Q In July, we signed a contract to buy a new condominium. The real estate broker handling the sale for the developer assured us that we would be able to go to settlement no later than the end of October. We obtained a mortgage and gave notice to our landlord that we would vacate our apartment by Oct. 29.
We have just been advised that settlement on our new unit will not take place this month. In fact, the unit may not be ready until early next year.
We have a loan commitment that expires Nov. 1 and our landlord has already rented our apartment. What can we do?
AUnfortunately, this has become a common problem. With the high demand for condominium units, developers have found that, despite their best efforts, they often are unable to deliver as promised.
Do you have anything in writing stating that you will be able to go to settlement by Oct. 31? Traditionally and legally, any representation or promise dealing with real estate must be in writing to be enforceable.
Read your sales contract carefully. I suspect that buried somewhere in the middle of that lengthy, legalistic document is language to the effect that settlement can be delayed up to one year for "acts of God, terrorism, labor strikes, force majeure, and anything else outside of the control of the developer."
Incidentally, the definition of force majeure is a "superior or irresistible force" or "an event or effect that can not be reasonably anticipated or controlled." Clearly, this is very broad and subject to many interpretations.
I also suspect that your contract contains language like this: "Unless contained in writing in this contract, the developer will not be responsible for any oral representations by anyone."
If you do not have anything in writing regarding the settlement date, were there any witnesses to the statements of the real estate agent? If you can prove that these statements were, in fact, made -- without any qualifications or limitations -- then you may be able to successfully file a lawsuit against the developer.
However, litigation is not only expensive but also time consuming. I suspect that if you sued today, the court would not be able to address your case for months. And by then, I hope, your condominium unit will be ready.
You have three problems to resolve. Let's look at them separately:
* Your landlord. You gave notice to your landlord that you will be vacating the property as of the end of the month. Ask your landlord if you can talk with the potential new tenants. Perhaps they may be able to postpone their move, which would allow you to stay in your apartment for a few more months. This may not work, but it certainly doesn't hurt to try.
If you decide on your own to stay in the apartment after your stated date of departure, you will be considered a trespasser, and your landlord can sue you for possession. Clearly, you do not want this to happen. And in some jurisdictions, such as the District, if you stay in your apartment after the day you have advised the landlord that you will vacate, you may be required to pay double rent to your landlord.
* Your lender. Did the condominium developer recommend this lender to you? Often, developers establish a relationship with one or two lenders, and in fact agree to credit you several thousand dollars if you use one of the suggested lenders. Why? Because lenders have to review the condominium documents, the title and other matters. If only one or two lenders are involved in the entire project, this will expedite the loan process and the developer will get the sales proceeds faster. If you go to a lender not recommended by the developer, there may be considerable delays.
If your lender was, in fact, recommended by the developer, then that lender should be aware of the situation and should be able to work with you. Fortunately, mortgage interest rates have remained steady, so right now this should not be a problem for you. However, I strongly suspect that right after the November presidential election, interest rates may start moving up.
You should discuss the matter immediately with your lender. Ask if you can extend your lock-in rate, and whether there would be a charge for this extension.
Alternatively, you may want to let the loan rate float. If you go this route, however, you should monitor mortgage interest rates very carefully. If rates appear to be moving up, that may be the time to re-lock your rate.
* Your developer. Go back to the real estate agent and explain your situation. Clearly, you will not be the only one affected by these delays. Ask what the developer plans to do. In the past, some developers have agreed to pick up the cost of alternative lodgings until settlement takes place. Some have agreed to pay the mortgage lender to maintain the locked-in rate.
If the developer agrees to any of these options, make sure that you put these commitments into a written agreement. It will be an addendum to your real estate contract and must be signed by both you and the seller.
On the other hand, if your developer does not cooperate, you really do not have many options. You can retain a lawyer who might be able to put pressure on the developer. Sometimes, a letter on a lawyer's stationery does work -- but not always.
Keep in mind that now, with the strong demand for condominiums and with prices continuing to increase, your developer likely would just as soon let you out of the deal so that the unit can be sold to someone else, possibly at a higher price.
That may be an option for your consideration. However, even if you are able to get out of this deal, there is no guarantee that you will be able to find and buy something else in time to meet your Oct. 31 deadline.
In the final analysis, as harsh as it may sound, you may have to pay for your own substitute lodgings. That may still be less expensive than filing a lawsuit.
For prospective purchasers, here's a tip: Get every representation made by the developer or its agents reduced to writing and signed by both seller and buyer. If there are floor plans, brochures or other descriptive documents telling about your condominium, make sure that they are incorporated into your sales contract.
If the agent refuses to put his oral statements in writing, this should be a big warning flag to you.
Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address.