I bought a house (cost over $1 million) in a community development by one of the nation's larget builder. Yesterday, while checking the house two weeks before the
pre-dry wall walk thru, we discovered that the entire front part of the house (L Room, D Room, Foyer, 2 upstairs bedrooms) are all reduced in dimensions by 1' 3". In other words, a room of 12'2" x 12' 5" is now instead 10' 11" x
12' 5". Apparently the builder has made a major mistake. The foundation is all up and so are all the walls and roof is almost done.

We one of the neighbor who has the same model and elevation to confirm this.

What are our options here? What kind of legal action could we pursue and what would be the chances of success? This particular builder has deep pockets. Also, can the situation be remedied? Can the house still be extended by 1' 3" without a foundation? This of course means major work, ripping all the wood and the roof etc, not sure if the builder will go for
it.

The house will be in Virginia.

As an architect, I always feel that there is notning that can be said in words that I cannot do...the question usually is "is it worth it?"

Is your house one or two stories? Which way do the floor joists run relative to the space shortage? If they are perpendicular to the shortfall, they can be cantilevered the 16 inches that are missing. How complicated a roof issue that means depends on the roof slope and direction, and the ceiling heights.

The cantilever would not require a foundation. They would have to sister up the floor joists (if they run the right way), extending back about 8 feet to achieve a 16-inch cantilever. If the joists run the wrong way, it is a little more complicated but still could be done.

In any case, I would not let the builders off with a "Too late now" excuse. I hope your contract refers to exactly the floor plans you thought you were getting. Good luck.

This is probably not worth the fight over 1' 3".

Yes, the builder is wrong.
Yes, the builder is probably liable for damages.
But what are the real damages?

A judge or arbiter may not see any damages or so little in real terms that your cost to prosecute may be more than any damages you could expect to be awarded.

Yes, the builder may have screwed up but in reality, what difference does 1' 3" make? Million dollar home or $100,000 home? Very little in reality.

If the area in question amounts to 1% of the total sq footage promised in the drawings, you might be due $10,000. It could easily cost you 3x that just to prosecute.

My recommendation is to talk to the builder to find out just what went wrong.

Correcting the problem by extending the house just won't be an option for the builder, so don't even entertain that thought.

You're best hope will be to get compensated in cash for getting less than what you paid for....or to simply walk away from this house by having the builder buy it back from you.

That leaves you without a house and having to start over.

Personally, I'd start with an as amicable as possible sit-down with the builder to explain that you know there is a problem and that you expect to be compensated for getting less than what was specified in the contract.

And only if you can't come to a reasonable solution, only then contact and attorney for advice.

Beg to differ slightly...there's a BIG difference between a dining room that's 10'-11" wide and one that's 12'2" wide, in terms of utility. (However, I question why a million-dollar house has such a small dining room to begin with, but that's another issue)

I'd start the same way as "homebild" suggests, but keep in mind, the builder's costs to defend a lawsuit may well be several times more than it would cost to extend the house.

Another option would be to look at the floor plan, and maybe move some partitions and recover some space. A million-dollar house with such small rooms has to have a bunch of wasted space somewhere.

Time after time I get clients who go nuts over a 1/2 inch here and a 1/2 inch there, then fill the house with so much junk you couldn't tell if the house was two feet short. In real life you will never know the difference. Talk to the builder and maybe some small upgrade somewhere will make up for all that lost space.

Changing the dimensions by this much will definitely affect the livability of your home. In a bedroom it can mean the difference between having a king size bed vs a queen; in a dining room it can impact where a credenza should fit; in a living room it will make a difference in the width of the traffic path.
But the most critical issue is that you now know about it and for the time you live in this house you will think about it every time you walk into one of the rooms and notice it may be a little less usable than you expected. For that reason alone I would either insist on the builder fixing the problem or walking away from this house, choose another lot and start over.

I am surprised to hear suggestions to just let this go. 1'3" is not a 1/2". Builders regularly charge $10,000 for a 2' bump out of a single room. For $1,000,000 in No. VA you get about 5000 sq ft, 2 stories + basement on 1/4 acre. Missing 1'3" on 3 levels can be quite a bit of space. The best approach is to review the contract to make sure the dimensions are in it, sit down with the builder and get either cash back (use those builder bump-out options to help you decide how much), or get some interior upgrade that you wanted. I'm sure the builder (and you) would rather resolve it that way rather than in court.

While I absolutely agree with the cautious approach advocated by homebild, on the basis of catching more flies with honey than with vinegar, I would enter the negotiation with a back-up plan. Specifically, take the price you are paying for the finished house, subtract the price of the building lot, the price of any landscaping or exterior ammenities, such as detached garage, pool, driveway, etc., and arrive at an approximate price per square foot for the house, as designed. Next, calculate the square-footage of the house as-built, and calculate the the square-footage of the design, subtracting the smaller size from the larger, to arrive at a hard number of how much house you have been "cheated out of". Applying the price-per-square-foot to the number of square feet you are short will give you a target number for compensatory damages.

Next, as amicably as possible, after making certain that there is no mistake on your part as to expected dimensions, approach the builder with the plans and contract language, and express your concern as to what you percieve to be "differences", and ask him to correct you, if you are wrong, or, if your perception is accurate, what he would suggest. Quite honestly, this might be the first time he becomes aware of the disparity, especially if the structure has been assembled by specialty sub-contractors, as is common. It is at this point that you will find out whether you are dealing with a good builder who has made an honest mistake, or with a dirty-rotten-scoundrel, who is out to skim undeserved profits from you. Armed with the per-square-foot cost of the "missing" square feet, you will have a solid basis for negotiation with an honest builder, or a solid basis for launching litigation, if that is what you are forced to do.

Thanks for all the comments and suggestions. Here is additional information.

Our first mistake was buying this house in the red hot market (March 05). At the time builder would not make any exception to their standard contract terms. Which clearly states that the dimensions are approximate. However I dont see any one holding up 15 inches as a minor variation - especially for small rooms where the 15" remove abot 15% of the space from one dimension. However they may have a way out based on this contract.

The reason this happened (per builder) is that the builder changed the plans well before our construction started. When sales manager was showing us the house before we bought this, she could not show us this specific elevation as their own model (didn't have it). So they showed us a house under construction. We looked at the floor space and really liked that elevation since it provided more room (or so we thought). So we paid EXTRA for that elevation to get that extra space. But in the mean time they changed the plans and filed with the county and did not notify us EVER until we noticed it.

Our contract does not allow a law suit. It has to be in arbitration. We like to get a lawyer involved. What kind of lawyer do I need and how do I find such a lawyer.

Also I wonder if there is a government agency that regulates such misreprentations, especially by a publically traded company with deep pockets. We are affraid to take them on since they can spend a lot more money then we can.

This is turning out to be a real nightmare, instead of a life long dream of owning a beautiful home.

Wonder if this is how the builder can post jump in profit by 90+% as it is reported.

Any new home buyers in No VA (or anywhere else) should be very careful.

Changes in floorplans due to builder mistakes need to be repaired. As a realtor, I see quite a bit of new construction and represent a number of buyers in these situations. The builder should correct any problems that have occurred during construction. I had a buyer earlier this year that had all of his wiring reversed in his walls and the builder corrected it. We once had a buyer that had 1 of 3 windows that was lower than another. The builder offered to install palm trees on the property instead. We said no because who would want to continue to look at the unlevel windows everyday. Builders will often work something out with you, just talk to them and I am sure you will be able to work something out. A reduction of a foot, will most likely not be noticed by a future buyer, but you will have to live with knowing it everyday. Check your contract carefully to make sure you are able to fight it, but I think you should get what you initially purchased. I have found that most builders will work with you to resolve your issues, just talk with them.

can i butt in? Sorry about your situation VA, i have seen `n heard similar.

hey, how come changes in builders plans never seem to go......the other way, meaning BIGGER room?

lets see, a decent sized new Sub D... if they can cut a lil off the cost of concrete for footing/wall,wood, etc for 1 home and maybe another 10+ that could add up to enough to buy their mother-in-law a nice Xmas gift

changing shtt around to suit 1 persons needs is blllchtt and sure makes me think how many skimp on footing depth and thickness, use of steel reinforcing bars in bsmt walls etc.

Please dont bs us and tell us it wouldnt pass code, shtt...at least 1/2 of city inspectors dont have enough time to spend on each individual home, are asleep, or arent qualified ta do the job/inspections right, need i bring up the few who get a lil kickback for 'oversights'.

Richard is absolutely on-the-money. The space DOES make a difference. We are not talking about a half inch. Functionality has been lost.

But, room size for the dollar is relative. Are we talking about estate lots in an exclusive Northern Virginia enclave. If we are, that room size may not be totally out-of-whack.

If you really want the missing space why not ask them to build the house again on another lot. Assuming they have one and you have time. A few months to get it right when you may be in the house for thirty years is a small price to pay. They should have no trouble selling the house with full disclosure about the room size problem. I might request compensation for lost time with a better lot. I say all this assuming this is a production builder. If you have not actually gone to settlement, technically you do not own the house yet.

I am not an attorney, please seek competent legal advice. That said, most production contracts state if the builder, for whatever reason, does not deliver the house within a scheduled period of time the purchaser's only recourse is to get their deposit back and declare the contract null and void. I would reread my contract and ask an attorney to review it as well because sometimes what a contract states is not supported by law. Personally, I believe you get more with sugar than vinegar. How you approach the builder will play a huge part in the result you achieve.

I am curious, do you know how many of this particular model the site manager has built? I know the framing carpenter absolutely knows there is a problem -- I just don't know if the site manager knows. Unfortunately, even with an adequate 'good-over-bad' policy the subcontractors sometimes just keep moving and don't report issues. In your case, the problem appears to have started with the foundation. I personally don't like cantilevers. They tend to be drafty and after looking at hundreds of old houses they tend to bow. Yes, I know, methods are better today, but the stuff is still just wood. Which brings me to a question, while it is clear you also lost space in the basement, what about elsewhere? Have you measured all the rooms?

I gotta say, with the comment about 'deep pockets' it sounds to me as though you are hoping you hit the big one. Why is it that when someone makes a mistake, our first responce is to see what we can get? If you made this mistake on the job, what penalty do you think you should suffer? What about your employer? When you get money from the 'company' someone will pay, most likely with their job.

Sorry, my last message was typed without reading your most recent post.

Again, I am not an attorney but the lost space does not seem to fit within the normal definition of Approximate. Look at your home warranty for the standard definition. There is court precedent for this in resale homes. The latest court case verdict that I heard about stated that the over reporting of square footage by a seller and Realtor was not detrimental to the purchaser. From what I read it sounded like the decision was based on the fact that the purchaser made a physical inspection of the property. So, this probably does not apply. You can probably find precedent on the web for new construction that supports your position.

If you are working this problem through the sales person who originally made the error in not telling you, you have to remember it is in her best interest that she quelch the problem.

To find an attorney you may want to call legal aide or the Bar(sic) Association.

You can check with the county for dates of approved changes to the plans and compare them to your construction start and contract dates. Also review the floor plan included in your contract.

As for Arbitration, you may again want to look for precedent. I've heard several courts have ruled this requirement violates standing law. This goes back to what I said about what is in a contract may or may not be binding in a court.

Your first step is probably to get the name of a good attorney that specializes in real estate contract law -- hopefully with a bent for new construction. One thing I have learned in the many years I have been in new construction is: do your homework, be nice but be persistent and never negotiate with a person who has no power and who may be trying to cover up their mistake.

Just had another thought. Google the builder's name with the the words: litigation, problem, error... Also, Google their name with Virginia and the same thing. I think the web site is http://www.hadd.org -- it is a complaint board for new home buyers. Then talk with your neighbors especially those with your floor plan. When was their house built vs. yours is their plan square footage correct? Were there other problems? If the builder has been sloppy you will not be the only person with issues. Find out how their problems have been delt with and what they have done to get results if any. A good builder can sometimes begin to produce sloppy work when they try to produce too many homes. Most builders want to do a good job but there are those that need to be forced out. Good luck.

Thanks again for such quick replies.

BetterHouse

Please don't take my comment about deep pockets to construde as means of getting something out of this builder. To afford a $1 million dollar house, we must be doing something right and we dont need someone else's money. We work very hard for what we earn. We just want this fixed so we can live peacefully in this house for many more years.

What I am referring to is that their deep pockets allow them to afford full legal team to defend themselves. Other than bad publicity they dont have much to loose. We, on the otherhand, have to spend money (which we are prepared to spend to some extent) to get what we thought we already bought and will be paying for.

But if this lingers who do you think can go on forever? For them it is just annoyance. For us it is the stress every day until its over.

To answer your other questions.

This is the most popular model in the neighborhood. And they built a lot of them.

This house is on the estate lots, but the rooms are small. going from 11.5 X 10 to 10 X 10 for a bedroom is a huge deal no matter how you look at it.

The house is shorter than the same model/elevation in the community. It is confirmed, since we measured it ourselves.

The whole foundation is shorter, so it included lost space in basement, living room, foyer, dining room, and two bedrooms.

Builder acknowledged that this is shorter house and they failed to tell us the change of plans. But they are saying its not a big deal and just live with it.

We are trying the sugar approach now, and see what happens.

Several more thoughts have crossed my mind since reading the rest of the postings:

If you cannot equitably resolve the issue with your builder, and/or his sales people, then you might want to check with the Consumer Protection Department of your State Government. Here, in Connecticut, they wield a big stick, and, sometimes, the mere suggestion that you might involve them can lead to a more concilliatory posture on the part of the builder. If, in your research, you find others who have gotten less than they have contracted for, that will establish a pattern which will bolster your case. These days, caveat emptor is dead.

Speaking as a remodeling contractor with an engineering background, whenever square footage of a building is discussed, it is ALWAYS gross square footage, not net living space. The building walls have to be accounted for, since the materials have to be purchased and emplaced. Duct chases, chimney chases, stairwells, etc., are all within the building envelope, and reduce the net square footage of the overall structure. Also, closet space, while a basic, necessary part of a building, is not, technically, living space, in which furniture and people can be situated. Be absolutely certain that both you and your builder are both talking the same language before you go the legal route.

Since dimensional lumber, the 2" x ? material used to frame the house is sold and purchased in two-foot increments, such as 8', 10', 12', etc., houses are generally designed and built with these dimensions in mind, in order to minimize waste. Plywood and OSB are generally manufactured and sold in 4' x 8' panels, or sheets, and, again generally, homes are designed in multiples of these standard dimensions, again, to minimize waste. Keep these factors in mind as you peruse the plans you were sold, and the contract you signed.

Finally, after all is said and done, errors or deviations of several hundred square feet of overall house are not oversights.

WALK AWAY NOW!!!

First Truth of Life: Builders are liars, cheats and scoundrels.

Second Truth of Life: The builder holds all the cards in this matter. The contract is written by his lawyers. See First Truth of Life, which also applies to lawyers.

Third Truth of Life: No matter what the builder does, now or in the future, you will never be satisfied. You will question and check everything he does. He will resent it. You will become a thorn in his side. He will ignore the rest of your complaints during and after the construction process. Remember, the building process doesn’t stop when the closing takes place. There will be warranty repairs to be done. Don’t let this builder build another house for you. You will NEVER be satisfied.

Stop what you are doing right now. Stop your compromises and apologies to the builder. Things you say now can come back to harm you in the future trial. Today, get a trial lawyer (not a Real Estate lawyer or a Tax attorney) who will get you out of this contract based on the builder’s Breach of Contract.

Why do you want to put yourself through this frustration? You know what the character of this builder is. If he had any personal integrity, he would not try to make you compromise, he would make it right.

I’ll let you in on a little secret about the process. If you sue, it will take at least 10 years. It will take your life away. It will take your happiness away. You will be consumed by it.

But you still want to sue? First come the depositions. You wait for 6 months to get the first one into the schedule of the lawyers, and at the last minute, the one of the parties has to reschedule. They can do this several times before the judge threatens sanctions. The first three years have passed.

The builder can counter sue you for Slander. Your only defense is the truth, but it will cost you $30,000 to defend yourself. Before you think of suing the builder, get a good umbrella policy that will defend you against a lawsuit filed by the builder.

How much does your lawyer charge per hour? Trust me, they charge you for every 5 minute phone call. $$$$$$$$ If they call you back at all.

You will have to pay for inspections, Engineer’s reports and expert testimony. What’s obvious to you will have to be documented at least twice. $$$$$$$$

Let’s say that your million dollar house is worth $1.5 million at the end of 5 years. The builder can offer to buy your house back for the purchase price and flip it and make a half a million in a nanosecond. The court sees this offer as a fair proposal. You have spent $30,000 in attorney fees, not to mention the improvements in your house, and the builder will make a cool $500,000.

But you still want to hold out for “justice” because you are RIGHT. You want a trial. $$$$$$$ Let’s say you even win. The builder will appeal. The appeals process will take another 3-5 years. $$$$$$$

What if you or your attorney makes a mistake? Builder wins, you lose. If you say yes to one question in deposition and you mean no, you lose. If your attorney makes a mistake, misses a filing date, or anything….you lose.

Why do you want to put yourself through this?

And one final fact of life: A corporation serves one main purpose. It protects the builder’s money from you and your lawyers.

Walk away. Now. Even if you have to lose a deposit, it will be cheaper than the $$$$$ you will have to spend to win.

By the way, I will never buy a house with any room size less than 12 X 12. Anything less is a closet. I don’t care if your house is the best thing I have ever seen, I would not buy it with small rooms, especially for that price in that area.

How do I know this? I sued my builder ($2 million). He sued me back ($6 million). He never came back to finish the house or do any warranty work. I never got the screen porch I paid for, plus a lot of other things called out in the contract to be completed within 6 months when the weather got warmer. Eleven joists broke in the basement, the bricks spalled off the front of the house, the bathroom freezes in the winter (no insulation, none), the basement flooded in the first rain, I had a gas leak, then some carbon monoxide in the house, on and on. I spent $180,000 to repair what the builder should have done. The town building inspector was either totally incompetent or on the take. The House Inspector claims that he doesn’t do a destructive inspection and has no way to know that there wasn’t insulation behind the wall or that the joists didn’t meet building code. The builder says that I am a “_itch” who will never be satisfied.

What it boils down to is this. You have discovered the true character and personal integrity of the builder. Why do you still want to do business with him?

Message to all who think that the Attorney General or the Better Business Bureau or some other lame agency can help you…they can’t. They have no power. There may be laws in your state to protect you, but there is no enforcement in place. Think you are protected because you have a contract? A contract only works when you have two people who are honest and have intent to follow the contract.

WALK AWAY NOW.

NY Homeowner makes a convincing argument.

And if you walk away, consider using a good architect to design your next house, with appropriate room sizes, minimum wasted space, and YOU WRITE THE CONTRACT for the builder, not the other way around.

I cannot for the life of me understand why someone would build a $1,000,000 house and not spend $10,000 or $15,000 for an architect to design it especially for them, and write specifications that can be enforced. You won't get any less house, and you WILL get many less headaches.

I hear stories such as this over and over and over, and the one thing they have in common is the one thing they are all lacking...a GOOD architect.

I think I'd walk also.

HI,

YOU NEED A REAL ESTATE ATTORNEY..I THINK THE
ONE WE USED IN N.VA WAS LAST NAME MITCHELL.
IF YOU ARE IN FAIRFAX COUNTY THEY ARE VERY
TOUGH ON BUILDERS..MY BUILDER POURED THE WRONG
FOUNDATION ON MY HOUSE BUT WE WERE ABLE TO WORK
IT OUT BY POURING AN ADDITIONAL WALL 1' OUT AND
THEN REFRAIMING FROM THERE. WE ENDED UP WITH A
BIG FRONT PORCH THAT NO ONE ELSE HAD..THE
BUILDER SAID PLEASE DON'T TELL ANYONE OTHER
WISE THEY WOULD WANT A BIGGER PORCH TOO.
DO NOT ACCEPT THE HOUSE AS IS...CALL IN A PROFESSONAL INSPECTOR..SHOP AROUND .GET ONE
THAT HAS GOOD STANDING WITH THE COUNTY INSPECTORS..THEN YOU CAN MAKE YOUR CASE..TO
THE BUILDER WITH BACK UP PROOF..ALSO YOUR
LAWYER WILL PROBABLY WANT ONE ANY WAY TO BACK
UP YOUR CLAIM..DO NOT WAIT..DO THIS AS SOON
AS POSSIBLE SO NOTHING ELSE WILL HAVE TO BE
RIPPED OUT..LAWYER.INSPECTOR.BUILDER.WANT A BE HOMEOWNER...WORK IT OUT NOW..
THANKS.