Should Home Inspectors be Citing Building Codes in the reports they write?
There is an age old argument for all Home Inspectors. The Home Inspectors argue about this topic on a regular basis. The question is whether to cite the Code or not to cite the Code. This argument has spilled over into the Real Estate world and the Real Estate Professionals have their own arguments about the topic. It is hard enough to find consensus amongst the Inspectors without the Real Estate Professionals weighing in on the topic. For years, more than 20 that I have been involved, some Home Inspectors and Trainers argue that they are against citing Code. They have argued a Home Inspection is more performance based, and the Building Code is not performance based. In layman’s terms the Home Inspector is answering the question of, “is the home functioning or performing as intended,” or as agents say, “is it working?”
Before I go further into this topic, let us dispel a common myth right away in the Real Estate Industry. This is for all Sellers, Buyers, as well as for Real Estate Professionals. What defines a Home Inspection, and what is required by a Home Inspector, is NOT defined by a Real Estate Contract or by the Real Estate Industry. A Home Inspector is bound by his Standards of Practice, the Standards of the Industry, his Standard of Care, and by his State Licensing Requirements. I cannot tell you how many times I have heard an agent tell me in the field, “you cannot report that,” or better yet, “it is illegal for you to report that.” That gets a standard shrug, sometimes with rolling eyes, followed by ignoring the person who is obviously not educated in the profession of Home Inspections who made the statement. I do not tell them how to write a contract, why do they feel compelled to tell me how to write a report? The average Inspector will perform between 300 and 500 home inspections in a year, with some doing more than that. That is 3,000 to 5,000 inspections and reports in 10 years. Find me an agent who has sold or been personally involved in that many transactions in 10 years.
Before we try to find consensus, not that we will, let’s first look at the Building Codes and their purpose, and then what a Home Inspection is. For this document I am writing Florida Specific. Other States definitions may vary; however, slightly and for the most part this information should apply to a great degree. The purpose of a Building Code is stated within the Code itself. The International Building Code states the following:
“Internationally, code officials recognize the need for a modern, up-to-date building code addressing the design and installation of building systems through requirements emphasizing performance. The International Building Code is designed to meet these needs through model code regulations that safeguard the public health and safety in all communities, large and small.”
Imagine that, the very argument Home Inspectors have against citing Codes is in fact one of the purposes of the Code. Note the words “emphasizing performance.” Well that clears up that argument as all Home Inspections are performance based, and so it seems the Code is also performance based. So that old argument is not valid and hereby laid to rest.
The Florida Building Code states the following:
“The base codes for the Florida Building Code include: the International Building Code, 2007.”
And further states;
“The purpose of this code is to establish the minimum requirements to safeguard the public health, safety and general welfare through structural strength, means of egress facilities, stability, sanitation, adequate light and ventilation, energy conservation, and safety to life and property from fire and other hazards attributed to the built environment and to provide safety to fire fighters and emergency responders during emergency operations.”
Now let’s look at what a Home Inspection is and the difference between a Home Inspection and a Building Inspector. In particular, what they are looking at, or their scope:
Per: FS 468.8311
“Home inspection services” means a limited visual examination of the following readily accessible installed systems and components of a home: the structure, electrical system, HVAC system, roof covering, plumbing system, interior components, exterior components, and site conditions that affect the structure, for the purposes of providing a written professional opinion of the condition of the home.”
Per: FS 468.603
“Building code inspector” means any of those employees of local governments or state agencies with building construction regulation responsibilities who themselves conduct inspections of building construction, erection, repair, addition, or alteration projects that require permitting indicating compliance with building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other construction codes as required by state law or municipal or county ordinance”.
So can you see the differences? Can you see how similar the definitions are? There really is only one major difference and that is one is for enforcement, the other is for reporting. As a Home Inspector you are not the AHJ, (Authority Having Jurisdiction), meaning you are not going to issue a citation. Simply put, you are not enforcing the Code; you are pointing out Code as a Home Inspector and backing up your opinions with a document, an Authoritative Document that is known to be the absolute minimum authority in the housing industry. It is no longer just your opinion, it is a Professional Opinion based on Documentary Requirements. So the big differences are, Home Inspectors don’t have enforcement powers and are are not limited by the Minimum Codes. Code Inspectors do have enforcement power and are limited to the Minimum Codes. There is no crossing an imaginary line if you keep in mind the different purposes of the two inspections.
Almost everything Home Inspectors do has its basis in the Building Codes, somewhere, some place, it is in there. The AHJ is inspecting for the protection of the community and bears virtually no liability to the individual, whereas the Home Inspector is there to protect his client and owes virtually nothing to the community at large. The scary part for a Home Inspector is that he has virtually unlimited liability to his client (unless limited by his inspection agreement.) In my opinion, quoting or reporting on any defect, in any manner, Code or not, has much less liability attached to it than not reporting on that defect at all, or ignoring the Code.
Home Inspectors use Code as just one of the tools of the trade. How else would Home Inspectors be able to comment on incorrect wire size, the presence or absence of GFCI protection, unsafe stairs due to missing railings and improper rise and run, missing caulking or waterproofing and on and on. I believe that a general knowledge of the Codes is important; however, the inspector has to know more than just one Code. As the Codes change, every 3 years, the inspector has to keep up. A house is only required to follow the Code that was in place at the time of the Permit Application. Meaning it does not have to meet the new Code, only the one in place when it was constructed. Note that all new renovations have to follow the Code that is in place at the time of renovation, unless a Building Official allows otherwise, in writing, it is known as a “Variance.” Without a doubt; working knowledge of the various codes puts the inspector into a better position to inspect any building.
It is a Code requirement to construct a stairway in a uniform manner, with railings, specified heights and gaps, and if you are inspecting the stairs to see if they are safe and in proper working order. If the stairs are all of the above, then you have, by default, inspected the stairs for the Minimum Building Code. Whether you state it in writing in your report, or not, you thought it. You referenced Code in your mind to make the determination.
As stated earlier, the Building Code is a Minimum Standard. A building that is built to the Building Code is the lowest level and quality of a building you can build legally. Fall below the Code and you have a real problem. The Home Inspection ventures into other areas that the Code does not allow for. For instance, a Home Inspector will comment on whether or not a roof, or appliance, is at, or beyond, it’s expected life. This would be something not specifically addressed by a Code Inspector, with one caveat. That being, the roof and exterior walls are required by Code to provide water resistance and protection from the elements, (why caulking is NOT cosmetic).
A seasoned well respected Home Inspector from the other side of the country once stated on a HI Forum; “The Code does not exist for Saturday afternoon, in your lounge chair, reading Shakespeare, sipping tea, nibbling crumpets, and life is beautiful. The Code exists so that when all hell breaks loose at 2 AM, your home is constructed sufficiently so that you have a chance of getting out alive.”
Building Codes regulate construction and construction practices of all buildings and structures. What they do not regulate is Real Estate Transactions or Contracts. Home Inspectors and Code Inspectors are inspecting for construction requirements and construction practices. Attorneys are inspecting Real Estate Transactions and Contracts. That begs the question, are you a Home Inspector or a Real Estate Attorney?
Codes must be based on what is generally accepted as good standards of construction. Only those provisions which are reasonable, practical, vetted, voted on, or necessary can be enforced. Codes containing requirements or specifications which, through analysis, can be proved to be excessive of the minimum requirements are questionable at best.
I think the reasons for Inspectors warning against citing Code is pure folklore. There is very little support in history for Home inspectors not being able to cite Code. When I ask, and I have asked Nationwide, the question, “can you cite a written source where a Home Inspector got in trouble or got sued because he cited a code in his report?” I get no response. I think the warning, or thinking, goes back to the old inspection schools that were taught by people who really couldn’t conduct Code Inspections as the industry had not yet advanced that far. Keep in mind that Home Inspections have really only been around for 40 years, and have made great strides in the past 25 years. In fact, many Home Inspectors have taken the time to learn and become Code Inspectors through the State Agencies or ICC. There might have been a suit 20 to 30 years ago but that was when our profession was very young, and very inexperienced. Anecdotal experiences are not precedent nor do they make rules. Unpublished cases, especially those untested or not appealed are irrelevant and have no basis.
I have NEVER heard an Inspector state; “I got sued and lost because I did too much”, “I took photos”, “I reported all the details”, “ I cited Code”, I used the word Safety”, “I exceeded the minimum.” Every single case I have been involved in was due to what the Inspector DID NOT DO. I have yet to see a tested, reviewed, published case that actually provides a basis for a “less is more” precedent.
What every Buyer wants to know about their home purchase is actually quite simple. What is wrong with the house? What is it going to cost me money wise, now and in the near future, if I buy this house? Is my family safe in this house? That is what the buyer expects. Sure the Buyer wants the house, that is why an offer was made.
Unless the government has limited the ability of the inspector to quote the Code, there is no problem with quoting Code per se, just make sure the quote is correct, applies to that building time frame, and pertinent. Currently Kentucky is the only State I can find that strictly prohibits Home Inspectors from citing Code. There may be others. North Carolina kind of went the other way depending on how you view their law, If a Home Inspector cites a Code in North Carolina, he is required to verify when the home was built and perform a Code Inspection to that Code.
Florida has no law to my knowledge that prohibits Home Inspectors from citing Code. Not saying it has not been tried. You are not enforcing Code, you are pointing out Code as a basis for your professional opinion. Maybe the real objection stems from the inability of the parties and agents to argue your report if it is backed up by a Code, specification or Standard. Kind of closes the door on all arguments now doesn’t it? That is one way to stop the calls arguing about your report.
For Buyers, find an Inspector that has only your interest in mind, one that does not concern himself with getting more business from that agent. One that will inform you of a Code issue that could harm you or your property. New Inspectors rely on Agents for their business. After several years and 1,000’s of reports for clients, the Home Inspector who goes the extra mile has built a solid referral base that will last the life of his company without Agent referrals.
For Sellers, when you get a report that has the Buyers interest in mind appreciate that when you buy your next home you would not want an inspector to cut that seller any slack and overlook important issues that could harm you. Almost one half of my business came from the Sellers or their closing Attorneys.
For Real Estate Agents, Home Inspectors are independent, they are not “Transactional Home Inspectors” whose job is to make a deal happen. They have a fiduciary duty to their clients, and that is not you, or the Deal. They are governed by Standards that most Agents do not even know exist, or have read.
Certain Professions like to pit other Professionals against each other for their personal advance. Sometimes with adverse effects. Good Home Inspectors know this and many have already forged relationships with Building Departments, which I encourage. We are not stepping on Building Officials toes; in fact we are helping them with their job of making the community safe for all. Sometimes Sellers do things to homes without Permits and following Codes. Safety is everyone’s job. I remember a Real Estate Agent who notified the Building Department of my report and complained about Code cites. The Building Official offered to meet both the Agent and myself at the home. After reviewing my report, the house, and the Building Code Cites in my report, he complemented me on my reporting, and then turned to the Agent and asked; what are you going to do to correct all of the Building Code Violations. Priceless!