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PRE-PURCHASE INSPECTIONS: A RADICAL PROPOSAL

Pre-purchase building inspections have become meaningless

1.          Encourage inspections to be done by recognized experts who have been practicing as architects or civil engineers for more than 20 years [which used to be the case].

It used to be the case in Québec up to 1994 but inspections got deregulated in that year with the New Civil Code of Québec [rewritten with major input from the legal community]. Article 1726 in the code under the title “warranty of quality” defines an apparent defect as one that can be perceived by a “prudent and diligent buyer without any need of expert assistance“. That eventually led to pre-purchase inspections which lack quality. The consumer is no longer well protected. Please refer to my previous post in LinkedIn dated February 27, 2016 with the title “Pre-purchase building inspections have become meaningless”. It opened the door to thousands of individuals to do inspections with no government regulations to be followed. Prior to that, consumers [purchasers of homes and other building types] had the choice to use a recognized expert to do the pre-purchase inspection. It may have been expensive but they were getting their money’s worth in terms of consumer protection. Having been trained to do pre-purchase inspections at CMHC in Ottawa in 1961 I became an expert by virtue of the experience of doing inspections. I had two prime ministers as clients when they bought their homes so I must’ve been doing something right. Up until 1994 I had numerous judgments in latent defect cases from Superior Court judges in Québec to the effect that there never would be any claim for latent defects if pre-purchase inspections were done as thoroughly as I was doing them. Since that time, even the definition of an expert has become confusing. The Internet has made experts out of anyone and everyone choosing to do inspections. I have even had a judgment in Québec Provincial Court where a judge questioned my expertise saying after all, I am only a simple architect, not a real expert. As matter of fact, having taught pre-purchase inspections at the postgraduate level over a number of years based on my experience as a practitioner, it is important to point out that for three decades [from the 60s to the 80s] the common theme at professional schools for architects and engineers was to choose teachers who were also successful practitioners. If one examines the conted courses being given in regard to building inspections to current architects and engineers as part of their annual professional obligation to maintain or improve their level of expertise, one finds, inevitably, that the instructors are academics or technocrats who may have been working at CMHC but not professional architects or civil engineers, expert/practitioners who have been doing pre-purchase inspections for more than 20 years.

2.       Recognize the fact that even a verbal report from an expert is likely to be more beneficial to the consumer than a long written report from a non-expert following a type of computerized checklist being fostered all over North America.

Inevitably, when any field of endeavor gets deregulated, the cost of the service or the product reduces substantially as more and more people join the bandwagon. It is possible now-a-days to get a pre-purchase inspection of most any type of building at a cost of $500 plus taxes. Inevitably, the person doing the inspection operates with “disclaimer clauses”. That means if they do manage to reveal an apparent defect they take the position that “it should be monitored” or “consult an expert”. They avoid any liability. Their insurance protects them but doesn’t help the consumer. Those kinds of reports are useless. Consumers will not find out about defects until after they move in. Inspectors operating with disclaimer clauses [typically the first few pages of the report] make themselves judgment proof. Real estate agents will encourage consumers to choose their inspectors based on a preferred list. In sensible places like Massachusetts were consumer laws are sacrosanct it is against the law for a real estate agent to be recommending inspectors. In most jurisdictions including Québec it is common practice. When real estate agents include clauses in the offer to purchase to the effect that the purchaser’s inspector has to be agreed to by the vendor then you can appreciate the extent of the conflict of interest. I am being boycotted by real estate agents. It should be against the law if not consumer law then those regarding human rights – I am being prevented from doing my work. It makes a mockery of agents who pretend they are doing it in the best interest of the purchasers and the vendors [hogwash!]. They are doing it to facilitate a sale, to make sure they get their hard earned commission – so much for their code of ethics! If consumers were more prudent and intelligent, if there weren’t so many foreign buyers who don’t know any better those kinds of clauses would be unacceptable and real estate agents would be shamed for even bringing them up. Similarly, the cynical remarks one gets about the cost of using an expert is an insult. There are litigation lawyers who charge $250 an hour and others who are up to $1000 an hour or more. It is the smarter, more experienced, and therefore more expensive lawyers that inevitably win cases. We all know the phrase “you get what you pay for”. There are inspection franchises that one can buy as an investor which has nothing to do with your level of experience. In California, real estate agents throw in a free pre-purchase inspection [usually from one of those franchises] as an incentive to get clients. As a result of all that and the fact that experts have been priced out of the pre-purchase inspection market, my proposal is to allow and encourage verbal reports from recognized experts as being superior to today’s written reports as a way of keeping costs down. Real estate agents will argue that written reports are necessary in order to make a claim for latent defects. My response is that inspection reports have become so superficial, full of disclaimers that rarely are those inspectors called in testify in latent defect claims because they are not experts which is clearly stated in their reports. Agents also argue that the written report is necessary to be turned over to the vendor. Even that argument is a crock. The purpose of a pre-purchase inspection is [or should be] principally for the benefit of the consumer who is shelling out all the money. It is only recently [my guess is less than 15 years] that the real estate boards began asking that inspection reports be turned over to vendors or that vendors make declarations [and everyone knows how inaccurate those are]. These are not requirements of the Civil Code of Quebec. They are secondary considerations which the real estate industry has come up with. In the interest of protecting the public, the first concern should be the consumer [the purchaser] not the vendor. The “Association des consommateurs pour la qualité dans la construction has been funded by Industry Canada to study the subject of “PRE-PURCHASE HOME INSPECTION IN REAL ESTATE”, “Better Protection for Buyers and Sellers”. The report is dated June 27, 2012. My own experience or concerns as a practioner is not reflected in their mission statement and therefore the general emphasis of the report. There is a long history of consumer protection laws which are being ignored. It is the consumer who needs protection at this time because most pre-purchase inspection reports have become totally superficial. When real estate agents are able to put a clause into offers to purchase to the effect that the purchaser’s selection of inspector has to be approved by the vendor then you know “things are out of whack”. Because of all the foreign buyers at this time, the housing market in major Canadian cities is doing well and the vendors don’t need the protection that ordinary purchasers [mostly young people] in those cities now require. Once again, there is a disproportionate concern with setting up regulations for the multitude of inspectors who are now offering inspection services because of deregulation or because there never was a tradition for experts to be involved in the past as they were in Quebec. On April 5, 2016 the Montréal Gazette had an article titled “Ontario law to regulate home inspection industry”. It mentioned that Ontario first started discussing plans to license home inspectors back in 2013. A panel had recommended that inspectors be required to pass a written exam and a field test in order to become licensed. What I am recommending is just the opposite. You don’t have to create a new profession of building inspectors. The experts already exist who are capable of doing an excellent job. They are the architects and civil engineers who have been practicing for at least 20 years and, according to the code of ethics of their professions, they should have been practicing in the public interest; they should know how to protect the publics’ interests. In most Canadian provinces and territories including Ontario, anyone can call themselves a home inspector – regardless of whether or not they have completed any sort of professional training. Currently, the only provinces that regulate home inspectors are British Columbia and Alberta although both are contemplating changes to their regimes [as reported in the same article]. In Québec, the Association of Québec Building Inspectors has been trying to get government recognition as a professional service for more than two decades. It is unlikely to happen.

Morris Charney/architect and city planner         August 14, 2016

Comment from Witold Rybczynski who is a well-known architectural critic, author and university professor. He has written numerous books and articles on the subjects of housing, architecture and technology.

On Sep 5, 2016, at 8:40 PM, Morris Charney <mcharney@videotron.ca> wrote: 

Hi Witold, Thought I would send along these two posts  that I wrote this summer to try to arouse interest in my proposal regarding building inspections. I’ve spoken about it to you last time you were in Montreal. I’m not trying to start a revolution but I am convinced there is something of merit in the idea. It would provide good work for experienced architects, benefit ordinary consumers [purchasers of homes or other properties], give more purpose to the profession and  provide feedback and good critique to a profession caught up in aesthetic pursuits and ruled by celebrity architects. Would love to have your comments or for you to pursue the idea further. Thanks/Morris  

From: Rybczynski, Witold [mailto:rybczyns@design.upenn.edu]  Sent: Wednesday, September 07, 2016 9:59 AM To: Morris Charney Subject: Re: home inspections

Hi Morris, 

My experience confirms your observations. When we bought our house, the real estate agent recommended an inspector. We got what I now realize was a canned “evaluation.”

Nothing that he mentioned proved troublesome. On the other hand, he did not mention any of the issues that did later require repairs.

It seems like this is a local issue (you mention Mass.). In Penna. for example, the (Quakerish?) law allows either party in a prospective  house sale to withdraw at any time (for any reason) before the final closing, even if docs have been signed and deposits made and bids accepted. I imagine other states have other arrangements.

This variety makes it hard to discuss in the media, which generally has a national focus. 

It also gives an advantage to the large homebuilders, who offer warranties and generally stand behind their products.

Witold 

On Sep 7, 2016, at 10:45 AM, Morris Charney <mcharney@videotron.ca> wrote: 

Really appreciate your thoughtful response. Would you allow me to post it on LinkedIn under one or both of the posts I sent you? You may prefer posting it yourself as a comment after the two posts. I think you are on LinkedIn and I have asked that we be connected. I appreciate that you may not want to get too many others trying to get you to comment on what they have written. The readership on LinkedIn, my connections, are mostly architects, urban planners, doctors, dentists and especially lawyers. The McGill alumni will probably recognize who you are. I feel your response is significant because it confirms my own experience. I have done inspections on three continents. Two of my kids live in LA. When they bought their houses, the real estate agents offered to throw in a pre-purchase inspection free of charge by the nearest Amerispect franchise, which got me to fly out to California asap. I helped one of my daughters to purchase a home in Boulder Colorado. I helped choose a home built and owned by an architect. The agent insisted that we have an independent inspection done since I was participating financially. It gave me a false sense of security, and like your experience, the home turned out to have a serious radon problem which I had to deal with. I give the subject of inspections a lot of importance because 1] it would be one way of finally improving the quality of housing for everyone [not just the 10% that use architects] by getting architects involved with ordinary housing, 2] I hate the deception used by real estate agents to the extent that they openly use the expression “staging” in regard to preparing a house for sale, 3]inspections would give new purpose to experienced architects…they sure need the work. It’s the next best thing to requiring architects to live or work in some of their creations, 4] I am also reminded of the tremendous influence Stuart Wilson had on all of us at McGill [yourself included] regarding good construction practice, of properly detailed construction drawings not the imagery passing for architectural plans today where contractors improvise their own construction details. Thanks/Morris

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