 Dear
Steve,
We signed a contract with a builder to buy a home last fall and put down a $50,000 deposit. Since then, the market has gotten progressively worse and my husband's salary has been decreased by almost half. We've asked the builder's loan company to re-evaluate our loan application due to the salary changes. If they decide we now aren't approved, can we get our deposit back from the builder?
-- Brynn
 Dear
Brynn,
From the sounds of things, you may have made three relatively common -- yet often costly -- mistakes coming out of the blocks on this deal. Those would be: not using a buyer's agent, opting to use the builder's preferred finance company, and signing a standard builder contract without adding any of your own protections and contingencies.
There are too many unanswered questions here for me or anyone to determine if you're legally bound to consummate your purchase or face losing your deposit. For instance, were you already qualified by the lender for the home loan before your circumstances changed? Was your contract contingent upon your obtaining 100 percent financing? Is there a builder contingency saying you must accept all reasonable financing offers presented to you?
In other words, do you have a reasonable "out" built into your contract? And practically speaking, how enthusiastic will a lender be about making a decision that goes against the fiduciary interests of the builder, which is in effect its business partner?
Hence, I'm afraid you'll have to see a good real estate attorney and fast, especially with your 50 "large" on the line. As I've
noted, big builders insert carefully worded fine print into sales contracts that naturally favors them in court -- language
that necessitates careful legal interpretation by a party on the buyer's side -- but preferably before the documents are signed.
That said, some builders are much better than others about returning deposits after taking into account extenuating circumstances. However, others make it a practice to retain most deposits after buyer cancellation and even proudly tell stock analysts so.
What's more, builders are in a
world of hurt right now and grasping at straws
like others in the housing game. As the market
tightens, they are simply less likely to be flexible.
During boom times, builders typically wouldn't
hesitate to return deposits because there was
always another buyer in line who'd pay as much
or more for the same house. Not so now.
In the end, you did sign a contract and proffer an agreed sum. Of course, dicey sales tactics may have drawn you in. It is not unusual for builders to use such sales ploys as offering you future incentives if you'll just be so kind as to use their builder's mortgage company, or to tell buyers they need to sign by "today" to get that $5,000 flat-screen or other throw-ins. Going once, going twice.
While it's a little late to point this out, a good buyer's agent may have helped you avoid some of these potential pitfalls.
But don't give up hope yet. With
lending-qualification laws under scrutiny these
days, your change in financial circumstances may
give you some leverage, depending how far along
you are in the financing phase and how confident
the lender feels about its business.
|
