BY: Michael Yoshiba
Real property inspections are a requisite part of all purchase and sale transactions, particularly those where public agencies are the acquiring party. Appraisers, relocation agents, environmental due diligence, safety inspectors and attorneys are among the persons who request, schedule and attend property site inspections. In the recent past, a letter and a follow-up telephone call secured an exterior and interior inspection of buildings and improvements. Convenience of the inspection appointment and obtaining access to secure portions of the property were the most challenging part of the requests for entry. With the current uncertainty concerning the appropriate health and safety guidelines for inspections, the following is one example how a property inspection was arranged, agreed, coordinated and then conducted during the current pandemic.
Pandemic Safety Protocols
In my situation, we were the party requesting an inspection of the exterior and interior of a 25,000+ square foot light industrial-commercial building. The multi-tenant building was divided into 12 units. The inspection was seeking to verify or refute the opposing party’s claim of water intrusion damages to their building allegedly caused by my clients conduct.
The inspection request required us to assemble pandemic safety protocol measures. First, the parties agreed that each person attending the inspection would complete a brief questionnaire. The questionnaire identified the attending individual, company, and party represented. Attendees were asked to confirm whether they were experiencing Covid-19 virus related symptoms such as a fever or abnormal coughing. Persons were then asked to confirm whether anyone in their household had tested positive for the Covid-19 virus. Finally, each person had their temperature taken with a handheld touchless thermometer before being allowed to enter the buildings. The parties were asked to sign a one-page written waiver of liability in the event they became ill from the Covid-19 virus after the inspection.
Each party took responsibility, in writing, to ensure their invited attendees would comply with the safety protocols. No objections to the protocols were received. The property owner was tasked with contacting each tenant to confirm their availability and to whether they also had additional required safety protocols beyond those listed in the questionnaire.
On site, each person was required to wear a face covering and maintain a six foot distance from others during the interior inspections. All parties were asked to bring their own pens, disposable gloves and personal hand sanitizer. Doors to the tenant units were kept open for maximum ventilation of the interior spaces during inspections. Inspections were timed and limited to one hour per unit. Only three persons were allowed into a unit at a time. Attendees were asked to not physically touch any interior surface or light switches. The exterior inspections only required that the parties wear face-coverings and maintain social distancing. Use of hand sanitizer before and after each unit inspection was required. All parties voluntarily complied with each of the requested safety protocols and the inspection was otherwise uneventful.
None of the parties or their attorney were quite sure whether these adopted safety protocols were going to be effective or if they complied in part or in full with local, regional, and statewide health directives. There was no agreement or promise to contact the other inspection attendees if an attendee contracted the virus after the inspection. Regardless, we could find no affirmative legal duty that compelled a person to provide such illness tracing information.
In sum, there were no legal benchmarks to define the reasonableness of our conduct in this situation. Nor were there guarantees that we would not contract or transmit the Covid-19 virus despite the precautions taken. The parties deemed the inspection necessary and the safety measures taken reasonable and adequate in attempting to prevent the spread of the Covid-19 virus. In hindsight, the parties took commonsense precautions to maximize safety by minimizing interactions and avoiding physical contact with others where possible.