October 21, 2016 in Real Estate

Does buyer have recourse if condo doesn’t match pictures in sales material?

Dear Real Estate Adviser,

We were first purchasers when we made a down payment on our condo. Promotional materials plus the website showed large, clear picture windows, which we thought would highlight a fabulous view.

With the building finally under construction, it’s obvious the windows aren’t anything like that. Instead, each window section is made up of several small panels.

Do we have any recourse for this false promotion?

— Stephen N.

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sturti/Getty Images

Dear Stephen,

Yikes! First, ask for a copy of the condo’s offering plan, where it should state the manufacturer and model numbers of all materials used, including the windows that are being installed.

By the way, consumer advocates recommend a prospective condo purchaser read the offering plan and run it by an attorney before signing a purchase agreement.

If the windows going up aren’t being installed in error (which is likely), notify the builder and condo marketers of this by registered mail, saying that you aren’t willing to move forward in light of this deception, assuming you aren’t. (By the way, if you have copies of the marketing materials and the website’s materials depicting the full-length picture windows, hang on to them.)

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Can you get out of your contract?

Realize that some laws allow developers to change building materials and plans during construction as long as the substitutes aren’t “of lesser quality or design.” While “quality” is a relative call, the design has been changed substantially. Inform the sellers of this.

If you’re thinking that you’ll just change the windows once you move in, don’t. Even if you’re technically allowed to change the glass (by condo rules), the windows must still match the overall appearance of the condo complex, where the type of full picture-window you wanted is apparently nonexistent.

You’re probably also wondering whether you’re being short-changed (inferior insulation, etc.) elsewhere in your unit. If enough promises are not delivered, you and other condo buyers may have a case against the builders for fraudulent concealment.

But rather than getting involved in a long and potentially costly dispute, keep that fraud suspicion handy for leverage if the owner/builder balks at letting you out of your contract with full-deposit refund. Some states, including California, Nevada and Colorado, have tightened laws to make it harder for homeowners to sue builders, requiring mediators to settle most disputes out of court.

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Ask for an adjustment

You may have to see an attorney; he or she will have a better idea if the condo sellers made deliberate material misrepresentations, which you relied on and would suffer damages from as a result.

Another possible “out” is if there’s an “outside” or “drop dead” date on your purchase agreements that entitles you to cancel the contract with your money back if the unit isn’t ready in time. Most of the time, though, the buyer has to ask for this to be included in the contract.

If you still want to buy the unit — and I’d be a bit surprised if you do — and these small-panel windows are what you’re stuck with, then you’re owed a sizable adjustment of some kind. I also would hire an inspector to look at the place and match the end product with what you were promised before you sign final papers.

In the future, I’d advise looking at existing condo units rather than buying in as a first purchaser. Values on new condos tend to be mercurial for the first several years, so many things tend to change from inception to fruition, as you’ve experienced.

Good luck!

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