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Buyer believes agent’s inspector missed HVAC defect. Who is to blame?
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Buyer believes agent’s inspector missed HVAC defect. Who is to blame?

Q: I purchased a home in June. My real estate agent hired an inspector and collected a fee from my husband and me. The inspector wrote an inspection report that minor problems were showing. I paid a second fee for him to return after the owners repaired the problems to ensure that everything was in great shape.

We closed and moved into the home. The very day we moved into the house, water started leaking from the ceiling and the HVAC system malfunctioned. We had an independent HVAC company come out to assess the problem. The temperature in the house was over 100 degrees and we have two toddlers. He stated that there was an obvious preexisting condition that anyone should have been able to identify. This would especially be true for a home inspector.

We paid the home inspector twice, $425 for the initial assessment and $100 to verify that the minor issues were addressed. But the HVAC was obviously defective, and we spent the first two weeks in this home without air conditioning. Should we go after the broker, the home inspector or the seller?

A: Let’s start here: When you get the name of a home inspector (or real estate agent, or anyone else who is going to provide a service to you during your real estate transaction), please spend the time to investigate whether that person or company is good at what they do — and is the right person or company for you to hire.

We find it quite disconcerting that your real estate agent hired your inspector. Typically, agents will give you a list of several inspectors and then you can interview each of them to see which one is the best fit. This has several benefits. You’ll learn more about what different inspectors offer in the way of price and service. And you’ll figure out whether your personality is a mesh with this person, which is important because you’re going to follow that person around during the inspection to learn about the mechanical systems of the property you’re about to buy.

While many real estate agents offer great (and personal) recommendations for home inspectors, you can’t just rely on their word and not do your own research. You can still have a hit and a miss with an agent’s service providers.

Post-closing, things happen. It’s not unusual for us to receive letters from readers letting us know that as soon as they move into a home, they find problems. This past winter, we heard from a couple that closed on an expensive home in New York. The roof leaked the night they moved into the property. Often, our readers find problems with older air conditioning systems when they turn them on for the first time after the winter or during a heat wave.

What new homeowners of older homes learn is that sometimes systems fail. Yes, older air conditioning systems may suddenly fail after a long winter, even if it worked fine during the last cooling season. And heat waves, like those experienced in the Northwestern and Southwestern U.S. this summer, can put extreme stress on an older HVAC system and it will just die. For the most part, a home inspector doesn’t have a crystal ball to let them know when or how the system will fail.

For us, the relevant issue is determining what the inspector saw when he toured the property both times and what his report told you about the condition of the HVAC system. We’re also wondering if the contractor you hired was legitimate and not simply trying to sell you a new system.

We frequently get questions from readers letting us know that their home inspector missed something, but in reality the problem is coincidental. After a hard rain, you can get water in your basement even if the basement never had a leakage or seepage problem. During a big snow (followed by a long cold spell), an ice dam can form, and the roof might develop new leaks. A home inspector can’t see or find everything.

Having said that, we are seeing more home inspectors rely on checklists when inspecting homes (rather than using their eyes and ears) and losing the forest for the trees. What we mean by that is they may point out loose cabinet doors or a missing GFCI outlet in an old bathroom, but fail to see foundation cracks or other potentially big-ticket items.

Interestingly, you say that the air conditioning contractor you hired said that anybody could have seen the problem with your system, but you didn’t mention what the problem was. If the outside compressor was missing, that would have been pretty obvious. Sam has a client that recently closed on a home where the HVAC system suddenly stopped working and claims the seller must have known that the system didn’t work properly even though it passed inspection.

Will your existing home warranty cover the repair cost? Many homes today are sold with an existing home warranty. We checked one warranty company, and the policy excludes existing defects or mechanical failures that could have been detected by a visual inspection or simple mechanical test. If you have an existing home warranty and haven’t called the service number yet, you might wish to do so.

At this point, we’re not sure where the blame lies. Unless you find a smoking gun, it’s hard to prove that the inspector was at fault or that the seller deceived you.

If we assume that your inspector was incompetent and missed the air conditioning issue, you should call that inspector and discuss it. If the inspector admits to missing the problem, you should try to get what you can from him, which will typically be a refund of the money you paid for both inspections.

If your sellers did something wrong, and actively hid the problem, you may have a claim against the seller as well. Seller disclosure claims are hard to prove. A local attorney can discuss whether you’re likely to have any luck here and whether it would be worth going after the seller.

Finally, unless you can prove the agent knowingly lied to you about the air conditioning system, you should spend your energy elsewhere. Good luck.

(Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through their website, bestmoneymoves.com.)

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