI also thanks the many attendees at CREIA educational events in 2009 who contributed through raffle donations.
CREIA’s Contract and Standards of Practice – A Perspective Bill Parker, our board president, has asked me to write about our Contract and Standards of Practice to help members gain a better perspective and understanding of these critical documents, how they developed, their purpose, and how they relate to your duties as a home inspector. It has been three years since our committee presented the current standards to the members at the CREIA conference in the summer of 2006. Many who missed that opportunity may still be looking for a better explanation for all the changes than they have gotten from their local chapters. This article and a couple that will follow should correct that and I want to start by taking a look at how the legal community has received the new Contract and SOP. To date, none of us on the Contract or Standards of Practice Committees have become aware of any legal challenges to any the provisions and all of the feedback that we have received from the legal community has been overwhelmingly positive. So, on that basis alone, I would say the effort has been a resounding success. Before the revisions were made we had feedback from the legal community that some of the provisions were putting our inspectors in direct jeopardy. We were told that we were putting a gun to our heads or at least shooting ourselves in the foot. We got feedback that it was easier to defend an inspector that used an ASHI contract and SOP, than our own. Well all that has changed and we never hear stories like that anymore. Every sentence, every word, every nuance was analyzed specifically from a legal perspective. In the state of California we have a unique legal environment and our Contract and SOP are directly tailored to reflect that reality. The most important provisions of California law are laid out in the Business and Professions Code Chapter 9.3, §7195 through §7199. Every one of us must be responsible for knowing and understanding these requirements. These provisions define what is required of a home inspector in California and are so important that how they impact and relate to our Contract and SOP will be the subject of a separate article in the next CREIA eNews. The process of revising the Standards of Practice was started by Jerry McCarthy, Duane McCutcheon, Al Virtue and myself. We were joined by George Harper, Steve Rush and Gary Sniffin with input from Bill Poulton, all the members of the state board, and many members throughout the state who took the time to get involved. Every word of the SOP and Contract was vigorously debated by very strong egos that managed to come to unanimous agreement after a grueling year long process that consumed a few of our lives. They were reviewed and approved by three lawyers –Kris Thompson, Dave Roberson and the legal team at Marian Allen – all of whom felt that decisive improvements were made from the previous edition. All comments from legal review were incorporated into the final version. As part of the overall process there was a point by point comparison between the ASHI SOP and contract and CREIA’s and the differences between the two where narrowed as much as possible in comparison to our previous SOP. California operates in a unique legal environment and this accounts for most of the remaining differences. The SOP and Contract went through membership review and over a hundred comments were received that resulted in many important changes. This resulted in the approval of the CREIA board with only one dissention that was over just one point – not including a standard tool list. Our intention from the beginning to end of the revision process was never to change the practices that most inspectors have been following. Our intensions were to streamline the SOP, make it as understandable as possible to the client, make it more concise, precise and dynamic, eliminate all internal conflicts, make it true to the Building and Professions Code, and make it legally defensible. One of the most profound improvements was to integrate the Standards of Practice directly with our contract and the importance of this one achievement cannot possibly be over estimated. Jerry McCarthy was the first to promote the idea that the SOP should be incorporated into the contract and be an integral part of it. The rest of us were initially skeptical but each of us eventually came around to understand the very real benefits of that concept and the lawyers all immediately supported the idea. What value is there if the SOP is not used and disseminated by us and understandable to the client? Just think how much more powerful it is to have the SOP as part of the contract rather than just being referred to in the contract. Now that our clients can be expected to read the SOP along with the contract they can no longer claim ignorance of the limitations. The importance of this change alone cannot be overstated. Every inspector should be strongly advised to provide the Contract and SOP as a package to their clients before the inspection or at the very least, at the beginning of the inspection. Every inspector should also be advised to print the contract and SOP at the beginning of each report and to make them an integral part of every report they print or send out in electronic format. This is the best way to make sure the inspector is not losing the protections provided by the contract/SOP. In fact we should probably all start referring to it as Contract/SOP so that everyone understands how integrated they truly need to be. Some people would like our standards to be more like a guide that an inspector can use, kind of like a field guide. The problem with this is that it has no logical conclusion and every effort in this direction just makes the SOP longer and longer. The SOP needs to be directed towards our clients not the inspector. It needs to be short and concise enough that we can reasonable expect our clients to both read it and understand it. It seems self-evident that if our clients can’t understand it and don’t read it, than it will not be as strong of a legal document. And this brings me back to the most critical point of all. Both our contract and SOP are, above all else, legal documents and every word was chosen with that in mind. It must be fair to our clients in setting out a reasonable scope of work and responsibility for the inspector. And it must be fair to the inspector in setting out reasonable limitations to what could otherwise be a very open-ended liability. We had to make a choice between a user friendly guide for inspectors and a concise document our clients can read and understand as well as a document that would hold up in court. We shortened the document to make it more usable and I hope everyone understands why we made this choice. We have gotten comments from some inspectors that they felt the standards were ‘weakened’ as they were condensed. The best way to address this issue is to use an example. The new standard simply states that you are required to inspect “water heaters”. The old standard included a lot more words: “Water heating equipment, including combustion air, venting, connections, energy sources, seismic bracing, and temperature-pressure relief valves”. Two words vs. 17. Did we change the standard? Our answer is an emphatic no. You must inspect all of those “components” to inspect the water heater “system”. There is just no need to list them all. None of those components were added to the excluded section. Any inspector who feels there requirement for inspecting a water heater changed needs to be set straight because I assure you that they would lose in a court of law or public opinion. Here is the reasoning for our decision to use two words rather than 17. This inclination to expand from simply listing the system to listing a longer list of components can be played out over and over again. I could show you in the old SOP a dozen places where it would make just as much sense to expand from two words to 17 so that we could list all the important components of other systems just like we were for water heaters. The old SOP lacked internal constancy in this way and we strove to analyze and minimize these inconsistencies as much as possible. Of course expanding each item this way would have expanded the entire SOP greatly rather than shrinking it. In fact, when taken to its logical conclusion, the SOP would have expanded exponentially. This example, as many possible others, should show that there is no change in the scope of an inspection for these items at all. There are some items that were previously excluded or considered options that are now included in our SOP. These are specifically: the major built-in kitchen appliances (stove, range hood, oven, dishwasher and garbage disposal) and garage doors and garage door openers. In addition, lot drainage issues are no longer limited to five feet and you should be looking at this issue more carefully than in the past. These expanded our scope of responsibility in ways we felt were in the best interests of our clients and reflected what most of our inspectors were already doing. I have one last subject to talk about in this article. Any standard of practice, by its nature, is the minimum that is required and should be considered a floor below which you can never go. You need to rise above this level and the more you do, the lower your potential problems. For instance our standards allow us to inspect a representative number of doors and windows. However, most inspectors inspect every window and door that is accessible and I feel that every one of you needs to do the same. The reason the SOP allows a representative sample is because we know that not every door or window will be accessible and this gives you some freedom from an absolute standard that would require you to inspect each one. I do not think you should abuse this escape clause and feel that each of us needs to make a reasonable effort to inspect each and every door and window. Each is unique and each has a unique potential for defects. In my next article we will look at this subject from a different perspective in relation to the critical safety issues. I am absolutely convinced that the better job that you do for your clients the less of a chance you will have a lawsuit. We know lots of inspectors that have gone a decade or more without ever being sued. We have others that seem to be dealing with a suit almost continually. I know that even the most conscientious can be sued by an unreasonable client, but on balance, the evidence is clear – rise to a higher standard and your liability will drop dramatically. To reiterate the main points of this article: The legal community and CREIA leadership has resoundingly endorsed the current CREIA Contract/SOP. CREIA is the only association with a Contract/SOP that is specifically written for California’s unique legal environment and is compatible with the California Building and Professions Code. Condensing and integrating the Standards of Practice into the Contract has made it more widely used, more understandable to the client, and more legally defensible. It is a mistake to ever send out a report that doesn’t have the Contract/SOP attached. The newer standards do not change the practices for most inspectors and the scope of our responsibility was actually increased, not diminished. The Standards of Practice should not be considered a field guide because that ideal had to be abandoned to realize all the other objectives. And last, any standards by their nature need to be considered minimum standards and you should strive to provide a higher personal standard for your clients – it will lower your liability and you will sleep better at night. This article is the first of several dedicated to a better understanding of our Contract and Standards of Practice. The next issue will have an article about the Business and Professions Code and its impact on home inspectors with a critical look at safety issues – both your safety and the clients. If you would like to participate in this discussion or would like to have any of your personal questions or concerns addressed, please email me directly. Submitted bySteve Johns, CREIA MCI, CNCS, All Pro Home Inspections.
Page 2 |
Congratulations! New Candidates Richard W Sarette New CCIs John L. Briere New Affiliates Ed Daher
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