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Articles of Interest

• Why a Buyer Needs a Home Inspection (PDF)
• HUD Form recommending a home inspection (PDF)

• Is Inspection of a New Home Legal for a NYS Licensed Home Inspector???

  10/19/23

  A question was brought up by a New York State licensed Home Inspector to a director of NYSAHI relative to inspection of newly constructed homes that have not been previously occupied. Concern was expressed that a Licensed Home Inspector might be prohibited from inspecting a newly constructed home by NYS Real Property Law 12b, § 444-b. Definitions, 6.
  
  Short Answer: The response from NYSDOS confirmed NYSAHI's proposal that “New Construction Inspection” can be offered by Licensed Home Inspectors as long as it is not represented in any way to be "Home Inspection".
  
  More Detail: NYSAHI wrote a request for interpretation to the Supervising Attorney for the Licensing Division of the NYS Department of State making these observations:
  
  

  "It would appear, that the cited definition would place inspection of newly constructed homes outside of the licensed practice of Home Inspection. (§ 444-b. Definitions, 6. “Residential building” means a structure consisting of one to four dwelling units and their garages and carport but shall not include any such structure newly constructed or not previously occupied as a dwelling unit.)"
  
  "We find no restriction in that law that would prevent a licensed Home Inspector from engaging in inspection of new construction as long as that work is not represented in any way as a Home Inspection as defined by 12b, and that the new construction inspection is not marketed or advertised as “Home Inspection”."
  
  "We propose that inspection of new construction might legally be offered to the public by a Home Inspector, but as an additional related service offering (perhaps “New Construction Inspection”) akin to other services such as Radon Testing, Water Quality Testing, Septic Dye Testing, etc. These are outside of the definition of “Home Inspection” as defined in the law, but frequently offered by Home Inspectors and advertised on home inspection websites, etc."
  
  

  We asked that if this additional service offering of “New Construction Inspection” is permissible, to be advised of any related prohibitions or restraints that might guide Home Inspectors in legally offering that service.
  
  We noted that we found the following from 12b NYS Home Inspection Professional Licensing Law to be pertinent to this matter:
  
  

  § 444-a. Short title.
  This article shall be known and may be cited as the “home inspection professional licensing act”.
  
  §197-4.4 Unlicensed and Unlawful Activity.
  (a) Home inspectors shall not engage in, knowingly permit or aid and abet, unlicensed or activity that is prohibited by Article 12-B of the Real Property Law or the regulations promulgated thereunder.
  
  §197-4.8 Fraud, Misrepresentation and Dishonesty.
  Home inspectors shall not engage in fraud, fraudulent activity, misrepresentation or dishonesty.
  
  §197-4.9 Promotion and Advertising.
  (a) Home inspectors shall not advertise in a false, misleading or deceptive manner.
  
  

  NYSDOS responded to our inquiry and proposal, confirming that as long as a Home Inspector "...makes clear, in all its stark significance and without any ambiguity, that the “review”, regardless of the purported standards the inspector alleges to follow, is not a “home inspection..." the NY RPL would not prohibit such conduct."
  
  NYSAHI responded in writing to DOS with thanks for the interpretation but requesting additional clarification:
  
  

  "We note in your e-mailed response... that you use the term “review”. That term was not used in our written inquiry. The term appears to be substituted for the term “inspection” in your response. We wish to know if this was to perhaps indicate some type of restriction from using the term “inspection” in offering and providing the additional service of “Newly Constructed Residence Inspection”. NYSAHI expects that an appropriately diligent Home Inspector would endeavor to fully “inspect” a Newly Constructed Residence, and that that effort would be substantially more than what might be implied by “review”.
  
  Further, given that a Home Inspector would carefully refrain from in any way referring to “Newly Constructed Residence Inspection” as a “Home Inspection”, and draw a clear distinction, identifying the former as an unregulated service, would there be any prohibition against having a pre-inspection agreement for inspection of a “Newly Constructed Residence” that references the NYS Home Inspection Professional Licensing Law and obligates the Home Inspector to conduct and report the Inspection in full accordance with the Standards of Practice of that law by reference, including scope and ethical requirements?"
  
  

  NYSDOS has not yet responded to the request for clarification.
  
  TAKE AWAY:
  
  

  • A NYS HI can legally offer and conduct “New Construction Inspection” of a home.
    
  • However, it must be made absolutely clear that the “New Construction Inspection” is NOT a regulated "Home Inspection". This should be reflected in advertising and agreements, etc. Failure to do this may be an actionable violation of the law that could lead to fines and/or threaten your license.
    
  • It would be a good idea to make sure that offering this service is covered by your Liability/E&O insurance. Our preliminary inquiry to one prominent insurance provider indicated that it would be.
    
  • We expect that the DOS response using the term "review" instead of "inspection" is not intended to limit “New Construction Inspection”, but rather to re-emphasize that it needs to be made very clear that the service is not a "Home Inspection" regulated under NYS law. We hope for confirmation of this soon by DOS.
    
  • We believe that the DOS reply including "... regardless of the purported standards the inspector alleges to follow..." supports our belief that “New Construction Inspection” can be offered as fully equivalent to "Home Inspection" by carefully tying the pre-inspection agreement for it by reference to the NYS Standards of Practice and Code of Ethics for Home Inspection. We also hope for confirmation of this soon by DOS. In any case, one should not use their standard Pre-Inspection Agreement for a Home Inspection to provide “Newly Constructed Residence” inspection without appropriate modification approved by an attorney.
    

  NOTICE: This article was not written by an attorney and does not reflect the advice of an attorney to interpret the DOS response or otherwise. It should not be relied on for legal advice. NYSAHI recommends consultation with an attorney for reliable legal advice.
  
  

• A3714 / S5097 MADE LAW - Another Step in the Right Direction?

  
  

  4/19/23

  This bill, signed by the Governor into law in December 2022 and effective in June of 2023, amends the NYS Real Property Law and adds a required disclosure, by the Seller to the Buyer in the modified Property Condition Disclosure (PCD), of indoor mold history upon the sale of Residential Real Property (generally1-4 unit “Homes” inspected within our license. This does not apply to Condos, Cooperative Apartments, and “Property on a Homeowner’s Association that is not in fee simple by the Seller”). It adds the question: “HAS THE PROPERTY BEEN TESTED FOR INDOOR MOLD? YES NO UNKN (IF YES, ATTACH A COPY OF THE REPORT)”.
  
  It is important to note that detection and reporting of mold is specifically excluded in our NYS Home Inspection Standards of Pracatice. However, many Inspectors offer inspection for mold as Mold Assessors.
  
  Some observations about NY Property Condition Disclosures…
  
  In certain locales (for instance Downstate) a PCD is not commonly available at the time of inspection. In locales that generally require a purchase agreement prior to inspection, the PCD is often part of that paperwork. Some Home Inspectors make it their practice to request a copy of the PCD for review prior to an inspection. By this, Inspectors can be alerted to issues identified by the Seller and also might give their Buyer Client a head’s up where inspection observations differ from the Seller’s statements in the PCD.
  
  While PCD law provisions, along with adding mold to the list of required disclosures, appear to be aimed at consumer protection of a home Buyer, New York’s Caveat Emptor (Buyer Beware) policy in a home sale still reigns. What might have been very effective protection of a Buyer in creating the PCD was substantially weakened by modification of provisions as it was made NYS Law. The Seller’s diclosures in answering the PCD questions had originally been required to be based on constructive knowledge (what they should know). This was changed to actual knowledge (what they actually do know at time of signing). By that change, a Seller is not required to investigate anything to complete the PCD fundamentally changing their level of responsibility. It can be a major challenge to prove what a Seller actually did know at the time of signing to make a case of fraud where a Seller might be held liable for damages for an intentional misrepresentation.
  
  Another weakness of the PCD law is that a Seller can avoid providing a PCD by paying just $500 to the Buyer at closing. $500 is a pittance relative to the value of most homes and the cost of major repairs. The Seller can side-step PCD liability by simply paying that. Failure of a Seller to provide a PCD, however, can be seen in itself as a cue to look even more closely for substantial undisclosed issues.
  
  Various exclusions in the law provide that PCDs are not required in circumstances such as estate sales where the Seller is a fiduciary administrator for the estate, or in a sale due to forclosure, etc. In these cases the Seller would generally not have been in residence and would not be expected to be familiar with a home’s condition.
  
  On the bright side, the PCD can be used by the Seller to move a problem with their home up front in the sale so that it is disclosed and represented as already incorporated into their asking price. This act can build trust between Buyer and Seller and limit Seller liability, easing the sale process. Otherwise a substantial undisclosed issue found in a Home Inspection can become a matter of contention and negotiation that could delay closing or kill the deal.
  
  Whether a PCD is provided or not, this law does not relieve a Buyer from the responsibility of due diligence in making the purchase. Getting a Home Inspection is an essential element of that effort.
  
  New York’s Property Condition Disclosure law was conceived as a strong tool for consumer protection. Adding mold to its list of questions does not do much to correct its enfeeblements.
  
  Home Inspection remains a Home Buyer’s best protection. That is why NYSAHI strongly advocates for a NYS Right to Home Inspection Law.
  
  This article is provided for general information only and to engage the reader in learning more about the subject. It was not written by or reviewed by an attorney and should in no way be considered to be a legal opinion or legal advice or relied on as such. Consult an attorney for any legal opinion or advice.
  
  

• Consideration of Winter Conditions in Home Inspection

  
  

  GOT SNOW?

  1/12/23

  Consideration of Winter Conditions in Home Inspection
  Modern design standards use ground snow load records and accepted safety factors to engineer house structures for high reliability. This is because snow load on structures is a principal cause of structural collapse. Most homes in our area are designed to support a 20-pound snow-load. This loading can be exceeded by less than 2’ of snow! We are encountering more frequent extreme winter weather events. The Buffalo, NY area has had multiple recent incidents of snow accumulation of 4-6 feet! Inspecting for structural weaknesses that may make a home susceptible to damage from winter conditions and educating your Client to understand the threat of heavy snow and ice on their home may save lives and help safeguard against catastrophic property loss.
  
  Warning Signs of Structural Failure - Heavy snow/ice accumulation often causes cracks in the finishes of walls and ceilings and causes doors and windows to bind. These conditions should be investigated by a professional inspector. Hearing loud cracking noises during a high accumulation event is a danger sign.
  
  Snow depth - The density of 1 ft.² of snow is about 1 to 1.5 pounds. It is important to know however, that snow accumulation becomes increasingly dense with depth. The weight of a square foot of snow 6” deep is about 7.5 pounds. The weight of 48” of snow is eight times that (~60 lbs). However, snow compacts as it accumulates so the design weight used in engineering for 4 feet of snow is 117 psf!
  
  Wet Snow - Snow has varying liquid water content and some accumulated snow can be very heavy when the water content is high. Cold fluffy snow may weigh around 7 psf. Really wet snow can weigh 4 times that. Rain falling on accumulated snow is also a condition of concern as the density of the accumulation and the resulting weight on structures can rise dramatically in a short period of time before the snow has an opportunity to melt.
  
  Raftered Roof Structures - The strength of a rafter roof system depends not only on the dimensions, spacing and condition of the rafters, but also on their connections at top and bottom. Rafters should be directly opposed and tied together against separation with collar ties at maximum 4’ on center. Equally important is the connection of the rafters below. Perhaps the strongest connection is when the opposing rafter bottoms are fastened to an attic floor structural member running between them creating a stable triangle. Potentially weak conditions can arise in attics when rafters bear on an exterior attic wall above attic floor level and there is no structural member directly tying the opposing rafter bottoms together. Symptoms of this condition are bellied ridgelines and bulging of the eave line.
  
  Truss Roof Structures - Trusses should be installed according to an engineered design that is not likely available at the time of inspection. However, the installation should be checked for common issues that can result in structural weakness. These include removal or modification of truss web components, rot or other damage to any part of a truss, substandard lumber with knots or other defects, inadequate connection to exterior walls, etc.
  
  Roof Deck Issues - Check for sag between rafters that can result from things such as missing H-clips, span exceeding the rating of sheathing (check the stamp), moisture damage from leaks or poor attic ventilation, sheathing installed in thewrong orientation (the long dimension should be parallel to the eaves for strength), etc. Decks can fail from heavy loads especially from the added weight of persons doing snow removal.
  
  Unbalanced Loads - Roof structural integrity can be jeopardized when one side of the roof has a substantially greater load than the other. This is an especially important consideration in events of heavy accumulation of snow/ice. Winds can cause one side of a roof to be bare while at the same time depositing heavy snow loads on the other. If both sides of the roof have heavy snow loads requiring removal, it is important to balance the removal so that the snow load on one side is not much greater than the other.
  
  Snow Removal - Heavy snow loads may need to be removed to protect a home. This can be a dangerous endeavor from things such as ladder accidents, slippery roof surfaces, sliding snow loads, etc. Roofs can also be damaged resulting in need for repair and/or leaks. Great caution should be used, and consideration given to hiring that work out to a qualified contractor. When removing snow, it should not be scraped down to the roof surface. The important thing is to remove weight. It is generally best not to chip ice, but rather, to get the snow off of it so it has a chance to melt.
  
  Low Pitch - Steeper roofs tend to hold less snow than those with low pitch (generally below 4:12). Special attention should be paid to the structural integrity of low slope roof areas. Ledger attachment, rafter connections, rafter dimensions, etc. should be given close scrutiny.
  
  Sliding Snow Loads - Snow loads, especially on metal roofs, can slide in a mass and be very dangerous and damaging. Metal roofs should have roof jacks to resist sliding snow. In the condition where a steeper slope roof discharges onto a low slope roof below, a heavy sliding snow load may structurally damage the lower roof potentially leading to collapse. Persons can be seriously injured, and substantial property damage can result from sliding snow loads.
  
  Ice Damming - Lack of adequate attic ventilation and attic floor insulation can be very damaging to a home and contribute to accumulation of heavy snow and ice loads. Properly constructed attics have a continuous flow of air along the underside of the roof deck and insulation in the attic floor adequate to prevent excessive heat rising to the underside of the roof deck. This results in the underside and the top side of the roof being at approximately the same temperature so that snow is less likely to stick to the cold roof surface and accumulate, and when it does accumulate is less likely to melt. Poor ventilation and insulation results in the eaves being much colder than the roof surfaces above the heated spaces. Snow melts in the upper heated areas and runs down to the eaves where it encounters the cold condition and freezes. Ice continues to the build up there and that ice works its way into the roofing materials and structures often causing serious damage. Keep in mind the requirements for adhered roofing underlayment that is designed to protect against this. Ice is also heavy, imposing potentially damaging loads at the eaves and the growth of sometimes enormous icicles that not only can cause major damage to the soffits, gutters, etc., but also pose an imminent hazard to persons and property. Removing large accumulations of ice is dangerous in many ways.
  
  Inaccessible Fuel Shut-Offs - Large accumulations of snow and ice coming off the eaves of the roof can cover exterior shut off valves on natural gas feeds to homes and can cover propane and fuel oil tanks. Location of these items below the eaves of a roof is a poor choice that should be reported. Clients should be reminded of the importance of maintaining access to fuel shutoffs in case of emergency.
  
  Iced-over Natural Gas Regulators - Regulators on natural gas supplies to homes act to vent overpressure gas to the exterior environment through the screened outlet in the regulator. If regulators become iced over or buried in heavy snow they may cease to provide protection against overpressure gas to the appliances in the house which can be very hazardous. Make sure your Clients understand how important it is to keep the area around a gas regulator clear. Share this information with your Client during a Home Inspection, even in the Summer!
  
  …and don’t forget to point out the vigilant winter maintenance required by steep driveways
  Download of this article PDF here

• Do-It-Yourself Radon Monitor Liabilities

  1/30/23

  Do It Yourself Radon Monitors (DIYRM) are now readily available for sale to the public and have become increasingly popular. Homeowners are using these devices to measure radon levels in homes they own or wish to buy. There are multiple liabilities for licensed Home Inspectors related to these DIY monitors…
  
  First, some shortfalls of various DIYRM:
  
  

  1. They do not have a self-diagnostic feature. That means that the DIYRM cannot conduct essential diagnostics before each test to ensure that they are working correctly.
  2. Homeowners/Buyers generally do not follow professional test protocol and their test results are not reliable.
  3. No interruption of power detection. User might rely on readings when the RM may not have been recording for some period.
  4. Lack of security features to detect tampering or disturbance.
  5. Some manufacturers recommend monitoring a location for at least 2 months with their units to get a good radon level measurement. These devices may not be suited for the typical short-term 2–4-day sampling required in a real estate transaction.
  6. DIYRM require routine re-calibration to maintain their ability to monitor radon levels with any accuracy. Homeowners are not likely to bother with this (if that is even available for their device).
  7. Also, some do not have software that is compatible with newer smart phones. Always check monitor/phone compatibility before purchasing any radon measurement device.

  
  While these devices may provide some information to Homeowners about radon in their homes, decisions about the safety of the home’s living environment and about installation of costly radon mitigation systems are best made with measurements taken by certified professionals who use approved and reliable devices according to accepted protocol.
  
  As for Home Inspector liability…
  
  Any Home Inspector recommending or selling these devices may be liable if that device or the way it is used results in inaccurate information. A Client may rightfully expect that if they buy a unit from a licensed Home Inspector, they can rely on it when they use it for testing a home. Clients and purchasers are not likely to follow, or even be aware of, proper radon testing protocol. This, in combination with using uncertified and/or uncalibrated DIY units, can yield results that do not reliably reflect a home’s actual radon level. If the resulting level is low, they may think their home is safe when if might not be. If high, they might install an unnecessary and costly mitigation system.
  
  Who will they blame? You could be on the hook for the cost of subsequent professional testing and/or the cost of installing a mitigation system. Worse, sued for a cancer death! Electronic devices are often made in other countries. A device manufacturer located outside of the US cannot be easily sued, leaving the Home Inspector as a likely first defendant in a lawsuit. HI liability and E&O insurance policies probably don’t insure selling these devices (…and that practice also undermines the home inspection profession by promoting non-professional self-testing). Being sued with no insurance backing to provide defense and cover settlement/award costs is no place to be!
  
  DIYRM are continuous radon measurement devices. CRM must be approved by NYSDOH and calibrated by a New York State ELAP approved lab for them to be used in a real estate transaction. An ELAP (Environmental Laboratory Accreditation Program) approved lab is required to comply with NYS Dept. of Health and nationally accredited programs for operation of their calibration facilities and testing and must maintain a formal quality assurance/control program. Most DIYRM companies that calibrate their devices are not an ELAP approved lab. Using unapproved DIYRM for testing homes is outside of NYS regulations and may very well not be covered by HI insurance policies. Home Inspectors using non-compliant devices can also be subject to NYSDOH penalties.
  
  We have been advised that the NYS Department of Health requests that the use of DIYRM for radon measurement in real estate transactions by licensed Home Inspectors be reported for investigation. Reports should be made to: radon@health.ny.gov or (518) 402-7556
  
  If you encounter homes being monitored for radon by these devices, warn your Clients and others about these issues and recommend that they only rely on radon testing by qualified professionals when making important health related decisions.
  
  *** NYSAHI publications are not prepared by attorneys and do not provide legal advice. Consult a NYS licensed attorney for any legal advice. ***
  
  

• Are you collecting sales tax? (..and doing it properly)

  2/13/23

  NOTICE: This article is provided for general informational purposes only and is not written or reviewed by a licensed attorney or accounting professional. It is intended to raise awareness of Home Inspector responsibilities under NYS Law and to help them comply and navigate potential liabilities. Consultation with a qualified attorney and accountant is highly recommended. Do not rely solely on the lay opinions and advice offered here.
  
  The short story on sales tax in home inspection is that it must be collected whenever home inspections or related inspections or tests are done for any entity other than a Buyer. Your inspection work for Buyers is generally exempt from sales tax. You must have Authority from NYS to collect sales tax and it must be properly collected and reserved, and then reported and paid to the State periodically and on time. Anything else will subject you to fines and/or penalties, in some cases severe. More detailed information follows.
  
  According to The Quick Reference Guide for Taxable and Exempt Property and Services - Tax Bulletin ST-740 (TB-ST-740), examples of taxable services, and transactions that are subject to sales tax include: “certain information services “ and “maintaining, servicing, and repairing real property” https://www.tax.ny.gov
  
  For the service of Home Inspection, we refer to:
  
  STATE OF NEW YORK DEPARTMENT OF TAXATION AND FINANCE, ADVISORY OPINION, PETITION NO. S891031A, 3/21/1990
  
  “The issue raised… is whether charges paid for "home inspection services" are subject to sales and use tax.” The description of the situation states that “No repair services are performed by the inspector. The written report is provided only to the client. The purchaser of the inspection service generally relies on the inspection report to decide if further price adjustments are necessary before purchase of the residence or if repair of the deficiencies is necessary.”
  
  The service of inspecting and providing a home inspection report for a Buyer is a personal information service. “The sale of such report in written form constitutes the rendering of an information service.” The guidance offered in the Advisory is: “..as long as the purchaser of the home inspection service is not the owner of the real property which is the subject of the home inspection report, the charge paid by the purchaser for the report will not be subject to sales tax as a charge for maintaining, servicing or repairing real property, property or land.” Information services to property owners, including analysis and reports, are considered to be part of property maintenance.
  
  Two conditions for the Buyer sales tax exemption are stated:
  
  

  1. “…the report pertains only to the particular premises being purchased by the particular client…” and because of this “…is considered to be uniquely personal or individual in nature…”.
  2. (Emphasized) The resulting report “… is not or may not be substantially incorporated in reports furnished to other persons …”. “The report furnished to the buyer client meets this condition in that the data and analysis contained in the report is furnished only to the client, is not furnished to other persons and has value for a very limited period of time.”

  
  
  Takeaways from this opinion include:
  
  The sales tax exemption only applies to services provided to a Buyer. Home inspection services for a Seller/Homeowner are subject to sales tax because the Tax Law considers the service to them to be for “… maintaining, servicing or repairing real property, property or land.” Sales tax must be collected by Home Inspectors for performance of services for a Seller/Homeowner.
  
  A sales tax exempt inspection report may not be duplicated for distribution to others, and information from it may not be substantially compiled or analyzed into a related report for distribution to any other. Entire reports should not be distributed or shared with the Listing Agent, Seller/Homeowner, any other prospective buyer, or others.
  
  We can construe from this Advisory that the other tests and services that we provide where reports are generated for a Buyer are also sales tax exempt if the two cited conditions are met.
  
  Business Hygiene Actions Items to Consider:
  
  

  • Collect NYS Sales Tax when it is due. "You may be subject to fines and a jail sentence, if you: … willfully fail to collect state and local sales tax required to be collected." (Also, State and Local Sales Taxes should be separately identified on a bill, statement, or receipt)
  • If you do not already have NYS Sales Tax Authority, Get It! You may be subject to civil penalties if you sell taxable services without a Certificate of Authority. Penalties are "up to $500 for the first day on which sales or purchases are made, plus up to $200 for each subsequent day, not to exceed $10,000." (The COA must be prominently posted in your place of business.)
    https://www.tax.ny.gov/
  • Pay collected sales tax to NYS on time. Sales tax collected must be kept in a specific account and a report with payment to NYS made quarterly (annual payment may sometimes be authorized).
    https://www.tax.ny.gov/

  
  
  Keep it Personal. Make sure your agreement with a Buyer Client emphasizes that the home inspection and any related tests/inspections are provided as a personal information service under NYS Law. They are for the Client’s personal use only for consideration of and any negotiation for the purchase of the subject property, and accordingly Client agrees that they shall not duplicate or substantially share the information from the inspections/tests/reports with any other and shall indemnify you (cover any loss or damage to you) should they do so or allow it. Make it clear that they are only allowed to share selected excerpts from your reports and only as necessary for negotiation. This will also help guard against any others using your hard work for free and against the potential of calls to you down the road, from persons with whom you have no business relationship, perhaps requesting information or making complaints about a report. Your reports for a Buyer are NOT for the use of any other for any purpose!
  
  Do not give your reports to anyone other than you Client. Keep the Client responsible for control of the documents and for any improper sharing. You defeat any contractual protections if you enable sharing. DO NOT send the report to Realtors or others. If requested to do so tell them they must get any inspections/tests/reports directly from your Client.
  
  Include warnings on your reports (every page if possible) advising that they are prepared for the use of your Client only, that copying or distribution in any form is strictly prohibited, that use by other than the Client for any purpose is strictly prohibited, that others that might use the information in the reports do so at their own risk and you bear no responsibility to them for anything whatsoever.
  
  Educate your Buyer Client. Make sure they understand their contractual obligations to control the inspection information and reports.
  
  

• NYS Appliance and Equipment Efficiency Standards

  4/4/23

  The New York State Energy Research and Development Authority, NYSERDA, is responsible for the implementation of the NYS Advanced Building Codes - Appliance and Equipment Efficiency Standards Act of 2022. This initiative sets “...minimum energy and water efficiency requirements for residential and commercial products and appliances to help maintain performance and quality while reducing energy and/or water consumption.” The purpose of the Act is to meet our Greenhouse Gas reduction goal and to provide consumers the benefits of product and appliance efficiency. The first standards take effect on June 26, 2023. Some residential products included in this first batch of standards include: Faucets, Toilets, Shower heads, Gas Fireplaces, Ventilation Fans… They are required to be listed in the States Appliances Standards Database (SASD), available on-line, that as of this date has 31,385 individually certified appliances that meet the new standards. “Any manufacturer, distributor, retailer, or installer selling, leasing, or renting non compliant products may be subject to enforcement penalties. “
  
  Receive program updates from NYSERDA:
  
  https://www.nyserda.ny.gov/
  
  Determination of compliance of installed products or appliances is not a requirement under NYS Home Inspection Standards of Practice. But, a knowledgeable Inspector should be familiar with the sweeping Green Energy programs to help keep Clients informed.
  
  

• Response to Member Question Regarding Mold/PCD

  6/9/23

  We received the following in response to NYSAHI's recent email regarding Mold being added to the NYS requirements for Property Condition Disclosure:
  
  "I read the Bulletin about the Property Condition Disclosure law relating to disclosing mold and have a few related questions..."
  
  

  1. "If, while doing an inspection, we detect "suspected mold" is there a requirement to report it to the state, as with radon?"
     
     There is no requirement to report. Radon is reported for the State and Federal governments to create a profile of radon levels by locale since it can be a greater problem in some places due to geologic conditions (among other things). Mold can grow in any locale given the right conditions.
     
     FYI: Mold is specifically excluded from the scope of a NYS Home Inspection by the Home Inspection Standards of Practice. However, some Home Inspectors elect to offer Mold Assessment as an additional service. That requires special licensing.
     
     Useful links:
     NYS Mold Program
     NYS Mold Licensing Law
     
     Inspectors who are not licensed should be careful in reporting “suspected mold”. NYS Law requires Mold Assessor licensing for
     
     
     “Any individual that engages in mold assessment on a project. Mold assessment is defined as any inspection or assessment of property for the purpose to discover mold, conditions that facilitate mold, and/or any conditions that indicate they are likely to encourage mold.”
     
     Civil penalties can apply for violations. However, completely neglecting to call a Client's attention to a mold situation can lead to lawsuit regardless of whether mold is within the SOP or not. Some Inspectors deal with this quandary by suggesting in their report, for instance, that
     
     
     “Client should consider having what appeared to perhaps be substantial biological growth on wood structure further evaluated by a qualified environmental professional as some biologicals can be damaging to structures and/or a health concern”.
     
     A common recommendation to Home Inspectors is that using the word “Mold” or calling for a “Mold Assessor” should be scrupulously avoided.
     
  2. "Is there a specific (mold) form that we should complete, similar to WDO? Who gets copies?"
     
     There is no standard form for Mold Assessment. However, there are standards for what must be reported in a Mold Assessment.
     
     Home Inspections are strictly confidential to the Client and their designees by NYS Home Inspection law. Home Inspection for a Buyer Client is tax-exempt under NYS tax law as a “personal information service”, and so, the resulting information and reports must not be intended to be shared with others to qualify for that exemption. For instance, WDO inspection is generally provided to a Buyer by a Home Inspector without charging sales tax per that tax exemption. Generally, no Home Inspection or related test/inspection information or reports done for a Buyer Client should be provided by a Home Inspector to any other than those authorized by the Client (except as specifically required/allowed by Law, such as, informing Owner/occupants of high radon levels, reporting imminent hazardous conditions to Owner/occupants, etc.). Unauthorized sharing of Home Inspection information or the report by a Home Inspector is forbidden. Some Home Inspectors protect themselves from complications by including in their Pre-Inspection Agreement that they will only provide reports to their Client and that the Client is solely responsible and liable for any distribution (...and that such reports are prepared for the Client only and not for use by others, ...that use or interpretation by others is at their own risk, ...Inspector has no obligation to others for such unauthorized use, ...etc.)
     
  3. "Do we communicate any of this to the listing agent or only to the seller?"
     
     Most often, neither. Neither one is your Client. The Listing Agent or Seller can be authorized by the Buyer Client to have access to confidential inspection information (...this, and all authorizations, might be best done in writing so you have a record), but that may not be a good idea because the Client loses their control of the information and real estate transactions are generally very sensitive. To maintain that control some Buyer Clients may not even authorize their own Realtor. Some Inspectors require specific authorization by a Client for their Realtor’s access to Inspection information/reports since the Inspector does not have access to the agency agreement between their Client and their Realtor and will not know the extent of the Agent’s authorizations. Unless the Listing Agent is a dual agent, representing both Buyer & Seller, the Listing Agent is not typically Client-authorized and sharing inspection information with them amounts to the same as improperly giving it directly to the Seller. That would be wrong. Some Buyer Clients elect not to include dual agency Realtors in their authorizations for this reason.
     
  4. "Should there be a requirement that the Property Condition Disclosure is provided to the home inspector prior to the inspection. I typically request it, but some backup would be nice."
     
     There is no obligation on the Buyer Client to provide the Property Condition Disclosure to the Inspector. There may not even be one at the time of Inspection (typical in some locales, especially Downstate). But it is to their advantage to provide one if the have it. The PCD might disclose important Owner-identified issues that may not be obvious and can alert the Inspector to very closely evaluate those and any related issues. Further, the Inspector can give their Buyer Client a heads up to discrepancies between what is observed and what has been represented in the PCD. (Remember to ask for the NYSAR Surveillance Disclosure
     

  
  We thank and congratulate the NYSAHI Member who submitted these important questions! This is your no-risk means to get essential answers. No names will be posted with questions and we will do our best to respond with helpful information.
  
  This article includes opinion and it is provided for general information only and to engage the reader in learning more about the subject. It was not written by or reviewed by an attorney and should in no way be considered to be a legal opinion or legal advice or relied on as such. Consult an attorney for any legal opinion or advice.
  
  Responsible feedback offering different opinions or comments is encouraged.
  
  

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Alerts and Bulletins

• Heads Up: Drones and Home Inspectors

  
  

  Heads Up!

  
  
  
  

  SUAS Used In Home Inspections

  03/21/2023

  Advances in Home Inspection technology now include Small Unmanned Aerial Systems (Drones). Since 2014 many Home Inspectors have incorporated a SUAS in their tool kit. Most drone platforms can easily and safely be deployed with some training, experience and good luck.
  
  The dropping cost of a mid-range drone has made investing in a drone more cost effective.The advantages of adding a drone to your Home Inspection business are limited only by one’s imagination. Aerial photography can capture unseen issues during an inspection but also can lead to new ancillary services. Roof inspections are the primary use. Added to that are chimney inspections, plot mapping, insurance claims, and MLS real estate photos. Software developed by the roofing industry like Eagle View make use of real time aerial photos for roofing cost estimates. Using a drone can set a Home Inspector apart from their competition or leave you behind the pack as they become more common.
  
  New York State SUAS requirements restrict where a drone can be flown and require compliance with all FAA Rules. Operating a drone in the New York City area is illegal. Check with your local FAA and City Legal Department for specific local requirements. Federal Aviation Administration (FAA) rules require that Home Inspectors (or anyone else) that fly ANY SUAS (OF ANY SIZE) for any commercial purpose MUST have a FAA Remote Pilot’s Certification. There are potential penalties for flying a commercial drone without first obtaining a remote pilot’s certificate or not registering a SUAS (if over 0.55 lbs) with the FAA ($5 registration fee). Failure to follow these laws may result in civil penalties of up to $32,666 per incident. Warnings have been issued as the public becomes more aware of requirements. This will not last.
  
  Aeronautical Knowledge Testing for a Remote Pilot Certificate must be done in-person at an approved FAA knowledge testing center. The cost for the test is $175.00. Study the provisions under CFR 107.
  
  A Home Inspector that operate a SUAS without a Remote Pilots Certification for commercial use might also be subject to sanction and/or fines under the NYS Home Inspection Licensing Law. “Home Inspectors shall not accept or perform services in which the Home Inspector knows or has reason to know that he or she is not competent to perform.”
  
  NYSAHI strongly encourages safe use of registered SUAS (drones) with proper certification. Safety and the enhancement of professionally written Home Inspection Reports makes drone use a must have for many Home Inspectors.
  
  FAA website: Unmanned Aircraft Systems (UAS) | Federal Aviation Administration (faa.gov)
  
  
  

• Heads Up: NYSDOH Radon Reporting Clarification

  
  

  Heads Up!

  
  
  
  

  NYSDOH Radon Reporting Clarification

  02/21/2023

  NYSDOH REQUIREMENT FOR REPORTING YOUR RADON LAB
  I thought my Lab handled that for me!

  
  

  NYSDOH Radon Lab Reporting Clarification

  NYSAHI followed up on a concerning question from a Sustaining Member regarding a NYS Department of Health website statement about a requirement for radon test reporting that the Member had not been aware of.
  
  They had thought their ELAP approved lab handled all their required reporting…
  

  ---

  THE SHORT STORY is that if your radon tests are analyzed by an external ELAP approved laboratory, that lab will be sending the required report twice a year to NYSDOH for you and you have no further reporting obligation. However, if you want to be listed as a Radon Tester on the NYSDOH website, you must report your external lab twice a year and provide all of the information for your listing.
  
  Read on for more detailed information…
  
  REFERENCE: (Information for Radon Professionals/ For Radon Testing Firms/ELAP Certified Laboratories): https://www.health.ny.gov/
  
  This is the statement in the DOH website that was the cause for the inquiry:
  
  

  “Part 16 of the New York State Sanitary Code requires the reporting of County or Zip Code and number of measurements. You are only required to report the name of the laboratory in cases where the laboratory reports the radon results to DOH.”

  
  NYSAHI followed up for you to sort this out…
  
  NYSAHI Inquiry#1 to NYSDOH: Is there a requirement for a Radon Tester to provide the name of their ELAP approved lab to DOH?
  
  NYSDOS Reply: There is not a requirement for a radon tester to provide the name of their laboratory to the DOH Radon Program. We do ask for it just to make sure the tester is using an ELAP-certified lab.
  
  Following NYSAHI Inquiry #2 to NYSDOH for clarity:
  
  

  1. Please confirm that there is no requirement to report the name of a radon tester’s external laboratory ELAP to DOH.
  2. Alternatively, please describe specifically the required procedure to do so including when the submission is required and how often and where and how that statement should be sent (email, letter, fax???).
  3. If there is NO REQUIREMENT and submission is voluntary, please explain why the submission is needed by NYSDOH and specifically how any submission should be made and when and where that statement should be sent.

  
  
  NYSDOS Reply (Summarized):
  
  

  “As stated in the regulations 10 NYCRR 16.130, radon testers and mitigators are required to report the number of tests and mitigations by county or zip code twice a year.”
  
  “The NYS Radon Program reports this information to the US EPA twice a year as well. Reporting to EPA is a requirement of the State Indoor Radon Grant.”
  
  You are requested (not required) to report the name of the laboratory to DOH in cases where the laboratory reports your radon results directly to DOH.

  
  Recapped…
  
  All your reporting under the requirement is met if:
  

  • You provide radon testing services only (not mitigation).
  • And your tests are conducted with passive measurement devices that are sealed and sent to an ELAP approved laboratory for analysis and that lab submits the required report directly to NYSDOH.
    
    FYI: NYS ELAP (Environmental Laboratory Accreditation Program):
    https://www.wadsworth.org/
    
    
  • Or, you use continuous radon monitors (CRM) that transmit measurements directly to an ELAP approved laboratory for analysis and that lab submits the required report directly to NYSDOH.

  DO NOT submit the required report to DOH if your lab is doing that for you.
  This avoids duplicate counting of tests by the State and Federal government.
  
  Home Inspectors whose testing relies on their ELAP approved lab for reporting, may report their lab to NYSDOH twice each year by January 31st and July 31st to assist DOH with their oversight of the NYS Radon Program. They may reply to a NYSDOH email reminder or send an email with the following information to radon@health.ny.gov.
  

  • REF: Notification of Laboratory Reporting Radon Measurements
  • Home Inspector/Tester Name (from license):
  • Home Inspector/Tester Company Name:
  • Name of ELAP Approved Laboratory Reporting Radon Test Results for Me:

  
  The DOH reply also included: “To remain listed on the NYSDOH radon webpage as a radon tester, you must submit either the number of tests per county or a statement that a laboratory is reporting for you twice a year to remain listed on the webpage.”
  
  This raised more questions sent to DOH (NYSAHI Inquiry #3):
  

  • So, if licensed Home Inspectors send the requested notification to DOH of their external lab, they will be listed as a Certified Radon Tester at https://www.health.ny.gov/?
  • If they only provide their name and external lab, will you have the information to add them to the web pages?
  • Do they need to provide all of the info that is shown in the webpage listings (company name, address, etc.)?
  • Do they need to provide any evidence of certification? (NYS currently does not require certification. Will only certified be listed? Will various certifications be accepted (for instance NACHI, NRSB...? It seems that without a NYS requirement for certification, limiting listings to certified testers may not be appropriate.)
  • If a tester provides service in multiple counties, do they need to advise which counties?
  • Do the reports from the external lab identify the tester in their counts in the reports to DOH? If so, why aren't all of those reported for listed on the webpage?

  NYSDOH promptly replied:
  

  • To be listed on the DOH website, you need to be certified by NRPP, NRSB, or ELAP and report as required under 16.130.
  • The State Indoor Radon Grant that we get from EPA requires us to keep a list of radon testers and mitigators on our website. We can only list testers and mitigators certified by an organization approved by EPA. Right now, that is limited to NRPP and NRSB. We had to go through a special process to get them to recognize ELAP so that we could list ELAP-certified labs as well.
  • If a tester is appropriately certified, I would need all of the information…name, company name, address, phone number, email and counties where services are provided in order to list them on our website.
  • Only one of the ELAP labs provides a list of their clients. The rest just provide a gigantic spreadsheet listing every test they have performed and the county it is located in.

  
  
  NYSAHI works to support the Home Inspectors of New York in fully complying with prevailing law and regulation in their inspection and testing work and we rely on regulatory agencies to be responsive so that we can effectively do that.
  
  We wish to thank the NYS Dept. of Health Radon Program staff for their prompt and informative replies to our questions!
  
  
  
  
  

• Bulletin: Massachusetts Right to Home Inspection Bill

  
  

  Bulletin

  
  
  
  

  Massachusetts Right to Home Inspection Bill

  2/13/23

  This bill, if it should become law, will provide every homebuyer, regardless of other conditions of sale, with the right to a state regulated home inspection by a licensed Home Inspector. NYSAHI hardily supports and applauds this initiative and is investigating its politics including how it came to be raised in the legislature, the factions calling for it, those that may oppose it, and the chances for its success in becoming law. This is clearly an essential protection for consumers in perhaps the most expensive and complex purchase of their life. Homes purchased without a proper home inspection can cause the new homeowners life-changing problems including: serious threats to the health of them and their families; money pit situations that can drain limited financial resources; foreclosures by lenders when maintenance and repair demands on new homeowners exceed what they could reasonably anticipate without professional guidance; associated mental and familial distress; etc.
  
  NYSAHI has been greatly concerned about trends in the real estate industry that force home buyers into situations where they must waive state-regulated home inspections to be competitive in their purchase offers. No home should ever be purchased without a proper home inspection. We intend to learn what we can from the Massachusetts initiative and lobby our legislature to begin the process of creating a similar bill in New York State.
  
  This matter is well described in a January 31st, 2023 article by Jim Morrison in the Boston Globe, “Mass. legislators file bill to preserve right to home inspections”.
  
  NYSAHI will keep you posted on developments.
  
  

• Alert: Proposed Licensing for Radon Testing

  
  

  Alert

  
  
  
  

  PROPOSED LICENSING for RADON TESTING

  11/25/2022

  The process has been started to license radon testing and radon mitigation in New York State. As an early step in that process, a Radon Advisory Committee was created to study the matter and to produce a report of recommendations for any proposed legislation necessary to implement such findings. That report is being finalized by the committee. NYSAHI is in favor of appropriate regulation to ensure that radon testing and mitigation is conducted properly. NYSAHI hasbeen monitoring this process for you, as we want the home inspectors of New York to be able to continue to offer radon measurement without any undue burden. Based on our review of an early draft of the report, two key recommendations include:

  • Requirement that anyone measuring or mitigating radon will have to be certified by either the National Radon Proficiency Program (NRPP) or the National Radon Safety Board (NRSB).
  • Once certified, radon measurement and mitigation professionals must then be licensed by New York State.

  We have some concerns about the process up to this point and the draft report we reviewed. As it stands, we have found that this could be a threat to your business. Some of our concerns include:

  • The influence of radon mitigator business interests appear to be pushing the Committee recommendations to make it more expensive, time consuming and difficult for independent home inspectors to offer radon testing. This will destroy the ability of independent home inspectors to be competitive with mitigators who offer home inspection, since homebuyers want one-stop shopping for inspection and testing. This can put us out of business.
  • Although independent home inspectors are a primary provider of radon and are a stakeholder in this matter, no home independent home inspector that just measures radon was on the committee.
  • NYS control and oversight of our radon testing services will be delegated to radon mitigator controlled professional organizations.
  • We are concerned about the potential additional effort and cost for home inspectors to continue measuring radon.
  • There are no provisions for conflict-of-interest protections for separating testing/inspection from mitigation/abatement/repairs, as there is for home inspections, mold, and asbestos.

  
  The report with recommendations has not been finalized. The next step is a public comment period. When the report is available to us, we will notify you so all the home inspectors in NY can provide input.
  
  You can download a PDF that unpacks the complicated details of this threat.
  We will send you updated information as it becomes available. Please be prepared to respond to the Committee report during the public comment period. This is critical and we will provide information to help you do that. AND…PLEASE become a sustaining member of NYSAHI to enable us to stay on top of this matter and other issues affecting your businesses.
  
  
  

• Bulletin: New Seller Form for Surveillance Disclosure

  
  

  Bulletin

  
  
  
  

  NEW SELLER FORM for SURVEILLANCE DISCLOSURE

  12/11/2022

  Eavesdropping on Home Inspection can be a Felony!
  The New York State Association of Realtors (NYSAR) has developed a new disclosure form regarding audio & visual recording device use during real estate activities. Owners/Landlords/Property Managers are advised that if they are not a party to a conversation, it is felony criminal violation of NYS Law to eavesdrop on that conversation using any device, streaming or otherwise, that records or remotely plays the conversation of those involved, such as in real estate-related activities at a subject property (open houses, showings, etc. … home inspections included). This is important for home inspectors and our clients to know, as it relates directly to maintaining client confidentiality during a home inspection.
  
  We understand that NYSAR’s Surveillance Disclosure form should now be in common use in NYS home real estate transactions. NYSAHI highly recommends that you ask your client for a copy of that form at the same time you ask them for a copy of the Property Condition Disclosure. In this way you will help ensure that the new form is used by the listing agent, that it is completed by the seller, and that you and your buyer client are aware of the Surveillance status of the home you inspect for them.
  
  Check the NYSAR website (https://www.nysar.com/) for more information. You may need to login to get access to their notice and the form. Contact us at NYSAHI with any questions or concerns.

NYS Bills in the current
legislative session that could
affect home inspectors

ACTIVE LEGISLATION

MADE LAW

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• Only Members who are currently licensed Home Inspectors in New York State may vote on issues brought before the Membership by the Board of Directors or serve as a Director.
• Member dues are annual for the year. Only Members may represent their association with NYSAHI to the public and they may only do so for the current year that they are a paid Member. Use of NYSAHI logos or any representation of association with NYSAHI by anyone when not a currently paid Member is otherwise prohibited.

• Development of Radon Testing Regulation - Ongoing advocacy to state and federal agencies and the NYS Legislature to protect Home Inspectors from unreasonable requirements and expense that could put them out of business.
• Right to Home Inspection- Promoting creation of a NYS law to ensure that no buyer can be refused a Home Inspection in purchase of a home. No buyer should be denied the appropriate due diligence of a regulated professional Home Inspection.

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