When a home inspector points out a concern to a homebuyer regarding the property they may be purchasing, the buyer often asks, “Is that a defect?” What the buyer really wants to know is if they can ask the seller to fix the problem, or if they have to accept the problem and pay for correction after they own the property.

Agents, inspectors and buyers can interpret the language used to describe a defect in an Offer-to-Purchase contract differently. Each party will have an individual perception of a substandard condition. If an electrical outlet is missing a plastic plate cover, one could say it will cost only 15 cents and take 10 seconds to replace. On the other hand, a homebuyer's child could stick a finger in the junction box and be electrocuted. A missing downspout extension might cost only $5 to replace, but without it, water could enter a finished basement, grow mold, and an occupant could have a fatal asthma attack.

These are just two examples of conditions reported by home inspectors that could be deemed insignificant or life-threatening depending upon one's perception. So who decides what constitutes a defect: the real estate agent, the home inspector or the homebuyer?

Some real estate agents attempt to classify defects, suggesting that one defect can be negotiated while another cannot. Some homebuyers have been told that, unless the home inspector has used the word defect in the written report, the buyer is not entitled to raise a condition as a concern and remedial action is not required by the seller. This is incorrect. For instance, if a furnace did not function properly and the inspector stated the condition in the written report as required, the buyer still has the right to ask for a furnace that is functional, provided the malfunction was not clearly disclosed in advance on a property condition report. This is true whether or not the word defect was used to describe the furnace malfunction. If a real estate agent attempts to tell a buyer which substandard conditions reported by the inspector constitute defects, the agent could potentially become party to future litigation for providing consultation in areas for which they are not professionally trained.

Home inspectors are often asked which conditions constitute defects. While inspectors do their best to lend logical perspective to homebuyers, they are not required by law to rank discovered conditions. Home inspectors are obligated only to report the condition of a property, not determine what buyers should or should not be concerned about. Logically, all substandard conditions are of some concern. If home inspectors had the authority and responsibility to say what constitutes a defect, by default they would be forced to consider every substandard condition as a defect. If they did not, they could be held liable for all conditions that were not specifically called a defect in the report. One could imagine the impression such a report would convey to both homebuyers and sellers. Furthermore, home inspectors do not purport to be experts in every field. Some conditions discovered during a general home inspection may require further evaluation by an expert in order to determine their significance.

Since there is no emphatic method of describing a defect, a homebuyer could request that every reported condition be cured by a seller. While there may be homebuyers who expect every discovered condition to be repaired, there are also buyers who will accept a dilapidated house with no objections at all. On the norm, buyers are reasonable and want to negotiate only those conditions that are significant to them. For example, a home may have only a few minor electrical concerns, but the buyer is afraid of electricity and insists a licensed electrician make the repairs, even though it may cost less than $100 to correct. On the same house, it may cost several thousand dollars to have a landscaper correct improper surface grading. While the buyer is entitled to negotiate this with the seller, he accepts this more significant condition because he is comfortable adding soil around the foundation himself and would enjoy the exercise.

These kinds of decisions must be made solely by homebuyers. No one else has the right or obligation to determine which conditions are significant to homebuyers. Ultimately, the buyer is the party contemplating the substantial investment and thereby has the right to choose which conditions are acceptable, objectionable or negotiable.