Q. I have finally come to the point of completion for my new home by one of the larger builders in the GTA. I snuck by for an exterior view and realized that they have not installed the shingles that I have ordered. I looked across the road and the shingles I had ordered were on a house less than 50 metres away. Needless to say, I was perturbed. I called the builder and they referred me to a clause in the contract that outlined their contractual ability to substitute like materials without consultation. They stated the tiles were no longer available. I was furious.

So, off I went to the lawyer’s office to speak to the person in charge of my file. I was directed me to the clause in the contract for switching “like products” for those that had been chosen and I thought my efforts were thwarted. However, not to be outdone, I visited another building site that the same builder was working on and lo and behold, my shingles were being installed on a house right before my eyes.

A. Builders place a clause in virtually every contract allowing them the unilateral ability to change over items for “like” items of the same quality. If we had a client who had discovered different coloured shingles on their brand new home, it would be our position that this was dramatically different than changing the type of carpet or the type of baseboard. Contained in contract is a fairly detailed sheet that covers all of the standard finishes. I insist that all of our clients read this information in detail so they know what they are getting because sometimes, the finishes you see in the demonstration house or suite do not match the ones offered in the contract. Remember, if it’s not in writing, you can’t rely upon it.

In this case, the client was so insistent that she went to the president of the company. Realizing that they had made a mistake and that their excuse of the shingles no longer being available was not true, the builder actually re-shingled the entire house.

– Jeffrey D. Cowan is with Cowan & Taylor, Barristers & Solicitors. The info in this article
should not be relied upon as legal advice.

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