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S, Home Buyer in England, AR

Can I terminate my pre contruction contract for non-performance? We signed a contract in Dec 2007 and put

Asked by S, England, AR Tue Jul 1, 2008

5% deposite down on two condos , the contract stated estimated build date June/July 2008 However the developer Cornerstone has not even finished the ones it has started earlier in 2007... Should our buyers agent have taken us to this site and could we rightly ask for our two deposits back?

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Hello "S"

There are several valid reasons for the return/refund of a pre-construction deposit. completion date and closing dates certainly may be valid reasons. Usually, a developer contract is written to cover virtually every "exit stategy" of a buyer. Here in the US, there are thousands of lawsuits foir the return of deposits made to a developer; the reasons are almost endless! Material change in design, inconsistencies in square footage, quality of common areas and/or construction, the list goes on and on.

In the contract, most likely in fine print- your answer can be found. It may be titled "Remedies for Failure to Perform" or some other verbage such as "Default of Buyer" or "Default of Seller".

Most developer contracts are written for the protection of the developer, it is important to have these contracts reviewed by YOUR attorney or counselor prior to entering the agreement. There are several lawyers that have begun specializing in "Deposit Recovery"

Certainly, you should and could- in writing, ask for the return of your deposits!
1 vote Thank Flag Link Tue Jul 1, 2008
Hello, First of all most builder contracts are similar, my guess is that if you look through all the fine print you will see a 2 year buildtime that the builder will adhere to. However if there is no such paragraph it will revert to time is of the essence meaning that it all likelihood your condo's will not be finished within 2 years. But my bet is that you have a 2 year buildtime and that means to a CO, certificate of occupancy. If they do not have a CO by then you should be able to get all your money back. I suggest you speak to an attorney who specializes in Real Estate law-good luck to you.
1 vote Thank Flag Link Wed Jul 2, 2008

There is a specific attorney who is addressing this very problem. He has been successful in getting deposits back for people in your situation. It seems that many of these contracts have a technical flaw that he is leveraging. see website. Atty: Calandrino
1 vote Thank Flag Link Tue Jul 1, 2008
Steve is correct here. First, discuss the matter with your agent. Have they been in contact with the builder? What is the cause for delay in construction?
Second: Read your contract to the builder, to determine if there is a "non-performance" clause which should clarify what to do if this occurs.
Third: There is a binding contract in place. Therefore, seek the advice of a licensed real estate attorney who will be able to tell you what legal remedies you have available to you.
Fourth: To address whether your agent should have brought you to the site,,,if the property fit your needs (and it apparently did) then yes. As agents, one aspect of our responsibilities is to introduce buyers to properties which fit their specific requirements. A professional realtor will introduce you to all the properties availabl. However, having said that, it is the realtor's responsibility to ensure that they have all the pertinent information on the property. I.E., in this case, did the realtor do research on the developer? What was the outcome of the research? Anything to indicate that they "promise the moon" but deliver only a paper sample?? If the agent did their job then yes would be the answer to that part of your question.
Always, always, always, READ THE FINE PRINT of everything you sign!
Hope it all works out for you.
Tina Evans, Principal Broker
Web Reference: http://tinaevans.net
1 vote Thank Flag Link Tue Jul 1, 2008
Hi, thanks for all your advice so far. There is a 2 year deadline in the contract, if the units are not completed by Dec 2009 then yes the "non-performance" clause applies. I guess I then have to persaude the Escrow company to realease the funds. Barbara I will get in touch with the Attorney you suggested to find out how much he charges.
The developer is Cornerstone Group. My Realtor informs me that the delay now is that the developer is in talks with the bank trying to refinance the site however this has been going on for months now. Is there anyway i can find out what financial state this private company is in?
0 votes Thank Flag Link Fri Jul 11, 2008

We are sorry about this messy ordeal. Without a doubt....you should be in touch with an attorney.

Good luck,
The "Eckler Team"
0 votes Thank Flag Link Tue Jul 1, 2008
I believe you should speak to your Realtor and His attorneys
0 votes Thank Flag Link Tue Jul 1, 2008
Further info, our two deposits are with a Tittle Company
0 votes Thank Flag Link Tue Jul 1, 2008
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