How to Use the Disclaimer

One of the tools and techniques that I teach in the Law and Disorder seminar and that I encourage home inspectors to incorporate into their practice is the appropriate use of the disclaimer. While home inspectors and other real estate professionals know that there are many, many issues implicated in a home buying decision that are not going to be addressed or uncovered by a home inspection, their clients are almost universally unaware of that.

For example, a home inspection is not going to determine a property’s boundaries or whether appropriate permits for additions or improvements had been obtained. Nor will it address title or zoning issues. Or any of a myriad of other matters. Easements, covenants and the like.

Consequently you have to disclaim any responsibility for those issues. These are issues that are common to all properties.

You also have to disclaim responsibility for issues that are idiosyncratic to this property. The roof may have been covered by ice and snow. Therefore, you would have to disclaim any ability to offer an opinion on the roof.

Oftentimes, many areas of the home are inaccessible. Access to the attic or garage may be obstructed by an accumulation of stored items that inhibit visibility. Crawlspaces may have insufficient clearance.

If you are effectively prevented from inspecting any area of the property, you need to note it, corroborate your finding with photos and disclaim responsibility for those areas of the house.

You should also advise them to seek further review by the appropriate professional of any system or area for which you are disclaiming responsibility due to inaccessibility.

I am sometimes asked by home inspectors whether it is possible to have "too many disclaimers." I understand the concern. Can you have so many disclaimers in your report that they lose effectiveness? The reader’s eyes glaze over.

Have you ever purchased a step-ladder? You spend your first hour of ownership removing warning labels. I recently stayed in a hotel that had this advisory stenciled on the shower tiles: "PLACE SHOWER CURTAIN INSIDE TUB BEFORE TURNING ON THE SHOWER."

In our litigious culture, you have to warn people about everything. So the short answer is "No. You can not have too many disclaimers in your reports."