Recovering a Down Payment on a House Nonrefundable Deposit Legal Rights AARP
Recovering a Down Payment on a House, Nonrefundable Deposit, Legal Rights – AARP
See also:
In September 2003, Mark and Ana Triviski signed an agreement to have Topsider Homes of Clemmons, N.C., build them a prefabricated retirement home in Florida. The Triviskis paid Topsider a nonrefundable payment of $58,693. The total cost of the home would be $167,686. But even before the first board had been delivered, Mark Triviski, then 56, was diagnosed with cancer. On May 12, 2005, doctors removed four inches of Mark's esophagus and 13 lymph nodes.
With Mark's future medical expenses uncertain, the Triviskis were understandably hesitant to spend hundreds of thousands of dollars more to complete the project.
One of my first questions to Topsider's attorney, Neale Johnson, was what the company had done with the Triviskis' deposit. Johnson told me that the company had spent the money on "preconstruction and design work" and there were "losses associated with materials they'd purchased." Per the contract, design costs wouldn't have been an appropriate expense. When I asked him to provide documentation of any material purchases, he refused.
In the end, the attorney fell back on the simple assertion that the agreement allowed Topsider to keep the money, so it would. His only suggested resolution was for the Triviskis to negotiate a new agreement to finish the house, requiring them to spend even more money.
Next:
Just because a company can do something doesn't mean it should. While it may have the right to keep the Triviskis' money, there is also nothing stopping it from having some sympathy for a customer living on Social Security disability payments. Yes, there is an agreement. But that agreement also allows for changes agreed upon by both parties. So why wouldn't Topsider just do the compassionate thing and return at least part of the deposit? That we may never know. Despite numerous emails, faxes and calls, no one other than the company's attorney ever responded to my inquiries.
1. Negotiate. You've got the most clout before you write the check. Demand language that deposits be used only to offset legitimate expenses rather than inflated or artificial "liquidated damages."
2. Consult. A few hundred dollars in quality legal advice is cheap insurance against a loss like the Triviskis suffered, and likely much less expensive than hiring an attorney to fight your case later.
3. Walk away. Big projects like building a home demand mutual trust among all the players. If you feel like you're being squeezed at the start, just imagine what it will be like when things get rocky. Cancel You are leaving AARP.org and going to the website of our trusted provider. The provider’s terms, conditions and policies apply. Please return to AARP.org to learn more about other benefits. Your email address is now confirmed. You'll start receiving the latest news, benefits, events, and programs related to AARP's mission to empower people to choose how they live as they age. You can also by updating your account at anytime. You will be asked to register or log in. Cancel Offer Details Disclosures
A Different Kind of Housing Crisis
What to do when circumstances change and you can' t buy or build that house
Sometimes companies do nothing illegal, nothing even out of the norm, and it still stinks.See also:
In September 2003, Mark and Ana Triviski signed an agreement to have Topsider Homes of Clemmons, N.C., build them a prefabricated retirement home in Florida. The Triviskis paid Topsider a nonrefundable payment of $58,693. The total cost of the home would be $167,686. But even before the first board had been delivered, Mark Triviski, then 56, was diagnosed with cancer. On May 12, 2005, doctors removed four inches of Mark's esophagus and 13 lymph nodes.
With Mark's future medical expenses uncertain, the Triviskis were understandably hesitant to spend hundreds of thousands of dollars more to complete the project.
Consumers Beware
In 2008, the Triviskis reluctantly decided that their Florida retirement home would have to remain a dream. They informed Topsider and, citing Mark's health, requested a refund of at least part of the deposit. Topsider Homes pointed to the "nonrefundable" language in the agreement and refused their request.One of my first questions to Topsider's attorney, Neale Johnson, was what the company had done with the Triviskis' deposit. Johnson told me that the company had spent the money on "preconstruction and design work" and there were "losses associated with materials they'd purchased." Per the contract, design costs wouldn't have been an appropriate expense. When I asked him to provide documentation of any material purchases, he refused.
In the end, the attorney fell back on the simple assertion that the agreement allowed Topsider to keep the money, so it would. His only suggested resolution was for the Triviskis to negotiate a new agreement to finish the house, requiring them to spend even more money.
Next:
Just because a company can do something doesn't mean it should. While it may have the right to keep the Triviskis' money, there is also nothing stopping it from having some sympathy for a customer living on Social Security disability payments. Yes, there is an agreement. But that agreement also allows for changes agreed upon by both parties. So why wouldn't Topsider just do the compassionate thing and return at least part of the deposit? That we may never know. Despite numerous emails, faxes and calls, no one other than the company's attorney ever responded to my inquiries.
Protecting Your Right to Rewind
While several courts around the country have ruled that nonrefundable deposits must sometimes be returned if no expenses have actually been incurred, you shouldn't hang your hat on a judicial solution. Rather, here's what you should do:1. Negotiate. You've got the most clout before you write the check. Demand language that deposits be used only to offset legitimate expenses rather than inflated or artificial "liquidated damages."
2. Consult. A few hundred dollars in quality legal advice is cheap insurance against a loss like the Triviskis suffered, and likely much less expensive than hiring an attorney to fight your case later.
3. Walk away. Big projects like building a home demand mutual trust among all the players. If you feel like you're being squeezed at the start, just imagine what it will be like when things get rocky. Cancel You are leaving AARP.org and going to the website of our trusted provider. The provider’s terms, conditions and policies apply. Please return to AARP.org to learn more about other benefits. Your email address is now confirmed. You'll start receiving the latest news, benefits, events, and programs related to AARP's mission to empower people to choose how they live as they age. You can also by updating your account at anytime. You will be asked to register or log in. Cancel Offer Details Disclosures