Chapter 146
of the Acts of 1999
AN ACT PROVIDING FOR THE LICENSING OF HOME
INSPECTORS.
Be it enacted by the Senate and House of Representatives in General
Court assembled, and by the authority of the same, as follows:
SECTION
1. Chapter 13 of the General Laws is hereby amended by adding the following two
sections:
Section
96. There is hereby established within the division of registration, a board of
registration of home inspectors. Saidboard shall consist of five members to be appointed
by the governor for terms of three years. The members so appointed shall be residents
of the commonwealth, three of whom shall be licensed home inspectors who have been
actively engaged in the practice of home inspection in the commonwealth for at least
five years immediately preceding their appointment and who shall have
performed not less than 1,000 home inspections for compensation,
one of whom shall be a licensed home inspector who has been
actively engaged in the practice of home inspection in the
commonwealth for at least five years immediately preceding his
appointment and who has performed not less than 150 home
inspections for compensation and one of whom shall be a consumer
who shall be the owner and principal resident of a residential
building. All board members shall be subject to the provisions of chapter 268A.
Of
the initial members appointed to said board, two shall serve for
terms of three years, two shall serve for terms of two years and
one shall serve for a term of one year. Each member of said boar
shall hold office until his successor has been qualified. A
vacancy in the membership of the board shall be filled for the
unexpired term in the manner provided for the original
appointment. No member shall serve more than two consecutive
terms which shall not include any unexpired term to which he has
been appointed. A member may be removed by the governor for
cause.
Said
board shall annually elect from among its members, by majority
vote, a chairman and vice-chairman. Said board shall meet at
least once every three months and may hold additional meetings as
necessary to discharge its duties. Members shall receive no
compensation but shall be entitled to reasonable travel
expenses.
Section 97. Said board shall (i) establish the requirements for licensure
and for the standards of professional and ethical conduct; (ii)
authorize and conduct appropriate examinations to determine the
qualifications of applicants; (iii) grant licenses to qualified
applicants; (iv) establish standards for continuing education;
and (v) set and administer penalties as defined in section 206 of
chapter 112 for fraudulent, deceptive or professionally
incompetent and unsafe practices and for violations of rules and
regulations promulgated by said board.
Said
board shall make available to the public a list of licensed home
inspectors and associate home inspectors.
Said
board shall publish a code of ethics.
The
director of consumer affairs and business regulation, after
consultation with the board of registration of home inspectors
and the board of registration of real estate brokers and
salespersons, shall publish an informational brochure on home
inspections which shall be issued to home buyers at the signing
of the first written contract to purchase. The brochure shall
include a definition of a home inspection such that the nature
and extent of a home inspection is made clear to a client or
prospective client. The brochure shall also include information
regarding inspections for lead paint, radon, and termites and
other woodboring insects. The joint committee on government
regulations and the house and senate committees on post audit and
oversight shall receive a copy of the proposed brochure and shall
be provided with an opportunity to comment on it 60 days before
the brochure is submitted for publication.
Said
board shall administer the provisions of sections 201 to 206,
inclusive, of said chapter 112 and shall promulgate such rules
and regulations as may be necessary to implement the same.
SECTION
2. Chapter 112 of the General Laws is hereby amended by inserting
after section 87YY the following section:-
Section
87YY. At the time of the signing of the first written contract to
purchase, real estate brokers and salesmen, or the seller if no
broker or salesperson is involved in the sale, shall distribute a
brochure, published by the office of consumer affairs and
business regulations, educating consumers about the home
inspection process. Real estate brokers and salesmen shall not
directly recommend a specific home inspection company or home
inspector but may, upon request, provide a complete list of
licensed home inspectors prepared by the board. This prohibition
shall not apply if there is a written contractual agreement or a
written agency disclosure between the buyer and the real estate
broker specifying that the real estate broker is acting
exclusively for the buyer as a buyer's broker.
SECTION
3. Said chapter 112 is hereby further amended by adding the
following six sections:-
Section
201. As used in sections 202 to 206, inclusive, the following
words shall, unless the context clearly requires otherwise, have
the following meanings:-
"Associate
home inspector", a person employed by a licensed home inspector
to conduct home inspections of residential buildings under the
supervision of a licensed home inspector who is licensed pursuant
to this chapter.
"Board",
the board of registration of home inspectors established pursuant
to section 96 of chapter 13.
"Client",
a person who engages the services of a home inspector for the
purpose of obtaining inspection of and a written report on the
condition of a residential building.
"Division",
the division of registration.
"Home
inspection", 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.
"Home
inspector", a person licensed as a home inspector pursuant to
this chapter.
"Residential
building", a structure consisting of one to four dwelling
units.
Section
202. (a) No person shall present, call or represent himself as
authorized to provide a home inspection for compensation unless
licensed by the board in accordance with this section and
sections 203 to 206, inclusive. No person shall conduct a home
inspection for compensation unless licensed by the board in
accordance with this section and said sections 203 to 206,
inclusive, and unless he provides a written report of the home
inspection. The requirements contained in this subsection shall
not be construed to prevent any of the following persons from
acting within the scope of their profession:
(1)
a person employed as a code enforcement official by the
commonwealth or a political subdivision thereof when acting
within the scope of his employment;
(2)
an architect licensed pursuant to sections 60A to 60 O,
inclusive;
(3)
a professional engineer licensed pursuant to sections 81D to 81T,
inclusive;
(4)
an electrician licensed pursuant to chapter 141;
(5)
a plumber licensed pursuant to chapter 142;
(6)
a real estate broker or salesman licensed pursuant to section
87XX;
(7)
a real estate appraiser or certified general or residential real
estate appraiser licensed pursuant to sections 173 to 195,
inclusive, or an insurance adjuster;
(8)
a person certified or registered as a pesticide applicator;
(9)
a person employed as a radon, licensed lead paint, urea
formaldehyde or termite inspector solely for the purpose of
conducting such inspections;
(10)
an individual or business hired solely for the purpose of
inspecting the energy-related components of a dwelling in order
to assess a home's energy performance;
(11)
officers and employees of the United States or the commonwealth
while engaged within the commonwealth in the practice of
inspection on behalf of the United States or the commonwealth;
(12)
a person making a home inspection in the presence of a licensed
home inspector for the purpose of meeting the requirements of
section 203 to qualify for licensure as an associate home
inspector; and
(13)
a person conducting an inspection of septic systems as required
by 310 CMR 15 solely for the purpose of checking or being in
compliance with 310 CMR 15.
(b)
Each applicant for a license as a home inspector shall furnish
the board with proof of satisfactory completion of the
educational, training and experience requirements for licensure,
including completion of an approved program of work experience
and proof of having passed a licensing examination approved by
the board. Applications for licenses and renewals thereof shall
be submitted in accordance with procedures established by the
board. Pursuant to section 3B of chapter 7 of the General Laws,
the secretary of administration and finance shall ensure that a
licensing fee shall be charged to all applicants in an amount
sufficient to defray all administrative costs to the commonwealth
associated with the licensure of home inspectors, but in no event
shall the fee be less than $100.
The
board shall license as a home inspector an applicant who meets
the requirements set forth in this section. Said board shall
issue to a home inspector and an associate home inspector a
license. Each such licensed home inspector and associate home
inspector shall carry the license with him at all times and make
it available for presentation to a client or prospective
client.
(c)
A license shall be issued for a period of two years and shall be
renewable on or before the last day of the month in an
even-numbered year. Each licensee shall pay to the board a
license fee or renewal fee, as appropriate, which shall be set by
the secretary of administration and finance. The renewal month
shall be determined by the division to facilitate efficient
completion of all renewal requests and avoid backlog. The renewal
of a home inspector license shall be contingent upon compliance
with the continuing education requirements and standards of
practice as determined by the board and defined by rules and
regulations.
(d)
To be eligible for licensure as a home inspector, an applicant
shall:
(i)
be of good moral character;
(ii)
have successfully completed high school or its equivalent;
(iii)
have been engaged as a licensed associate home inspector for not
less than one year and have performed not less than 100 home
inspections under the supervision of a licensed home
inspector;
(iv)
have passed a written or electronic competency examination
offered or approved by the board; and
(v)
pay the appropriate fee set by the secretary of administration
and finance.
Section
203. The board shall establish the requirements for licensure as
an associate home inspector and shall promulgate such rules and
regulations to establish the associate training program and
duties and responsibilities of the supervisor and otherwise as
may be necessary pursuant to the provisions of this section. Said
board shall license as an associate an applicant who has shown to
the satisfaction of the board that the applicant:
(1)
is of good moral character;
(2)
has successfully completed high school or its equivalent;
(3)
has successfully completed a board-approved training program;
(4)
has performed not less than 25 home inspections in the presence
of a licensed home inspector;
(5)
has passed a written or electronic competency examination offered
or approved by the board;
(6)
has an identified supervisor who is a person licensed in good
standing in the commonwealth as a home inspector; and
(7)
has paid the appropriate fee which shall be set by the secretary
of administration and finance.
Section
204. Upon payment to the board of a fee and the submission of a
written application provided by said board, the board shall issue
a home inspector license to a person who holds a valid license or
registration issued by another jurisdiction which has standards
substantially equivalent to or exceeding the standards of the
commonwealth, as determined by said board.
Section
205. The board shall establish procedures for the filing of
complaints regarding home inspectors who are subject to
requirements for licensure.
A
licensed home inspector and associate home inspector engaged in
the practice of home inspection shall secure, maintain and file
with the board satisfactory proof of a certificate of an errors
and omissions policy which shall be in a minimum amount of
$250,000 in the aggregate. Every proof of an errors and omissions
policy shall stipulate that cancellation or nonrenewal of the
policy shall not be effective until at least ten days' notice of
intention to cancel or not renew has been received in writing by
the board. No home inspector or associate may supervise or
perform a home inspection unless his performance of the
inspection is covered by an errors and omissions policy of at
least $250,000 in the aggregate. Such proof shall be deemed
satisfactory if the policy is carried by the licensed company,
partnership or franchise for which the home inspector or
associate home inspector is a contracted employee and the home
inspector or associate home inspector is specifically covered by
such policy.
A
licensed home inspector and associate home inspector shall
promptly report to the insurance company any complaint filed
against either the inspector or the inspector's company in a
court of competent jurisdiction when the claim in the complaint
is greater than the deductible on the inspector's errors and
omissions insurance policy.
Any
action arising from a home inspection shall be commenced only
within three years after the date of a completed written report
of a home inspection by a home inspector.
Said
board shall investigate all complaints filed with the board
relating to the proper practice of home inspection and all
complaints relating to a violation of this chapter or any rule or
regulation of said board.
Said
board may, by a majority vote, after a hearing held subject to
chapter 30A, deny, refuse renewal, limit, suspend or revoke the
license of a home inspector or an associate home inspector upon
proof to the satisfaction of the board that the holder thereof
has:
(1)
committed fraud or misrepresentation in obtaining a license;
(2)
been guilty of criminal conduct which the board determines to be
of such a nature as to render such a person unfit to practice as
a licensed home inspector or associate home inspector, as
evidenced by criminal proceedings which resulted in a conviction,
guilty plea or plea of nolo contendere or an admission of
sufficient facts;
(3)
failed to report a claim forthwith to the insurance carrier as
provided in this section;
(4)
violated any rule or regulation of the board;
(5)
failed to fulfill any continuing education requirements set out
by the board;
(6)
violated any ethical standard which the board determines to be of
such a nature as to render such person unfit to practice as a
home inspector or associate home inspector, such as:
(i)
disclosing information concerning the results of the home
inspection without the approval of a client or the client's
representative;
(ii)
accepting compensation from more than one interested party for
the same service without the consent of all interested parties;
(iii)
accepting commissions or allowances, directly or indirectly, from
parties other than the client in connection with work for which
the licensee is responsible to the client;
(iv)
failing to promptly disclose to a client or potential client
information about any business interest of the licensee which may
affect the client or potential client in connection with the home
inspection;
(v)
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; or
(vi)
conducting a home inspection without the appropriate errors and
omissions insurance coverage;
(7)
failed to provide a written report of the completed home inspection;
(8)
reported on the market value of the property or its
marketability; or
(9)
reported on the advisability or inadvisability of the purchase of
the property.
Section
206. The board may, by a majority vote and upon determination
made after a hearing pursuant to, find that a home inspector or
associate home inspector is liable for a violation of the
provisions of sections 202 to 205, inclusive, and may impose the
following fines and penalties:
(1)
suspend, revoke, cancel or place on probation the license of the
home inspector or associate;
(2)
reprimand or censure the licensee;
(3)
order the licensee to complete continuing education or training
or both as a condition of retention or future consideration or
reinstatement of such license;
(4)
order the licensee to participate in a drug or alcohol
rehabilitation program or undergo drug testing or both as a
condition of reinstatement of such license;
(5)
order the licensee to practice under appropriate supervision for
a period of time to be determined by said board as a condition of
retention of future consideration of reinstatement of such
license;
(6)
order financial restitution, where appropriate; and
(7)
assess an administrative penalty of not more than $1,000 for each
violation.
Whoever,
not being licensed as a home inspector or an associate home
inspector, holds himself out as such or whoever, being licensed,
impersonates another home inspector or associate home inspector
or violates any rule or regulation made by said board and
performs a home inspection, may be assessed a civil penalty of
not more than $5,000 for each violation. Such civil penalty may
be assessed by the board after hearing and may be enforced by the
courts of the commonwealth.
No
action by a home inspector for recovery of a fee for the
performance of a home inspection shall be maintained in the
courts of the commonwealth unless the individual who performed
the inspection was duly licensed at the time the fee was
earned.
An
appeal of a license suspension, revocation, cancellation or other
discipline shall be made to the superior court based solely on
the administrative record compiled at the board hearing.
SECTION
4. Prior to May 1, 2001, the board shall issue to an individual,
upon application, a home inspector license, if the applicant
meets the requirements of clauses (i) and (v) of subsection (d)
of section 202 of chapter 112 of the General Laws and: (1) has
been engaged in the practice of home inspections for compensation
for not less than three years prior to the effective date of this
act; and (2) has performed not less than 125 home inspections for
compensation.
SECTION
5. The members of the board of registration of home inspectors
established by section 96 of chapter 13 of the General Laws shall
be appointed on or before September 1, 2000.
SECTION 6. Notwithstanding the provisions of section 96 of chapter 13 of
the General Laws to the contrary, for a period of one year after
the effective date of said section 96 the initial four home
inspectors appointed to the board of registration of home
inspectors shall not be required, at the time of their initial
appointment, to be licensed to practice home inspection pursuant
to the provisions of sections 201 to 206, inclusive, of chapter
112 of the General Laws, if they are of good moral character,
have graduated from high school or its equivalent, have been
engaged in the practice of home inspections for compensation for
not less than five years prior to the effective date of this
section and have performed not less than 1,000 home inspections
for compensation.
SECTION 7. Sections 2 to 4, inclusive, shall take effect on May 1, 2001.
Approved November 24, 1999.