Normally, when people discover that the house they've purchased came with hidden defects, the home seller is their first object of their potential blame. That's especially true because in most U.S. states, sellers of real estate are legally obligated to give prospective buyers a heads up, by disclosing, in writing, material defects that they're aware of on the property. But in some situations, the home inspector might have been the main or only person with sufficient expertise to spot the problem. Might that make the home inspector legally responsible?
This line of inquiry is especially apt in that a huge reason for buyers to commission an inspection is to compensate for home sellers incomplete knowledge about their property. A professional, however, can ferret out problems of which the seller was unaware (such as in the attic, or concerning the wiring) or that the seller simply stopped noticing after years of living in the place. The home inspector probably supplied the buyer with a comprehensive written report, which the buyer would have then reviewed and accepted before proceeding to the closing.
If, however, the inspector's report left off important things, the home buyer has valid reasons to be frustrated. In fact, the buyer can potentially sue the inspector. The most likely legal theories on which to base such a suit would be either:
- negligence, or
- breach of contract.
How Might the Legal Theory of Negligence Be Used to Sue a Home Inspector?
Negligence means someone's failure to use reasonable care in doing their duty to another, which results in damage or injury to that other person.
In the context of a home inspection, the inspector had a duty to deliver a report to the buyer who hired them, and that report must have met professional standards. If your inspector breached this duty, and if the report played a role in you purchasing the house or paying the price you did, and you suffered some quantifiable form of harm as a result, that could add up to a solid negligence claim. In fact, it fits the definition of a particular type of negligence known as "professional malpractice."
Facts will be crucial to successfully arguing your case, however. There won't likely be a bright line where you can say, "The inspector said the sink worked and it doesn't, so that's negligence." To convince a court that you deserve compensation from the inspector, you'd need to actually show that a problem existed with the sink before the sale, and that another inspector in this one's shoes could and should have discovered it.
If you can do that, the inspector can be held responsible for paying for damages; in this example, most likely sink repairs. Don't expect extra, punitive damages or to collect for anything along the lines of emotional distress, nor for the inspector to have to pay your lawyers' fees if you win.
What Defenses to Negligence Might the Home Inspector Claim?
Before gearing up for a battle, try to anticipate the home inspector's defenses to a civil charge of negligence. Some of them might be solid ones.
First, read the inspector's report carefully to find out what it did and didn't cover.
You'll likely see language explaining that home inspectors don't ordinarily check every last part of every system, but will sample what's there and follow up if the problems seem concerning or widespread. Also, they aren't expected to tear open walls or perform invasive searches in search of things like hidden mold or electrical problems.
The report is also likely to contain a boilerplate list of "Exclusions," or areas that the inspector doesn't normally look into.
It might specifically mention areas of this particular property the inspector actually couldn't look into. It's not unheard of for home sellers to, for example, block off access to portions of a home or property (for example, with a stack of boxes), intentionally or not. It's not the inspector's job to bust into a padlocked shed. The inspector might have instead noted on the report that access was impeded, and left it to your agent and you to follow up.
What's more, the report might contain an "exculpatory" clause. This places a limit on the inspector's financial liability; for example, capping it at the cost of the inspection itself (basically a refund). Courts will usually enforce these, except in extreme cases of "gross negligence."
How Might the Legal Theory of Breach of Contract Be Used to Sue a Home Inspector?
When you hired the home inspector, you ideally signed a written agreement specifying the scope of the work to be done. If the inspector failed to meet the terms of that agreement, perhaps by forgetting to examine a major structural component or system as specified in the agreement, breach of contract is another potential claim you could file.
As with negligence, your damages would be essentially limited to the costs of fixing the problem that was the basis for your suit.
What Defenses to Breach of Contract Might the Home Inspector Claim?
Similar to with a negligence claim, you'd need to show both that the contract promised the inspector would examine particular portions of the property and supply a certain sort of information in the report, and evidence of failure to do so, leading to the damage that you suffered.
Unfortunately, the inspector's contract (probably boilerplate) might not have done a comprehensive job of specifying the scope of work, and the inspector might claim that the issue you've raised wasn't even on the list.
Or, the contract might actually become a pillar of the inspector's defense. If, for example, you're suing over a faulty hot tub, but the report stated that the hot tub would be excluded because it was outside the inspector's area of expertise, you're out of luck.
What Evidence Can You Gather to Support Your Claim Against the Home Inspector?
Assuming the problem is not minor or cheap to fix (in which case you might want to simply chalk this up to experience), your next line of inquiry is to prepare to prove that the inspector not only could but should have looked for or seen the problem.
Before making needed repairs, take photographs, if possible. Also read the portion of the inspector's report relevant to the area in question, and note any other discrepancies between what the inspector observed and what you're seeing.
Calling in an expert can also be helpful, most likely another home inspector. That person can examine the matter and point out clues to whether it's a problem that existed before the house purchase. This second-opinion provider can also prepare a written report, if appropriate.
It might even be possible to find witnesses from before the house was sold who will prepare a statement. Examples might include a housekeeper or gardener who worked for the former owner and can affirm that they had to deal with the problem at issue, or a neighbor who saw contractor's trucks arriving and perhaps spoke with the homeowner about the need to fix the area in question. (In the latter case, you'd also want to contact the contractor for information about what work was done.)
Keep a file containing all these pieces of evidence, for use in protecting your rights and potentially filing suit.
What Steps Should You Take Before Filing a Lawsuit Against the Home Inspector?
Consider alternatives to suing. Legal fees could wipe out your gains. Working matters out without a court's involvement can be in everyone's best interest.
First, call your real estate agent and explain the issue. The agent has likely worked with the inspector before, and might have insights or suggestions.
Next, draft a demand letter to the inspector. This is a letter laying out the evidence and explaining why you believe the inspector was negligent or breached the contract, and asking for a remedy (most likely financial). It should include a deadline for reply, after which you will pursue your legal remedies.
Those legal remedies could include alternative dispute resolution, such as mediation or arbitration. Or, if a relatively small amount of money is at stake, they could include small claims court. A full-scale lawsuit should be a last resort.
Practically speaking, what's likely to happen at this point is that the inspector calls their insurance company, explains that a malpractice suit might be in the offing, and then reaches a settlement with you.