Reading the Fine Print
You studied the furnished model carefully, separating the basic house from all those seductive upgrades and decorator touches, so you’re clear on what you are buying. You know that the model is always built with extra care, so you studied houses that were nearing completion for other buyers to gauge the standard you could expect for your house. You’ve decided this builder is a go. You’re ready to sign the sales contract and let the project begin. Stop right there.
Your homework is not finished yet. You need to study the sales contract as carefully as you studied the finished houses and consult an experienced real estate attorney before you sign it. The contract may include substantial fees and taxes that may be due at closing, when you assume the mortgage and take possession of the house. The contract also gives the builder much more discretion than you realize. Once you sign it, you’re into the deal, so it’s in your self-interest to understand the terms beforehand.
A third reason to review the sales contract: as with all contracts, it will be written to favor the writer, in this case the builder, and it may be egregiously one-sided. As Pembroke Pines, Florida, lawyer Lawrence J. Davis described the situation, “The builder hired a team of lawyers to write the contract, and it will be written to get everything the law entitles him to.” To level this playing field you need your own lawyer to explain the legal nuances and suggest modifications. If the builder refuses to change a thing, at least you’ll know what you’re getting into.
To get a leg up, get a copy of the sales contract and study it before meeting with the builder’s on-site sales agent or your lawyer. This is unusual, but any builder should be willing to accommodate you. If this builder won’t, ask why. A strong disincentive to reading the contract, however, is the small size of the print. Before you start to wade through it, get it enlarged at a copy shop.
As you read the contract, it helps to know the builder’s priorities. These can be summed up in three words: time is money. The clock on the loan the builder will take out to finance the construction of your house starts ticking as soon as he breaks ground. Anything that delays the construction process will cost him. If a decision must be made on the spot, he wants to make it and move on without debate.
For example, the builder may have to modify the floor plan so that it will fit within the setbacks of your lot. Anticipating this possibility, he gives himself wiggle room in the contract by stating that the house will be “substantially similar to the model and to the plans.” You want to know how similar. If the contract says, “the exact dimensions of the house and components thereof may vary only slightly from the actual dimensions of the model,” your house should be very close to the model. But it could change quite a bit if the contract says “changes in the dimensions of the rooms and locations of windows, doors, walls and partitions, the general layout of the residence and the position of the residence on the lot may be made by the seller.”
The builder will insist on this latitude, but you can insist in an addendum that the contract will not be finalized until you have carefully reviewed the plan modifications, should any be required. In some cases, the builder has to reverse the house (the garage is on the left, not the right). You would also want to know about this because flipping the floor plan could mean that the view for which you paid a hefty lot premium will only be seen from the laundry.
The contract will also include a substitution clause. To avoid stopping the job, the builder reserves the right to make a substitution
How about additional fees? These can be substantial, and they may be due at closing. For example, the contract may oblige the buyer to reimburse the seller for “any utility deposits, hook-up fees or public service fees, which have been advanced by the seller for the lot together with the house.” If you are the first buyer and no houses have been built, the builder may not know the exact charge, but he should have a good idea. If a number of houses have been sold and occupied, the builder should know exactly what they are.
The cost to build the roads, install the utility lines and sewers, and add all those other amenities, such as a swimming pool, jogging and biking paths and tennis courts, will also be passed onto the buyers. It may be folded into the house price, but in many new home developments now, it will be tacked onto the price as an additional “special assessment.” The amount, which may not be specified in the contract, can range from only a few thousand dollars to as much as $20,000 or more. The entire amount may be due at closing or, you may have to pay it off in annual installments, over a period as long as 20 years. The special assessment obligation is usually transferable to subsequent owners, but in some instances, it must be paid off when you sell the house.
A tax or other charge may be customary within a given area, but individual contracts can differ in the details. For example, in Florida, most tract builders charge a “builder’s fee” or “closing fee” of 1.5 to 2 percent of the total purchase price. For a $200,000 house this would be $3,000 to $4,000. But what the fee actually covers depends on who wrote the contract. Many contracts state that the fee will cover the cost of the owner’s title insurance policy, a documentary stamp tax and the charge to record the deed. The total cost of these charges, which is the same throughout Florida, however, is considerably less than what the builder is charging. For a $200,000 house these would be only $2,500 — $500 to $1,500 less than the builder’s fee. In many cases, however, the title insurance is heavily discounted, so the builder may be overcharging by an even greater amount. Of course you should question such stipulations and ask for a credit when the builder is overcharging.
Other sales contract clauses are merely sleazy. For example, “Purchasers agrees that purchasers shall not disclose the (buyer) Incentives (such as a floor tile upgrade in the great room) to third parties except as required to close the transaction contemplated by this agreement.” The drift here: to seal the deal, the builder may have to give away more stuff to other buyers and he doesn’t want you to compare notes. Not only will this poison relations between neighbors as they eventually discover who got what, it is a bad business practice. A builder should offer the same incentive to every buyer.
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