Profile picture for NarcJag

Getting our earnest money back

We paid $1000 earnest money on a new construction.  When we first saw the home the selling agent told us that the builder would be able to fully flatten out the backyard and that all of the appliances that were in the model home would be the same ones in ours.   We signed a purchase contract and our agent specifically put in a clause that the builder would level the backyard prior to closing. 

When we went out to do a final inspection we found that the range in the kitchen was different ( a four burner gas instead of the 5 burner that was promised) and that they had not flattened the back yard (which had a fairly substantial slope).  The wording in the contract stated that after 10 days we would not be able to get our earnest money back for any reason, but I wonder if this would be an exception?  When we contacted them about it they refused, but we considered this a breach of contract and are wondering if that is reason enough to demand return of the money? 

When we signed the contract the house was in the last phase of construction so appliances weren't in at the time but it only needed paint and carpeting and the only things we were able to choose were the granite for the counters and the exterior paint.
  • October 26 2011 - US
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Answers (4)

Best Answer

Profile picture for sunnyview
I think that your agent should be able to tell you what your basic options are in the contract, but if they can't you need to ask a local attorney. I would see if your can get some free advice on Avvo.com to see if you should/can put in a demand letter to get your deposit back
  • October 27 2011
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Profile picture for NarcJag
Sorry, I guess I should clarify, that during the final walkthrough the builder manager was there and stated that not only weren't they aware that they were supposed to be levelling it but that they would not do it.  They said that it would be more work and cost then they wanted to put into it.  They pretty much refused to honor that part of the contract.

There were a lot of problems and confusion after this. Our lender first told us that we needed to get it sorted out before continuting but our agent said that we could better bargain after closing was done.  The hold up on it caused us to need more time to close (we started with only a 3 week time frame) when we went to ask for an extension they stated the only way they would sign it would be if we agreed to remove their requirement to level the ayard from the contract.

Needless to say we refused and the contract expired.  That's where we're at now.  We are done with that property and the builders as we had multiple other problems with them and we are now in the process of putting a an offer in on another place, we just want our earnest money back to put towards the new property.
  • October 26 2011
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Profile picture for wetdawgs
If the range and the leveled backyard were in the contract both you and the builder signed,  simply say you will sign when they've completed their contractual obligations.
  • October 26 2011
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In my experience, builders want the house to close and do not want to have another completed home on the market. Let the builder know that you would be happy to close once they have corrected the items. Just don't close until they are completed.

  • October 26 2011
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