Issue: 90 June 14, 2003
Performing
the Function Intended
Watch what you say, it might bite you later!
One of the main goals
of this newsletter and website from the time
of their inception has been to help keep me
and you out of courtrooms. I must confess to be
somewhat guilty of what we will
discuss today. Most of us, both Home
Inspectors and Realtors, have a tendency to
put our mouths in gear and get far down the
road dealing with an issue before our small
minds (mine anyway) have a chance to catch
up.
The issue I want to
talk about is how we might deal with
statements in paragraph 12 (b) and (d) of
the OFFER TO PURCHASE AND CONTRACT and most
specifically the specific language
"shall be performing
the function
for which intended
and shall not be in need of immediate
repair
…" Yea, I have talked about those words
before, but not in the same light we will
address today. We will use one specific
component of a home, but many others will
fall into this same category.
How many times have I
heard a Realtor say: “…don’t worry
about that, we don’t open windows around
here, everyone uses their air conditioners,
the pollen and humidity is so bad you will
never leave your windows open. Most peoples
windows are painted shut. I don’t open
mine.” How many times have I said: “yep,
most people don’t open their windows and
its fairly typical to find windows painted
shut. It’s not a big deal.”
What is the “intended
function”
of a window? You may list them in a
different order, but here are the
functions most people think of:
A
window…
- Provides a view to the outside. Some places the view
might be drastically better than others.
Some might take your breath away and
others might make you nauseated. It’s
not about what you view, but the fact
that there is a view from the room.
- Lets the sunlight inside. This basic function is to
light the room, but it also serves the
function of heating the room. Ask the
cat!
- Provides a means of ventilation. Now, all windows
don’t do this; some just serve the
first two functions. What you should be
aware of is that a certain amount of
ventilation is required in a home, and
one without a mechanical cooling system
must have operable windows.
- The window keeps the weather out. We don’t think much about this one, but if the wind
blows through or the thing leaks it
comes to light. .
These
are the four main functions of a window,
however there is another even more important
function we often forget to consider,
handled improperly it could land our little
tushy before the judge. To help us all
understand how crucial this function is I am
going to tell a little story.
Couple
with three small children purchases a home.
The windows are painted shut. The good old
southern Realtor told them that it was no
big deal; nobody opens their windows around
here. So the couple, both sensitive to
pollen, agree with their agent, whom they
have grown to love and trust. No big deal,
“we aren’t going to open those windows
anyway.”
Six
months later the couple is startled awake in
the dark of night by the screams of their
six year old and the smell of smoke. They
run from the room grab two of the children
but the flames block them from the six year
old. The father pushes his wife and two
children out the front door, turns and
fights his way through the flames to the six
year olds room. The little boy is screaming,
standing in front of the window, pushing up
as hard as he can. The father grabs his son,
turns around and realizes he can’t get
back the way he came. He turns toward the
window attempting to open it with all the
strength he has left, to no avail. He turns
searching for something to break the window
out, as the child falls limp in his arms, he
collapses on the floor from the heavy smoke.
Mother is outside screaming as the fire
trucks arrive directing the firemen to the
window. Ladder quickly erected the fireman,
in full turnout gear, climbs the ladder and
instinctively pushes up on the window.
Realizing that it is painted shut, he asks
for an ax, breaks through and removes the
father and child who are unconscious on the
floor. The father barely survives. The child
doesn’t make it.
Windows
have a fifth and even more important
function. They provide a secondary emergency
egress from a room and access for rescue
personnel. This is a requirement in sleeping
rooms and the window location and size is an
issue. The window and screen must be
operable without the use of tools low enough
to the floor to climb out and large enough
for rescue personnel to get through in full
turnout gear including air packs.
How
do you think this couple feels about their
Realtor now? How will the jury feel? Will
the Realtor have problems sleeping at night
following this tragedy? Could the child have
opened that window and escaped his fate?
Could the father have opened the window and
saved the child? Had the fireman not had to
take the time to break out the window could
he have saved the child?
Were
these windows performing
the function
for which intended?
Were they in need of immediate
repair?
These are more than words; sometimes they
are the difference between life and death.
As Realtors and Home Inspectors we must take
our responsibilities more seriously and not
be so bloody flippant with our comments.
Educate yourself and think before you put
your mouth in gear. Is pushing that closing
more important than the life of a child? I
think not! I
intend to become more careful about my
window comments, how about you?
