9. Writing a defensive report

Writing your report to support jury arguments

Understanding the role of the TREC SOP

What the SOP actually requires

Your opinion of the performance of the foundation based on your training and experience

Your opinion must be based on your interpretation of the specific signs of distress cited in the TREC SOP

Writing your report to avoid obvious legal liabilities

Encouraging buyer to ignore the sales contract

I know, you are asking why and how would a home inspector encourage a buyer to ignore the sales contract. I see this at least once a week. Here is what happens. The inspector recommends a second opinion on the foundation by saying they should talk to a foundation expert or, worse, a foundation repair contractor.

The irony of this is that the home inspector usually makes these recommendations in part because he or she is reducing any future liability regarding the foundation. Some of you are saying to yourself: how does this create a liability problem? The explanation is very simple. The standard TREC sales agreement states that the buyer can retain an inspector or inspectors of their choice so long as they are licensed by TREC or are otherwise permitted by law to make such inspections.

Here is the problem: self-described foundation experts and repair contractors are not licensed or permitted by law to  make inspections in a real estate transaction.

When you tell a home buyer in a real estate transaction to use an unlicensed person to make an inspection, you are setting yourself up for a tortuous interference with a contract suit.    

Writing in the report what can be expected during the life of the house

In my opinion, this is critically important. In every report I issue you will find a statement like this:

This is a slab-on-ground foundation. Due to the expansive soils found in this area, it is common for the house to develop cracks in drywall, brick veneer and stucco during the life of the house. Expansive soil movement also will commonly result to door issues such as sticking doors and distorted door frames.  

Why is this important? Simply this: by truthfully stating what may happen in the future you provide your attorney with a basis for arguing that any damages due to foundation movement are null. You make any suit less attractive to a plaintiff attorney. Your client, after all, was given fair warning in writing. Will this tactic stop lawsuits? If it does you will never know, but you can be sure that 1)the client was warned, 2)any damages are likely to be mitigated and 3)a lawsuit is likely to be less attractive to a competent and busy plaintiff attorney. You have every reason to do this and no good reason not to.       

You are providing an independent opinion concerning the performance if the foundation

Include in the report that you are providing an independent, unbiased, subjective opinion regarding the performance of the foundation based on your training and experience. Be sure to note that other professionals may have different opinions.

This last statement is critical. Why, because no suit can move forward without an expert witness willing to testify as to what the Standard Of Care is and that that you failed to comply with the Standard Of Care in at least one respect. That expert has one subjective opinion, you have another. So what?        

Refer your clients to the HoustonSlabFoundations.com website.

There is a huge amount of information there to educate your buyer and that your attorney can use to defend you in court. I would go so far as to say that, if every Houston area home buyer was required to read the material in this website, the number of foundation related lawsuits and foundation repair jobs would drop sharply. 

Write in your report that foundation repair is usually an option, not a requirement for safety purposes.

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