Charita vs. Barbara…..(22 to 45)..or is it?
Charita Cadenhead posted a blog this morning about Pre-listing Inspections. It was a good subject and got lots of comments.
Barbara Todaro had a different but well developed view and as often happens here comment became a blog on it’s own.
Both they and their commentators, pro and con, have presented good arguments and clearly expressed thoughtful views on the subject and surrounding issues.
Here are the links to their blogs, they are worth the read and some thought; because the subject has a big impact on the attitudes and decisions of a great many in our industry.
I thank them both for the quality of the debate and offer my 2 cents here.
Another aspect of this discussion:
Here’s what neither of you are thinking about:
Why is a buyer having an inspection done? What is the legal imperative?
They are exercising their right to do due diligence on the home, so that should they need to seek redress in the courts at a future point they will have the right to do so. Effectively maintaining their right to sue the sellers if they ever need to.
If immediate issues are found then it is a surprise, seemingly to all, and it has to be dealt with, negotiated for or otherwise resolved.
Sometimes the sale collapses or brakes down at this point. The inspector didn’t cause the problem, but of course it isn’t the first time, nor will it be the last time, the news bearer is blamed (figuratively of course). It is stressful. Your hard work could be for nothing. It has happened. And it stings.
Charita’s position is to be proactive, check first and move forward without worry, no risk.
Bardara is saying there may be nothing, so why spend. The odds favour this, but her clients are exposed to some risk.
They are both reacting to the risk of there being immediate issues, but immediate issues are not why an inspector is hired. The due diligence legal requirement is.
Full disclosure does not come into play only after an inspection. It is always in play. Full disclosure is the law, period. You are obligated to disclose everything known or suspected and you must look. You are not allowed to turn a blind eye, ignore symptoms and pretend not to know. You are even required to report past problems that have been corrected, no matter what their nature or how effective the correction has been.
Caveat emptor (Let the buyer beware.) This is not law! Although once a common attitude, it is no longer legal in the building-housing construction industry as well as home renovation, property improvements and real estate transactions.
In fact courts treat this behavior on the part of professionals in the real estate and building industry as an offence, a kind of white-collar crime. No you won’t be in handcuffs, but you will be paying a lawyer for your defense.
You, as a property seller, are not allowed to cover a problem and sell the property to get rid of it.
There is one exception. Make it known. Tell all, upfront, before offers are made. Full disclosure of known, suspected, or past problems and defects with a history of corrective repairs. Full disclosure gets you off the hook. So why wouldn’t you? Don’t you think it’s in the sellers interest?
One final thing you should know; there is no time limit, forward or backward.
Forward – doesn’t matter when an issue shows up, past sellers are liable, in some cases even through estate succession transitions.
Backward – liability responsibility extends back from the immediate seller though prior sellers, even as far as the original builder. Only the dead get to duck the issue. (If there is real justice though, it might get hot for some.)
Even if both inspections are done on the same property, it is but a fraction of 1% of that properties’ value/selling price.
They protect the interests of both the seller and the buyer. Neither should be “on the hook”.
Legal fees make inspection cost look like peanuts. This is the general thrust of the judicial interpretations we are seeing. Yes there are as many variations, opinions, and exceptions as there are different courts. Probably more.
Lawyers will handle it for you, but consider the price.
Original blog post on ActiveRain: Link to Blog Post