The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.
There is a common saying “Hindsight is always better than foresight.” However truthful this may be, it is not very consoling when you experience it. Especially when it involves a large investment like your home or investment property. When buying real estate in Texas you have the duty to have the home inspected. Texas is a buyer-beware state, meaning if as a buyer, you do not discover issues with the real estate (i.e., flooding, restrictions, condition of the house), you bear the risk. A typical home inspection includes examinations of the foundation, structure, roof, roof structure, heating and air-conditioning equipment, plumbing and electrical systems, and built-in appliances. Discovering problems in these areas before you close on the property can save you aggravation and thousands of dollars. It might even help you realize this is not the property for you.
While it is theoretically possible to do what is called an “exhaustive inspection,” in which entire systems are taken apart and examined, but the economics of such an inspection are generally prohibitive for most real estate transactions. The vast number of real estate inspections are limited visual inspections of readily accessible areas. They are non-destructive, and there is very little disassembly of equipment. Tested mechanical items are run in normal operating modes, and there is no prediction of the expected life of any system. No warranty or guarantee is stated or implied. Home warranty policies are available from other sources. Ask your real estate agent for information. You should discuss in detail with your inspector what items will be inspected and to what extent. You have the right to inspections for lead paint, asbestos, PCBs, and other potential environmental hazards, such as mold. The inspector should provide a written report detailing what exactly was inspected.
Additionally, you should ask the real estate inspector if they are licensed by the Texas Real Estate Commission (link at www.trec.tx.us) and about their experience, education, background, and even whether they are bonded and insured. The State of Texas has requirements for continuing education, but not errors and omissions insurance. In fact many inspectors do not carry liability insurance. This could be important if later you discover the inspector negligently missed a defect.
All inspections are not equal. For example, an inspection for termites (or wood-destroying insects). Such inspections should be done by wood-destroying specialists licensed by the Texas Structural Pest Control Board (link at www.fpcb.state.tx.us). Again remember to ask about their experience, education, background, and even whether they are bonded and insured. If not you may not have any recourse against them in the event they negligently missed discovering a problem.
If you are purchasing a home with a pool or spa, you should contact a reputable pool company to perform an inspection. Because pools and spas are unique, this will require someone with expertise in this area to ferret out any potential problems. Again, you should verify whether the inspector is bonded and insured and that you will receive a written report.
If you are purchasing real estate with well service or a septic system, these items too should be thoroughly inspected. If the house has been vacant for some time this could hamper a septic inspection. Discuss the results thoroughly with your inspector.
Finally, mold inspections. Persons conducting mold assessment or mold remediation in Texas, unless exempt, are required to be licensed. Further information regarding licensees and mold-related matters can be found at the Texas Department of State Health Services.
If you are new to the area, do some research on deed restrictions and flood history. Many areas appear dry but are prone to flood in downpours or storms. As many have learned with our recent storms, you do not want to find out the area floods after the storm.
I hope you find these tips of assistance useful when you decide to sell or buy a home. Remember, while the seller is under a duty to disclose defects in the property, there is no substitute for thorough inspection by a professional real estate inspector. The money you spend now, for an average 2500 square foot home about $250, could save you thousands of dollars later. But beware that the price varies based on the type, style, size, and age of the home.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com
