Can Buyers Hold Home Inspectors Liable in New York?

We frequently receive calls that start off something like this: “We closed on our house last month and, not long after moving in, our contractor informed us that there are asbestos tiles in the basement (or mold in the attic) that our home inspector did not identify in the inspection report. It’s going to cost us thousands of dollars to fix this, so we can go after the home inspector?”

It's certainly a reasonable inquiry considering the main reason home buyers hire inspectors is to help them identify defects and safety/health hazards such as asbestos, mold, structural defects, etc. And it’s even more frustrating for home buyers when inspectors fail to identify defects that are in plain sight, i.e., asbestos tiles, mold, etc.

Unfortunately, the most common explanation we have for home buyers sounds like this: “Check your inspection report to see if it has any language that limits the inspector’s liability to the cost of the inspection. However, even if it doesn’t include such language, finding an inspector liable for damages will depend on whether you can show gross negligence which means you would have to show the inspector acted with a reckless disregard or engaged in intentional wrongdoing.”

Proving gross negligence is not easy. Black’s Law Dictionary defines gross negligence as, “A conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party[.]”

In plain English, what does that mean? Well, for the purposes of this article, it’s probably best to set aside intentional wrongdoing because that would likely be borderline impossible to prove. But reckless disregard, that’s different.

For example, let’s say that, after closing, you take the stairs into your unfinished attic and right there in plain sight are wooden joists that are absolutely falling apart and look like they’ve been rotting away for years and there’s just absolutely no way the inspector could have missed spotting them considering the report makes it obvious the attic was visually inspected for structural defects.

In that scenario, if the inspection report does not limit the inspector’s liability to the fee paid for the inspection, then a home buyer’s legal claim against the inspector might have enough legs.

So if you’ve recently purchase a home and have found yourself disappointed with your inspector’s alleged failure to identify a defective condition, apply the above test to your circumstances. If you are confident the inspector recklessly disregarded his legal duty to identify a specific defect, call or email our office and we can discuss the facts of your case.