Section 197-4.1 - Fundamental Rules
(a) Home inspectors shall exhibit honesty and integrity in furtherance of the honor of the home inspection profession. A home inspection has a direct and vital impact on the quality of life for all home buyers. In performing home inspection services, home inspectors shall adhere to the highest principles of ethical conduct.
(b) This Code of Ethics and Regulations reflects the current ethical standards for home inspectors. It is the department’s intention that this document be a living document and that changes and updates to this Code of Ethics and Regulations be made as deemed necessary by the department in consultation with the Home Inspection Council.
(c) Home inspectors shall fully adhere to and comply with the provisions of Article 12-B of the Real Property Law and all regulations promulgated thereunder including, but not limited to, this Code of Ethics and Regulations and the Standards of Practice.
(d) Home Inspectors shall be required to cooperate with investigations by the Department of State. Each applicant or licensee shall be obligated, on request of the Secretary of State, to supply such information as may be required concerning his, her or its business, business practices or business methods, or proposed business practices or methods.
Section 197-4.2 Written Contracts
(a) Prior to performing a home inspection, home inspectors shall provide a client with a written pre-inspection agreement that clearly and fully describes the scope of service to be provided and the cost associated with that service. All said contracts shall contain the following clauses which shall be printed in type size of not less than six point:
“Home inspectors are licensed by the NYS Department of State. Home Inspectors may only report on readily accessible and observed conditions as outlined in this pre-inspection agreement, Article 12 B of the Real Property Law and the regulations promulgated thereunder including, but not limited to, the Code of Ethics and Regulations and the Standards of Practice as provided in Title 19 NYCRR Subparts 197-4 and 197-5 et seq. Home inspectors are not permitted to provide engineering or architectural services.”; and
“If immediate threats to health or safety are observed during the course of the inspection, the client hereby consents to allow the home inspector to disclose such immediate threats to health or safety to the property owner and/or occupants of the property.”
(b) Home inspectors shall discuss the scope of the inspection with the client and only perform services which have been duly authorized by the client.
Section 197-4.3 Non-Disclosure
Home inspectors shall not disclose to a third party the contents of a home inspection report or any observations, deductions, opinions that pertain to a home inspection report without the prior consent of the client or the client’s representative.
Section 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.
(b) In the event that a client insists upon a home inspector engaging in unlawful and/or unethical conduct, the home inspector shall, after notice to the client that such conduct is unlawful or unethical, be permitted to immediately withdraw from the assignment or contract.
(c) Home inspectors shall not determine property boundary lines or encroachments, easements or any limitations of use of the property.
(d) Home inspectors shall not determine compliance with regulations, codes, laws or ordinances.
(e) Home inspectors shall not determine the market value of the property or its marketability.
Section 197-4.5 Competence
(a) Except as provided in section 197-4.6 and 197-5.2(c), home inspectors shall conduct home inspections in compliance with the Standards of Practice.
(b) 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.
(c) Home inspectors shall not delegate responsibility to another when the home inspector delegating such responsibility knows or has reason to know that such person is not a duly licensed home inspector and/or qualified by training and experience to perform said task.
Section 197-4.6 Written Reports
(a) Home inspectors shall provide a written report containing the results of a home inspection.
(b) Home inspectors shall not willfully make a false report or false or misleading statements in the context of home inspection activities and/or a home inspection report.
(c) The home inspection report shall clearly identify the systems and components of the residential building that were observed. If a home inspector is providing a home inspection that does not meet the minimum requirements as set forth in the Standards of Practice, the home inspection report must describe the scope of work, the services provided, and the systems and components that were included in and excluded from the inspection.
Section 197-4.7 Conflicts of Interest
(a) The duty of every home inspector shall be to the client. Home inspectors shall avoid conflicts of interest or activities that compromise their professional objectivity, or have the potential of creating an appearance that their professional objectivity has been compromised.
(b) Prior to accepting any home inspection assignment, home inspectors shall disclose to the potential client all known or potential conflicts of interest that could influence or appear to influence the home inspector’s judgment or the quality of the home inspector’s services.
(c) Home inspectors shall not solicit or accept compensation, financial or otherwise, from more than one interested party for a home inspection unless the circumstances are fully disclosed to the client and agreed upon by all interested parties.
(d) Home inspectors shall not solicit or accept an assignment or contract from a
governmental body on which a principal or officer of the home inspector’s office
or organization serves as a member.
(e) Home inspectors shall not directly or indirectly compensate, in any way, real estate brokers, real estate salespersons, real estate brokerage companies, lending institutions or any other party or parties that expect to have a financial interest in closing the transaction, for future referrals of inspections or for inclusion on a list of recommended inspectors or preferred providers or any similar arrangement.
(f) Home inspectors shall not accept financial or other consideration, such as material or equipment, from suppliers for suggesting the use of, or promoting a specific product in the course of performing a home inspection.
(g) In connection with performing home inspections, home inspectors shall not accept commissions, fees or other consideration directly or indirectly from contractors or other persons or entities dealing with clients or employers of the home inspector in connection with work for which the inspector is responsible for, or has reported upon.
(h) Home inspectors shall not inspect any residential building in which said home inspector or relative thereof has a financial interest or any interest in the transfer thereof, including the receipt of any commission as an agent.
(i) Home inspectors shall not inspect a home if the home inspector’s compensation is contingent upon the sale of the home or if compensation is contingent upon the results of the home inspection.
Section 197-4.8 Fraud, Misrepresentation and Dishonesty
Home inspectors shall not engage in fraud, fraudulent activity, misrepresentation or dishonesty.
Section 197-4.9 Promotion and Advertising
(a) Home inspectors shall not advertise in a false, misleading or deceptive manner.
(b) Home inspectors shall not falsify or misrepresent their experience, education or qualifications or permit any such misrepresentation by their employees or associates.
(c) Home inspectors shall not advertise home inspection services as an engineer or architect or under the heading of engineers, engineering, architects or architecture in any form of print or electronic media unless the individual and/or firm is licensed to provide engineering or architectural services by the New York State Education Department.
(d) Home inspectors shall refrain from making any claim relating to the quality and effectiveness of services which cannot be substantiated by the home inspector.
(e) Home inspectors placing or authorizing advertisements shall maintain or cause to be maintained an exact copy of each advertisement for a period of one year following the advertisement’s last publication. This copy shall be made available for inspection, upon request, by the Department or an authorized representative of the Department.
(f) Nothing herein shall prohibit a home inspector from advertising his or her services or advertising for the purpose of recruiting employees provided that no such advertisements shall be misleading or deceptive.
SUBPART 197-5 STANDARDS OF PRACTICE FOR HOME INSPECTORS
Section 197-5. 1 Definitions
(a) Alarm Systems: means installed or freestanding warning devices including, but not limited to, smoke detectors, carbon monoxide detectors, flue gas and other spillage detectors and security equipment.
(b) Central Air Conditioning: means a system that uses either ducts to distribute cooled and/or dehumidified air to more than one room of a residential building or pipes to distribute chilled water to heat exchangers in more than one room in a residential building, and which is not plugged into an electrical convenience outlet.
(c) Component: means a readily accessible and observable aspect of a system such as a floor or a wall, but not individual pieces such as boards or nails where many similar pieces make up the component.
(d) Dangerous or Adverse Situations: means situations that pose a threat of injury to the home inspector including, but not limited to, those situations in which the home inspector is required to use special protective clothing or other safety equipment.
(e) Decorative: means a component or part thereof that is ornamental and not required for the proper operation of the essential systems and components of a home.
(f) Dismantle: means to take apart or remove any component, device, or piece of equipment that is bolted, screwed, or fastened and that a homeowner in the course of normal household maintenance would not dismantle.
(g) Engineering, Practice of: means as that term is defined in Education Law, title VIII, Article 145, Section 7201.
(h) Engineering Study: means a study requiring engineering services.
(i) Functional Drainage: means the operation of a drain whereby a drain empties in a reasonable amount of time and does not overflow when another fixture is drained simultaneously.
(j) Functional Flow: means a reasonable flow at the highest fixture in a dwelling when another fixture is operated simultaneously.
(k) Further Evaluation: means the examination and analysis by a qualified professional, tradesman, or service technician beyond that provided by the home inspection.
(l) Household Appliances: means kitchen and laundry appliances, room air conditioners, and similar appliances.
(m) Inspect: means to visually examine any system or component of a building in accordance with these Standards of Practice, using normal operating controls and opening readily operable access panels.
(n) Installed: means attached or connected such that the installed item requires tools for removal.
(o) Normal Operating Controls: means homeowner operated devices such as a thermostat, wall switch, or safety switch.
(p) Observable: means able to be observed at the time of the inspection without the removal of covering, fixed, finished and or stored materials.
(q) Observe: means the act of making a visual examination.
(r) On-site Water Supply Quantity: means the volume of water that is available for domestic use.
(s) Operate: means to cause systems or equipment to function.
(t) Primary Windows and Doors: means windows and exterior doors that are designed to remain in their respective openings year-round.
(u) Readily Accessible: means available for visual inspection without requiring the home inspector to remove or dismantle any personal property, use destructive measures, or take any action which will likely involve risk to persons or property.
(v) Readily Operable Access Panel: means a panel provided for homeowner inspection and maintenance, which has removable or operable fasteners or latch devices in order to be lifted, swung open, or otherwise removed by one person, and its edges and fasteners are not painted in place. The panel must be within normal reach and not blocked by stored items, furniture or building components.
(w) Recreational Facilities: means spas, saunas, steam baths, swimming pools, tennis courts, playground equipment, and other entertainment or athletic facilities.
(x) Report: means a written document setting forth findings of home inspection unless otherwise specified in these regulations.
(y) Representative Number: means for multiple identical components such as windows and electrical outlets, one such component per room. For multiple identical exterior components this term shall mean one such component on each side of the building.
(z) Roof Drainage Systems: means gutters, down spouts, leaders, splash blocks, and similar components used to carry water off a roof and away from a building.
(aa) Safe Access: means access free of any encumbrances, hazardous materials, health and safety hazards such as climbing and/or standing on other than the ground and/or floor which may jeopardize the inspector.
(bb) Safety Glazing: means tempered glass, laminated glass or rigid plastic.
(cc) Shut Down: means a piece of equipment or a system is shut down when the device or control cannot be operated in a manner that a homeowner would normally use to operate it. If the safety switch or circuit breaker is in the "off" position, or the fuse is missing or blown, the inspector is not required to reestablish the circuit for the purpose of operating the equipment or system.
(dd) Solid Fuel Heating Device: means any wood, coal, or other similar organic fuel burning device including, but not limited to, fireplaces whether masonry or factory built, fireplace inserts and stoves, wood stoves (room heaters), central furnaces, and any combination of these devices.
(ee) Structural Component: means a component that supports non-variable forces or weights (dead loads) and variable forces or weights (live loads).
(ff) System: means a combination of interacting or interdependent components, assembled to carry out one or more functions.
(gg) Technically Exhaustive: means an inspection is technically exhaustive when it involves the extensive use of measurements, instruments, testing, calculations, and other means to develop scientific or engineering findings, conclusions, and recommendations.
(hh) Under Floor Crawl Space: means the area within the confines of the foundation and between the ground and the underside of the lowest floor structural component.
(ii) Unsafe: means a condition in a readily accessible, installed system or component, which is judged by the Home Inspector to be of significant risk of personal injury during normal, day to day use. The risk may be due to damage, deterioration, improper installation or a change in the accepted residential construction standard.
(jj) Water Supply Quality: means the quality of a residential building's water supply based on the bacterial, chemical, mineral, and solids content of the water.
Section 197-5.2 Purpose and Scope
(a) These Standards of Practice establish a minimum and uniform standard for home inspectors. Home inspections shall be performed in compliance with these Standards of Practice and shall provide the client with objective information regarding the condition of the systems and components of the residential building as observed at the time of the home inspection.
(b) These Standards of Practice are not intended to limit home inspectors from including other inspection services or from observing and reporting upon systems and components not required by these Standards of Practice.
(c) The home inspection report shall clearly identify the systems and components of the residential building that were observed. If a home inspector is providing a home inspection that does not meet the minimum requirements as set forth in this Standards of Practice, the home inspection report must describe the scope of work, the services provided and the systems and components that are included and excluded in the inspection.
Section 197-5.3 Minimum Requirements
(a) Home inspectors shall observe and report on readily accessible, visually observable installed systems and components as set forth in these Standards of Practice.
(b) Home inspectors shall report on those systems and components observed that, in the professional opinion of the home inspector, are deficient, not functioning properly and/or unsafe.
(c) If a home inspector has not observed a particular system or major component, he or she shall list said item in the inspection report as an item that was not observed and shall set forth the reasons why said item was not observed.
Section 197-5.4 Site Conditions
(a) Home inspectors shall observe and report the following site conditions:
1. The building perimeter for land grade and water drainage directly adjacent to the foundation;
2. Trees and vegetation that adversely affect the residential building;
3. Walkways, steps, driveways, patios and retaining walls.
(b) Home inspectors are not required to observe and report on the following site conditions:
1. Fences and privacy walls;
2. The health and condition of trees, shrubs and other vegetation.
Section 197-5.5 Structural Systems
(a) Home inspectors shall observe and report on the following:
1. Any deteriorated and/or damaged structural component including the building foundation and framing;
2. The floor structure;
3. The wall structure;
4. The ceiling structure;
5. The roof structure.
Section 197-5.6 Exterior
(a) Home inspectors shall observe and report on:
1. All exterior walls and coverings, flashing and trim;
2. All exterior doors including garage doors and operators;
3. All attached or adjacent decks, balconies, stoops, steps, porches and railings;
4. All eaves, soffits and fascias where accessible from the ground level;
5. All adjacent walkways, patios and driveways on the subject property;
6. The condition of a representative number of windows.
(b) Home inspectors are not required to observe and report on the following:
1. Screening, shutters, awnings and other seasonal accessories;
3. Geological and/or soil conditions;
4. Recreational facilities;
5. Out-buildings other than garages and carports;
6. Tennis courts, jetted tubs, hot tubs, swimming pools, saunas and similar structures that would require specialized knowledge or test equipment;
7. Erosion control and earth stabilization measures;
8. The operation of security locks, devices or systems;