Board Policies and Guidelines (Home Inspectors)

Policy on Manufactured Homes

November 2012 Board Guideline On Certain Ethical Practices

As of July 24, 2009, Home Inspectors and Associate Home Inspectors are required to distribute a document outlining the procedures and benefits of a home energy audit to all Clients purchasing a single-family residential dwelling, a multiple-family residential dwelling with less than 5 dwelling units or a condominium unit in structure with less than 5 dwelling units.

Board of Registration of Home Inspectors Policy

POLICY ON RELOCATION INSPECTIONS

Enacted April11, 2007

Purpose:

The purpose of this bulletin is to offer guidance to companies that perform relocation inspections in Massachusetts.

Policy:

Q. What is a relocation inspection?

A. Relocation inspections are home inspections requested by third-party relocation companies that are performed for individuals who are relocating.

Q. Who is authorized to perform relocation inspections?

A. Only a licensed home inspector may perform relocation inspections.

Q. If I perform a home inspection in Massachusetts for a relocation company, does the inspection report have to comply with 266 CMR 6.00 et seq. (Mass. Standards)?

A. Yes.

Q. What if the client (relocation company) requests that I use forms that it provides and the forms do not meet Mass. Standards?

A. Currently, inspectors are allowed to exclude items requested by a client. (266 CMR 6.11 (2) (a) 9.) If an item is reported on, the report must comply with Mass. Standards. It is the Board's position that it is better practice to have the exclusions in writing on the report. The proposed new regulations require that all exclusions be noted on the home inspection report.

Q. What if the relocation company requests cost estimates regarding the discrepancies noted on my report?

A. You must inform the relocation company that Massachusetts law prohibits home inspectors from giving cost estimates. (266 CMR 6.11 (2) (c) 5.)

Policy #08-01

Enacted February 4, 2008

Purpose:

New regulations governing the practice of the profession of Home Inspecting took effect on January 25, 2008. The purpose of this bulletin is to offer guidance to Home Inspectors and their staff on the implementation of the new regulations.

Policy:

IN ORDER TO ALLOW A REASONABLE TIME FOR LICENSED HOME INSPECTORS TO COME INTO COMPLIANCE WITH THE NEW REGULATIONS, THE BOARD WILL REFRAIN FROM TAKING ENFORCEMENT ACTIONS FOR VIOLATIONS OF THE NEW REGULATIONS (WHERE THE REGULATIONS IMPOSE A HIGHER STANDARD) UNTIL MAY 31, 2008.

Discussion:

The Board, by unanimous vote, has decided to phase in the regulations.

The Board will fully enforce the new regulations on June 1, 2008. This policy will allow applicants to utilize the existing regulations until June 1, 2008. Inspectors are encouraged to use the new Standards of Practice prior to the June 1, 2008. Should any inspector decide to take advantage of this option they should understand that if a Board complaint is filed against them the complaint will be adjudicated by the Board under the new Standards of Practice. All complaints regarding home inspections completed on and/or after June 1, 2008 will be processed and adjudicated in accordance with the new regulations.

UNTIL MAY 31, 2008, ALL APPLICATIONS FOR HOME INSPECTOR OR ASSOCIATE HOME INSPECTOR LICENSURE WILL BE PROCESSED UNDER THE STANDARDS SET FORTH IN THE REGULATIONS THAT WERE EFFECTIVE UNTIL JANUARY 25, 2008.

Discussion:

At the January 30, 2008, Board meeting the Board voted to direct its staff to process application using the standards that existed until January 25, 2008 until May 31, 2008.

HOME INSPECTORS ARE REQUIRED TO COMPLETE 12 CREDIT HOURS OF CONTINUING EDUCATION BY MAY 31, 2008.

Discussion:

At the January 30, 2008, Board meeting the Board voted that the provision of the new regulations reducing the number of hours of continuing education required from twenty-four (24) to twelve (12) will take effect immediately. In the interest of fairness, the Board will not enforce the provision requiring four (4) credit hours on the standards of practice and one (1) on ethics until the renewal period that takes effect on June 1, 2008. Consequently, all licensees must have completed four (4) credit hours dedicated to the 266 CMR standards of practice and one (1) credit hour dedicated to professional ethics between May 31, 2008 and May 31, 2010 in order to meet the renewal requirements set forth in 266 CMR 5.01.

Policy on Limitation of Liability Clauses

Date Issued:   May 13, 2009

Amended:      March 9, 2022

Policy #09-001

Purpose:

The purpose of this bulletin is to offer guidance to home inspectors regarding what limitation language is permissible in contract with clients.

Policy:

M.G.L. c. 112, § 225(6)(v) prohibits home inspectors from “attempting to limit liability for negligent or wrongful errors or omissions by use of a clause within a performance contract that limits the cost of damages for negligent or wrongful errors or omissions.”

Discussion:

The purpose of this policy is to advise regulated parties as well as the general public as to the Board’s understanding of the impact of the restrictions of M.G.L. c. 112, § 225(6)(v).  Specifically, this policy will show examples of situations which appear to violate this statutory prohibition as well as situations which are not apparently prohibited.  However, this information is provided as an advisory only, it is not legal advice, and it should not be deemed to prevent the Board from assessing a matter more thoroughly when conducting a disciplinary hearing per M.G.L. c. 30A.  The Board will not pre-approve contractual language.  It is the obligation of the contract preparer to ensure compliance with the applicable laws.  Further, it should be noted that even if a contractual provision is deemed not to violate M.G.L. c. 112, § 225(6)(v), it may be deemed unenforceable by a court or other such legal entity of competent jurisdiction.  Accordingly, the Board always recommends consulting legal counsel to obtain any legal advice on contractual matters.

A. Generally prohibited language in contracts:

1. Language, such as a liquidated damages clause, which specifies or otherwise limits the amount of damages a consumer could seek for negligent or wrongful errors or omissions related to a home inspection.
2. Language which limits the amount of time a consumer has to file an action seeking damages related to a home inspection.  (However, said contract may refer to the two year limitation to commence an action as outlined in M.G.L. c. 112, § 225.)
3. Language placing a prerequisite on a consumer prior to filing an action, such as requiring notification to the home inspector or requiring the home inspector to have the right to take remedial actions prior to commencing an action.  (This does not prohibit voluntarily offering to take remedial actions, which would be encouraged if appropriate.)  Though the Board encourages providing the home inspector with the ability to view any areas which may form the basis of an action prior to commencing an action, any language in a contract requiring such notification prior to commencing an action could constitute a prohibited prerequisite in violation of M.G.L. c. 112, § 225.
4. Language requiring a consumer to file any actions related to a home inspection in a forum which restricts the amount of damages that could be awarded.  (For example, a clause requiring that all actions be commenced in a venue or court that could legally only issue an award with a maximum of $7,000.)

B. Language in contracts that generally would not be prohibited by M.G.L. c. 112, § 225

1. Language limiting the liability for services explicitly performed outside the scope of the home inspection.  (For example, if a home inspector also offers consulting services meeting the criteria outlined in 266 CMR 6.06(6), the restriction of M.G.L. c. 112, § 225 would not apply to those services.)  Note that said language cannot limit liability for services within the scope of the home inspection, such as those services governed by M.G.L. c. 112, §§ 222 – 226 and 266 CMR et. al.; thus, any such language must be crafted to ensure that it cannot be misconstrued to apply to regulated services.
    
2. Language requiring a consumer to file an action related to a home inspection in a valid forum which does NOT restrict the amount of damages that could be awarded, such as requiring use of a legally valid arbitration service.  Drafters are warned to ensure that any required forums are legitimate and appropriate for this purpose.  (For example, if a contract requires consumers to use a forum that does not utilize fair and equitable procedures, any decisions rendered in such a forum could be found by a reviewing court to be unfair/unconscionable and unenforceable, and the clause requiring that forum could be deemed to violate M.G.L. c. 112, § 225.)
    
3. Language assessing attorney fees against a party seeking claims against a home inspector if that party is deemed unsuccessful in their claims.  (The Board does not govern whether such language is enforceable.)
    
4. Language defining who the client is and indicating that the report is for the client’s purposes only, thus disclaiming any liabilities for non-client third parties.

Additional Notes

Drafters of contracts are strongly encouraged to seek legal advice for their contract.  The Board notes that it is the burden of its licensees to ensure compliance with M.G.L. c. 112, § 225.  If a licensee chooses to use a boilerplate contract or a contract with terms from other states which contains prohibited language, the licensee must ensure that the contract explicitly disclaims the prohibited language.  It is insufficient to have a contract with prohibited language that includes a generic clause stating that any language found in violation of Massachusetts law shall be deemed automatically void (or any other such catch-all). 

POLICY REGARDING THE USE OF DISTANCE/ONLINE/CORRESPONDENCE TOOLS FOR CONTINUING EDUCATION

Issued June 8, 2022

The Board of Registration of Home Inspectors (“Board”) has voted to adopt the following policy for use by its approved continuing education providers in providing continuing education via distance/online/correspondence platforms to students.  These guidelines do not apply to pre-licensure education (education used to obtain a license).

Per this policy, continuing education providers may use distance/online/correspondence platforms for the provision of continuing education so long as the following conditions are met:

1. The continuing education provider and curriculum is Board approved and in good standing.
    
2. For distance/online education using a “live” format, Board staff may issue approvals to courses so long as they adhere to the following:
    
   1. The platform utilized for distance/online education must be live and interactive; and
       
   2. The instructor maintains an attendance roster which includes verifying 100% classroom attendance by, for example, taking attendance at various established times during the course.
       
3. For purposes of non-live online/correspondence programs, all materials to be utilized must be sent to the Board office and are subject to approval by the Board.  Providers should note that these types of courses are less favored and may be denied in favor of live courses.
    
4. The education provider has sent an electronic communication to the Board via email at homeinspectorsboard@mass.gov describing the platform utilized for distance/online/correspondence continuing education and verifying that all other conditions of this policy have been met.

This policy amends the previous Guidelines Regarding the Use of Distance/Online/Correspondence Tools for Continuing Education which the Board adopted on September 29, 2021.

MASSACHUSETTS BOARD OF REGISTRATION OF HOME INSPECTORS ADVISORY ON HOME INSPECTIONS

Issued October 12, 2022

The Board issues this advisory to both licensed home inspectors and the general public in response to the rapidly changing real estate market and the changing demands by potential home buyers for home inspections due to the competitive nature of the market.  The purpose of this advisory is to remind licensees as well as those individuals seeking to purchase homes of what constitutes a home inspection in Massachusetts based upon the Board’s statutes and regulations.

A “home inspection” is defined by statute at M.G.L. c. 112, s. 221.  The statute defines a “home inspection” as:

The process by which a home inspector observes and provides pursuant to the sale and transfer of a residential building, a written evaluation of the following readily accessible components of a residential building: heating, cooling, plumbing and electrical systems, structural components, foundation, roof, masonry structure, exterior and interior components and any other related residential housing components.  A home inspection shall, at a minimum, conform with standards of practice promulgated by the board.

Therefore, a “home inspection” must consist of all of the following in order to meet this statutory definition:

1. A home inspection is performed pursuant to the sale and transfer of a residential building.  A “residential building” is defined as a structure consisting of one to four dwelling units.  M.G.L. c. 112, s. 221.
    
2. A home inspection includes the provision of a written evaluation of the readily accessible components of a residential building which were observed by the home inspector.  The written evaluation is provided in the form of a report, which may either be handwritten or digitally produced to the client.  266 CMR 2.01.  The purpose of the report is to set forth the home inspector’s findings on the physical conditions of the components observed by the home inspector.  266 CMR 6.02(1).  The readily accessible components to be observed and addressed in the written evaluation are set forth in the statutory definition of “home inspection” and further elaborated on in the Board’s regulations.  M.G.L. c. 112, s. 221; 266 CMR 6.04.  Any components which are not inspected along with any conditions that prevent their inspection must be noted in the report.  266 CMR 6.03(1)(c).  Home inspectors are further not required to report on any components specifically excluded by the client, which are noted in writing in the contract or report.  266 CMR 6.05(2)(a).
    
3. The components observed by the home inspector must be readily accessible.  Components of the residential building are considered to be “readily accessible” if they are “capable of being reached quickly for visual inspection without requiring the Inspector to climb over or remove any personal property, to dismantle, to use destructive measures, to resort to portable ladders and/or any action which would likely involve risk to persons or property.”  266 CMR 2.01.  Home inspectors are not required to inspect and/or report on components which are not readily accessible and observable.  266 CMR 6.05(2)(a).
    
4. A home inspection must, at a minimum, meet the standards of practice promulgated by the Board.  The Board has set forth standards of practice for home inspections performed in Massachusetts at 266 CMR 6.00 et seq.  The Board’s standards of practice include general requirements for the report that is produced to the client, outlines the scope of the home inspection itself, and delineates general limitations and exclusions of the home inspection.

An individual cannot call or represent themselves as authorized to perform a home inspection for compensation unless they are licensed and further, cannot perform a home inspection for compensation unless they are licensed and unless they provide a written report of the home inspection.  M.G.L. c. 112, s. 222(a).  These requirements do not prohibit certain individuals from acting within the scope of their profession, including but not limited to licensed architects, professional engineers, electricians, plumbers and real estate brokers, salespersons and appraisers.  Please refer to M.G.L. c. 112, s. 222(a) for the complete list of such individuals.   

Licensees are reminded to abide by their ethical obligations in 266 CMR 8.03(2) when performing home inspections, including their obligation to fully inform clients of the nature and limitations of services rendered or to be rendered.  The Board further reminds licensees that they may consult with legal counsel should any questions as to their obligations arise.

Home Inspector Board CORI Policy