I get asked this question a lot. The buyers have asked for a home inspection and their realtor has set up the appointment. The question then comes up: can the seller be there during the home inspection?
I have a difference of opinion with my manager about this one. I think the buyer is paying for the home inspection and (most often) the seller has agreed in the Agreement for Purchase and Sale to facilitate access. To me, because the privity of contract is between the home inspector and the buyer, the seller has no right to be present when that opinion is being provided.
My manager, however, is of the view that it’s the seller’s home and therefore they do have a right to be there if they choose. On a practical level, he thinks it would be pretty hard to get them to leave: after all, it’s their house.
So reasonable people can disagree on this one.
And yet I think most agents, should they get a request from the seller for a copy of the home inspection report, would take the position that it is confidential to the buyer and does not have to be disclosed. So how can the seller be allowed to be present during a home inspection and hear everything a home inspector has to say, but not have a right to his or her written report?
To me, the concepts are exactly the same: I think the sellers have neither the right to be there when the home inspector goes through the house with the buyers, or to the written report, unless the buyer consents.
It’s implicit to my way of thinking that if the buyer is going to pay for the home inspection, the opinion they get belongs to them, whether it’s written or verbal, and that it defeats the whole purpose of privity of contract to allow a third party to eavesdrop on that opinion, owner or not.
Leslie Kirk, an Ottawa real estate lawyer, acknowledges the situation can be problematic. In her view, the seller can probably be in the house but can’t do anything to interfere with the home inspector, by getting underfoot or by asking questions.
The issue most usually comes up with private sales by owner because they have to be there to let people in.
The last time I was asked by a seller if they could watch the home inspection, I informed the owner that in my view, they could be in the house but should stay out of the way. I explained the point of the home inspection was not to inform the seller of problems in the house, but to satisfy the buyer that there weren’t any deficiencies.
The owner agreed with that, and stayed in the house, but in another room, well out of earshot. I think that’s the best answer. It allows the buyers and home inspectors to ask the seller if they can’t find something but leaves the expert opinion where it belongs: between buyer and home inspector. On the other hand, if the owner is there and something comes up, it’s an ideal opportunity to have a chat with the owner about the problem.
If the seller is represented by an agent, their realtor usually explains that they shouldn’t be around for the appointment. If they are, of course, the buyer’s realtor is not allowed to communicate with them, which is another good reason for the owner to stay away and let the two realtors deal with any problems.
Some owners, by the way, will get their own home inspection as part of the listing process and assume that because they’ve done that, the buyer doesn’t have to. However, the privity of contract in that report exists only between the seller and the inspector they used. Even if a copy is given to the buyer, the buyer will not have privity of contract with the inspector. In other words, if there are problems with the home inspection that the seller obtained, and the buyer relies on that report to their detriment, too bad — the buyer can’t sue the home inspector. So it’s always best for the buyers to get their own home inspection, rather than relying on the seller’s.
Do you have a question about home inspections? Email me at firstname.lastname@example.org — I’ll be happy to answer them!