In which State are you?
We have a local expert (logic) who will probably give you guidance.

My reasearch led me to realize that not all home inspectors have the same qualifications. You would think that if you pay for a service you should have some recourse if something major was omitted. Hope you able to resolve this issue to your satisfaction.

The law is of course dependent upon the state in which you live....if you provide that info, I can possibly be of more help.

In the interim, on the plus side, the buyer used the same inspection comapny...therefore, the HI company at minimum needs to explain why employee #1 missed what employee #2 found a year later.

It all depends on exactly what is wrong with the chimney....and if somehow something concealed the defect first time around, since it may not have been as bad at that time.

I'm just speculating here; more info is needed in order to provide any helpful advice....including what if anything was stated about the chimney in your report from 9/05.

Thanks for your guidance on this. I am located in Indiana. Nothing was said about the chimney in inspection #1. The problem is that the chimeny is becoming detached from the house. My chimeny expert told me that it may have moved one-tenth of an inch in the last 13 months, but the gap is a few inches. He said that this issue was definitely there 13 months ago, during inspection # 1. He went on to say that it is obvious that the chimeny has been "rigged." I have not had anything done to the chimney. I got the estimate today for the repair: $3200.00.

My mostly undeducated guess (which I offer for only the same reasons that I like to hear myself talk): The inspection company gives you a full refund on the cost of the first inspection, which will be only a couple hundred bucks, and you'll have to cough up the rest of the $3200 yourself.

If its truly obvious that the chimney was rigged, you might be able to sue the previous owners for some sort of fraud but I wouldn't count on it.

yeah, it might be hard to prove they knew about it since even the first inspector didn't discover the problem. I agree with mfbenson, but I would love to hear what Logic has to say.

Below is a link to Indiana state law governing home inspectors. One has two years from the date of inspection to file a claim for an error or omission, so you are well within that window of time.

In addition, by law in your state (and just about everywhere else) home inspectors are required to inspect the chimney (but not the flue). If for some reason the chimney was not accessible, or could not be seen well enough to be inspected, the report should clearly state such. If so, you are most likely out of luck in terms of a claim.

However, if HI #1 stated in his report that he DID inspect the chimney, but did not mention anything even related to what HI #2 found, and recorded a finding of satisfactory or good or used some other term that indicated the chimney is in good shape, and made no mention of the "rigging" it appears as if for whatever reason HI #1 did indeed miss the problem.

I'm curiousÂÂdid the seller provide a disclosure form? If so...was anything noted there regarding the chimney?

Bear in mind that Indiana state law requires the HI to carry liability insurance ONLY which covers damages caused but does not cover things they might miss as would Errors & Omissions insurance...so, unless the HI carries E&O as well on his own (not very likely), he or his company will have to pay the claim out of pocket...which means that they will probably be more apt to settle without attorneys being involvedÂÂas opposed to also incurring attorney fees and court costs.

What does your contract say in the event of such a problem occurring? Have you contacted the company that employees the two HI's? What did they say?

Here is a link that might be useful: Indian Home Inspector Licensing Board

Logic: Do you see any problem with both inspectors being employed by the same company? I can envision the company bringing out a third inspector to say that the problem could indeed have happen in the past year.

But aside from that, do you find it a bit strange for the second inspector to make such a definitive statement about this issue, and in the process to throw his colleague under the bus? I feel like there may be a backstory.....

jerzeegirl, I'm not sure if there is a problem per se for the seller with both being employed by the same company...but, it does put the company in a peculiar position.

If the chimney is indeed in the condition stated, I'm not sure how the company could explain such deterioration in such a short span of timeÂ.and it would probably be very difficult for them to find someone who would say otherwise.

In addition, if it is "rigged", which I assume means braced in some fashion, it seems unlikely that the OP would have had the work done during the past 12 months...or else why wouldnÂt he have contacted the HI company at that time he discovered the problem to cover the cost of the "rigging"?

Be that as it may, more than likely the problem existed at the time of purchase...along with the rigging. The question is why did HI #1 miss such an apparently glaring defect?

This is why so many HI's operate as a one man operation......because it is very difficult to control what another does and does not do out in the field...and, then when they screw up, it becomes the problem of the employer as well as the HI.

Bottom line is that the HI #2 did his jobÂ.and was not inclined to risk his license, credibility or wallet simply to cover for HI #1Â.

The outcome should be interesting indeedÂ

Thanks for all of your comments. Let me give you an update:
The owner of the HI company called today and asked me for an estimate for repair. I emailed it to him. He called me back and asked me to meet 2 of his inspectors at the house Monday to discuss this. My guess is that they will try to talk "cirlces" around me, so I have already made arrangements for the chimney expert to be present during this meeting.
As far as the "rigging" is concerned, there was a copious amount of caulking around the chimeny and roof; however the main damage is in plain sight (now that I know what I am looking at)...the chimeny is separating from the side of the house, literally pulling the aluminum siding.
There was no mention of the chimney in inspection # 1. I will let you all know what happens (say a little prayer for me!)

indymatt: "There was no mention of the chimney in inspection # 1."

What exactly is there to discuss??

If there was no mention of the chimney at all in inspection #1, then HI #1 did not inspect the chimney...which is a violation of Indiana state law governing the practice of home inspectors.

Right there, the HI and the HI company loses....and there is zero excuse for the negligence...therefore they should indeed cough up the cost of repair.

If you should choose to participate in this "meeting", it is a very good idea to have the chimney inspector present. However, I strongly recommend recording the conversationÂ. with all parties permission of course in order that it be legal.

If the HI owner & HI's refuse, I would not have any meeting at all with them; I would instead require them to put it all in writing, so that everything is on record, and none of the trio can dispute anything that was said or agreed upon.

The problem exists. HI #2 found it. HI #1 violated the law by not inspecting the chimney. What exactly is the point of everyone meeting, other than perhaps to try to intimidate you into backing off on your claim?

That sounds very reasonable. However, what if they want to negotiate a settlement? If this comes up, should indymatt agree to the repair with them paying for it (in writing of course)? They may want to pay and just make an E&O claim, right (since they broke the law)? Do you think there is any reason to take it further than getting the problem fixed?

If they wanted to negotiate a settlement in good faith, I don't think they would want a three to one meeting to do so...basically, it would be the owner and the OP...but, I am very cynical. The issue seems pretty clear...so I'm not sure what legitimate basis they have to negotiate anything other than full compensation. Whatever the case, they should be clear about exactly what they intend to "discuss" prior to the meeting.
Be that as it may, since Indiana state law does not require the HI to carry E&O, chances are that he does not carry such insurance...which is very costly. Therefore, most likely any settlement will be out of the pocket of the owner and/or HI #1.
Last but not least, IF they pay for the cost of repair, it will be up to the OP as to whether or not he wishes to report HI #1 to the state board.
Certainly, if they don't reimburse the OP to his satisfaction, IMO, he should consider taking the matter further to the licensing board...and inform them (the HI trio) of such.

Hi indymatt...how did the meeting go yesterday? Please give us an update.

2 people from the HI showed up, one of which was the owner. My realtor and the chimney expert was there as well. We all stood outside and looked at the chimney. I was very polite, and non-confrontational. I just stated the facts and asked them what they were going to do to make this right. I had both inspections with me. The HI guys asked the chimeny expert what his repair would accomplish. We went inside and looked at the chimeny from the living room and basement. The HI guys apologized to me for the hassle and told me that they would need to get another expert opinion (other than MY chimeny expert) and get back to me on Tuesday.
Yesterday (Tuesday) afternoon my realtor called. The HI company has gone back to the buyer and told them that they made a mistake, and that there is nothing wrong with the chimney. Can you beleive this? The buyer has no clue that I used the same HI company. The HI is going to put this in writing, as I do not want any responsiblity of this matter. I am supposed to hear from the buyer today, to make sure that they agree with the HI.

Sounds like that HI is participating in a cover up - probably got his brother in law to do the "independent inspection". If I were the buyer, I would be hopping mad.

Wow. You'd better cover your butt on this one, indymatt. If the buyer finds out about the HI's deception after purchasing the house, you could be in hot water since a paper trail can be produced proving you were aware of the situation.

Personally, I'd come clean with the buyer (after talking to my lawyer). You've got little to gain and a lot to lose by helping the HI hide their mistake. What if that chimney comes down in three years and kills somebody? Or burns the house down? $3200 will seem like chump change then.

Indymatt: "Yesterday (Tuesday) afternoon my realtor called. The HI company has gone back to the buyer and told them that they made a mistake, and that there is nothing wrong with the chimney. Can you beleive this? The buyer has no clue that I used the same HI company. The HI is going to put this in writing, as I do not want any responsiblity of this matter. I am supposed to hear from the buyer today, to make sure that they agree with the HI."

If you understand their plan correctly, they are violating the state law regarding code of ethics, and conspiring to commit fraud. I would tell them in no uncertain terms that you will report them to the licensing board, as well as to the Indiana state Attorney General's office, to investigate the issue for fraud and deceptive practice. Remind them that the AG will most likley look at and investigate ALL of the inspections performed by this company.
After all, if the buyer backs out, you are still stuck with the chimney. If the buyer moves forward, and evetually discovers the chimney issue, with the current paper trial, you could then be liable for non-disclosure and who knows what else.

You REALLY need to consult an attorney regarding this mess...as you don't want to be party to the HI firm's fraud.

"The HI is going to put this in writing, as I do not want any responsiblity of this matter."

I don't understand this. How could the HI's putting "this" (whatever "this" means) in writing make you not responsible for the fraud that's being perpetuating? Actually, what a written statement would be is proof of a conspiracy to defraud the buyer among the HI, you and your realtor. The writing would prove you knew about it and that you failed to take any steps to stop it. Furthermore, you, as the seller, are the party who stands to gain most from willfully concealing this major defect.

Don't even think of just letting this happen. In addition to confronting the HI company as recommended above, you must inform your realtor immediately that you will not be a party to this coverup and that s/he must alert the buyer to what is going on. If your realtor doesn't understand that his or her own license could be at stake here (to say nothing about possible prosecution for criminal conspiracy), then you must make it clear that the realtor has as much or more to lose than you do if and when the buyer figures out what's going on.

I thought about this for a long time....about whether the OP would still be on the hook for failure to disclose. My first thought was that the OP would *not* be off the hook regarding disclosure. But the more I think about it I am not sure.

The OP is doing the right thing. He got his chimney guy to come and take a look. The OP's guy says there's a problem. The buyer's inspector now says there isn't a problem. The OP isn't really trying to hide anything and since the problem was not disclosed during the first inspection, he really did have no knowledge.

So now there is a dispute pitting one expert against the other. Who's to say the OP's contractor isn't exaggerating the extent of the problem? Who's to say the second HI didn't make a mistake during the first inspection?

And, what is the OP supposed to do - contact the buyer and tell him that his inspection company is lying and committing fraud and that the chimney really is in bad shape? I don't think anyone would recommend that.

This is a real pickle! I think this is definitely something to discuss with your attorney to find out where your liability ends and the HI company's begins. You want to be fair, but at this point, I don't think anyone knows whether your chimney is okay or not yet, since you have conflicting viewpoints.

The ball is now in the buyer's court, but you need to get advice of attorney on how to proceed in case the buyers accept the HI's revised conclusions and decide to go forward.

jerzeegirl

You have overlooked the fact that the HI the buyer hired (from the same company as indy's prior inspector) said there were structural problems with the chimney. That means both indy's chimney expert and inspector #2 independantly came to the conclusion that the chimney needs repair. The "expert" who came to the meeting with the company owner and made his "inspection" in the company owner's presence is obviously not unbiased and his opinion would be entitled to much less weight in a court of law because it would be considered self-serving.

What continues to amaze me about this story is the complicity of the seller's realtor with all this monkeybusiness. Is it any wonder real estate agents are held in such low regard by the public?

I have not overlooked that.

The first inspection has no bearing because the inspector never even looked at the chimney. He may have been dead wrong not to look at the chimney, but since he didn't we don't know what the chimney looked like during the first inspection. It was simply not addressed.

If the home inspection company owner and his chimney expert are willing to override, in writing, inspector #2's assessment, then you basically have a report that says the chimney is fine. The HI will fudge it by saying something like "upon further assessment etc, we find that the chimney is structurally sound". It's the HI company that is taking a big risk here because everyone can testify to the details.

The problem here is that the HI is supposed to be an expert and the buyers are supposed to be able to rely on the HI's assessment (not the seller's assessment). So if later on the chimney falls over, the seller is on record saying there is a problem. And the HI (the home inspection expert)has put it in writing that there is no problem.

This is why the OP needs to speak to his attorney right away.

I am thoroughly puzzled by your statement about the seller's realtor being complicit. What exactly has the realtor done to elicit your scorn?

Are you (the seller) also going to lie to buyers? A smart buyer would walk away or get a second opinion on the chimney. And you've admitted there is a problem. Now that you know this you are legally reponsible to disclose this to all future buyers. I think the Inspection co. needs to split the repair costs with you and get it fixed.

I don't know Indiana law but here in Tennessee the seller is responsible for full diclosure of any known defects. At this point, OP has been made aware of the defects by the chimney expert and has even stated that he/she can now see what the problem is. To not disclose the duplicity to the buyer is not just committing a crime but is morally wrong. This sort of situation is what give the buying/selling process a bad name. According to Logic's posts, the HI is responsible due to the errors and omissions law and needs to be held liable. I would pursue this to it full extent. No way would I keep quiet and hope the "paper trail" never came back to me. Good luck!

indymatt: Any updates? Have you spoken to your attorney yet?

"What continues to amaze me about this story is the complicity of the seller's realtor with all this monkeybusiness. Is it any wonder real estate agents are held in such low regard by the public?"
Because of people like you, attorneys advocate for the Realtor not to attend the inspection.

Here is a link that might be useful: Do your job, let the Inspectors do theirs

bernick, the article in your link doesn't say the realtor was found negligent or liable; it only repeats what some plantiff's lawyer argued. I hope the realtor won. I don't think the article "advocate(s) for the Realtor not to attend the inspection." It says the realtor should not do an inspection or appear to supervise the inspector. I doubt that sitting in the kitchen yacking on the phone would please many clients. Surely there is a middle ground where one can be interested without presenting oneself as an expert.

But, back to this thread. I think the buyers deserve to know that the same company did both inspections and, therefore, may have liability. I think the agents should tell the buyers that fact. Were I the buyer, I'd want another inspection by a truely independent expert. Were I the seller, I'd lack the expertise to really know which inspection is correct, so I'd be encouraging (or maybe even obtaining) an additional expert inspection.

Indymatt, please update us when you can.

quip, the attorney who wrote this says, do not attend the inspection, open the door and leave. Some large companies here follow his advice.

berniek, maybe that lawyer has said so in some other forum, but I still do not see anything in the linked article that says to open the door and leave. One example he gives is saying you'll be in the kitchen making calls, which I take to mean physically present but uninvolved. I'd be surprised if an agent here unlocked the door and left. Then again, the lawyer's job is instruct how to CYA legally, not teach one to build rapport with clients :).

quip, I know the lawyer personally, trust me when I say that other RE companies tell their agents not to be present (I used to work for them). When I sold my home in 2004, the buyers agent left the inspection and when I asked why, he said company policy because of the legal implications.

quip: I am not sure why you think that the buyers should be told that the HI did the original inspection for the OP? What would that serve?

Because the same company did both inspections (omitting the chimney in the first one), the company has a potential liability for that omission. The company now has a conflict of interest, and the company MAY now be covering-up it's error by saying the chimney OK. If the buyer doesn't know that the company did the original inspection, the buyer cannot see the conflict of interest and may, therefore, accept the company's new reassurances without question. I think the buyer deserves the opportunity to ask questions. Were I the buyer, I'd want to know my inspection company has an independent, possibly conflicting interest in the condition of the chimney.

I concur with quip's above assessment 100%.

The HI company is committing fraud and engaging in deceptive practice. The buyer needs to be told by the OP.
Imagine if the chimney fails further...and someone is injured....or heaven forbid killed. The HI company will most assuredly be sued at the very minimum.....and the OP will be dragged in right along with them....and depending upon state law, such an act of cover up and deception may even warrant a charge of criminal negligence.

All over a $3500 fix for a chimney. (shaking head)

IMO, both HI's should have their licenses pulled...and the HI owner forbidden to practice in the profession.
This is WHY regulation exists...however, it only works if those who violate the regulations bear the consequences.

I agree that the HI company is most likely engaging in a coverup and if this is true then the inspectors should lose their licenses and the HI company should be shut down. I think it's incredibly self serving for the HI company to have one of their inspectors fail the chimney and then come out and have another inspector say oops we made a mistake! If this is indeed the case, the HI company is nuts to even consider doing this.

That being said, I still think that the OP *needs to talk to his attorney* about how the information he has should be communicated to the buyers, so that the OP is protected but also so the buyers are informed and are treated fairly.

He also needs to find out from his attorney about going after the HI company for not inspecting the chimney in the first place. I believe that as soon as the HI decided to cover up the problem, it became a legal (liability) issue and the OP really needs to get legal advice about how to handle it.

It's seem fair to say that the chimney is either going to have to be repaired or the seller is going to have to disclose the problem to any future buyers if this deal falls through.

Any news, Indymatt?

Bump

Speak with a lawyer. Report the Home inspection company and each individual home inspector you have spoken with. Report the realtor. What a nightmare for both buyer and seller.

How about an update??

I suppose I wouldn't want to post an update either, if I was planning on participating in this scam. Shame.

The OP may have legal or other reasons for not reporting back on this. I think it's wrong to imply that she is participating in a scam. She seems to be stuck in the middle of this mess.

This post makes me worried, because I am trying to select a home inspector right now and don't have any personal recommendations to go on. What do you guys think of hiring a CREIA Master inspector (over 1000 inspections and substantial continuing education) who limits his liability to 2 times the inspection fee? His fees are actually lower than I expected, but I am also cautious because there is no office address or even a local phone number posted on his website. Is his liability limit a red flag, or is it fairly standard because he has performed so many inspections? I don't want to get into a situation like this OP.

Hopefully, logic will chime in to answer your question!

jpok,

My opinion (twenty years in H.I. biz) is that 1,000 inspections is not even close to being a master. That amount of inspections could've been performed in as little as 2 years, given the market up until '06.

You would have to check with the state of California to determine is that limit of liabilty is enforceable. It is not enforceable in NJ.

"CREIA Master Inspector"

The title is meaningless....and I agree with van356 regarding the HI's self proclaimed "master" status. The number of inspections are meaningless...as the HI who performs "drive-bys" will have far more "inspections" (and I use that term VERY loosely) under his belt than the HI who performs a thorough inspection.

That said, the California Trade Practice Act is hardly worth the paper it is written upon...so, best bet, try to obtain a referral from a trusted source...friendÂ..family...or attorney....and check references.
A n average home in average condition should take at minimum 2 hours to inspect. The HI should give a narrative report about the home and its specific conditions ...not a quickie check listÂÂor a bunch of boiler plate and filler about houses in general. I can't tell you how many reports I have read that have so much "filler" it is almost impossible to determine exactly what part refers to the home inspected..and what part is merely a canned dissertation about the various things that can go wrong with a house.

Last but not least, RESPONSIBLE HI's carry errors & omissions insurance...even when it is not required by law...try to find one who carries such insurance...and that it insures him for the inspections he may perform that are beyond the scope of a home inspection...such as termite, septic, mold etc.
Best wishes.

Thank you, van356 and logic. I appreciate the input. Unfortunately, I can't get a personal recommendation from a trusted friend, because we just don't know people in that area. Yesterday, I talked to an E&O insurance guy who recommended an inspector to me based on their previous phone conversations. When I talked to the inspector, he seemed pretty knowledgable, but his report format is not to my liking. I totally have seen what logic means by "filler".

Based on sample report format, and general qualifications and experience, I've got it narrowed down now. Whether I'm making the right choice is anyone's guess, but hopefully everything will turn out well. Thanks again!