Can I Sue My Home Inspector?

Purchasers of residential real estate in British Columbia will typically engage the services of a home inspector prior to purchasing a home.  For most British Columbians, a home is the biggest purchase they will ever make, and a proper home inspection can provide some assurance as to the quality of the home and can reveal defects that could otherwise catch the buyer unawares after purchase.

In some cases, a buyer may seek redress against a home inspector if the inspector failed to identify defects or misrepresented the home or their findings in some way.

At common law, a home inspector may be found responsible for negligent misrepresentation or breach of contract if they fail to properly carry out their inspection and advise their client.  In the case of Gordon v. Krieg 2013 BCSC 842, for example, the Plaintiff sued the vendors, as well as their home inspector with respect to numerous problems discovered in a home after purchase.  In that case, the home inspector was found to be 75% liable for the Plaintiffs damages with respect to poor advice given respecting foundation and structure of the home.

That said, even though a home inspector may technically be found liable for their mistakes, the court may uphold clauses in the home inspector’s contract limiting their liability.  In Gordon v. Krieg, the home inspector’s contract included a provision limiting their liability to $400.  Although the inspector could have been responsible for over $60,000 in damages, the court upheld the limitation clause.  In considering the fairness of that clause, the court wrote as follows:

[165]     The first point to make is that the fact that the presence of a liability limitation clause does not automatically signal substantial unfairness. Instead, the whole of the contract must be taken into account. Here, the contract provided that PTP would provide an inspector who would divide about three hours between, first, inspecting the house and preparing a written report, and, second, conversing with Ms. Gordon. In return, Ms. Gordon paid a fee of $400. That works out to about $133 per hour. That fee had to cover Mr. Kilby’s wage and all of PTP’s overhead. The contract required PTP to conduct a visual inspection only – neither party expected that PTP would get all forensic on the property by poking holes in walls, tearing up floor boards, or removing insulation. Four hundred dollars does not seem an unreasonable figure for the relatively limited service the contract contemplated. I grant that it might be different if PTP had charged, say, $40,000 for its three hours of time. In that case, it would be difficult to see how such a large fee could be rationally connected to the value of the limited services provided.

[166]     As for the role that the limitation clause plays in the assessment of fairness, it is important to note that the asset that was being inspected was a house that was about to sell for $360,000. Absent the limitation clause, PTP would have been open to claims in the range of tens and hundreds of thousands of dollars. In that case, the fee that PTP charged to Ms. Gordon would have to reflect that risk; it would have been much higher. The limitation clause had the effect, therefore, of moderating the price PTP charged and of bringing that price into a range that was affordable to Ms. Gordon. Rather than being unfair, the limitation clause brought the price Ms. Gordon paid for the inspection down to a point that she could afford.

[167]     For these reasons I find that the bargain between Ms. Gordon and PTP was not substantially unfair.

In short, the court upheld the limitation clause on the basis that, if it were not for such a clause=, the cost of a home inspection would have to be much higher, in order to reflect the substantial risk being carried by home inspectors for their work.  Before bringing a case against a home inspector, careful attention must be paid to the wording of any limitation clause, and whether such a clause would apply.  As every case is unique, it is important that you consult a lawyer to discuss the facts specific to your case, and whether you may have such a claim.