Why Inspectors Should Stay Away From The Repair Question

The TREC SOP does not require that inspectors render an opinion as to whether the foundation should be repaired. So why would you want to open this can of worms? The repair decision is much more complicated than most people realize. The average person sees this as a black and white issue. It’s not nearly so simple.

Why is it that the TREC SOP does not require TREC inspectors to address the need for foundation repair?

I cannot say for sure what the reason is. I can only point out a couple of possible reasons, but the following related reasons make sense to me:

1. The decision to recommend repair can be a deal killer, no question about it. There was a time when inspectors were required to address the issue of foundation repair in a black and white, yes or no manner. That is no longer the case. You are simply required to render an opinion as to the performance of the foundation. I suspect they prefer that inspectors not address the repair issue at all.

Here is my guess as to why: once a TREC inspector reports the foundation as in need of repair, that house is tainted. Sometimes the taint is fair, but most of the time it isn’t. There are almost always other options that are available. A TREC inspector simply does have a credential strong enough to convince a seller to underpin a foundation. What used to happen, and still does happen, is that an engineer is brought in for a more credible repair/no repair recommendation. Alternatively, a foundation repair contractor can be brought in. Unfortunately, no repair contractor can be said to be independent.   

2. There is a related point about this subject that I have never heard anyone else bring up. In 1986, when I first got into this business, the Engineering Practice Act had what was called a residential exemption. From a practical perspective, this meant that an individual who did not hold a license to practice engineering could in fact legally practice engineering so long as it was for a residence. That is still true today, but there is now an exception: house foundations on expansive soils.

It is clear to me that, if someone engages in those activities that fall within the jurisdiction of the Engineering Practice Act, he or she is not shielded by the residential exemption as it is currently written unless the house is not in an expansive soil area.

The only other defense I know of that would potentially be available to an inspector licensed by TREC to make home inspections is that so long as he or she stays within the bounds of the law governing TREC inspectors, he or she would be exempt. The potential problem I see with this defense is that the TREC SOP does not stipulate that a home inspector make foundation repair recommendations.

I do not want to be misunderstood. I do not think that the Texas Board of Professional Engineers (TBPE) or TREC have thought this issue through. I certainly do not see the TBPE going after home inspectors for violating the Engineering Practice Act, but that could change.

What does concern me is this: say a home inspector reports that a foundation should be underpinned and that the homeowner is an attorney who decides to get even by filing a suit alleging that the TREC inspector was practicing engineering in violation of the Engineering Practice Act. It is not clear to me that the TREC inspector has a valid defense. Reporting that the foundation needs repair or does not need repair could open up a nasty can of worms. 

You should form an opinion concerning foundation performance by looking at the house, not by looking at the foundation

The foundation is engineered to mitigate, not to eliminate, distress and damage due to foundation movement. The question is: how well or poorly is the foundation performing considering the age, location, and construction of the house.

Remember: all foundation performance evaluations are comparative

For any house, you should compare the performance of the foundation, as measured by distress and damage to the house, to the performance of other houses in the same area, of roughly the same age and of similar construction.

After the above discussion was written:

The TBPE issued a Policy Advisory stating that so long as the TREC inspector stayed within the TREC SOP for inspectors, they would not be in violation of the Texas Engineering Practice Act. If a TREC inspector would be in violation should he or she did any of the following:

Analyzing the cause of a condition

  1. Recommending repair or recommending no repair
  2. Providing any other expert opinion associated with a foundation including the foundation systems and components would be considered as violating the engineering practice act and could warrant disciplinary action from the Texas Board of Professional Engineers if conducted by an individual not licensed as a Professional Engineer. See the quote below: 

Analyzing the cause of a condition, recommendations for repair, or providing any other expert engineering  opinion  associated  with  a  foundation, including  the  foundations  systems and components, would be  considered the practice of engineering per the Act §1001.003(c)(1) and could warrant disciplinary action from the Texas Board of Professional Engineers if conducted by an individual by an unlicensed  as  a  Professional  Engineer  (PE). We  conclude  that  a  TREC  licensed inspector who conducts a visual real estate inspection in conformance with the TREC Standards pf Practice does not engage in the practice of engineering.

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