Picture this — you’ve taken the time to choose a new home carefully, gone through the purchase process, and done your due diligence by completing a home inspection. The next thing you know, you find that your new home has a significant issue, like needing a new roof or structural work done on the foundation to make your home safe. Those are major repairs, and you might not even be able to live in your home while they’re happening. You’re probably reeling — you had a home inspection, and everything was good! Don’t worry — you do have some recourse. In the unlikely circumstance that you find yourself unsatisfied with your home inspection to the point that you suspect there is negligence or harm inflicted as a result of your inspector’s actions or lack thereof, you’ll be wondering if you have any course of action.
The short answer is, yes, you can sue a home inspector.
What to consider before suing your home inspector
There are, however, a few large hurdles you might face on the way to a successful legal suit, and we’ll go over those in this article.
- Your home inspector is an expert on everything under their purview. That means your foundation, electrical, plumbing, HVAC, and roof. Unless you are an expert by trade and career on one of these topics, chances are your home inspector knows more than you do.
- Unless you can prove clean and malicious negligence, your inspector will likely be able to explain away their actions. After all, they are the expert.
- Chances are, you signed a waiver as a part of your agreement with your home inspector that precludes you from taking legal action against them for many (if not all faults in their inspection).
Who is at fault?
Builders and new construction
In new builds, many areas are so fresh that an inspector, even one doing a great job, might not be able to see them yet. For example, mold is a huge concern in any home. If your home is so new that there hasn’t been adequate time for signs of moisture to appear — never mind mold or mildew itself — when your inspector is present for the inspection, it may be the builder who is at fault, not your home inspector.
Existing homes can present a problem for home inspectors, and that problem for them can quickly seem like negligence on their part to an uneducated client. Home inspectors cannot move furniture, boxes, etc., to get behind things (this is to protect their safety and them from liability and lawsuits). However, this means that a sneaky homeowner can stack moving boxes or other debris in front of or on top of something they don’t want seen, knowing that an inspector will not be able to move it. This means that if your inspector misses something critical, it could be because it was purposefully concealed from them, which is not their fault.
When do you have a legal claim against the inspector?
That all being said, certain times are laid out for when an inspector has proven to be negligent and what you should do in those times. Each inspector is held to the National Association of Certified Home Inspectors (NACHI) code, and you can find their rules and standards online.
Breach of contract
If your home inspector misses visible things that should have been seen within the scope of their inspection, they are likely liable for that. Similarly, if they acknowledged that they missed something and agreed in writing to fix it themselves (if they’re qualified to do that and you agree) or pay to have it fixed and did not, that’s a breach of contract that they’re liable for.
If your home inspector lies about something they’ve seen or blatantly doesn’t inspect something in your potential home, that could be negligence that they are liable for. For example, your home inspector reports that your roof is in great condition when you find that large sections need to be replacedreplacement. It turns out that your inspector never actually looked at those sections, despite saying so in their report — that’s negligence.
Home inspection fraud goes above and beyond a faulty inspection or a breach of contract. Fraud occurs when the home inspector files a demonstrably fallacious report. Say your home is clearly near condemnation, and your inspector’s report finds no reason to upgrade electrical, HVAC, or fix the leaking roof and instead finds that all of these are to code. This is a fraudulent report and is grounds for a lawsuit.
Lack of contract exculpatory clause
Within your contract with your home inspector, you can expect to see an exculpatory clause. A lack of an exculpatory clause means that there isn’t a section in your contract with your home inspector which outlines what could be considered negligence and what is acceptable under your contract. Under contract law, a lack of clarity benefits the party that did not draw up the contract, meaning that if the home inspector weren’t clear about what they’re responsible for, you’d have an easier time making your case.
If you’re fairly sure that your home inspection was faulty or that your inspector was negligent, and you want to move forward with a claim, there are a few steps you can take to get started.
- Consult your realtor.
- Get a referral to a real estate attorney.
- Collect your paperwork (inspection contract, purchase agreement, seller’s disclosures, home warranty, home insurance policy, documentation of damages).
- Meet with an attorney.
Once you’ve met with an attorney that you feel is the right fit and is willing to take your case, you should prepare for the process to take a year or more to go through court and come to a decision. Your lawyer will let you know what the next steps are and what the timeline looks like, if there’s pushback from your home inspector and their lawyer, or if they decide to settle right away. Either way, lawsuits take time, so don’t expect a speedy process.
To put it mildly, being in a position to sue your home inspector is not ideal. However, it’s good to know your options and what that path could look like if you find yourself in this unfortunate spot. You can take some precautions at the very outset of the home inspection process to protect yourself against negligent inspectors by doing your due diligence and vetting a home inspector before hiring them. This isn’t to say that you’ll be able to avoid all future headaches, but a thorough vetting process makes the chance that you’ll find yourself in a legal battle much less likely.