Issues with Home Inspection... Now What?

You may recall our blog post about the power of OPRA, the Open Public Records Act.  In it, we discussed using OPRA as a tool for our clients in real estate closings, particularly when we represent buyers, because directing that request to the municipality’s building/zoning department will provide you with helpful and oftentimes critical information. That topic is intimately related to today’s topic: how your attorney can (and should) assist in resolution of home inspection issues.

You’ve saved your money, pre-qualified for a mortgage, and finally found your dream home.  You put in the offer and won what can often be a super competitive process. The attorney review is completed, and now you are on to inspections — what should you expect?

First, you want to make sure you use a home inspector who has your interests at heart and is not beholden to anyone else.  It is a good idea to compare your realtor’s list, your attorney’s list, and to ask friends for the names of trusted professionals.  Second, you want to make sure you are physically present for the inspection to make sure it is thorough.  Invite a trusted friend who is handy, or better yet a relative who is in a trade.  This is not a time to be proud or to think part of “adulting” is muddling through it alone for the first time.  Take your own notes, too.  Third, the final report will come to you and you will want to immediately forward it to your attorney. 

Take the time to review the report and your notes, then share your thoughts with your attorney; when you do so, prioritize the issues of concern.  For example, which are the small items you may be willing to overlook (cosmetic) or even address at a later date, and which are things critical to have addressed before closing (safety, environmental)?  Which items require further examination, such as by a structural engineer.  Which items require you (or seller) to get estimates from licensed contractors?  Your attorney will assist you in identifying and prioritizing these items as well.

With the guidance of your attorney, the issues of concern will be presented to seller’s attorney with a copy of the report.  We typically ask our clients what their ideal resolution of the issues would be and/or what a minimum credit from seller might be, sufficient to allay their concerns.  Our goal is to present compelling arguments and the requisite back up to seller’s attorney to support a resolution closest to our client’s ideal.  Most times, this is easy to achieve when there are seasoned real estate attorneys representing the other party — they are well aware of the various issues that come up during inspections and have a general idea of what is a reasonable “ask”. 

Occasionally, either a party or an attorney “digs in” on a position that feels unreasonable.  The reasons for that could be many — perhaps the sellers do not want to give at all, either a credit or a repair, because they do not have enough equity in the deal to get to their next residence.  Or, sellers may feel the home is a labor of love for them and that their work on the home is being unfairly criticized.  Most real estate attorneys are capable of discussing the real concerns of their clients in a compassionate way without compromising the zeal and confidentiality required for the representation.  By sharing their clients’ motivations, the attorneys can formulate a reasonable compromise or, in rare circumstances, immediately determine the a deal should be terminated (saving you time and money in the long run).

In those circumstances where there is an impasse and the seller’s attorney is not providing the “why” for what appears to be an unreasonable position of their clients as to needed repairs, we will oftentimes request the assistance of our client’s realtor.  That realtor has already had at least one interaction with seller’s realtor and — who better than the realtors to know the specific circumstances motivating their clients in their purchase or sale?  Also, realtors have a vested interest in making the right deal work for their clients.  We find realtors can either give important insight or are willing to start a dialogue with the other broker.

Attorneys have other tools to assist them in the inspection negotiations as well.  Remember those OPRA requests?  Well those responses, compared with the seller disclosures* and the inspection report oftentimes provide needed inspiration for sellers to address identified problems.  Particularly if they have not been forthcoming in the disclosures. (As seller’s attorney we always share our OPRA requests with our sellers so they know what to anticipate and make their disclosures are thorough).  Comparing this disclosure to the issues identified by the home inspector can oftentimes provide additional “inspiration” for sellers to address any problems our buyers want resolved.

Your attorney has many tools to ensure your interests are protected through the home inspection process.  Choosing an attorney with real estate experience (and experience in enforcing contracts in court) is always a good idea!

*In August 2024, new protections were put in place for homebuyers, including the requirement that Sellers provide a “disclosure” meant to have them detail any defects or issues of which they are aware.