It's a great day here in Orem, Utah! Let's get right down to business..... I hope that you enjoy today's MMM. If there are any typos in today's issue, please be patient because Shelly is in southern Utah for he Mother's birthday and she was not able to proof the issue.
SIDE NOTE: Special t hanks to readers like Reggie Ayers for their continued excellent feedback.
I have to be honest and say "no doubt, I have." Thanks for this article from A O Smith. This is another example of the invaluable information you provide us with, and why membership to AII™ is worth every cent. Thanks Michael. Reggie Ayres - Medford, OR.
Not that I know about, but then, I've never performed and 8 hour test! Ron Cloyd - Klamath Falls, OR
SCARY!!!!! To know that there are brain-dead people like these in the same world that we live in, driving the same highways as we and our families drive. Whoever loaded that car is in big trouble, waiver or no waiver. Remember, this society is geared to benefit the brain-dead (those who lack common sense). My late father use to say "Education will enhance your standard of living,but common sense will insure your future." Reggie Ayres - Medford, OR
I stopped making the statement "Well, now I've seen it all" quite some time go, because I would no sooner make the statement and I would see something even more ridiculous. This one, however, is going to be hard to top. Gary Holzbauer - Junction City, Oregon
Last week I shared some of the complaints from the readership regarding a text box that was blocking a photo. Eric Smith passed along this advice.
Hi Michael, You might suggest to the whiners that when a photo is blocked by a comment box, they should capture the photo to MY DOCUMENTS. The photo will go but not the box. Hope this helps. Eric "becoming more computer literate" Smith
Thought I'd share a strange one with you. I was told by a realtor that the buyers of a house I'd recently inspected had to replace the bathtub and she didn't know if they would be coming after me to pay for it. Apparently the tub had a hairline crack in it that wasn't visible unless you were standing in the tub and your weight opened it up. She said there was related dryrot damage, which indicates to me that the previous owners must have damaged it, known about it, and just didn't repair/replace, or disclose it.
Is this one of those gray areas where an inspector may or may not be liable? Or does this sound like a real case of intended deception? I know it's negligence if an inspector looks right at a stain on the ceiling and doesn't report that it might be associated with a leak in the roof, but what if he (or she) fails to dig out the old magnifying glass to examine every surface of every plumbing fixture for hairline cracks? Give me a break!! Anyway, in my ten years of experience, I've never seen a cracked bathtub.... and I obviously didn't see this one either!! Have a great day. Bill Craig - Florence, OR
How is this situation similar to Chinese New Year's greeting ??? Chinese New Year greeting is Gung Hay Fat Choy. This situation is Gung Ho Fat Boy !!!! Thanks for the neat story. Robert Fischbach
Hi Bill, I don't think the hairline crack should be an issue as we don't stand or fill tubs. You did not mention if the rot was visible or was it also hidden from view? Was the tub on the main floor and a crawl with insulation? If all was not visible then the service agreement would be a standard to rely upon. Good luck and let us know. I've not run into that one before. Jim Corbin - Bow, WA
William, I had a complaint filed with the contractors board against me for the same situation. I did an inspection on a manufactured home that was vacant. The shower pan appeared in good condition and no moisture detected in floor or walls. Six months later the buyer calls and says she smelled rot in her bathroom and that I was a no good so and so. She wanted me to pay for a new cultured shower enclosure plus for all the rot damage that existed under the bathroom.
I immediately went to see the alleged problem and was met with rude comments about my lousy inspection. I kept my cool and told her the shower was fine when inspected. She finally let me look and I saw tiny surface cracks all over the shower floor. I checked the flooring with my meter and it was bone dry. Then I went under the house and did not see any moisture damage, wetness, or any odors. What I did notice was that the drain assembly was loose and leaking a bit. Drips going straight to the ground, nothing on any wood. Someone had been under there since I had done the inspection and had pulled down all the insulation below the shower.
When I reported to her that I saw no rot at all and that the cracks had appeared since I first inspected, she went ballistic and ran me off. Soon afterwards I got the complaint notice. I demanded a hearing and took a day to drive 300 miles to attend. When I walked in the room there she was with her 475 lb. son!!!!!! Well now I knew what caused the cracks in the shower pan. The judge caught her in three different lies when testimony was finished I won the case, but it still cost me plenty for missed work and travel expense. As it turned out, they were just trying to scam me for the damage her fat little boy did standing in the shower. I know this story doesn't give you any answers to your dilemma, but I thought you might look for an extra large person in the family that has the tub cracks. Good luck!!! Reggie Ayres Medford,OR
Reggie, The fat boy story was great. It is hard to believe there are people out there that make up such BS and will try and get your money without any real just cause, but anyone who has been around for a while has run into them. Jon Gudnason - Placerville, CA
Bill, I have only been inspecting a couple of years, but have had the same experience with a fiberglass tub in a mobile home. The buyer was very good about it, but was upset that I didn't find it. She found it when she tried to take her first bath. I put pressure in fiberglass tubs now. I don't want to a) buy one, or b) go through the worry of missing another cracked tub. Roy Brown - Lake Stevens, WA
Hey Reggie, The fat boy story was great. I laughed so hard. I wish I could have seen the look of revelation on your face when you walked in to the hearing! I also have had this happen with a fiberglass tub in a manufactured home but fairly understanding buyers when they realized it only leaked with pressure in the tub and I didn't take a shower there. Betty Buckley - Klamath Falls, OR
Reggie, Thanks for sharing your story about the cracked shower pan. We all need to know when somebody wins one---it does not always happen that way. I have come out on the short end of the stick twice now with an arbitration mentality that seems to go like this: If the inspector claims that he has no liability for an alleged "miss" and the claimant claims a loss of $10,000, then a fair settlement must be somewhere in the middle, say $5,000. Not reasonable, not fair. Also, I have also run into arbitrators who are attorneys, and have no depth of knowledge in inspection or construction. That really hurts.
Time for old codgers to get out of this game. My advice to young codgers:
In 600 inspections I have seen one cracked toilet bowl, several crazed sinks made of synthetic marble, but never a cracked or crazed fiberglass tub or cracked or crazed fiberglass shower pan. I'm glad you came out right on this one.
Some time back, I looked up the word "shyster" in the largest dictionary I own. I made a photo copy of the definition, and have it pinned on my office wall, just to give me some grins, and to remind me that there are some of those folks out there. Steve Jordan. Out to pasture on the green Oregon Coast.
SHYSTER - a person, esp. a lawyer, who uses unethical or tricky methods; pettifoger
PETTIFOGGER - 1. a lawyer who handles petty cases, esp. one who uses unethical methods in conducting trumped up cases 2. a trickster, cheater 3. a quibbler; caviler
Richard Grisham was responding to another question, but his advice is quite appropriate for Bill's situation.....
Show him a very large caliber hand gun and act crazy. Tell him some dreadful story about what happened to the last person that complained about your services. If this doesn't work well, fire off a few blanks and act even crazier. This is guaranteed to work every time. Try it and let us know what happens. Richard Grisham - Las Vegas, NV
Your Name: Please include your name or else I don't know who it is from.
All of the information shared by William and Reggie are very timely and closely relate to a situation that I am currently experiencing. I was called by a past client who has a misconception about the nature of my service. It is the same old story......... Good friend Charlie Woods from Georgia calls it the bummer factor. The client pays you $400.00 for a $400,000.00 home. You identify enough items to save them $4,000 through the inspection process and they call and want you to reimburse them $100.00 for something that was not noted in your report..... Bummer!!!
I inspected a nice large home for an out of state retired Doctor. Since he couldn't be present he sent his daughter and son to the home for an after inspection walkthrough. Then I spent another hour on the phone going over the details of the report, knowing that this person was very critical. Some would call his personality type anal. Then I received a follow-up note with the returned signed Service Agreement complaining that my $465.00 inspection fee was $200.00 more than he was prepared to pay. He came as a direct referral and I don't remember ever needing to quote a fee.... He wanted the best, he got the best. Then came the dreaded phone call..... If you haven't had this type of call, just be patient.
"Mr. Leavitt..... This is Dr. #$%$#@# and you inspected our home here in Orem. You missed the crack in our master bathroom shower and I need to find out what you are going to do about it. Please call me as soon as possible."
The return phone call exposed the real details of the situation. This client had been in his home for 3 weeks. The moment they showed up at the vacant home they noticed the crack in the shower pan and asked the seller about it and the seller said they had never seen it. Did they immediately call me???...... No way. Instead, they waited 3 weeks and then had a cultured marble specialist come in and look at the crack while also giving them a bid on an unfinished bathroom in the soon to be completed basement. The pro said that the crack was all the way through and that the crack was very old....... For some reason they think I should pay for the repair.
I was so proud of the way I handled the phone conversation. They were not interested in my returning to see the crack. I was firm on whose responsibility this crack was and that it was in no way mine. Obviously they finally called me after everybody else refused to pay for their misfortune. Towards the end of our phone conversation the client flat out said.... "Since you missed the crack don't you have insurance that will cover your mistake?" To myself I thought "What a shark. Being a Doctor he just expects me to pay..... Where did he ever get the idea that the Inspector is responsible for every thing not noted in the report..... Where would the line be drawn if I buckled???"
The client then said.... "I guess that I am just going to have to call my agent since you won't pay for the repair." I knew what that meant..... I was soon going to receive a whining phone call from the agent in an attempt to threaten my future referral source..... When would this ever end??? Here is the letter that Shelly and I authored as a reply........
Dr. Raymond #$%$#@# #$%^ North @#$% East Orem, UT 84057
R E : Hairline crack in the floor of the cultured marble shower pan
Dear Dr. #$%$#@#:
This letter is a follow-up to our phone conversation today regarding the hairline crack in the floor of the master bathroom cultured marble shower pan. I reviewed the report and found no negligence on my part. The report documents that I evaluated the bathroom in question and did not identify a leaking shower pan. I obviously looked at the component because I took a picture of this shower to draw your attention to the poor and mildewed caulking and alerted you to the fact that maintenance was needed in this shower. I also showed this condition to your two relatives that were sent as your representative to walk through the home at the conclusion of the inspection. If you recall, I also discussed this with you over phone during our post-inspection phone call.
In the report, on page 15 in the Buyer's Protection Tips section, I alert you to look closely at the home in vacant condition for any conditions not noted in the report. I also state that should you find anything, you should immediately notify me so that I can come and document it for you on your behalf to help bring the information to the surface and to aid you in the transaction with your Seller.
It is clear to me after our conversation that you do not have a clear understanding as to the responsibilities and duties of a home inspector. Please refer to the Service Agreement which has many references as to what my responsibilities are and are not. In particular, the first 3 lines under the heading, "WHAT YOUR INSPECTION INCLUDES " state "We will make a visual inspection of the prominently visible and accessible areas of the property. The Inspection Report is a reasonable effort to assess the DURABILITY and SERVICEABILITY of the property in its present state, and our analysis is limited to our written Report."
Also, page 1, line 12 states: “This inspection is not conducted to detect every minor problem or condition that may exist in the building.”
And also on page 1, lines 25-36: “The most conscientious visual inspection is not capable of determining all conditions that actually exist within a house. We make a random evaluation of some components and, of course, cannot move furniture, etc., to obtain access. If we find 90% of the Reportable Conditions, then we have done an excellent job.”
These specific statements, as well as reading the entire service agreement, should make it extremely clear what my exact responsibilities and liabilities are as your home inspector. I am not a home warranty company, nor do I give any impression to be one. (Please refer to page 2, lines 1-4 of the Service Agreement under the heading, "WARRANTIES AND INSURANCE" for further clarification.) In fact, I state this very clearly in the Service Agreement (see reference above) and in the actual report under "Buyer's Protection Tips", page 15 of your report, where it states: "If the future operation of the mechanical components of the home is a concern, we strongly recommend that you invest in a home warranty policy designed for repair/replacement of mechanical systems of the home. Our service is NOT a home warranty. Home warranties are offered by several different companies."
The purchase of such a home warranty insurance plan is completely and entirely the homeowner's prerogative. This is just one of many decisions you must make as a homeowner. There is a reason I strongly recommend it to my clients. If they are not ready for the responsibilities of home ownership and all the maintenance and repairs that go along with home ownership, a home warranty is an excellent way to ease into full responsibility of your home. A home inspection and the report should never be construed as a home warranty and that is why I make it very clear in my Report and Service Agreement that this is not the case.
May I refer you once again to our Service Agreement which states, among other things, (page 1, lines 21- 24, under the heading “RISK OF BUYERS & SELLERS”): “Buyers are always at risk. OUR VISUAL INSPECTION MAY ILLUMINATE SOME AREAS OF RISK, BUT CANNOT ELIMINATE IT. OUR INSPECTOR IS LIMITED TO THE EXISTING CLUES AND SYMPTOMS ON THE DAY OF OUR INSPECTION, AND WE CANNOT BE LIABLE FOR NONVISIBLE, OBSCURE, OR CONCEALED FAULTS. Claims for concealed conditions, whether intentional or unintentional, must be made against the seller of the property.” (Capitalization and bold text are as they appear in the original, signed service agreement.)
Based on what our Service Agreement states, I am surprised that you thought that I was the one responsible to pay for your maintenance repair. I am your neutral, third-party professional who documented my opinions to alert you to as many reportable conditions as I could. As a professional, I think it important for you to know that I am independent of anyone else involved in the transaction. Therefore, I can not be manipulated nor base my opinions on any subjective reasons (such as fear of losing future referrals, etc.) I mention this because I received a phone call from your agent, Evelyn Johnson, in what appears to have been an effort to apply pressure to get me to pay for the repair.
Your claim, should you still feel you have one, is against the Sellers of the home. This would only be the case if you feel that the crack was there upon taking possession of the property. Section 10.2 of the Utah Real Estate Purchase Contract clearly states: "10.2 Condition of Property. Seller warrants that the Property will be in the following condition ON THE DATE SELLER DELIVERS PHYSICAL POSSESSION TO THE BUYER:.... 10.2.b the heating, cooling, electrical, plumbing and sprinkler systems and fixture, and the appliances and fireplaces will be in working order and fit for their intended purposes;..." (Capitalization is as appears on original document)
The Real Estate Purchase Contract states that the Seller should have turned these items over to you in working order. In our conversation today, you told me that you notified the Seller of the crack immediately 3 weeks ago when you took possession. I commend you for notifying them, but I am befuddled as to why they were allowed to squirm out of their legal contract. Like it or not, they are the responsible party. You hired me to be your neutral third party to document conditions and my offer still stands. In the "Buyer’s Protection Tips" located on page 15 of your inspection report, I state that if you were to find a condition on your walkthrough or after taking possession of the property, that I would make a return visit and document those conditions to help you in your transaction with the Seller. I can still do this for your shower pan condition if you think that it would be beneficial.
If, however the hairline shower pan crack was not there when you took possession of the home, then you have a claim with your Home Warranty company. I’m assuming that you heeded my several warnings in the inspection report and purchased Home Warranty coverage. If this shower pan repair upsets you, then a Home Warranty should be considered a necessity because more things will need repair in your home in the future. Home Warranties are designed to cover the mechanical systems of the home and are provided by several firms. Components in your six-year-old home will continue to break. This is a sad reality of home ownership, but very true. Your heater could stop tomorrow. Your water heater will eventually fail. Your A/C may not function when the weather warms up in the spring. Your faucets will start to drip. This just happens. Home warranties help cushion the repair blows and I encourage you to purchase one. I also encourage you to continue paying them their $300-$500 fee each year to help cover your repair needs in the years to come. If you did not purchase one, I again strongly recommend you do so immediately.
As for the hairline crack, your cultured marble professional told you that the product carries a 5-year warranty on the material. This means that other cracks are possible in any of the cultured marble in your six-year-old home. Future maintenance should be anticipated with all of the cultured marble in your home. A hairline crack is a sign of the component aging gracefully. The crack can be repaired or the pan bottom can be replaced. As the homeowner, repairs are at your discretion. The more expensive repair is $300 (the estimate given you by the repairman) and I suspect that the crack, which can also be repaired with by patching with a router and bonding agent is about a third of that cost. This is not a major expense. This is a normal preventive maintenance repair.
The documented facts are that there were no visual evidence of the shower pan leaking during the inspection. You told me that there still is no evidence of leaking. The cultured marble is a finish coat to the shower pan system, yet the shower pan is much more comprehensive in stopping leaks. The shower pan as a full system has a mortar base and an embedded rubber bladder to prevent leaking. While it is not desirable to have water getting under the cultured marble the shower pan, it is still getting the water into the drain. This is as designed. If the cultured marble starts to leak, then you have the back-up system in place to prevent damage into the basement. Now that a crack has been identified, it is prudent to have it repaired.
As I stated in our phone conversation earlier today, your maintenance repair is beyond the scope of my responsibility as a home inspector. I stand by my report and the thoroughness of it. I feel I performed an excellent home inspection pointing out many conditions and challenges in the process. There clearly was no gross negligence on my part. I inspected that shower and noted any concerns I found. As stated in the Service Agreement, page 2, lines 18-22, under “ARBITRATION”: “If you feel that the Inspection was negligent in some respect, you are personally expected to immediately communicate this IN WRITING to our address above within ten (10) business days of discovery.”
You yourself stated that you discovered the hairline crack immediately upon viewing the home during the final walkthrough and you asked the seller about it and they said they were unaware of such a crack. I’m still puzzled as to why I was not immediately contacted to come back and re-evaluate the shower pan and document the crack. I suspect because it was not a concern at the time. No further consideration appears to have been given it until you had a cultured marble repairman come for other issues and had him take a look at this hairline crack as well. The shower pan currently is not leaking into the basement and there is no damage outside of the shower pan from this hairline crack. This is clearly not negligence on my part, but falls under normal repair maintenance which comes with owning a home.
I trust that this letter answers any questions or concerns that you have had regarding the hairline crack in the cultured marble shower located in the master bathroom and clearly states my position on this matter.
Thank you for allowing us to perform your home inspection needs.
Michael Leavitt Michael Leavitt & Co Inspections, Inc.
Name, City & State: Please include your name or else I don't know who it is from.
NOTE: I share this story with you not as Home Inspectors, but just as information that is interesting.
As first reported in an August 18th NPMA E-Lert, the use of the lawn and garden insecticide, Diazinon, is being phased out as the result of a reassessment by EPA under the Food Quality Protection Act. This is an update as of December 5, 2000.
On December 5th, the U.S. Environmental Protection Agency and pesticide manufacturers announced that they have entered into a voluntary agreement to restrict the future use of the Diazinon over a four-year period. NPMA first alerted members to the pending EPA action last August following a decision by manufacturers to discontinue support of the registration for indoor uses of Diazinon.
Today’s action by EPA is part of the reassessment of all organophosphate and carbamate pesticides, required under the Food Quality Protection Act of 1996. EPA’s revised risk assessment of Diazinon is not based on any new scientific data.
Under terms of the voluntary agreement, all indoor residential and indoor non-residential uses of diazinon will be terminated, and outdoor residential lawn and garden uses will be phased out over the next four years. Specific terms of the agreement include the following:
For more information on the reassessment of Diazinon by EPA and the voluntary agreement with manufacturers, visit EPA’s web site – www.epa.gov/pesticides
The following is a condition that I see in my area all too often..... Howzabout you???
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