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#466514 - 01/26/20 12:36 AM German Schmear applied without mention in contract
spartankiya Offline
Junior Member

Registered: 01/26/20
Posts: 2
Loc: texas
My builder (in Texas) applied german schmear on the front elevation (brick) of our new house under contract without our knowledge. The elevation looks rustic and we don't like it at all. When asked the sales agent said he missed to put this in the "selection" sheet of the contract and apologized for his mistake via email. As per the builder the city has mandated that certain elevation needs to have this German Schmear but it wasn't brought to our attention while signing the contract and not mentioned in the contract as well.

If I cancel the contract will I get my earnest money and appraisal fee ?

If the builder refuses to give back the earnest money what options do I have ?

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#466516 - 01/26/20 12:25 PM Re: German Schmear applied without mention in contract [Re: spartankiya]
Bigtoe Offline
Major Contributor

Registered: 10/14/07
Posts: 2421
Loc: Outer Banks
It depends on what is in your contract but most builder contracts specify that you won't get your money back. Your options are to walk away and take the hit, waste more money on a lawyer, try to get a different house from builder in same subdivision, or just live with it. Builder contracts are usually pretty builder friendly.
_________________________
Your Outer Banks real estate agent. Helping people buy and sell OBX real estate since 1989.

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#466521 - 01/26/20 10:35 PM Re: German Schmear applied without mention in contract [Re: Bigtoe]
spartankiya Offline
Junior Member

Registered: 01/26/20
Posts: 2
Loc: texas
The sales representative has admitted in an email that he missed this option on the selection sheet on the contract. Even then you think I will not get my refund ?

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#466522 - 01/27/20 11:39 AM Re: German Schmear applied without mention in contract [Re: spartankiya]
Bigtoe Offline
Major Contributor

Registered: 10/14/07
Posts: 2421
Loc: Outer Banks
The contract does not say 'no german schmear' so legally you have no standing. The sales rep made a mistake but so did you when you signed a contract without your specifications. But, the builder might work out a deal with you, so before you get all lawyered up, talk to the builder and see if you can work out a compromise.
_________________________
Your Outer Banks real estate agent. Helping people buy and sell OBX real estate since 1989.

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#466527 - 01/27/20 02:21 PM Re: German Schmear applied without mention in contract [Re: spartankiya]
Long Walk Offline
Member

Registered: 06/27/08
Posts: 430
Loc: New Hampshire
Originally Posted By: spartankiya
The sales representative has admitted in an email that he missed this option on the selection sheet on the contract. Even then you think I will not get my refund ?
I don't know the dollar value of this problem, but I would guess it is about a $10K mistake.

If the sales rep is a licensee, I would complain in writing to the licensee and the broker (assuming the licensee isn't the broker). Many brokers carry E&O insurance and, if the sales rep is a licensee, there may be grounds for a claim.

I would also talk with an attorney about this. If my estimate of the damages is in the ballpark, then there may well be enough money at issue to justify a suit. Sometimes, the involvement of a litigating attorney can encourage parties to settle before things get expensive. In my experience, initial consultations are free and I would expect that the lawyer would want a copy of the contract and the email admitting the mistake. At the very least, you would have an informed sense of the options and the likelihood of your success. And you need an informed opinion as you are not likely to know contract law in your state as it touches home builders....and nobody on this site is likely to know that law either.

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