Home Buying in Gilbert>Question Details

S, Both Buyer and Seller in Mesa, AZ

My husband and I gave $3500.00 earnest money towards a new construction home purchase for a two-story

Asked by S, Mesa, AZ Wed May 7, 2008

home. We qualified for the home with two incomes. Three months before the close of escrow, I had to stop working due to a disabling illness, which substantially reduced our income. We advised our new home builder, Maracay Homes, Gilbert, AZ . of my disability and loss of income. We were told that we were not eligible for a refund of our earnest money despite my disabling illness, loss of job and reduction of income. What is the statute of limitations on earnest money? Is there a provision for disability/loss of income? Also, my disability made climbing stairs very difficult, which rendered the two-story home useless for my husband and I. Do we have any recourse?

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I would read and then re-read the contract. Make sure you clearly understand what the contract you signed says.

Secondly, if you still want a new home from this builder, but not one that is so expensive or a 2 story, ask the builder if you could transfer your earnest money to a less expensive single story home. I do know that some builders offer this option. You could even consider choosing another home that will take longer to complete than your current one, to help buy you more time.

These are just some alternative options for you to consider, but the best advice as give by my colleagues is to consult with a reputable real estate attorney.

Best of luck.
Web Reference: http://www.jameswehner.com
0 votes Thank Flag Link Wed May 7, 2008
The advice given to you to contact the agent that represented you, not the builders agent is good. The suggestion to contact an attorney to review the situation is excellent.

Did you have a Realtor represent you in this purchase? The agent at the builder location does not work for you, they represent the builder. The builder representative may be very nice and do a great job but does not represent you! The builder representative works for the builder, represents the builder and most likely has at least part of a paycheck tied into your purchase. The state of the market is such that they do not want to let you out of your contract, they want every sale possible. That does not mean you can’t get out, it just means the builders are typically not going to help you find a way out, hence the advice to get an attorney.

With that said if you really don’t want to talk with an attorney and are not represented, do you still qualify for the loan? In the event your loss of income results in you no longer qualifying for the loan the contract may provide for a return of earnest money?

The terms of the contract are the most likely out for you, carefully review you paperwork. Builder contracts are typically written by the builders attorney and provide more protection for them than you the consumer.

What about the value of the home you are purchasing, has it declined? Prices in general have been on the decline, what can you buy the same home for today? You might want to send a secret person to the builder to find this answer, ask what the incentives are etc. Are you better off to walk away and buy something more fitting for your current needs than this home even if it costs you $3500? No one wants to walk away from $3500, however if it is a bad investment take the loss and go buy another one for $5000 less and you are $1500 ahead in the long run. Ways exist to purchase homes today with almost no money out of pocket utilizing seller assistance etc, so if you are short on cash don’t let that be an absolute show stopper to moving.

Have you discussed your challenges with the builder and considered switching to a different floor plan they offer that would work for you? Sometimes the builder will be more sympathetic if they are keeping you as a client/buyer.
Web Reference: http://www.McVinua.com
0 votes Thank Flag Link Wed May 7, 2008
Mark -

You wrote, "You may be able to lodge a complaint with them also".

With all due respect, lodge a complaint for what? A complaint about the builder following and holding to the terms of a contract??

Don't get me wrong, I'm not in favor of the big bad builder here. I would like to think that reasonable people could come to terms and make reasonable adjustments given the situation.

But let's be honest. A contract was entered into, and agreed upon by both parties. Now one party to the contract wants to break it.

So we tell them to complain to regulatory agencies, and go after them in the court of public opinion?

I think the situation "S" is in is awful, and I feel terrible for her, really I do. But the fact is (from the info we have before us) they are under a contract, and they have legally binding obligations to execute the terms of that contract or risk the consequences -- chiefly loss of their earnest money.

I suggested an attorney rather than being a "squeaky wheel" because it is an attorney who is in the best position to analyze the terms and conditions of the contract to "find a way out". Should S and her husband chose to go the route you suggest, I can only say that I hope they don't say or do something that digs them deeper into a hole. One misstep in their full-frontal assault on the builder could slam shut any loop hole that an attorney might be able to find.
0 votes Thank Flag Link Wed May 7, 2008
You probalbly have a mediation clause in your contract. I suggest you try the following. Contact the community relations of the builder and go as high as you can. When talking to the builder rep. and you hit a stone wall so to speak ask for the next supervisor/boss. Mention to the builder that you would like to solve this as painlessly as possible but that you are considering mediation, legal consultation etc... You can also contact the Home builders association in your area and they may be able to help. Try mediation and also go to your state real estate commision web site to educate yourself. You may be able to lodge a complaint with them also. If I was in your situation I would exhaust my other avenues before I went to a lawyer. That way when you do go see a lawyer you will be able to show what you have done to try and resolve the problem. You can even try public opinion by submitting an opinion piece in the local newspaper or contacting the local TV or Radio. If you keep plugging at it you should get some results. As the old adage goes "The squeaky wheel gets the oil"
Web Reference: http://thegoodeteam.com
0 votes Thank Flag Link Wed May 7, 2008
The best suggestion I could give you is to seek the advise of a real estate attorney, one that is voiced in real estate law and contracts. Should you be unable to hire an attorney, you may get some help from the Arizona Real Estate Commision.
0 votes Thank Flag Link Wed May 7, 2008
"Do we have any recourse?"

As harsh as it sounds, probably not.

But you *really* need to speak to an attorney. Did you have your own agent representing you, or did you go through the builder's agent (who of course, has the builders best interest in mind). If you had your own agent, speak with them as well.

If there are any provisions for disability/loss of income (which is unlikely) they would be in your contract. I'm not aware of any sort of statute of limitations on earnest money. The handling and refunding is all outlined in your contract. You *might* have some sort of way out if the loss of income means you can no longer get financing.

But there could also be non-refundable clauses in your contract.

Did you use the standard Arizona Association of Realtors Purchase Contract, or the builder's contract?

To reiterate, you *really* need to speak to an attorney.
0 votes Thank Flag Link Wed May 7, 2008
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