Expert: Russel Ray - 1/13/2008

Question
QUESTION: I have made a modification that I am not sure meets code.  Does the home inspection done as part of the sale process serve as a validation that the modification is okay?  Does this indemnify me?  What is the best way for me to be sure I am safe from liability?

Thanks for any help you can provide.


ANSWER: Hey, Tracy.

"I have made a modification that I am not sure meets code."
What leads you to make that statement? That could be a telling point somewhere down the road.

"Does the home inspection done as part of the sale process serve as a validation that the modification is okay?"
No, it does not. A home inspection is simply a documentation of the condition of the property at a specific point in time. All standard buyer home inspections in all states and meeting the Standards of Practice of all the various trade associations exclude verifying square footage, permits, etc.

"Does this indemnify me?"
In this litigious society where anyone can sue anyone else at any time for any reason, nothing will indemnify you. The best you can do is put all your cards on the table for your buyers to indicate to them that you are the most honest, trustworthy, helpful person on the planet.

"What is the best way for me to be sure I am safe from liability?"
Put all your cards on the table for your buyers to indicate to them that you are the most honest, trustworthy, helpful person on the planet.

Remember that it is not necessary to bring an older building up to current codes. Every code states such in its preamble/introduction/etc. However, there are certain upgrades that are worthwhile. For example, we know that GFCI and AFCI circuit breakers/outlets save lives and property, but we didn't have that technology until the late 1970s (GFCI) and the late 1990s (AFCI). Consequently, many home inspectors will recommend standard upgrades to older properties but won't state that an older building meets all the current codes. If a buyer wants a building that meets the current codes, that buyer should be buying a building built in 2008.

---------- FOLLOW-UP ----------

QUESTION: Thank you very much for taking the time to answer so thoroughly!  Here is the modification:  The original design had an empty space of about 1.5 feet by 2.5 feet (the latter being the width of a tub) at the far end of the bathtub, away from the faucet.  (Yes, an empty space of this size surrounded by walls!)  I made two shelves in the space, stair-like.  Handy for holding your shampoo, soap, razor, shaving cream, etc.  One is about two feet above the floor and the other four feet.  My concern is that a child could climb onto these and fall off, and of course that I could be sued for medical care and damages.

Of course, in this case the modification is in plain sight and it's not like I'm trying to hide anything.  My feeling is that in a reasonable society I wouldn't have anything to worry about - if a buyer has kids and is worried about it, he can take whatever measures necessary to protect his kids (such as restoring the original design), and it's his responsibility, having bought the house with complete knowledge about the design.  But reason and the law are two very different things.

Another responder has suggested that a written disclosure signed as part of the sale might be a good idea.

Thanks again for your time!

Tracy

Answer
Hey, Tracy.

My suggestion to "put all your cards on the table" means disclose, disclose, disclose. If in doubt, disclose. However, in this case, I think you're trying to over think the situation. If that small space didn't include any rewiring or replumbing, then permits typically won't be required, so the best thing you could do is to state on your transfer disclosure form exactly what you have stated here:

"The original design had an empty space of about 1.5 feet by 2.5 feet (the latter being the width of a tub) at the far end of the bathtub, away from the faucet. I made two shelves in the space, stair-like.  Handy for holding your shampoo, soap, razor, shaving cream, etc."