Legal opinion of inspections on tenant occupied properties from Mark Cohen

Open and for use by all inspectors.

Text of Letter:

Prepared for Real Estate Agents, Home Inspectors, and Concerned Parties to the Real Estate Transaction at large on behalf of Home Inspection University.
RE: Home and Commercial Inspections at the Request of Tenants
In response to concerns as to whether a tenant can request an inspection on a property they do not own and have not contracted to purchase, the answer is indisputably “Yes,” assuming two things are true:
1. That the tenant is a current tenant with a lease that doesn’t prohibit inspections.
2. That the tenant is not engaging in any unlawful activity in ordering the inspection.
The legal analysis is simple and relies on two basic legal principles. First, parties are free
to enter into a contract for any purpose that is not illegal. This is a widely recognized legal and constitutionally protected right. Second, a tenant owns a possessory interest in the real estate that is the subject of the tenancy and has the same rights as the owner during the tenancy subject only to any restrictions in the lease. Many states referred to this as a “Leasehold Estate," but regardless of the terms used it is universal that the law affords tenants rights to use and enjoyment during a lease term and those rights, unless specifically prohibited, would certainly include having anyone (whether a professional home inspector, service contractor, or otherwise) visit their property and advise on conditions including and up to making reports of such conditions. This would of course preclude alterations to the property or causing damage.
If a tenant requests an inspection, the inspector is entitled to rely on the tenant's representation that the tenant has lawful possession of the property, and the inspector has no duty to secure the owner's permission before performing the inspection. Nor would it be reasonable for an inspector or any other party to investigate whether the lease might contain such provisions prohibiting inspections.
Sincerely,
Mark Cohen
MSC:wth MARK COHEN
Mark Cohen, J.D., LL.M., is Special Counsel to Home Inspection University and the former General Counsel to InterNACHI, the largest trade group in the home inspection industry.