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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 3656
Experience:  25 years of experience in general practice, real estate law and estate law.
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I NEED HELP WITH A LETTER I AM WRITING THE BUILDER OF OUR HO

Resolved Question:

I NEED HELP WITH A LETTER I AM WRITING THE BUILDER OF OUR HOUSE.


A brief background: we have a house under contract that is being built (an upscale, semi-custom home). We put $10,000 down in earnest money and have paid an additional $10,000 in optional upgrades. The balance is to be paid at closing. About a month ago, our kitchen cabinets were installed. The builder failed to cover the kitchen cabinets. In addition, he failed to cover our ventless fireplace. We want to demand that he replace both of them. Here is the letter:


Mr. Smith (the builder):


Bill and I stopped by the job site late this evening, and much to our dismay (which has become an all-too-familiar feeling during the construction of our house), we found that the kitchen cabinets still remain uncovered. We have been trying to get someone (anyone!) to cover the cabinets since they were installed nearly a month ago. However, the only thing that is covering the cabinets at this point are lots of dings, dents, scratches, and scrapes - as well as mounds of sawdust, piles of wood trim, and several discarded coffee cups (apparently, the kitchen cabinets have become a trash can for your workers).


As we mentioned to you yesterday, our Realtor even met with Steve (the site supervisor) two weeks ago and personally showed him that the cabinets were getting damaged and asked that they be protected. Nothing happened.


Yesterday morning, after discussing this with you personally, you told Steve to cover the cabinets. Again, nothing happened. Steve ignored you.


To make matters worse, the stair railing was cut and installed today, which added another thick layer of sawdust to the cabinets and the fireplace (the fireplace is also uncovered, by the way). This is completely unacceptable.


At this point, due to the repeated and irreversible damage to the cabinets and fireplace, we feel the only way to ensure that both meet the terms of our agreement is to completely replace them. And then to COVER THEM.


There is no amount of cleaning that will be able to give us confidence that the inner workings of the cabinetry drawers and cupboards will be acceptable since they have been covered in sawdust, even if the fronts of the doors and drawers are replaced. In addition, the fact that the fireplace has also become covered in sawdust creates a potential safety hazard.


We feel like your repeated failure to cover the cabinets or fireplace has left us with no other choice.


Sincerely,


Susan


I need help with the body of the letter, as well as an appropriate way to end the letter.


Any thoughts?

Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Law Pro replied 1 year ago.
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete excellent answer for you.

My name is XXXXX XXXXX I'm going to assist you with your question.

Please bear with me if you believe my answer isn’t coming fast enough because I’m also working with other customers too. I apologize for any seemingly late response.


Sorry for your situation.

Have you gotten a contractor to come in, give an estime for repair and/or replacement of the cabinets and fireplace?
Customer: replied 1 year ago.

No, since the construction isn't finished, we felt our only recourse was to ask the builder to fix them.

Expert:  Law Pro replied 1 year ago.
No. That's not your only option.

You have options:

1) to have the builder repair or replace the cabinets and fireplace

OR

2) to have another contractor do such and deduct the cost from your contract or monies owed to the builder


In Construction Contracts when a contractor breaches the agreement or supplies less than workmanship products - damages are:

Owner can recover for:

(1) stopping mid-project: cost of completion;

(2) late completion: costs related to loss of use;

(3) substantial performance: cost of completion, if there would be no substantial economic waste (if cost to complete does not exceed value that the extra work contributes.)

(4) lack of workmanship like product: cost of completion or repair or replacement



In your situation - I would inform the builder contractor that you have taken pictures and are going to have other contractors come in and give estimates to repair/replace the cabinets/fireplace.

That if he doesn't repair and/or replace the cabinets and fireplace you are going to have another contractor do such AND reduce the agreed upon amount from the contract price.

The choice is his to make - however, the end result will be at your discretion if the cabinets and fireplace don't comply with your agreement.

That you are holding the cards here - you can reduce the amount you pay the builder contractor by whatever the costs to repair and/or replace by another contractor if your contractor won't do it.

Just make sure you get pictures and complete estimates from 1 if not 2 other contractors.

Then the ball is in your contractor's court - but you can reduce the monies owed as to what you spend to fix or replace.


Thank you so much for allowing me to help you with your questions. I have done my best to provide information which will be helpful to you. If I have not fully addressed your questions or if you have any follow up questions, or if I have misinterpreted your questions in any way, please do not rate me yet, but simply ask a follow up question without rating so I can provide you with a fully satisfactory answer.. I thank you in advance for taking the time to provide me a positive rating!

If you have any questions, about this or anything else, please ask for me, Law Pro, directly in the question and I will try to assist you as best I can.

For example, you would state, "This question is for Law Pro . . . (then on with your question).

I wish you the best in the future.
Customer: replied 1 year ago.

I think you misunderstand the type of contract we have. Until settlement, the house (either under construction or completed) and all materials and supplies stored or installed on the property remain the property of the seller.

Expert:  Law Pro replied 1 year ago.
Who is the seller - you are the buyer - correct?

That's really not applicable - as you stated - "the balance is to be paid at closing."


As such, you reduce the balance at closing by the cost of replacement and/or repair of the cabinets and fireplace.
Customer: replied 1 year ago.
Relist: Answer quality.
Customer: replied 1 year ago.

How can we wait until closing? By then, the countertops, sinks, etc. will be installed. You can't just replace the cabinets at that point. I'm sorry, but I think I need help from a different expert.

Expert:  Law Pro replied 1 year ago.
You replace them now - not at closing. However, you reduce the monies you pay to our builder/contractor by the amount you pay another contractor to fix the problems NOW.

As stated that is one option.

You should be saying that you don't want the counter-tops or sinks installed until after the cabinets are fixed.
Customer: replied 1 year ago.

We can't replace them now - the cabinets are the property of the SELLER, not the BUYER (us). Until we close, the cabinets aren't our property to replace. Are you really a lawyer?

Expert:  Law Pro replied 1 year ago.
I guess you and I are having communications problems. I have closed hundreds of properties and attempted to explain to your your options with you. Maybe another expert can explain your options differently so that you can understand.

I am going to opt out of your question and open this up for other professionals. You do not have to stay online for the question to be active, or rate this question yet as it would then discourage others from answering. Should a professional pick it up, you should be alerted via email and/or SMS (text message) unless you actively disable these features.

There is no need for you to reply at this time as this may "lock" your question back to me, thus inadvertently delaying a response from someone else.
Expert:  Attyadvisor replied 1 year ago.
Welcome and thank you for your question. I will be the professional that will be assisting you.


Is there anything in the contract that provides for your approval of the property prior to closing. Can you attach a copy of the terms? We can draft the letter based on the contract provisions letting the builder know that they are falling short of their duties under the terms of the contract.
Customer: replied 1 year ago.

Yes, I think these are all of the relevant terms of the contract relating to this issue:

Buyer has the right to have an independent home inspection done, at Buyer's expense, prior to closing, to Buyer's complete satisfaction.

Buyer or Buyer's designated representative may enter and inspect the House at reasonable times and in such manner as not to interfere with the progress of construction for the limited purpose of determining whether the work performed or being performed conforms with the plans and specifications and the terms of this agreement and any addendum's. In the event that during construction the Buyer shall reasonably determine that such construction is not proceeding in accordance with this offer to purchase, Buyer shall give written notice to Seller specifying the particular deviation, deficiency, or omission, and the Seller shall promptly correct such deviation, deficiency, or omission.

All finishes and features are to be equivalent or better than the quality of the finishes and features of the model home, even if no upgrades other than those specified on this specification sheet are selected.

Please let me know if you need any additional information from the contract.

Expert:  Attyadvisor replied 1 year ago.

That is perfect.



CERTIFIED MAIL RETURN REQUESTED

-

RE: Purchase of _____

-

Dear Mr. Builder:

Bill, as you may be aware I stopped by the job site late this evening. Much to my dismay I discovered that the kitchen cabinets still remain uncovered. We have been trying to get someone (anyone!) to cover the cabinets since they were installed nearly a month ago. However, the only thing that is covering the cabinets at this point are lots of dings, dents, scratches, and scrapes - as well as mounds of sawdust, piles of wood trim, and several discarded coffee cups (apparently, the kitchen cabinets have become a trash can for your workers).

-

Pursuant to the terms of the contract “in the event that during construction the Buyer shall reasonably determine that such construction is not proceeding in accordance with this offer to purchase, Buyer shall give written notice to Seller specifying the particular deviation, deficiency, or omission, and the Seller shall promptly correct such deviation, deficiency, or omission.

All finishes and features are to be equivalent or better than the quality of the finishes and features of the model home, even if no upgrades other than those specified on this specification sheet are selected.

-

Please consider this notice of our dissatisfaction with the work performed on the cabinets as well as the stair railing adding another thick layer of sawdust to the cabinets and the fireplace. At this point, due to the repeated and irreversible damage to the cabinets and fireplace, we feel the only way to ensure that both meet the terms of our agreement is to completely replace them.

Please advise us of the steps you plan to take to rectify this matter. If you have any questions please do not hesitate to contact us at ___________________________

Thank you in advance for your cooperation in this matter.

 

Or you do not have to thank him in advance. You can also include that you need to hear back from the builder.

 

Let me know if this helps.

Customer: replied 1 year ago.

Thanks!


 


I still feel like the letter needs more legal justification for demanding that they replace the cabinets (as opposed to just cleaning them and repairing the scratches and dings - after all, these are supposed to be new cabinets, not cabinets from the "scratch and dent" section).


 


Any thoughts?

Expert:  Attyadvisor replied 1 year ago.

In a contract situation we look to the terms to determine whether there is a breach.

The contract clearly states the work needs "to be equivalent or better than the quality of the finishes and features of the model home, even if no upgrades other than those specified on this specification sheet are selected." Are there dings and dents in the model home cabinets?

 

“A builder who contracts to construct a dwelling impliedly warrants that the work undertaken will be performed in a careful, diligent, workmanlike manner.” Smith v. Breedlove, 377 S.C. 415, 661 S.E.2d 67 (Ct. App. 2008).

Customer: replied 1 year ago.

Well, there may be now because the model has been shown regularly for the past 6 months or so.


 


The builder has said he will replace any damaged door or drawer front, but our concern is that all of the sawdust has gotten into the cabinet drawer rails as well as the door hinges, and that it will be impossible for them to clean the sawdust out completely and present us with "new" cabinets.


 


In addition, they won't be able to replace the visible parts of the cabinet base (the part of the cabinet behind the doors and drawers) - those areas will just be touched up with touch-up paint.


 


The sawdust has just become embedded in every seam of the cabinets.



The cabinets are a mess.

Expert:  Attyadvisor replied 1 year ago.

There is an implied warranty in every residential construction contract in SC, that the work undertaken will be performed in a careful, diligent, workmanlike manner. Dings and dents are not indicative of performing the work in a careful, diligent and workmanlike manner. Feel free to add the language stated in the case to your letter.

All you are doing at this point is providing notice, if no action is taken to correct the matter you would not be required to close. I would imagine he would prefer to close rather than be faced with a breach of contract.

You can also file a complaint against the builder at http://www.llr.state.sc.us/POL/ResidentialBuilders/index.asp?file=complaint.htm

Customer: replied 1 year ago.

I understand. My concern is if I just provide notice, but don't demand a specific remedy (i.e., replacing the entire cabinets, not just replacing the damaged doors and drawer fronts), the builder will do the least amount he thinks he can get away with.

Expert:  Attyadvisor replied 1 year ago.

We did provide a specific remedy,

Please consider this notice of our dissatisfaction with the work performed on the cabinets as well asthe stair railing adding another thick layer of sawdust to the cabinets and the fireplace. At this point, due to the repeated and irreversible damage to the cabinets and fireplace, we feel the only way to ensure that both meet the terms of our agreement is to completely replace them.

(I added this language for you)

-

As I know you are aware, in every new construction contract of a residential dwelling, there is an implied warranty that the premises will be constructed in a "careful, diligent and workmanlike manner.” Smith v. Breedlove, 377 S.C. 415, 661 S.E.2d 67 (Ct. App. 2008).


-

Please advise us of your intention to replace the cabinets and fireplace within five (5) days of receipt of the letters. If we do not hear back from you in the time specified we can only conclude that you intend to breach the terms of the contract. If you have any questions please do not hesitate to contact us at ___________________________

Thank you in advance for your cooperation in this matter.

You need to provide him with the opportunity to correct the situation.

-

If you would be so kind as to rate my service I would be most appreciative.

Thank you for using JA!

Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 3656
Experience: 25 years of experience in general practice, real estate law and estate law.
Attyadvisor and 17 other Real Estate Law Specialists are ready to help you
Expert:  Attyadvisor replied 1 year ago.
Thank you.
Customer: replied 1 year ago.

Will you answer some more questions if I start a new question?

Expert:  Attyadvisor replied 1 year ago.
It would be my pleasure.
Customer: replied 1 year ago.

Are you able to chat? If so, that may be easier . . .

Expert:  Attyadvisor replied 1 year ago.
Unfortunately, I cannot change the format in this question. If you open a new question and request me we can chat

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