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Malpractice or Frivolous claim?

In September, we saw a newspaper article that claimed a Mr. Lyndon Tucker was charged $1,243 for an inspection, about “double” the going rate.   The report goes on to say the client found “serious” problems that did not appear in the report. After taking possession of his home he found his kitchen and bathroom sinks and toilets didn’t drain properly. He called the inspection company, and he called in plumbers.   The plumbers suggested that the whole system needed replacement because the vendor was at risk from buildup of sewage gas.

We would like to take this one example of how issues with home Inspections can be blown out of all proportion, fueling the fire that Home Inspectors are incompetent.

Let’s look at the possible causes of these sinks and toilets not draining properly.   Generally when a sink doesn’t drain properly it’s down to one of three things, a blocked pipe, inadequate venting or incorrect piping.

  • Incorrect piping, where drainage is concerned, is where plumbing has been installed and air traps, or upward slopes are created, or incorrect size pipes are used for the amount of water expected from the outflow of the fixtures attached to the plumbing. Most of this is behind the walls, under the flooring and is not visible to a Home Inspector.   No amount of regulation, training or anything else will change this fact, and the Inspector cannot be held liable for things that are not visibly apparent.
  • A Blocked pipe is pretty immediately obvious, drainage just doesn’t happen, and in this instance the Home Inspector should catch such a problem.   Running sinks and baths, and flushing toilets are part of our standards of practice. The fact that baths and sinks or toilets are not draining would be immediately identified. If the inspector missed this then sure they are at fault.
  • Inadequate ventilation is more difficult. Most of the time the vent stacks to plumbing are hidden, so detecting if a home’s plumbing is properly vented is, usually, impossible to visually deny.   It can be visually confirmed when vent stacks adjacent to the waste can be seen, but it cannot be visually denied.

Can an inspector tell if venting is inadequate where it can’t be seen?

As part of our standards of practice, we are required to run the faucets, part fill sinks, bathtubs and basins and flush toilets to check the rate of drainage.   If the toilets drain OK, and the sinks and baths drain at a rate roughly equivalent to the rate expected from the outflow pipe to the sink or basin, this is considered to be adequate drainage.   There are situations that arise however, especially in older properties, where fixtures have been changed over the years, and the piping hasn’t.

Toilets, sinks and bathtubs frequently get changed out by home owners and the existing piping is not modified. Let’s face it, if this didn’t happen Home Depot, Home Hardware, Rona and Lowes would lose a substantial part of their business.   Modern toilets flush more rapidly, using less water than older toilets. This causes a suction on the waste system that would not have been the case from an older toilet of say 20-50 years ago.   What this extra suction does is put a higher level of vacuum pressure of the piping.

So, for example, if a bathroom in an older house was piped, Waste stack, sink, vent stack toilet bath in that order, which many were and still are, then the sink would appear to drain correctly, the toilet would appear to drain correctly and the bathtub, would also appear to drain correctly when tested independently of each other.

The bathtub being the last fixture in this hypothetical line would appear to drain properly because it would get its balancing air from the over flow and bathroom air. An original toilet would appear to drain properly because the toilet pipe is sized to cater for a large flow of water at a set rate, usually larger than the volume and rate of water that is actually being ejected into it, and the sink would appear to drain properly because it had a vent immediate to the “downside side” of the piping.

However, change the toilet and the size of the waste pipe from the toilet may not be fully adequate to vent the outflow, and it would try and draw air from the plumbing.   It may not need much air and so it could take three of flour flushes to drain a p-trap in the bath to the point the system becomes open to the sewage system.

So who’s at fault here?

Should the Home Inspector have found the problem.  Is the Plumber correct and are the problems as serious as they are made out to be?   Did the prior owner bear some responsibility?   After all these problems presumably didn’t just appear overnight.  Without detailed investigation into the particular home in the story it’s difficult for anyone, let alone a journalist to make an expert judgement on where the blame lies, yet the tabloids and popular television are daily peppered with this stuff attacking home inspectors.

Could a Home Inspector catch such a problem?

Possibly, if they knew where the pipes were, how they were installed, whether the fixtures were in series or parallel, or they filled the p-traps of the baths and sinks and then flushed the toilet several times to ascertain if suction was in the system.   A home inspector is never going to be able to see behind walls or under floors and even an original drawing of the property from an architect cannot guarantee that the hidden piping is where it should be.

A home Inspector has only so much time to inspect a home. We could all take longer and flush toilets four, five, six time (where do we stop?) but the client would have to bear a higher price. This is something people don’t want to do.   In the majority of cases a good Home Inspector uses their best judgement, and where they have a concern suggests the client refers to a licensed trade to inspect further. Not because they want to pass-the-buck, but because they have a concern that cannot be confirmed one way or another and they want to ensure they give their client the best advice.

Was the plumber accurate in his diagnosis?

This brings us onto the case of the plumber that was called. The suggestion from the plumber was that “the whole system needed replacing”.  Again, it is difficult without careful study of the actual home at hand to see if this is true.  The plumber however stood to make a lot of money from replacing all the system, rather than installing either a vent pipe loop to the exiting stack or installing a cheater vent (an air admittance valve and pipe) at the fixtures that were insufficiently vented.

Home Inspectors are required by their code of ethics to not do repair work on properties they have inspected. It’s a conflict of interest. Other trades are not committed to this, and while we are not saying in this instance the plumber was offering anything other than their best professional judgement, the possibility of over-exaggeration of a problem cannot be ruled out when the person making the identification and fix of a problem is the same person who is going to benefit from the repair work.   This is something homeowners should be aware of.

Here’s the rub

The original inspector in this case?   He was allegedly from Mike Holmes inspections!

Yes, you know, the same Mike Holmes that makes a living out of bashing Home Inspectors for not doing their jobs right.

His companies’ response to the claim?   ‘The Client confirmed that he had read and signed the agreement which stated “The inspection is not technically exhaustive and all encompassing….The client acknowledges that, as a result of the limitations of a visual inspection, some detectable deficiencies may go unnoted in the inspection report. The client accepts these limitations.”’

In this case, we side with Mr. Holmes and his company.   Further, in the news report (which can be found here) the client allegedly complained “While the inspector did outline numerous deficiencies throughout the home, he missed the ones that could kill me. The few plumbing problems noted in the report gloss over the fact that none of the plumbing meets basic code and will need to be completely replaced.”

Holmes inspection should have also, in our opinion, responded that neither a Home Inspection (nor a Holmes Inspection apparently) is a code inspection.   There are code compliance officers paid for out of the public purse (i.e. the taxes you and I pay) for that. Modern codes, in the main, do not apply to older homes.  While this may, or may not. have been the case, to make such a defence, for the Holmes empire, would seem hypocritical when Mr. Holmes himself has been seen on TV complaining about this not meeting code, or that not meeting code.  It is patently obvious from the images in some of his shows that the homes he is complaining about were built in different times, to different codes (if such existed) and modern code doesn’t apply.  This is the case in the vast majority of properties across Canada. This is also why home Inspectors cannot be expected to quote codes on an inspection.

Our suggestion to anyone who has had a problem following an inspection, had a quote from a contractor for the fix and then thinks the inspector is at fault:

  1. Talk to your Home Inspector in a quiet considered way, and follow up in writing.  Explain what has happened, explain the circumstances leading up to the problem and explain why you think, in detail, it might be something the home Inspector missed.   The Home Inspector should be able to identify if your issue is really part of the Home Inspection scope, or if it is not.
  2. Regardless of the outcome of 1. above, get a second (and third) opinion from other contractors.  Base your conversations with them on the assumption that you are going to have to pay for the repairs. You will be more focused then on getting a repair that is pertinent to the problem rather than banking on getting a wholesale improvement on the property at the expense of someone else, which is unlikely to happen whatever the outcome.
  3. Talk to another home Inspector or someone from one of the associations.   They will be able to advise you of what a home Inspector should and should not be able to find as part of a Home Inspection, taking into account all the pertinent facts of the home in question.  Follow up any conversations with emails or letters that identify and confirm your questions and responses in writing.
  4. Make a complaint to the Association that the Inspector claims they belong to.   The Association should investigate the complaint and advise you of the outcome.  If the Inspector is a member of OntarioACHI you can submit the claim online here at http://complaints.ontarioachi.ca.  Our online system logs and monitors ALL correspondence in each case.

If the Inspector has professional indemnity insurance do not think that, if you find a problem with a home that has been inspected, you can then claim from the Inspector and their insurance will cover it.   The Insurance companies will have the best lawyers working for them and can recognise what is known as a frivolous claim. While it might not seem frivolous to you, if your claim does not have incontrovertible evidence of malpractice on the part of the Inspector, you can claim, the claim will cost you money, and you will likely lose.

Frivolous claims also drive up the price of Home Inspections.   While frivolous claims are never paid out, they still involve defence costs, and this is added onto the premiums for insurance which in turn is passed onto the consumer.  They cost the claimant too, as costs to launch a suit based on a frivolous claim is just as expensive as launching a suit for malpractice, but with no chance of recovery.

Remember, if you feel inclined to move to litigation, the initial defence of the home Inspector will be the same as Mr. Holmes.

  • A home Inspection is not, and never will be, a code inspection
  • A Home Inspection is not and never can be, technically exhaustive.
  • A Home Inspection does not, nor never will, provide an insurance or warranty of any nature regarding past of future operation of any component in or attached to the home.
  • A Home Inspector can only inspect, and unless they start to make x-ray machines people can carry, what they can see, touch, hear and smell.
  • Unless they can identify otherwise, a Home Inspector is not a licensed electrician, licensed plumber or code compliance officer, and therefore is not qualified to comment on issues of code, current or otherwise on any of these components.

Some things will get missed in a home inspection.   These things are either impossible to see, not feasible to detect during a home inspection or are just plain hidden by the owner of the property. This does not mean the Inspector is guilty of Malpractice!

A PDF copy of the full report printed from the can be downloaded here.

The original piece was written by Ellen Roseman who writes about personal finance and consumer issues. You can reach her at eroseman@thestar.ca or www.ellenroseman.com .

About OntarioACHI

Founded in 2012 the Ontario Association of Home Inspectors is a not-for-profit association of members with aims to improve the quality and standing of Home and Property Inspection for the benefit of consumers and our profession. The association is run by, and for, Home & Property Inspectors in Ontario. Our goal is to ensure all Home Inspectors are qualified to the highest standards and comply with the most exacting professional Code of Ethics, Standards of Practice and Duty of Care. A consumer hiring an OntarioACHI qualified Canadian-Certified Home Inspector (CCHI) will know they have they hired a truly Professional Home Inspector.
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