Not long after sending a home inspection report to my clients and their agents, I will sometimes field questions or commentary about what in my report is a true defect. The argument is typically based in that some inspection recommendations sound more like upgrades, improvements, or risk factors than like defective conditions. However, we could avoid this discussion altogether if the language in local Purchase Agreements were revised.
Most comments in an inspection report are going to be defects at varying levels of importance. There may be observations in the report that a buyer finds more important than the home inspector, and sometimes there is valid debate about if something qualifies as a defect. However, it is important for the buyer to determine which systems and conditions they consider to be unacceptable when making a purchase decision. I believe that Kansas City has done a great job approaching this issue in how they wrote their real estate contract:
“It is BUYER’S responsibility to perform due diligence and verify any information that BUYER considers to be unacceptable and material to the purchase of the Property…
…An Unacceptable Condition is any condition identified in a written inspection report prepared by an independent qualified inspector(s) of BUYER’S choice, which condition is unacceptable to BUYER and not otherwise excluded in the Contract (KCRAR Real Estate Sale Contract 8). ”
A contract written this way leaves the buyers empowered to negotiate based on what is important to them, rather than relying upon someone else’s interpretation of a defect. However, if you are a buyer in Central Virginia, this is the language that is being used in a standard real estate contract:
“The term “defects” as used in this paragraph 16 shall mean (i) a condition which impairs the normal stability, safety or use of any improvements (buildings) on the Property, or (ii) damage to any part of the improvements, but shall exclude any cosmetic flaws, antiquated systems or grandfathered components that are in working order but would not comply with current building code if constructed or installed today. If a system or component is near, at or beyond its projected life expectancy but is properly functioning, then such system or component will not be deemed a defect as defined herein (CVR MLS Purchase Agreement 4).”
The current language leaves a lot of grey area and can lead to disputes between the buyer and seller. This is also problematic because defining what is or is not a defect is not a straightforward process. It is subjective and best left to the most qualified experts to interpret and determine; this is most often the home inspector in the case of a real estate sale.However, it is not best practice for home inspectors to categorize their reports based on what is defective. InterNACHI, the largest home inspector association in the world, spells out just how tricky this gets in this article.
There are certain inspection findings that are frequently contested as to whether they are true defects. Some real estate agents will state that certain issues are not defects, although their training and expertise does not qualify them to make these determinations. Even home inspectors will disagree with each other about certain issues. One common example is the presence of polybutylene plumbing. I will demonstrate below where there is contention:
Polybutylene (PB) plumbing was a popular plastic plumbing material used in the 80’s and early 90’s. In most cases, PB has an adverse reaction to oxidants in public water supplies, causing it to break down from the inside and it is prone to failure without warning. It can cause major property damage within minutes. Manufacturers settled a minimum $950 million class action lawsuit as a result, but never admitted that the material was defective (Plumbing Express).
When I see polybutylene plumbing, I report it as a Priority Issue, which is my highest report category. I report it this way because of the inherent risk in the continued use of the material and the cost to replace it. I do not label it as defective in my inspection report because it makes no difference to my clients; it is a problematic material nonetheless. However, the material is a defect. I can argue that it is defective based on many different definitions of the word “defect.”
Based on Central Virginia’s Purchase Agreement, the presence of a polybutylene plumbing system is a defect because the design flaw impairs the normal stability of the system. A plumbing system that is comprised of a material proven to degrade excessively from oxidants commonly found in the public water supply means that this system is unstable since it may fail without warning. However, other home inspectors in my area may disagree with me, and their arguments might be just as valid.
There are also varying definitions of defect, which can create even more confusion. When asking a home inspector if something is a defect, they are not necessarily referencing a sale contract’s definition of a defect to answer the question, nor should they. A home inspector has their professional associations and their own experience to define a defect differently. This definition comes from InterNACHI:
“1.2. A material defect is a specific issue with a system or component of a residential property that may have a significant, adverse impact on the value of the property, or that poses an unreasonable risk to people. The fact that a system or component is near, at or beyond the end of its normal useful life is not, in itself, a material defect (Gromicko/Tarasenko).”
There is similarity in how the definitions are worded, however, InterNACHI is defining material vs non-materialdefects. They did not define how something is or is not defective. In the case of polybutylene systems, I argue that it is not only a defect, but a material defect because its presence has an adverse impact on value.
Put briefly, the point I am trying to drive home is multi-faceted:
– There is no universal definition of defect.
– Any definition of defect is up for interpretation.
– The home inspector is usually the most qualified to make the determination of defect.
– The buyer still needs to determine for themselves what matters most.
Below, I have provided a list of a few more definitions with varying degrees of relevance to this discussion.
James Bushart, PA, SCLA on Material Defects:
“What is “material” to an object is its design for intended use. A defect is an impairment to the object’s appearance, design, structure, presence, and/or intended operation. A “material defect” would be an impairment that adversely affects the design for intended use (InterNACHI Private Forum).”
Florida Senate on Defects:
“(5) “Construction defect” means a deficiency in, or a deficiency arising out of, the design, specifications, surveying, planning, supervision, observation of construction, or construction, repair, alteration, or remodeling of real property resulting from:
(a) Defective material, products, or components used in the construction or remodeling;
(b) A violation of the applicable codes in effect at the time of construction or remodeling which gives rise to a cause of action pursuant to s. 553.84;
(c) A failure of the design of real property to meet the applicable professional standards of care at the time of governmental approval; or
(d) A failure to construct or remodel real property in accordance with accepted trade standards for good and workmanlike construction at the time of construction (2020 Florida Statute 558.002).”
United States House of Representatives on Material Defects*:
“The term “material defect” means a defect in any item, whether tangible or intangible, or in the provision of a service, that substantially prevents the item or service from operating or functioning as designed or according to its specifications. The term “material defect” does not include a defect that—
(A) has an insignificant or de minimis effect on the operation or functioning of an item or computer program;
(B) affects only a component of an item or program that, as a whole, substantially operates or functions as designed; or
(C) has an insignificant or de minimis effect on the efficacy of the service provided (USC Title 15, Chapter 92, Section 6602.4).”
*This definition is in reference to the controversy over computer date changes approaching the year 2000. It was included because I deemed it applicable to this situation.
In conclusion, our local Purchase Agreements have turned contract negotiations for repairs into a debate over what is or is not a defect. It is a home inspector’s job to report visible defects to their clients, however, there will be gray area items that are still of substantial importance to buyers. Our contract language should be changed to empower buyers to negotiate based on what is important to them. Additionally, this change allows home inspectors to focus on delivering the information their buyers need to know instead of defending their report comments based on the interpretation of vocabulary.
Even though I am advocating for this change and I feel confident that many other home inspectors would agree with me, I do not know if or when such a change would be made. In the meantime, I advise that buyers should remember that defects are not clearly defined and use this to their advantage. When at the negotiation table, buyers and their agents should instead focus on the inspection findings that are most important to them and should not be discouraged by defect arguments. Where there is gray area, there is dissention. If necessary, there is a good chance that a buyer can find a qualified professional that believes that their issue is a defect.
References
United States Code. “Title 15: Commerce and Trade, Chapter 92: Year 2000 Computer Date Change.” United States Code, U.S. Government Publishing Office, 2025, https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter92&edition=prelim. Accessed 12 Aug. 2025.
Florida Statutes. “Title XXXIII, Chapter 558: Construction Defects.” The Florida Senate, 2020, https://www.flsenate.gov/Laws/Statutes/2020/0558.002. Accessed 12 Aug. 2025.
Polybutylene Plumbing. Polybutylene.com, 2025, https://www.polybutylene.com/poly.html. Accessed 12 Aug. 2025.
Carson, Dunlop & Associates Ltd. “Material Defects for Home Inspectors.” InterNACHI, International Association of Certified Home Inspectors, 2025, https://www.nachi.org/material-defects-for-home-inspectors.htm. Accessed 12 Aug. 2025.
Kansas City Regional Association of Realtors. KCRAR Forms 2021 Presentation. KCRAR, Apr. 2021, https://kcrar.com/wp-content/uploads/2021/04/KCRAR-FORMS-2021-Presentation.pdf. Accessed 12 Aug. 2025.
Central Virginia Regional Multiple Listing Service. CVR Form 335. CVR MLS, 2025.
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