Q. We purchased an un-built condo approximately three years ago and spent a fairly large sum of money getting one of the penthouse units and had it customized so that, as empty nesters, we could have exactly what we wanted and would contemplate staying there until such time as it was necessary to move into potentially assisted housing. That was the plan. We have been fairly vigilant as the unit has progressed and have discovered that major items have either been left out or planning was so bad that shower doors can only open halfway before hitting the toilet. What are our options?
A. As a lawyer who primarily acts on behalf of the purchaser, I see this all too often. You as the purchaser work as best as you can with the builder but there comes a point when they can’t move any further and you are still nowhere near the promised new home.
This is where the term “abatement” comes into your vocabulary, which basically means a reduction in the purchase price because the builder has been unable to provide what you contractually agreed upon. No builder ever wants to get to this spot but it happens and you need to be hard-nosed about it. A proper introduction of the concept should be intimated as soon as your builder says it has done all it can do for you.
Using your lawyer to help you negotiate this reduction in the purchase price is probably advisable, but remember this falls out of the normal scope of real estate transactions and your lawyer will be charging their hourly rate. Be careful of your blanket use of your lawyer — “You’ll be hearing from our lawyers!” — because not only will you be incurring un-retrievable costs, the builder will be in the same position and stances will become much more adversarial. With guarded consideration use your lawyer as one of your last resorts.
– Jeffrey D. Cowan is the principal of Cowan & Taylor, Barristers & Solicitors, jeff@cowanandtaylor.com. The information contained in this article should not be relied upon as legal advice.
