The Texas Real Estate Commission (TREC) publishes a document titled Standards of Practice, herein referred to as TREC SOP or just SOP. That document specifies how a TREC licensed inspector is supposed to inspect the foundation and report their findings and opinions. In our opinion, too many inspectors either misunderstand what they are supposed to do with regard to foundations and make at least one of two types of errors. For simplicity, I will call them type A and type B errors.
Type A Errors
When a home inspector goes outside and beyond what the SOP requires. This is not necessarily an error in a technical sense. Home inspectors are explicitly allowed to go beyond and outside the SOP. The problem arises when the inspector goes beyond the SOP and exposes himself or herself to a legal liability that could have been avoided.
To take a simple example: Imagine if a buyer notices what they believe might be a termite tunnel. The buyer asks the home inspector about it and the inspector says it is just ants, not termites. The home inspector, who, no doubt, was just trying to be helpful, has created a legal liability. Not only that, but unless the home inspector is also a licensed structural pest control operator, he or she may have violated the Texas Structural Pest Control Act.
A similar situation occurs every day regarding foundation repair. We are frequently tasked with visiting a house behind a TREC inspector to provide a second opinion regarding the performance of the foundation. In many cases, the home inspector recommended a second opinion from an engineer. There is no problem with that.
The problem is frequently that the TREC inspector has stated in his report that his opinion is that the foundation should or should not be repaired. If the house is in a known expansive soil area, this could be construed to be a violation of the Texas Engineering Practice Act.
In some cases, the home inspector has specified the number and type of piles or piers and there is no question at all that this is a violation of the Texas Engineering Practice Act.
We recommend that home inspectors be very careful about going beyond the TREC SOP. There are times when it is prudent and even wise to beyond the SOP, but you should consider whether you are taking on more liability and make sure your actions are not infringing on the practices of other licensees.
Type B Errors
This is where the inspector fails to meet the requirements of the TREC SOP. An example is failing to render an opinion regarding the performance of the foundation. You would think that this should be the easiest part of a home inspection, but it apparently is not for too many home inspectors.
The most common ways TREC inspectors miss the mark
Recommending that the buyer consult with an engineer without providing an opinion on the how well or poorly the foundation is performing.
Nothing wrong with a home inspector recommending obtaining a second opinion, but only after the TREC inspector provides a first opinion.
Simply telling them to go talk to an engineer does not substitute for providing a TREC inspector’s opinion.
Saying that there are two points on the slab have different elevations and then recommending that an engineer or foundation expert assess the performance of the foundation.
Again, this does not substitute for failing to provide the inspector’s performance opinion. All the inspector is doing is stating an opinion as to whether an engineer’s opinion is needed.
Stating that the foundation needs to be repaired or does not need to be repaired.
There are a couple of problems with this: (1) making such a diagnosis in an expansive soil area arguably falls within the jurisdiction of the Engineering Practice Act and (2) it is not a substitute for failing to provide a performance opinion.
Reporting that the foundation is serving the purpose intended
The problem here is that the inspector is claiming knowledge he or she cannot possibly have. Consider this: whose intent is the inspector referring to? The builder, the foundation subcontractor, the concrete supplier, the first home owner, the third party warranty company, the framing carpenter, the current buyer, or someone else? How would a home inspector know?
We admit that the phrase serving the purpose intended has a place in a TREC inspection report. It is obvious, for example, what a GFI is supposed to do. They can be tested with a simple, inexpensive device, but this does not mean that this phrase is easily applicable to a foundation or any other structural element.
Imagine being in a courtroom witness chair and having to defend such a statement under cross-examination by an attorney who has been trained to make you look like an idiot. This is not a place you really want to go. We strongly recommend you do not use this phrase when discussing foundation performance or the performance of any other structural element. It means nothing to your client and it cannot be defended under cross-examination.
Differential movement observed
Really. Do you think the home inspector really saw the house move? Did he or she notify the homeowner of an imminent danger?