Avoiding Litigation: Inspecting Roofs

There’s no way to stop litigation, but there are ways to avoid it. However, although I’ve probably done in excess of ten thousand inspections, I’m not an expert on roofs by any means, and I’m certainly not qualified to give legal advice, but I’ve been victimized by clients and attorneys alike, and have thought long and hard on the subject of avoiding litigation. So, for what it’s worth, I’ll tell you how I attempt to protect myself when inspecting roofs, and you can make up your own mind about what works best for you. But, before we do, let’s agree that a negligent inspection is indefensible, and then begin by considering a psychological phenomenon.

Among the first questions that clients ask their inspectors is: “How’s the roof?” It’s a deceptively simple question that rarely has a simple answer, but it shows the concerns that people have about roofs. They want to hear that it doesn’t leak, and truly believe that you should be able to guarantee them that it won’t. And if it leaks after they move in, you’re likely to hear about it from them or their attorney. So the first thing that I want to do is to educate my clients about roofs, and explain to them why I can’t guarantee them. I do this by selecting a narrative stored in my computerized report-writer, which prints as an integral part of my roof evaluation. Here’s the one that I use, and you’re welcome to use all or any part of it as long as you realize that you do so at your own risk:

There are many different roof types, and every roof will wear differently relative to its age, the number of its layers, the quality of its material, the method of its application, its exposure to direct sunlight or to other prevalent weather conditions, and its maintenance. However, regardless of its design-life, every roof is only as good as the waterproof membrane beneath it, which is concealed and cannot be examined without removing the roof material, and this is equally true of almost all roofs. In fact, the material on most pitched roofs is not designed to be waterproof only water-resistant. There are two basic roof types, pitched and flat. Pitched roofs are the most common, and the most dependable. They are variously pitched, and typically finished with composition shingles that have a design life of twenty to twenty-five years, or concrete, composite, Spanish, or metal tiles that have a design-life of forty to fifty years, and gravel roofs that have a lesser pitch and a shorter design-life of ten to fifteen years. These roofs may be layered, or have one roof installed over another, which is a common practice but one that is never recommended because it reduces the design-life of the new roof by several years and requires a periodical service of the flashings. These are serviced with mastic, which eventually shrinks and cracks and provides a common point of leakage. However, among the pitched roofs, gravel ones are the least dependable, because the low pitch and the gravel prevent them from draining as readily as other roofs. For this reason, they must be conscientiously maintained. In this respect, the least dependable of all roofs are the flat ones, which are also called built-up ones. Some flat roofs are adequately sloped toward drains but many are not, and water simply ponds and will only be dispersed by evaporation. However, the most common cause of leakage results when roofs are not serviced or kept clean, and foliage and other debris blocks the drainage channels.
What remains true of all roofs is that, whereas their condition can be evaluated, it is virtually impossible for anyone to detect a leak except as it is occurring or by specific water tests, which are beyond the scope of our service. Even water stains on ceilings, or on the framing within attics, will not necessarily confirm an active leak without some corroborative evidence, and such evidence can be deliberately concealed. Consequently, only the installer can credibly guarantee that a roof will not leak, and they do. We cannot, and do not give any such guarantees. We will examine every roof, evaluate it, and even attempt to approximate its age, but we will not predict is remaining life expectancy, nor guarantee that it will not leak. Naturally, the sellers or the occupants of a residence will generally have the most intimate knowledge of the roof and of its history. Therefore, we recommend that you ask the sellers about it, and that you either include comprehensive roof coverage in your home insurance policy, or that you obtain a roof certification from an established local roofing company.

Such narratives not only educate clients they also define the parameters of the inspection, but they are of limited value without another that describes a specific roof type. I could have selected any narrative, but here’s the one that I use when evaluating composition shingle roofs, which you are also welcome to use with the same caveat:

There are a wide variety of composition shingle roofs, which are comprised of asphalt or fiberglass materials impregnated with mineral granules that are designed to deflect the deteriorating ultra-violet rays of the sun. These roofs are warranted by the manufacturer to last from twenty to twenty-five years, and are typically guaranteed against leaks by the installer for three to five years. The actual life of the roof will vary, depending on a number of interrelated factors besides the quality of the material and the method of installation. Poor maintenance is the most common cause of roof failure, but a southern exposure can cause a roof to deteriorate prematurely, as will the practice of layering over another roof. However, the first indication of significant wear is when the granules begin to separate and leave pockmarks or dark spots. This is referred to as primary decomposition, which means that the roof is in decline, and therefore susceptible to leakage. This typically begins with the hip and ridge shingles and to the field shingles on the south facing side. This does not mean that the roof is ready to be replaced, but that it should be serviced or monitored. Regular maintenance will certainly extend the life of any roof, and will usually avert most leaks that only become evident after they have caused other damage. This is important, because in accordance with industry standards our inspection service does not include a guarantee against leaks. For such a guarantee, you would need to have a roofing company perform a water test and issue a roof certification. However, the sellers or the occupants will generally have the most intimate knowledge of the roof, and you ask them about its history and then schedule a regular maintenance service.

You will notice that the disclaimer about not being able to predict roof leaks is repeated. This is intentional, because sometimes it’s worth repeating things for greater emphasis. And, of course, there are times when there simply isn’t any evidence that a roof might leak, and clients need to understand this so that will not hold inspectors responsible. The reason I emphasize this is because leaking roofs and poor communication inevitably lead to disputes and litigation. I’ll explain this further by relating an actual case. I vividly remember looking at blown-up pictures of severe water damage inside a house, which had resulted from a leak in a concrete tile roof that had been inspected a little more than a year earlier, and which had no apparent defects. What the inspector did not find out until he was actually in court was that the real estate agent who was representing an out-of-state friend-of-the-family had deliberately concealed evidence of a leak without having the roof serviced. Fortunately for the inspector, a roofing contractor conceded in court that not even a roofing specialist could have predicted such a leak, and that only after viewing the damage inside the house was he able to determine its cause by lifting tiles in a specific area. The out-of-state seller never even responded to the complaint, and the inspector and the real estate agent were both absolved of any responsibility. But, if justice had truly prevailed, the dishonest agent would have been found guilty, but for reasons known only to the judge she wasn’t. Justice is an ideal, and inspectors would do well to keep this in mind. However, the judgment could have just as easily gone against the inspector, and the trick is to do as much as you can to avoid such lawsuits by presenting a rational disclaimer and, more importantly, by completing a competent roof evaluation.

Before we talk about inspecting roofs, let’s first acknowledge that inspecting them is a hazardous business, and that personal safety should be the primary concern of every inspector. I like to walk on roofs whenever possible, but if they are too high, or too steep, or too slippery, I always remind myself that my inspection fee is not equal to the risk. However, some roofs just shouldn’t be walked on. I learned this many years ago from a veteran inspector who was training me. He was making his way down from a roof while dictating what I should write: “There are six broken tiles,” he shouted. Then I heard a distinct crunch. “Make that seven,” he continued. There was another even louder crunch as he neared the edge. “There are eight broken tiles,” he grunted without missing a beat, but I was doubled over, laughing, and wasn’t going to write anything until he was back on the ground.  When I am unable or unwilling to walk a roof, I select a narrative from my library that explains that I inspected it from a variety of vantage points using binoculars and a ladder, after which I add whatever evaluation or recommendation is appropriate. Now let’s talk about roofing materials.

There are a wide variety of roofing materials, some better than others, so you need to be familiar with the type and resiliency of the materials that are prevalent in your area, and to be aware of the manufacturer’s warranty and the more limited installer’s guaranty. I like to look at every square foot of a roof, and as much of it as I can see from within an attic, where stains from leaks or stress to the components might be apparent. A single water stain below most roofs is enough for me to recommend a specialist evaluation. But, before we continue with a discussion of other components, let’s talk about layering. Layering is common practice, but one that is never sensibly recommended. However, it’s not always obvious. I know of a case in which an inspector was sued over a roof on his first independent inspection. Perched at the top of his ladder, he had lifted the shingles at the edge of a roof and seen only one layer and the felt underlayment, which he indicated in his checklist report. Shortly after escrow closed, and when the new owner was in the process of adding an addition, it was discovered that the roof actually had three layers, which the local building inspector insisted had to be removed before the addition could be tied into the existing roof. The inspector was subsequently sued in Small Claims Court and lost. What he had failed to realize was that the roof had been indexed, or that successive layers of shingle had been cut back to a point above the top- plate. The plaintiff successfully argued that the inspector should have noticed what a veteran inspector would have noticed, which was that the toes of the roof jacks were not exposed, and that there was a telltale hump above the plate-line that extended the length of the roof and betrayed that it had been indexed. This is worth remembering when you are evaluating composition shingle roofs on houses that are twenty-five years or older.

Many roofing materials are similar but they are not all equal, and their design-lives can range from fifteen to fifty years. Therefore, the first thing that I do is to try to estimate the age of a roof. This is not always possible but, if you know the age of the house, it’s usually not difficult, and is likely to be among the first questions that your clients will ask. Just make sure that your estimate of its age is given as an estimate and not as a statement of fact, and never predict how long a roof is likely to last. One veteran inspector made the mistake of stating in his report that his clients “should budget for a new roof,” which they later argued led them to believe that the roof had several more years of life left, which was contrary to what a roofing contractor told them after escrow had closed. The judge was sympathetic, but rendered the opinion that the inspector should have recommended a second opinion by a specialist simply because the roof was old, and then ordered him to pay the plaintiff three thousand dollars in partial compensation for the cost a new roof. Language is subject to interpretation; so make sure that your narratives consist of statements of indisputable facts. Sellers and agents alike are famous for reporting that a roof doesn’t leak. Yet few of them are likely to have actually walked on a roof or crawled inside an attic when it was raining to see if there are leaks that are being soaked up by the insulation, and I wonder how many of them would be willing to testify in court in defense of an inspector? Remember, a detailed report confirms a thorough evaluation, and a recommendation for service could prevent a lawsuit. For this reason, I rarely leave a roof without having discovered something that needs to be serviced. This is important, because I have a clause in my contract that my clients are required to sign in which they agree to hold me harmless for any component or condition that I have recommended for a specialist evaluation. And, in truth, most of the roofs that I inspect do need some sort of service. This is why. Roof leaks usually result as a consequence of neglect and poor maintenance, which is why flat roofs are universally described as problematic. I spend much more time inspecting flat roofs than any other type, and almost as much time inspecting drainage systems, and I always include a narrative that explains why they need to be maintained and why I will not endorse any that are not absolutely perfect.

Roof penetrations and intersecting planes are sealed with flashings. Most are made of metal, but some are formed with mastics and roofing materials. I have read two inspection reports of the same roof that were as different as chalk and cheese; one was brief and described a composition shingle roof as being newer and in good condition, which was true. The second and more recent report was far more detailed and described the roof installation as being inferior, due to the absence of metal valley flashings. The report was commissioned by an attorney who hoped to add to a list of petty complaints that he hoped would discredit the inspector. And he found a so-called specialist willing to do so. The valleys were not sealed with metal flashings but they had been laced, which is an old and respected method of sealing a valley and the mark of an artisan, but this was never pointed out by anyone or acknowledged by the specialist. The inspector’s insurance company elected to settle the case, rather than defend him. Unfortunately, the lawsuit cost him his deductible and made him realize what many inspectors have come to realize, which is that many lawsuits have made a mockery of justice. He was already a competent inspector, but the experience certainly made him a more cautious one, and convinced him to abandon his checklist report for a computerized report-writer. The last word on roof penetrations must be given to skylights, and there’s really not much to say except that, like flat roofs, they commonly leak. So, if you were to fish in my pond of skylight narratives, all you’re likely to pull up are those that include some form of the verb “to leak!”

Water is a mighty force that has to be respected. So make sure that the roof you’re inspecting has a good pitch and drains rapidly, or be prepared to warn your clients about its limitations. Then, make sure that your roof evaluation is detailed and includes rational disclaimers when appropriate. Even when there are no obvious deficiencies on a roof, I always describe the way in which penetrations or intersecting roof surfaces are sealed, and recommend that they be monitored, and that the drainage system be cleaned and inspected seasonally. Too many competent inspectors have been sued because they lacked communication skills, and were trapped in the web of words that attorneys spin. Too late, inspectors learn of exotic carpets, furniture, and family heirlooms that has been damaged beyond repair, and of a family that has been financially and emotionally devastated, and who might be able to be restored with the aid of half a million dollars in punitive damages.