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LawTalk
LawTalk, Attorney
Category: Real Estate Law
Satisfied Customers: 27880
Experience:  I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.
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Were having a new house built and have already paid the builder

Customer Question

We're having a new house built and have already paid the builder half of what is owed and getting a mortgage loan for te remaining amount. The house is not yet complete, still has minor fixings to do. He, the builder is telling us if we don't close by August 1, he has no other choice than to make us leave even though he is the one that said we can go ahead and move in. Can he make us move out if we don't close by then. I don't want to close until everything is complete.
Submitted: 11 months ago.
Category: Real Estate Law
Expert:  LawTalk replied 11 months ago.
Good morning,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. In order to give you a clear and concise answer, I will need some additional information about the circumstances, please.

1. Certainly you must have a contract which states at what point in time the final payment must be made to the contractor. What is that time?
2. Minor fixings are typically things that go on what is known as a “punch list” and are minor---not preventing the city from issuing a certificate of occupancy and allowing the new owner to move in. Are these the sorts of things left to do---or are they much more significant?
3. Is the deed to the property in your name yet?

Doug


Customer: replied 11 months ago.
Yes we have a contract and it says that it has to be coleted by September first. He had told us it would be done by June 1 and that's why we sold our house then. We were living in a fifth wheel for a month out on our land where house is beig built an July 1 he told us that we can start livin in it. The land deed was signed over to him before we started building. There are minor thugs but we just noticed how one if our columns in the house gets bigger towards the bottom. Told builder about it and Sao it would be a major project but e would get it fixed. I want it fixed by the time we close. I guess my question is if I don't want to close next Thursday August 1, can he legally kick us out?
Expert:  LawTalk replied 11 months ago.
Good morning,

Your contract states it has to be "what" by 9-1-2013? You wrote coleted. What did you mean?

Has the city/county issued the certificate of occupancy?

Is closing already set with your lender---what day is it set for?

Doug
Customer: replied 11 months ago.

sorry meant completed! no they have not issued anything, i didn't think they did that until closing. My lender is leary on us closing because the house is not complete. But like I said our builder is threatening to make us leave if we do not close by August 1st.

Expert:  LawTalk replied 11 months ago.
Good morning,

The house being completed doesn't tell me when payment must be made. What does the contract say about when final payment is due?

Doug
Customer: replied 11 months ago.
It doesn't say anything. All it says is that completion of the house will be done in 365 days
Expert:  LawTalk replied 11 months ago.
Good morning,

Wow, that is really unusual---and incredibly poor job of contract writing on someone's part.

But that will benefit you. You may take the position that final payment is due only when the property is essentially complete and a Certificate of Occupancy has been issued by the city.

The one problem is that technically, you should not be living in the home unless the certificate has already been issued---so it may be that is has been already.

As the builder is the titleholder of the property, that make you a legal tenant at the moment and they cannot just demand that you move out. The builder would actually have to file suit in court for an eviction, and have the court issue an order that you leave.

So, until that happens, you might try negotiating with the builder---and tell him that the lender is hesitant to pay him until the corrections are made. You might even discuss him getting a completion bond if he wants to get paid earlier than when his job is done---again---you cannot hold up payment over minor issues---but a column in the house that must be replaced is not a minor issue.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug
Expert:  LawTalk replied 11 months ago.
Good evening,

I wanted to thank you for using JustAnswer, and to inquire whether my answer to you was helpful to your understanding of the law, as regards XXXX XXXXXXXX.

Is there anything else that I can assist you with, please feel free to ask. If you do not require further legal information at this time, please feel free to bookmark my profile so you can request me when you do have another question. Here is a link to my profile: http://www.justanswer.com/law/expert-lawtalk/

Thank you very much and take care.

Doug

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