Ian Robertson
Hey, there ITB crowd, Ian Robertson here with another episode of Inspector Toolbelt Talk. So in the first episode of season five this year, we mentioned that we were going to have, by request by multiple inspectors, more episodes on report writing. And one of the biggest things that I wanted to talk about was the tense that we use in an inspection report. Now I have gone back and forth with inspectors for years about using past tense or present tense for our inspection reports. So in this episode, we're going to talk about why the past tense is the better option to use and why we should default to that method. Now if we're interested, if you want to look it up, there's actually an article, and InterNACHI agrees with me. The world's largest home inspector association agrees with the fact that we should use past tense. So you can look it up, just type in InterNACHI into Google and look up past tense, and they have a whole article about it. But here are some of the reasons that I have actually consulted with multiple attorneys on it as to why the past tense is better.
Ian Robertson
Now, before we get into the first reason, remember that when, and this I learned from an insurance agent who worked exclusively with home inspectors, one of the things he said is everything is the lowest common denominator of your client. So for instance, Department of State in New York is a good example. They are there to protect the lowest common denominator, the lowest level of understanding of a person, against the highest level of understanding of an industry. So as an example, I go into the hospital, and the doctor starts using all of these big words that I don't understand and says somewhere in there, these things, you'll be fine. What he really meant to say is, 95% of the time you'll be fine, but statistically speaking, there's a 5% chance you'll have this complication. Now, when I have that complication and I go to sue him, what the courts will say, basically is, listen, he didn't understand you, as the professional, were at the advantage. You have eight, nine, ten, years of education on this and experience and this and that. This is his first time experiencing that. So they're always going to default to misinterpretations and misunderstandings on behalf of the person receiving the service.
Ian Robertson
So that's just one way of saying that when we write our reports, we have to think about how somebody could misconstrue this. And you know, it was always funny when I would bring this up, people would send in, you know, here's an email about how I would defend that in court, or that's not defensible, or this is not defensible. And you know, I'd win that court case. We all would like to think that. But in reality, listen, if they're suing us for 80 grand, and we could win by spending 65 grand defending it, so paying all the attorney fees, court fees and stuff like that, our attorney is going to be like, let's settle for 15. You know, it comes down to dollars and cents. So if we can defend it, it doesn't matter. It comes down to layers. Layers being layers of our defense versus their their accusations. So we don't want to give anybody any opportunity to have something to go after us with.
Ian Robertson
So that being said, here is why the past tense is best to use in our report. And here's an example of it. The sump pump is functional. So that is present tense. The problem with that is it stays present tense for all times, all throughout the future, the sump pump is operational. But now, if we say something like the sump pump was operational at time of inspection, or sump pump was functional, keep it simple, not even at time of inspection, just some pump was functional, past tense. Big difference between those two, even though we might think it's semantics. But isn't that what really legality is, a bunch of semantics. So let's play semantics here.
Ian Robertson
First of all, the accurate reflection of the inspection moment. So remember that a home inspection is a snapshot in time. We love to say that, don't we? So using the past tense not only indicates that, but emphasizes that report reflects not the homes current condition that people are upset with when they want to sue us. Instead, it reflects the condition as observed at the time of inspection. Another example of that, the roof appeared to be in good condition, instead of the roof is in good condition. So it accurately reflects what we're doing. And why is that important? Because it avoids misinterpretation as a guarantee. That's the big thing. So think of it this way, if we really want to talk about defensible position. Somebody wants to sue us, they say, my roof is not in good condition. Well, now we go or let's say heating unit, heating unit was in good condition. The lawyer is trying to sue us, and he says, you said it was in good condition, like it was. Well, it's not now, I know, but it was. Can you imagine how irritating that would be to an attorney? You could go on all day like that. Now, attorneys are charging 200 to $1,000 an hour, whatever they're charging. No one's going to pay an attorney to have that argument with you. So most attorneys are going to look and say. But listen, he didn't give you a guarantee. He didn't give you anything. He told you it was operational at time of inspection. Really hard to prove that it wasn't, because, you know what, he also has this other documentation. It was warm in the house at the time of the inspection, you really don't have a case. They're going to tell them to probably drop it. You win more cases by using the past tense than you'll probably ever know.
Ian Robertson
So why do we say that it avoids misinterpretation as a guarantee, though? Well, there was actually a court case that didn't fully go to court. It went through deposition. I heard about it through an attorney that helped me develop the section of a course that I teach, and basically the home inspector, got sued because the home buyer bought the house, and it said, and in this case, it was the HVAC unit. HVAC unit is functional. And her thing was, she wasn't that bright. I don't, I don't want to say that. I shouldn't say that, because how would she know I don't. Maybe she's a genius at something else, and just not at this. Just like I'm not a genius at medical stuff, a doctor could tell me my hemoglobin levels are 242, I don't know what a hemoglobin level is. I think it's blood. I don't know. So we don't want to assume these people are not intelligent. But at the same time, we have to play to the lowest common denominator. She's like, but it's not functional. Now, so reverse the conversation we had before, attorneys trying to sue us. It says here that it's functional. I'm like, yeah, time of inspection, but it doesn't say that. It says it IS functional. Well, yeah, but in my contract, that says it was a snapshot in time. Yeah, but you didn't use snapshot in time language. You said IS, now my client who doesn't know as much as you, is taken advantage by you using all these legalese language things in your reports and contract, but then you give her a guarantee type language. That's a whole different conversation. Now our attorneys be like, hey, I may be able to win at $450 an hour, but she wants five grand. Let's give it to her. It's going to cost more than that to defend it. That is, unfortunately, a legal precedent not set in the home inspection industry that that attorney used against that home inspector, that his client misinterpreted it as a guarantee, and in fact, the lady was probably super intelligent for the fact that our attorneys like, hey, you're ticked off at the guy? Let's go get some money and just tell them you were confused by that language. And we've practically won right there. So it was set in all sorts of different industries well before we existed, I think.
Ian Robertson
But basically, using the present tense language can be construed as a guarantee, and if they wanted to report us to most licensing boards, if we're in a licensed state, it's held up there too. So present tense statements tend to create liability for us, and not just liability, but let's call it what it is, legitimate liability, whereas past tense reduces the risk by conveying that the inspectors inspection was specific to the time of the inspection. That is one of our most valuable legal assets. So why would we throw it away by something saying, well, I prefer the present tense, and I've never had a problem. That's what everybody likes to say. I've gone 75 miles an hour in a 65 mile an hour zone, and have never had a problem. Yeah, that's just because you haven't gotten pulled over yet. First time you get into an accident, they'd be like, okay, and you're getting a ticket for speeding. We just haven't been caught doing it.
Ian Robertson
Past tense, it's our protector because, listen, we're inspecting a house and it's 110 degrees outside, and we're inside, and nobody's like, hey, it's 110 degrees in here too. They're saying, oh, it's nice and comfortable 70 degrees because the AC is working now. A day after we leave and they move in, they're like, oh, the AC doesn't work. The home inspector should have found this. Past tense tells us, listen, when we were there, all logic and my language and our agreement and my SOP says it was time of inspection. Don't leave anybody a gap. Don't leave anybody a crack. So it does give us legal protection.
Ian Robertson
Also consistency with professional standards. So now this is also important for legal matters, but also for when we work with other professionals. So have you ever done an inspection for an attorney? Have you ever done an inspection for an engineer? I did an inspection for a contract reviewer once, and that's all he did all day long. I took great pride in the fact that those people love me and they would comment about the language I would use, because they are looking at it from a very different angle. If we're using grammatically incorrect words, just as an example, doesn't have anything to do with this. Even the average person is like, all right, they kind of lost some legitimacy in the back of my head, but I'm not going to say anything. But if you're working for an attorney, and he says, hey, I've seen inspection reports before, and your language is consistently in the past tense. That is what we expect from a professional field. Most engineering firms will use past tense language. We examine the underground piping. And it was, and at the time of the inspection, it was, and they're always using past tense language. That's what we expect from a professional field.
Ian Robertson
So I was a guest on a podcast recently, and we actually talked about standard of care. So standard of care is this weird quasi thing that is out there that basically, you're not only judged on standard of practice, the law, the minimum standard. But you're you're judged on what your peers are doing. So for instance, if we are a foundation contractor, and we're only required to go down four foot for frost line, and that's what we do, but now we get sued, and the attorney goes out and finds out that every other contractor, every other one goes down five foot for the footings. Now they have an opening because standard of care. They're like, well, I did four foot. That was what's required of me. And they're like, yeah, but standard of care, you gave them a less standard of care than everybody else does. It semi originates in the medical community, kind of like I went to one hospital, I got better care than the other. So now, if all the hospitals offer better care than your hospital, you've opened yourself up to liability. So it's to protect the average person. So if other home inspectors or other industries use that past tense language, then we're going to have a little bit of an opening there for them to get to us. So past tense creates consistency with professional standards. For this point, it's very important, because our reports need to be clear, clear communication of observations. Forget all the legal mumbo jumbo, forget all the attorneys, forget all the angry clients that want to sue us. We just want to be clear, so using past tense avoids ambiguities and provides clarity for the reader. I want it to be clear, right? I don't want to have to think through a sentence. What did they mean in other words, what did they mean by this sentence? I want it to be clear so that the sentence speaks to me, and I don't have to work hard to figure it out. I go to the doctor. I checked your ears and they were fine. Okay. Past tense. Now I understand. Ian's ears are fine. What does that mean? Are they fine right now? Even if it takes a half a second for me to think through the sentence, it creates this clarity, this ambiguity, with with what we're trying to say. Let's be clear and consistent. Everything in our report should be past tense. When I first started doing that many, many years ago, it felt unnatural. But then when I would go back and read my reports, it was the most natural thing possible. We can't think of it of what's natural for us, but what's natural for our readers. And our readers are going to expect it to be when he was there, what did he see?
Ian Robertson
The other argument, real quick, that I hear inspectors say, is I'm writing it down as I'm seeing it. So technically, I'm writing down present tense because it was written down at the time. Forget all that. That's not what we're talking about here. We can find every which way to write in the present tense, and that's fine if that's what you want to do, this podcast isn't saying you have to do it, but industry standards and legality and clarity, those are really the three big reasons why. And I'll tell you what, if somebody wants to sue you because you use the present tense and then it can bemisconstrued as a guarantee, do you think they might pull up that InterNACHI article and say, listen, the association that he said, that he said he belongs to, says not to write in the present tense. Hey, listen, Ian, who's a home inspector for 20 years, and he's known in the industry, he says he doesn't write in the present tense. So why did you? I'm not saying that I set an industry standard, but InterNACHI does, and our fellow inspectors do. So as safe practice, it's best to write in the past tense.
Ian Robertson
Two other quick points, though, it gives us flexibility and unobservable issues, so intermittent problems, it's really helpful to write in the past tense. So for instance, there's a moisture stain on the ceiling, and we put a moisture meter on there, and there's nothing there, but it hasn't rained in two weeks, or nobody's been in the house, and nobody's using the bathroom above, past tense really becomes our best friend then. So now we write water stain noted on ceiling at time of inspection, but was dry a time of inspection, recommend evaluation to find the origination of the leak and to repair the issue if present. Awesome, way better than moisture stain is dry, and now it's like, okay, well, it's not dry now, and there's a whole argument. And let's be honest with you the, let's be honest with ourselves rather, half the issues don't, 99.9% of the issues don't turn into legal matters with attorneys. It just saves us time and phone calls with angry clients, possibly a bad review. If we can avoid all that and them saying, oh well, he said it was dry, and now it's not. He told us to look at it. We didn't. Oh, okay, I'm angry, but it's not his fault. Last thing, it gives us a professional tone. So read two different reports. Read a report with the present tense and the past tense, or better yet, take ourselves out of it because we look through skewed glasses as home inspectors reading other inspection reports. Hand two reports to a person and don't tell them what the difference is, and ask them which report is more professional, the one that sounds more professional, the comment written in the past or the comment written in the present tense. So just another home inspection reporting tip. We have more coming at you soon, and thanks for listening.
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