The Duty to Warn - part 3
This series of articles from the International Association of Certified Home Inspectors (InterNaCHI) has much valuable information that can be adapted for Chimney Sweeps as they perform a check of a homeowner's chimney and venting system. The articles are reprinted with permission. Authors: Ben Gromicko and Kate Tarasenko, with contributions by Mark Cohen, Esq., Joe Farsetta, Nick Gromicko, and the members of InterNACHI.
The Home Inspector’s Duty
Inspectors should bear in mind that they serve as a licensee of the homeowner when it comes to their own duty to warn. If there is an imminent danger or hazard that can cause physical injury, the obligation to warn those who may be harmed outweighs any confidentiality they owe their client.
While the inspection report is the bargained-for product between the inspector and the client, and while the report and contract may contain confidential information whose disclosure to other parties may require prior permission by the client, your state may dictate that you warn all visitors of known hazards and dangers discovered on a property, irrespective of the client’s right to privacy and confidentiality.
InterNACHI's own Home Inspector Code of Ethics provides for the notification all relevant parties--not just the client--of an imminent danger or hazard:
I. Duty to the Public
7. The InterNACHI member shall not communicate any information about an inspection to anyone except the client without the prior written consent of the client, except where it may affect the safety of others or violates a law or statute.
An informal survey of InterNACHI home inspectors has revealed that many inspectors rely on common sense when it comes to notifying parties other than their clients of hazards, primarily because inspector licensing is limited to a small number of states in the U.S.
Inspectors cited the following hazards as those they would immediately report, regardless of the party: the risk of carbon-monoxide poisoning (perhaps due to an inoperative detector or a potential problem with the door separating an attached garage and the living space); the lack of a temperature/pressure-relief valve on a hot water heater or furnace, which can result in a deadly explosion; and other hazards that pose an immediate risk of injury. Of course, not all defects qualify as imminent dangers, and all identified but unaddressed defects require that occupants exercise reasonable care, such as when going up and down a staircase that lacks a required handrail on at least one side.
In all cases, the inspectors stated that they would maintain documentation for themselves in the form of notes and photos. This type of record-keeping can be critical if the matter takes a legal turn in the future. Some inspectors stated that they would inform their clients as a courtesy of the additional disclosure to other parties, and would also note the hazards in their inspection report summaries to highlight their emergent nature.
Some states that license home inspectors require the disclosure of immediate health and safety hazards to parties other than the homeowner/seller. Such provisions may be covered in the state’s Standards of Practice or requirements covering contracts.
In the case of New York, disclosure is covered in their New York State Home Inspection Code of Ethics:
Section 197-4.2 Written Contracts
(a) Prior to performing a home inspection, home inspectors shall provide a client with a written pre-inspection agreement that clearly and fully describes the scope of service to be provided and the cost associated with that service. All said contracts shall contain the following clause:
“If immediate threats to health or safety are observed during the course of the inspection, the client hereby consents to allow the home inspector to disclose such immediate threats to health or safety to the property owner and/or occupants of the property.”
Such "occupants" may be renters, but this definition may extend to any visitors whose health and safety may be at risk due to an identified hazard.
Reprinted with permission from the International Association of Certified Home Inspectors (InterNACHI)