Professional Inspector Provides Relief for the Anxious New-Home Buyer

By Benny L. Kass
Saturday, September 15, 2007
F04 The Washington Post

Q: We are considering buying a new home from a builder. We like the neighborhood, and the price on the house has been reduced. The builder is also throwing in a number of extras, including paying all of our closing costs. However, we don't know the reputation of this builder, and we'd like to have the home inspected before we go to closing. Is this possible?

A: I think it's a good idea, but builders often reject such arrangements for a number of reasons. Some builders claim that this will void their insurance policy and are afraid that someone will get hurt during the inspection. Other builders don't want their employees bothered by too many questions from the inspector, and other builders just say, "We will provide you with a house that has been approved by the county inspectors, so you do not have to worry."

But you are smart to worry. Frank Lesh, president of the American Society of Home Inspectors, said, "Even new homes have defects that only a professional can detect."

Keep in mind that in many counties, the government inspectors are busy and do not have time to carefully look at all aspects of the new home. Often, by the time the county inspector makes a site visit, your builder may already have put up the drywall, thereby covering up the electrical and plumbing systems.

I have been involved in a number of new-home warranty issues, many of which could have been avoided had the buyer been given the right to inspect the home as it was being built. In one case, the homeowner kept hearing pipes knocking every time the upstairs bathroom sink was turned on. The homeowner forced the developer to open the walls, at the developer's expense, and found that some of the pipes were not properly affixed to the wall. The building inspector hired by the homeowner determined that this was "water hammer."

In this case, the builder acknowledged that had there been a periodic inspection, the problem would have been detected earlier, at a significant cost savings to the builder.

ASHI recommends a three-pronged inspection: before pouring the foundation, before putting in insulation and drywall, and before the final walk-through.

Tell the builder that you want the right to have an inspector of your choice, and at your expense, conduct these inspections. Your sales contract should clearly spell this out.

Remember that a new home has many components, including the roof, the foundation, the electrical and plumbing systems, and the heating and air-conditioning systems. I recently heard of a situation in which a homeowner complained that a new house was not being adequately cooled. When a professional inspected the system, he discovered that the builder had made a mistake. A system designed for a smaller house had accidentally been installed.

Again, the developer had to spend a lot of money to correct the situation, money that could have been saved had there been periodic inspections.

It often amazes me that when consumers buy a new car, they inspect it carefully, even to the point of kicking the tires. But when they buy a new house, they are more concerned about how many bedrooms there will be and what size television they will be able to put in the family room.

If you do not have a referral for an inspector, you can find one by going to the Web site of either ASHI ( http://www.ashi.org/) or the National Association of Certified Home Inspectors ( http://www.nachi.org/).

When you contact a home inspector, inquire about his or her qualifications and background.

Many states have laws governing certification of home inspectors, and the full list of these state laws can be found on the ASHI Web site.

If you decide to hire an inspector, get a copy of the inspector's contract before you formally commit. Read it carefully, and make sure that the inspector will be doing the job you want.

There is one controversial provision in most home inspectors' contracts, called an "exculpatory clause." This states that should the inspector make a mistake and negligently fail to pick up problem areas in the house, your only remedy is to get a full refund of the contract price.

This clause has been upheld in Maryland. Recently, however, the D.C. Court of Appeals held that these exculpatory clauses will not be enforced "when a party to the contract attempts to avoid liability for intentional conduct of harm caused by 'reckless, wanton or gross behavior.' " ( Carlton v. Home Tech, decided June 15, 2006.) This was a modest fix, but unless you can prove that the inspector was engaged in such behavior, the exculpatory clause will be enforced.

While not every home inspector will agree to delete this clause, it certainly is worth trying.
Buying a new home creates significant anxiety among many home buyers. Why not get an inspector to relieve you of at least part of it?

Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed, stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036. Readers may also send questions to him at that address or contact him through his Web site, http://www.kmklawyers.com/