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January 2, 2018 • Stay Connected!
         

QUESTION:  Buyer has performed an inspection based on Form 35 and prior to the expiration of buyer's initial inspection period, buyer wants to bring an electrician and a plumber into seller's house to inspect the electrical and plumbing systems. Buyer also wants to have a contractor bid the cost of repairing rot damage in the floor that was discovered by the buyer's inspector. Listing broker says that buyer may not allow anybody other than the licensed home inspector into seller's home to perform an inspection of seller's home. Listing broker is also arguing that if an electrician or plumber is allowed to inspect those features within the home, those inspections can only occur during the "additional inspections" period. Is listing broker correct? If so, how can buyer ever know the cost of expected repairs that buyer's inspector identifies?



ANSWER: There seems to be industry-wide confusion circulating around the difference between a "home inspection" and a specialty inspection or generation of a bid to perform certain work on seller's property. Clarification is required of this important distinction and there are several definitions and terms that must be understood before this distinction can be made clear.
 
The first paragraph of Form 35 (the statewide forms inspection contingency) says, in part: "The buyer’s inspections may include, at buyer’s option and without limitation, the structural, mechanical and general condition of the improvements to the Property, compliance with building and zoning codes, an inspection of the Property for hazardous materials, a pest inspection and a soils/stability inspection. The inspection must be performed by Buyer or a person licensed (or exempt from licensing) under Chapter 18.280 RCW."
 
RCW 18.280.010 defines "Home Inspector" as: "a person who carries out a noninvasive examination of the condition of a home, often in connection with the sale of that home, using special training and education to carry out the inspection." The language used in the law is important. A "Home Inspector" examines the "condition of the home" ... not a portion of the home, not the roof only, not the electrical system only, not the plumbing system for the purpose of giving a bid, not the substructure to determine the costs associated with repairing dry rot in the bathroom floor, etc. A "Home Inspector" who must be licensed, inspects the condition of the whole home. The Home Inspector law says there are certain individuals exempt from the Home Inspector statute, if and only if, those individuals act within the scope of a different license. Specifically, RCW 18.280.170 provides the following exemptions from licensing as a home inspector.
 
"Exemption from licensing. The following persons are exempt from the licensing requirements of this chapter when acting within the scope of their license or profession:
  • (1) Engineers;
  • (2) Architects;
  • (3) Electricians licensed under chapter 19.28 RCW;
  • (4) Plumbers licensed under chapter 18.106 RCW;
  • (5) Pesticide operators licensed under chapter 17.21 RCW;
  • (6) Structural pest inspectors licensed under chapter 15.58 RCW; or
  • (7) Certified real estate appraisers licensed under chapter 18.140 RCW."
 
Form 35 goes on to say, with respect to "Additional Inspections," ... "If an inspector so recommends, buyer may obtain further evaluation of any item, by a specialist at buyer's option and expense if, on or before the end of the Initial Inspection Period, Buyer provides seller a copy of the inspector's recommendation and notice that buyer will seek additional inspections. If Buyer gives timely notice of additional inspections, Buyer shall have ________ (5 days if not filled in) after giving the notice to obtain the additional inspection(s), by a specialist."
 
With all of this as background, the questions can be answered. The only two categories of people who can conduct a whole home inspection are the buyer, personally, and licensed home inspectors. Form 35 and the Home Inspector statute, however, both allow buyer to bring other contractors, such as a plumber or electrician into the home to inspect the specific areas of the home that the contractor is licensed to address. Buyer does not have to receive authority from the Home Inspector to bring a licensed plumber or electrician into the home to inspect the electrical or plumbing systems. Seller already gave buyer permission, in the first paragraph of Form 35, to inspect "without limitation, the structural, mechanical and general condition of the improvements to the Property, compliance with building and zoning codes, an inspection of the Property for hazardous materials, a pest inspection and a soils/stability inspection." Buyer abuses nothing by bringing multiple contractors into seller's home, consistent with the Home Inspector's Act. Buyer is simply not allowed to bring any third party into seller's home to conduct a whole home inspection unless that person is a licensed Home Inspector. Said differently, the first paragraph of Form 35 allows buyer to have a licensed home inspector inspect seller's whole home AND a licensed electrician inspect seller's electrical system AND a licensed plumber inspect the seller's plumbing system.
 
So long as the individuals that buyer is bringing into seller's home are licensed in one of these categories and so long as the scope of their inspection is limited to the specialization of their license, buyer is authorized, under the language of Form 35, to bring those individuals into seller's home during buyer's inspection period. Bringing one of those individuals into seller's home does not violate the Home Inspector License Law because the person inspecting the whole home has an inspector's license and the electrician and plumber fall into the exemptions from licensing so long as their inspection is limited to the area of their license. The "additional inspections" time is not the only time that buyer is allowed to bring contractors, such as plumbers and electricians, into seller's home. It is simply an extension of time given in case buyer needs that extra time to get additional experts through seller's home.
 
Bringing a contractor into seller's home to provide an estimate of repairs is not as simple. A licensed "contractor" is not among those exempt from the Home Inspector statute and thus, buyer is not automatically entitled, based on the first paragraph of Form 35, to bring a licensed contractor into seller's home to provide an estimate of repairs. The "Additional Inspections" provision, however, expands buyer's authority to bring other experts into seller's home. The Additional Inspections provision says: "If an inspector so recommends, buyer may obtain further evaluation of any item, by a specialist ...." The Additional Inspections provision references "further evaluation" meaning that it is something broader than the allowance granted in the first paragraph. As a result, if buyer's inspector recommends that buyer obtain evaluation by a contractor of some issue within seller's home, then buyer is entitled, during the "Additional Inspections" time, to bring a contractor into seller's home to evaluate the cost of repairs identified by inspector.
 
The objective of the Inspection Contingency and the Home Inspector statute is to provide buyer with a meaningful opportunity to learn as much about seller's property as possible, at a time when buyer still has the ability to terminate the agreement if necessary, while protecting seller from damage to seller's home or home's reputation caused by individuals who are not licensed to evaluate conditions within seller's home. Ultimately, if seller makes it difficult for buyer to properly perform necessary evaluations, the result will be that: seller loses a buyer who may have otherwise closed the transaction ... or buyer is put in a position where buyer closes without proper information and then sues seller (and possibly the brokers) for failed disclosures ... or buyer makes unrealistic demands of seller on a Form 35R based on a fear of the unknown ... or buyer and seller end up in a dispute over the EM based on different opinions about what the inspection contingency allowed. If the parties find themselves in litigation and a court is persuaded that seller made it difficult or impossible for buyer to perform proper inspections and evaluations of the property, that is likely to work against seller's interests.
 
Buyer is limited to the use of licensed home inspectors and other contractors in inspecting and evaluating seller's home. So long as buyer is bringing properly licensed individuals through seller's home, however, it is difficult to see how seller benefits from listing broker making these inspections difficult.

 

The Legal Hotline Lawyer does not represent Washington REALTORS or its members. To browse through our database of past Q & A's, visit www.warealtor.org. Attorney Annie Fitzsimmons writes the Legal Hotline Question and Answer of the Week. Please submit questions to legalhotline@warealtor.org . Please tell us your NRDS number when you e-mail the Hotline with your question.


 

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Primary Mortgage Rates Survey
(updated every Thursday)  Source:  Freddie Mac
 
 December 28, 2017  30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  3.99%  3.44%  3.47%
 Fees & Points  0.5
 0.5
 0.3
 Margin  N/A  N/A  2.75



 December 21, 2017  30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  3.94%  3.38%  3.39%
 Fees & Points  0.5
 0.5
 0.3
 Margin  N/A  N/A  2.75



 December 14, 2017  30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  3.93%  3.36%  3.36%
 Fees & Points  0.5
 0.5
 0.3
 Margin  N/A  N/A  2.75



 December 7, 2017  30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  3.94%  3.36%  3.35%
 Fees & Points  0.5
 0.5
 0.3
 Margin  N/A  N/A  2.75





 
 
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