Who Signs the Contract?

[randynavarro]

Let me also clarify.

If sugar daddy pays the inspection fee and the mortgage but the spoiled daughter only lives in the house, then sugar daddy's name is on the contract - he is the client.

[hausdok]

Jeez Randy,

If I saw a fellow being a sugar daddy to his own daughter, I'd turn him in for incest.

Must be a regional vernacular thing.

ONE TEAM - ONE FIGHT!!!

Mike

[housewhisperer]

A reasonable point. The sample document I posted is verbatim from an attorney. I shared the same concern you expressed and he said that, under the circumstances, if the agent states that he or she is, in fact, so authorized and is willing to put pen to paper on a document such as the one I posted, then, if the agent is lying, the issue is between the agent and the client. There have been circumstances where I have never met, seen, or communicated with a client because the client is traveling overseas or otherwise out of contact. The client has authorized the agent to act as his or her representative. The agent has scheduled the inspection, attended the inspection, signed the authorization document, and received the report. I asked the attorney if I should require the agent to produce a copy of the document authorizing him or her to act on behalf of the client and he said it is not necessary. That's all I can tell you.

[Jim Katen]

Originally posted by housewhisperer

A reasonable point. The sample document I posted is verbatim from an attorney. I shared the same concern you expressed and he said that, under the circumstances, if the agent states that he or she is, in fact, so authorized and is willing to put pen to paper on a document such as the one I posted, then, if the agent is lying, the issue is between the agent and the client. There have been circumstances where I have never met, seen, or communicated with a client because the client is traveling overseas or otherwise out of contact. The client has authorized the agent to act as his or her representative. The agent has scheduled the inspection, attended the inspection, signed the authorization document, and received the report. I asked the attorney if I should require the agent to produce a copy of the document authorizing him or her to act on behalf of the client and he said it is not necessary. That's all I can tell you.

I believe he's talking about a legal concept called the "doctrine of apparent authority." If I understand it correctly, it will protect you but your customer can still end up being screwed. In the age of e-mail, there's hardly ever an instance where you'd need something like this anyway.

- Jim Katen, Oregon

[housewhisperer]

I agree, Jim. It's getting easier and easier to get a signed contract before the inspection, particularly since the enactment in 2000 of the Electronic Signatures in Global and National Commerce Act. Known as "E-SIGN," this federal law gives electronic signatures, contracts and records the same validity as their handwritten and hard copy counterparts. Therefore, the use of the document I described would be only as a last resort. That being said, it doesn't hurt to have a few two-part NCR "Authorization to Sign" forms in a folder in your vehicle just in case.

[Brian G]

I've been fortunte to only have a few instances where someone else was trying to sign for the actual client (all but one were realtors who were in the hurry-up-and-expedite-my-commission mode). I ask for a copy of thier Power-of-Attorney....if they don't have one they can't sign. I haven't seen one yet, but I'm not ugly about it. I just briefly explain that it has to be the client or a legally authorized representative.

Brian G.

Git 'Er Done...Right []

[housewhisperer]

Brian,

I have no problem with anyone taking your approach - asking for a copy of the written authorization from the client. I think that the situation is so exceptional that whatever business decision an individual inspectors make regarding this situation, as long as they have a copy of the document authorizing someone else to sign on the client's behalf or the document I discussed is fine. What matters is that inspectors get some sort of document to protect themselves.

Gotta love this forum for the excellent exchange of information and ideas.

[housewhisperer]

We all endeavor to to obtain a signed contract before performing the inspection and many, if not most, inspectors have a firm policy of not performing an inspection unless the contract has been signed (the best and safest policy). However, inclusion of the following language in the inspection contract adds an additional layer of protection.

"Acceptance of the Inspection Report by any party shall constitute acceptance of the terms and conditions of this Contract as if signed by that party and shall constitute authorization to any person signing as Client to act as an agent in agreeing to the terms and conditions. This contract is binding on Client, Client's spouse, heirs, distributees, guardians, legal representative, successors and assigns."

[roadguy]

Um...

While I appreciate your perspective and can understand where this type of thinking could be necessary in your particular situation (absentee clients), I believe your fixation on the CYA factor (with the resultant distancing/alienation of client) is unnecessarily adversarial in tone and language for most HI's. By and large, it is better for HI's (and most other consultant-type professionals) to cultivate a more personable relationship with the client, with a heavy dose of trust, rather than foster an attitude of distrust from the beginning by shotgunning them with a bunch of legally BS (that's Buck Shot, BTW).

[Les]

James,

Along with CYA, you in particular, should be thinking about CYH (cover your head). Your avatar likely identifies you like mine does me!

[roadguy]

Les,

That particular mugshot was taken shortly before I got my annual haircut.

[housewhisperer]

James

With regard to the suggested contract provision with which you find fault, if the client is present or has signed and delivered the contract to you prior to the inspection, then that specific contract paragraph is obviously moot.

Notwithstanding your characterization of me as having a “fixation on the CYA factor,â€

[roadguy]

Kevin,

I am going to respond to your last post, although, as a general rule, I find it a waste of time and energy to continue a discussion once a participant in the discussion states that another's opinion is somehow "incorrect" (i.e., "misses the mark").

the assumption that clients would find the contract language which was suggested distancing/alienating and that the inclusion of such language in a contract would interfere with cultivating "a more personable relationship with the client, with a heavy dose of trust, rather than foster an attitude of distrust from the beginning by shotgunning them with a bunch of legally BS" flies in the face of my experience garnered from over 10,000 inspections. Not only did neither I nor my employees ever have a client express discomfort with or make any negative comments about our contrac

I don't care. That's how I felt when I read it. And, in my opinion, it would not be a good idea to include language in my basic contract which aroused those sorts of feelings (in me) to address an issue that is, by and large, not really an issue. You may now consider yourself to have received a negative comment regarding your contract.

To assume that a clear delineation of the contractual obligations, responsibilities, and limitations pertaining to the work covered by the contract is “adversarialâ€

[housewhisperer]

James.

Whatever happened to the concept of agreeing to respectfully disagree? The statements, “I don’t careâ€

[roadguy]

Ah, now we are getting somewhere, Kevin. There is some real feeling there instead of a bunch of words that say...well, not as much as I'd like.

My point was how that one little clause could color the tone of the whole document. Whether bluntly stated (as I have done in my last posts) or cleverly wrapped in carefully crafted language (as you have done), it is not a good feeling, in the end, if the person gets a sense of being "dismissed", or feels their character had been impugned. This principle applies whether drawing up a contract, posting to a forum, or speaking to your significant other.

[hausdok]

Hey Guys,

We respect someone's right to have their own opinion here and to agree to disagree when it's clear that two folks can't see eye to eye. If this is going to continue in this vein, how about taking it offline and doing it by email please.

OT - OF!!!

M.

[housewhisperer]

James,

Hmmm... as we converge, it looks like cage wrestling to others. I'm still having fun; how about you? Taking this offline would remove the opportunity for others to watch and/or engage in the sturm und drang and give and take of the process of finding a common meeting ground. I kinda thought that this was one of the multiple purposes of a forum. I'll abide by majority rule. Whaddaya think?

Kevin

[hausdok]

Hi,

Yeah, I know. The sponsors have a kaniption fit when I step in to send folks to their corners for an 8 count. However, I'd rather see folks disagree than beat a dead horse endlessly for days, and in the process remove others' motivation to read what's being said, because they're turned off by bickering. No problem, have at it, as long as it stays respectful and polite.

If there's one thing I know, though, it's that home inspectors, as a breed, can be really stubborn about refusing to alter their own opinions sometimes, and these discussions can go south in a hurry. Put it this way, if at some point, one or the other of you is fighting the urge to call the other something obscene, it'll be time to take it outside.

OT - OF!!!

M.

[roadguy]

Hi Mike,

No worries. [:-taped]

Hi Kevin,

Steel sharpens steel, n'est-ce pas?

Your latest posts here and on other recent topics show me that you have already accomplished, on your own, what I was attempting to do here. My apologies for my method choice; the engaging taunt was meant to be purposefully irreverent, not disrespectful. The goal was to make sure that the obviously valuable contributions that you can make to this forum were not constantly discounted due to the perception of "stuffy" language and tone. Welcome to the world where a duck is called simply "a duck". Relax the carefully guarded language and talk shop with the fellas.

As to the original issue: there was none.

[housewhisperer]

James,

Good to see you back at the keyboard after the weekend. I think we spooked some folks. Oh, well...

I guess we all write the way we write. Maybe my style was influenced by my particular academic background. Who knows? It really doesn’t matter. It's the way I've written all my life. You may have thought the new guy was puttin’ on airs and I may have thought you were trying to take me down a peg. I think we eventually learned that we just approach the same thing from different perspectives.

After twenty-four years of reviewing badly written home inspection reports, filled with errors in syntax, person, punctuation, tense, number, etc. with some being literally unintelligible, I’ve come around to teaching “Joe Fridayâ€

[housewhisperer]

I’m merely keeping my word with this post. I don’t expect it to change anyone’s mind with regard to the opinions or positions they expressed earlier in this thread. In a previous post I said that I'd ask the attorney who recommended the specific contract paragraph that sparked multiple demonstrative comments whether or not, after fifteen years of use, he believed that it was still necessary or effective. I had lunch with him yesterday and asked him - his short answer was a categorical "yes."

He said that he has successfully defended two home inspectors in the past twelve months based solely on the controversial contract language. He also told me that he's currently involved in a home inspector/client dispute in which he expects the same contract language to put the matter to rest. Each of the earlier cases involved an unmarried couple buying house - the guy ordered the inspection and signed the contract, the gal later claimed that she never signed any contract but was a party to the purchase of the house. Therefore, she tried to seek damages from the inspection company for alleged negligence. My attorney said that both cases were dropped after he brought the paragraph to the attention of both the plaintiffs' attorneys and the plaintiffs.

He said that in addition to including the specific contract language, in all three instances the inspection companies have used contracts that limit their liability to the inspection fee. In the two earlier cases his letters to the plaintiffs' attorneys were accompanied by the inspectors' checks for the return of the fee. While the circumstances surrounding the current case are somewhat different from the earlier two, he’ll advise his current client that, in addition to his attorney response letter pointing out the contract language, the inspector should return the inspection fee.

Whenever an inspection company returns an inspection fee, he recommends that the company have the client sign and date “Return of the Inspection Fee and Releaseâ€

[randynavarro]

Originally posted by housewhisperer

Each of the earlier cases involved an unmarried couple buying house - the guy ordered the inspection and signed the contract, the gal later claimed that she never signed any contract but was a party to the purchase of the house. Therefore, she tried to seek damages from the inspection company for alleged negligence. My attorney said that both cases were dropped after he brought the paragraph to the attention of both the plaintiffs' attorneys and the plaintiffs.

This brings to mind another question. If two people (married, unmarried, father-son, whatever) are purchasing the inspection, do you have bothsign the contract?

Me, I use the "and / or" wording. IOW, "John and / or Jane Doe". Anyone see issues with this?

[Erby]

Dear James,

Welcome to the world where a duck is called simply "a duck".

Please be aware that in THIS world, a duck is called simply "Les".

Sorry, sometimes I just can't help myself![:-slaphap[:-slaphap[:-slaphap

[housewhisperer]

Good question, Randy. Heck, sometimes it’s a chore to get anyone to sign the contract, let alone to know who all the parties to the purchase are or to get multiple parties to put ink to paper. Your “and/orâ€

[paul burrell]

Originally posted by housewhisperer

My attorney pointed out that in each example, the use of the inspection report by any party to the purchase established that he or she knowingly benefited from it and, therefore, was bound by the terms and conditions of the contract. This applied regardless of whether or not they signed the contract, their name appeared on the contract, they attended the inspection, or they received the report indirectly through another party.

I think we may have the same attorney as I have a statement in my contract that is basically the same as above. I personally do not spend a lot of time worrying about being sued. I do the job as best I can and maintain a good relationship with my client which includes telling them to call me anytime if they have any questions. This makes them feel they are not abandoned after I take their fee for the job and leave. I can honestly say I have never been sued in my 15 years in the inspection business and another 25 in the construction and real estate trades and Of course I am vigorously knocking on wood as I say this.[^]

Just my 2 cents worth which sometimes is not worth much.

Paul Burrell.