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So these are the following stipulations in the contract that cover delays:
-All parties acknowledge and agree that the final plat describing the Property may not have been recorded in the Gwinnett County, Georgia records at the time of the Binding Agreement Date. In the event that said final plat has not been recorded at the time of the Binding Agreement Date, all parties agree that the full and correct Legal Description of the Property including the exact boundary lines of the Property shall be the description of the Property contained within said final plat once
recorded.
-All parties acknowledge and agree that the closing date could change due to weather conditions during construction, delays caused by governmental agencies, or other conditions beyond builder's control. In the event that construction is delayed for reasons beyond the builder's control, all parties agree that the closing date shall be amended to be within 10 days from the issuance of the Certificate of Occupancy
-Delays: Seller shall have no liability for any delays in construction caused by strikes, acts of God or nature, sewer or other governmental moratoriums or delays directly caused by Buyer’s change orders and/or selection of materials. In the event of such delays, the closing date and the date to complete Seller’s other obligations herein may be extended, in the sole discretion of Seller, by the number of days resulting from such delays; provided that, Seller shall notify Buyer of the cause of the delay and the new closing date within ten (10) days following the end of the month in which the delay occurs.
So does mean the builder can get away with this?
Quote:
Originally Posted by kodiakbearcountry
Detrimental reliance is when you are told your home will be ready at xx time. You sell your home and pay for movers relying upon the information to be trustworthy and true -- then when it is not you have to find a place to live because suddenly there is no home to move into and now you are incurring an extra move, paying costs that you did not plan for, this is naturally detrimental to you, hence they refer to this as detrimental reliance.
Here is just one definition found on a google search: Part of any plaintiff's case will be the issue of "detrimental reliance". In other words, the plaintiff in order to be successful in a tort claim for a false representation will need to prove that they were actually influenced by the statement, that they really relied upon the statement, had no reason to doubt it, and acted reasonably accepting it as the truth.
I'm in business law this semester and we've covered contracts pretty extensively. If the language in your contract was clear about the finish date, then you have a case. It should be enough to just stand up to this builder because no one wants to take it to the next step with legal fees when all you are demanding is to be released from your contract and get your refund. And that is another thing. Technically the builder is in material breach of your contract, not you, so if you can I would definitely get a real estate lawyer if your current lawyer is not up to speed on the ins and outs of real estate.
thanks for explaining. this is interesting, and I agree with this logic.
Quote:
Originally Posted by kodiakbearcountry
Detrimental reliance is when you are told your home will be ready at xx time. You sell your home and pay for movers relying upon the information to be trustworthy and true -- then when it is not you have to find a place to live because suddenly there is no home to move into and now you are incurring an extra move, paying costs that you did not plan for, this is naturally detrimental to you, hence they refer to this as detrimental reliance.
Here is just one definition found on a google search: Part of any plaintiff's case will be the issue of "detrimental reliance". In other words, the plaintiff in order to be successful in a tort claim for a false representation will need to prove that they were actually influenced by the statement, that they really relied upon the statement, had no reason to doubt it, and acted reasonably accepting it as the truth.
I'm in business law this semester and we've covered contracts pretty extensively. If the language in your contract was clear about the finish date, then you have a case. It should be enough to just stand up to this builder because no one wants to take it to the next step with legal fees when all you are demanding is to be released from your contract and get your refund. And that is another thing. Technically the builder is in material breach of your contract, not you, so if you can I would definitely get a real estate lawyer if your current lawyer is not up to speed on the ins and outs of real estate.
Thank you! I will keep this in mind. But for now, I think so far my lawyer is pretty knowledgeable so far. I feel he is pretty good so far. From what I've understood, he has around 18+ years of experience in real estate transactions.
Quote:
Originally Posted by oldtrader
To find the right lawyer, call the local or state legal society or what ever name it goes under there, and they will give you a list of attorneys that specialize in real estate law.
Let me give you an example why. Years ago, I had sold a mobile home park behind a nice restaurant that was vacant. My client bought it complete when I pointed out that the income from the Mobile Home park which was full and had a huge list of renters that would take a spot if one came available. A tourist area with a huge housing shortage. It was across the state from where my home and office were located.
The sellers Realtor, had an attorney draw the paperwork. They sent it to me for my approval. I never saw such a messed up and impossible set of closing papers in my life. I told them no go, and have the attorney call me. I found he was a divorce attorney and knew nothing about real estate. I told him how to do the proper paperwork for closing. At closing I showed up with my buyer. I asked for our copies of the closing papers to see. I had to set them up in a completely different order before signing started. In a complicated closing such as this one, with 5 previous owners that were going to provide private seller financing, it was complicated. The day before closing, I had to take them to 2 of the sellers to sign, as these two would not even go into the same room as the others they were so estranged. The day of the closing I had given them to the attorney. When we finally sat down at the closing table, the buyer asked the attorney a question, and he sat there looking like a deer in the headlights looking at a speeding car.
I asked if I could answer that question, and when I did the attorney said that was exactly right and what he was going to say. After the 4th question he quit answering questions, and after I was asked the question and answered it, he always aid I was right and that was what he was going to say. It took over an hour to get all the signatures, etc. By the time we finished closing everyone was happy. The papers were filed, and the title insurance company who filed the papers checked them and were very happy with them. That attorney never did know what was going on, and just approved every thing I said. I had taken closing and real estate contract classes at a large university, and my wife was not only my partner and co-broker but a real estate law university trained paralegal. My wife was the head instructor for the county wide real estate closers association, which had members working in law offices, title and escrow companies, and real estate offices preparing closings. In our state most closings were conducted by real estate brokers. We felt we had to know what was going on to protect our clients from attorneys that did not know what they were doing in real estate.
I am giving you this true story, to let you know how important it is you get an attorney that specializes in real estate problems, and not a criminal lawyer, a divorce lawyer, or some paper pushing lawyer. You need someone that specializes in Real estate law. They are the ones that know the law on real estate contracts and closings, and specialize in it. They are also the ones that get the attention of the builders attorney, who knows he/she cannot sway your attorney when they get that letter.
The house I believe is in Snellville, GA and I am sure there are many lawyers in Atlanta that can handle this since its only 20 miles away. How do you find a good lawyer? Try posting in the Atlanta forums.
So these are the following stipulations in the contract that cover delays:
-All parties acknowledge and agree that the final plat describing the Property may not have been recorded in the Gwinnett County, Georgia records at the time of the Binding Agreement Date. In the event that said final plat has not been recorded at the time of the Binding Agreement Date, all parties agree that the full and correct Legal Description of the Property including the exact boundary lines of the Property shall be the description of the Property contained within said final plat once
recorded.
-All parties acknowledge and agree that the closing date could change due to weather conditions during construction, delays caused by governmental agencies, or other conditions beyond builder's control. In the event that construction is delayed for reasons beyond the builder's control, all parties agree that the closing date shall be amended to be within 10 days from the issuance of the Certificate of Occupancy
-Delays: Seller shall have no liability for any delays in construction caused by strikes, acts of God or nature, sewer or other governmental moratoriums or delays directly caused by Buyer’s change orders and/or selection of materials. In the event of such delays, the closing date and the date to complete Seller’s other obligations herein may be extended, in the sole discretion of Seller, by the number of days resulting from such delays; provided that, Seller shall notify Buyer of the cause of the delay and the new closing date within ten (10) days following the end of the month in which the delay occurs.
So does mean the builder can get away with this?
This is why you hire a REAL ESTATE attorney BEFORE you sign a contract like this! No one on here is qualified to give you legal advice. YOU NEED TO HIRE A LOCAL REAL ESTATE ATTORNEY!!!!!!!!!!
In my opinion, if the delay is truly due to the builder simply not submitting for permits until pretty much the same time as when the house was supposed to be completed, that certainly wouldn't qualify as a delay outside their control. If for some reason, the municipality held up site plan approval for the next phase, the approval of which even allows them to submit for permits, it would be outside their control.
From what you've told us, it does not sound as if timely communication has gone on here from the builder, at least as is laid out in the quoted section.
You and your lawyer need to find the facts and get moving. He needs to be writing threatening letters to them, demanding action and setting consequences for lack of response. Otherwise, the builder will just wait you out and you will get nothing.
OP, you are the only one that can make the determination about how this is playing out. All we can do is give general advice since we don't know you or have any firsthand knowledge of the situation. If you are happy with the way things are proceeding than great and we all hope you get a favorable outcome. There seems nothing else to do at this point than to see how the builder reacts to your demands.
OP, not sure why everyone is jumping on you saying you need a different attorney. I'm an attorney and it sounds like your current attorney is experienced and knowledgeable in this field.
Yes, it would have been far better to have consulted with him PRIOR to signing the contract. But at this point, what's done is done so you have to see what your options are from here. From the language you've posted, it doesn't sound great, but not every clause in a contract is enforceable, it will depend on the specific laws and prior cases in your area.
I do agree that at this point, your attorney should be on record with the builder as representing you and correspondence should be going through him, and not you.
Unless a zoning variance is needed, or the home plans are completely custom and exotic (think timber frame geodesic dome with a coal fired generator) building permits take a matter of hours or days, not weeks or months.
The local jurisdiction is simply looking to see if the plans have been engineered to meet appropriate codes, the contractors are licensed, the size of the structure meets zoning regulations, and the fee has been paid.
They are flat out lying to you. I suspect that they are working some sort of financing issues out using your money.
Bingo. The biggest problem contractors have is going broke. Knowing how to build a house doesn't mean they know how to manage money. Typically they get behind on their quarterly tax payments and the IRS gets really ugly. That's why you always get the financials of any contractor before you give them any money.
I spent 25 years in the construction industry. Most contractors are pretty honest; some even know how to run a business. There are a few who are lying dirtbags who will take your money, then use substandard materials and shoddy workmanship. Before you give hundreds of thousands of dollars to someone, you better know who you are dealing with.
Delays: Seller shall have no liability for any delays in construction caused by strikes, acts of God or nature, sewer or other governmental moratoriums or delays directly caused by Buyer’s change orders and/or selection of materials.
Well, I'd take the whole contract with me along with all correspondence you have between you and the builder when you have your initial meeting with your REAL ESTATE ATTORNEY but the main thing I'd like the attorney to address with the builder is contained in this sentence. Which of these legitimate reasons is the builder saying caused him to not start the build and what evidence does he have to support his claim? My next question would be, assuming that the builder can't provide these, does that constitute a default and what remedy is provided to you in that case? By the way, if it turns out to be what I and others here suspect (the guy is broke), you might want to find out if there is a fund in your state that reimburses people in circumstances like yours. Also, your attorney can probably get you in line for payment.
There may be more to it than that and that is fine, but this would be my starting point.
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