How Long Is A Home Inspector Liable

Before hiring a home inspector, carefully read the contract to understand whether it allows the inspector to avoid responsibility for any mistakes, writes Bob Aaron.

Who is liable if defects are found after a domicile inspection?

Ontario dwelling house buyers should use inspectors who are members of a professional association and ask for confirmation of their liability insurance, writes Bob Aaron.

Tin a dwelling inspector avoid legal responsibleness if there is an exclusion of liability clause in the inspection contract?

In February, 2009, Michael Smith retained Terry Gordon, a registered home inspector, to inspect a house for sale in Dartmouth, North.Due south. Gordon presented Smith with a one-page agreement before conducting the inspection, saying Gordon would carry a visual inspection of the easily accessible areas of the abode'due south interior and exterior.

It besides independent an exclusion clause stating that Gordon assumed no responsibility for the toll of repairing or replacing any defects or deficiencies in the home. The inspector's liability was limited to the fee paid for the inspection. These are standard clauses used in many habitation inspection reports beyond the country.

Gordon's report to Smith did non identify whatever significant concerns, and the purchase closed.

More than 3 years subsequently, issues were noticed in the exterior of the building. Smith retained a full general contractor who reported "a significant existing water infiltration trouble" and that "the holding's entire substructure was rotted," requiring more than $600,000 in remediation.

Smith sued the former owners and the habitation inspector. This past November, the inspector asked approximate Joshua Arnold for a pre-trial ruling on whether the clause limiting liability to the inspection fee was enforceable.

In his 24-page decision, the judge reviewed a number of B.C. and Ontario cases dealing with exclusion clauses. In the Smith case, the diction of the home inspector's exclusion clause was found to exist ungrammatical and ambiguous, and was not clearly brought to Smith's attending when he signed the agreement. Guess Arnold threw out the clause, allowing the trial to go along as if at that place was no exclusion provision.

The implication of the judge'south ruling may be that exclusion clauses are enforceable if the wording is clear and unambiguous.

In Ontario, the provincial regime has passed the Dwelling house Inspection Act, 2017, to set upwards a regulatory potency to govern home inspectors. But the legislation has never been proclaimed.

There are several voluntary home inspector associations — of approximately 1,500 home inspectors in Ontario, the Ontario Association of Home Inspectors (OAHI) has about 400 members.

Leigh Gate, the group'southward public relations chair, emailed me last week to say, "All members … are mandated to behave errors and omissions insurance, to help protect all parties should the need arise. OAHI demands strict ethics, standards of practice and professional person work practices of member inspectors."

Peter Weeks, the president of the Canadian Association of Domicile & Property Inspectors, emailed me to report that its members must have insurance, and that British Columbia, Alberta and Quebec have mandated the removal of liability limitations in abode inspection agreements. Now would be a good time for Ontario to proclaim its legislation to create a home inspection regulator.

I recommend that Ontario domicile buyers use inspectors who are members of a professional association. Ask for confirmation of liability insurance, and notation whether there is an exclusion clause allowing the inspector to avoid responsibleness for any mistakes.

Bob Aaron is a Toronto real estate lawyer and a contributing columnist for the Star. He tin can be reached at bob@aaron.ca or on Twitter: @bobaaron2

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