Went into contract on a new townhouse and I want out - read why

mkiv808July 11, 2009

So I went into contract on a new townhouse. It's being built by a relatively upscale builder in the NY tri-state area that I will not mention as of yet.

The unit is at the far end of the complex at the secondary entrance. It's about 250' from a major road and about 80' from the back of a light industrial building. I knew these limitations going into it and compromised. They are building a berm with a line of privacy pines to buffer the view. That I am fine with.

The other night, I went to go drive by my unit around 11PM. That's when I discovered something that would've been a mystery to me had I not been there at that time. What appeared to be a pretty low-key cafe with a bar in the vicinity is in reality a loud, obnoxious biker bar. Booming music was clearly audible from where my townhouse will be. That and Harleys and obnoxious loud drunks.

The bar is about 200-300' from the Unit, down a hill.

I'm bothered for a few reasons: 1. That a supposed "upscale" builder with a good reputation would not do due diligence before deciding to build in that area on their very large site, and 2. that I went through this whole process being told that it would be a good spot with low noise and privacy and the sales rep never divulged that a noisy bar was within ear shot.

I understand I am partially at fault for not asking the question, but I you'd think that with another apartment building literally 50' from the "cafe" that it would be a non-issue.

A friend of mine knows someone that just moved into that apartment, which is fairly new, and I had her ask how bad the noise it is. She described it as an "annoyingly loud biker bar".

This is hugely disappointing.

I already put 5% down and am in contract.

Do I have ANY recourse, or am I stuck? Should I get a lawyer? Does anyone have experience with builders or been employed by one?

Heck, I would be happy just to switch units at this point, even if it means having my money tied up for a longer time in order to get a unit being built later on.

It is NOT Toll Brothers, by the way, but a company of similar vein; just smaller and more regional.

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Well, the news is not good.
Why did you put 5% down already and it is still being built?
They asked for it?
You are going to loose that 5% if you don't buy it.
If you can't get a mortgage for some reason, you may get it back.
If it fails a home inspection, which it probably won't.
Read the contract that you signed.
What did it say?
The fault is all yours as to buying a property and not knowing a bar was close by.
The realtor isn't going to tell you the negitive aspects of a property, her job is to sell it.
Your the one who is going to live there.
Personally, I wouldn't go through with it, I would ask the builder to let you out of the contract, pay a penalty if you have to, you never know, since he is such a high class builder he might let you out of the contract.
If he doesn't let you out, you will be out your 5% down deposit.
Live and learn.
What an expensive lesson for you though.
Be nice and ask the builder to let you out of it, I'll keep my fingers crossed for you.

    Bookmark   July 12, 2009 at 12:48AM
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I would be happy just to have my money/reservation moved to another unit. But I know that's going to be very difficult.

    Bookmark   July 12, 2009 at 1:47AM
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Since you asked if you should get a lawyer, Im going to assume that you signed the contract in the builders office and gave them the escrow check? If thats the case, call a lawyer immediately. I would also call the builder, explain the situation and ask if you can be moved. They will be more willing to change your location then to give your money back totally. I wouldnt wait too long on this.

    Bookmark   July 12, 2009 at 7:08AM
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Another example of why using the listing agent as "your agent" is usually NOT a grand idea.
The builder does not have to disclose this, as it is new construction. A model home is another matter.
I think your best bet is to ask to be moved into another unit.
BTW... Google maps has a feature that will list most businesses w/in a certain distance from any point. I encourage all of my clients to use it... and then zoom out and around and see if you see anything like a dump, marsh, runways, hiways...
Good luck

    Bookmark   July 12, 2009 at 7:39AM
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I have used Google Maps, even Bing birds-eye view, looked at the area extensively, etc. I knew a bar was there. It was not close, pretty far actually, but it's loud. I had no way of knowing that. Most bars make a little noise, but this one seems to be something else. Seriously, if you had seen this little cafe yourselves, you'd think nothing of it. It's too bad.

    Bookmark   July 12, 2009 at 10:40AM
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It's funny, looking at their marketing materials... it says how extensively they research and survey areas, landscaping, etc. before building. That they only pick the best spots. That in itself seems like false advertising on that spot!

That is the only out I can use, since I did sign a contract and whatnot. That they did not uphold to their supposed standards with this spot and I demand better.

    Bookmark   July 12, 2009 at 10:46AM
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I would immediately contact an attorney to rep you when asking to be moved, better to know your rights before you talk to the seller.
Also if the bar is that loud, does the city have an ordinance regarding noise, don't most cities have this?

    Bookmark   July 12, 2009 at 10:58AM
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Yes, there should be an ordinance. I talked to the mayor, in fact, he's very responsive via email. He said that place is "usually pretty quiet" and that he would check it out. That doesn't exactly match the resident that lives near the bar's take of it being "annoyingly loud".

I should look up the noise ordinance for that unit. Hopefully it's not outdated, since there weren't residences at all there when the bar was built in 1950.

    Bookmark   July 12, 2009 at 11:06AM
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Emailed lawyer. I needed him to close anyway, so we'll see what he says.

    Bookmark   July 12, 2009 at 11:40AM
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Got reply back from mayor, he says noise ordinance is quiet hours between 8PM-7AM.

    Bookmark   July 12, 2009 at 11:47AM
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Obviously the noise ordinance is not being enforced. I wouldn't count on that happening unless the new development's owners use concerted pressure. This could be like trying to rid your neighborhood of drug dealers -- dangerous.

    Bookmark   July 12, 2009 at 12:12PM
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I don't see how it could be dangerous, but I do know that the cops are supposed to enforce noise ordinances. Maybe no one has bothered to complain? I find it hard to believe but it's possible.

    Bookmark   July 12, 2009 at 2:13PM
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"It's funny, looking at their marketing materials... it says how extensively they research and survey areas, landscaping, etc. before building. That they only pick the best spots. That in itself seems like false advertising on that spot!"

That is called 'puffery' and is not part of your contract.

Due diligence is your job, not the builders.

    Bookmark   July 12, 2009 at 3:04PM
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Believe me, I work in marketing. I know what BS is. Still, this is a reputable builder.

    Bookmark   July 12, 2009 at 3:15PM
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1) Since you are in NY, bikers won't be much of an issue in the winter. Even if the same folks drive their cars to the bar in the winter, they will be indoors and not on the deck. So there probably won't be much noise.

2) Often bars/restaurants go out of business after a year or two. This place might be gone before you know it. Do your research. If it has opened in the past year or two, it is more likely that it won't last.

I think you should discuss with the lawyer before you approach the builder about switching or backing out. This is VERY important.

    Bookmark   July 12, 2009 at 5:38PM
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Actually in CT, but yes, that's true. I don't even think there's a deck, they just tended to stand near doorways and be loud drunks.

On it closing, who knows. It could be sold for residential property at some point. I do know it's been there since the 50's and been owned by the same person. I think the guy that owns it is like 75 now.

    Bookmark   July 12, 2009 at 6:27PM
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You're going to try to back out of a contract on hear-say? You might try actually going to the "cafe" "biker bar" yourself some night. You might actually end up laughing over how someone else described it. Honestly, I think you just have buyers remorse.

    Bookmark   July 12, 2009 at 11:51PM
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Well, I've driven by there 3 times this weekend. It's noisy. I made the conclusion myself Friday night after going by my unit. I heard the noise for myself. Bikes and loud music. Loud customers.

    Bookmark   July 12, 2009 at 11:58PM
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In terms of your rights, the fact that a noisy bar is close by doesn't change the contact you signed.

If you want to get out of the contract, you need to get a lawyer to advise you on the cheapest way to do it. Your contract almost certainly has a surrender fee spelled out in it if you back out.

    Bookmark   July 13, 2009 at 9:36AM
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"Believe me, I work in marketing. I know what BS is. Still, this is a reputable builder."

Based on?

Puffery is still puffery.

If it is not written in the contract (as in 'based on our analysis of the surrounding area, A, B, & C are true') it is just puffery.

Count yourself lucky if they allow you to change lots without expense.

    Bookmark   July 13, 2009 at 10:00AM
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So, could it hurt at this point just voicing my concerns to the sales rep from the builder? Not demanding anything, not insinuating I want out of the contract... just explaining my concerns?

    Bookmark   July 14, 2009 at 11:03AM
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I think talking to the builder's sales rep would not be a good idea until you discuss with the lawyer. (Unless you don't plan on discussing with a lawyer.) Because you might say something to the builder's rep that the lawyer doesn't want you to say, and you can't "unsay it".

Also read your contract cover to cover and make sure you bring it to the laywer to read as well.

The lawyer might give you talking points to take to the builder's rep, or maybe the lawyer will write a letter on your behalf. I guess your plan is to move to a different unit...or is your plan to get out of the contract. Either way, talk to a lawyer NOW if you want a lawyer and if you don't want a lawywer, then just go talk to the builder's rep now.

However, it is not a good idea to talk to the builder's rep now and then decide to get a lawyer, because you might do damange now in the discussion and can't undo it later.

Whatever you do, do it this week.

    Bookmark   July 14, 2009 at 1:08PM
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Well, I would be extremely careful what I say. The lawyer I contacted has yet to get back to me with his thoughts.

I would not mention getting out of the contract, nor would I mention moving units.

I would simply express my concern: there is a noisy bar nearby. And get her reaction. I would say very limited things from my end. I just want to gauge her reaction; see what she says. I would not react to her response either.

Perhaps she will sympathize, perhaps she will offer some sort of solution or insight that I am not aware of. Maybe the bar has been sold and is readying for residential development? Unlikely, but how would I know that? It's more likely she won't offer up anything. I would like to hear what she says before stirring the pot, so to speak.

So, in other words I'm looking for a very one-sided conversation. Restraint is the name of the game.

ALso, I've looked over my contract and am pretty certain by their verbiage that I would lose all of my deposit.

    Bookmark   July 14, 2009 at 1:33PM
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I would not suggest what you want to do without first talking to the lawyer. My bet is the sales person is going to play dumb (or not know) about the bar's night activities. And besides, you will have "played your hand" just by bringing up the subject.

IMO, you are better off stopping at the bar and ordering a drink or a soda and just checking the place out and not say anything about the condo or what your motives are for visiting the bar.

Also note the bar is probably pretty calm on weekdays. It sounds like you drove by on a weekend.

You can go early before it gets too crowded.

Maybe find another lawyer that you can consult with pretty quickly.Set up an appt and bring your contract. Did you just leave a VM for the first lawyer?

    Bookmark   July 14, 2009 at 2:55PM
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It can be dangerous because rough elements of society don't take kindly to being restricted. If a group of new residents protests the noisy bar, its patrons won't be happy with them (you) and may retaliate.

    Bookmark   July 14, 2009 at 3:08PM
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mkiv808-"Well, I would be extremely careful what I say. The lawyer I contacted has yet to get back to me with his thoughts."

Have you ever heard the saying 'Fools rush in where angels fear to tread'? This idiom is used where people who are inexperienced or lack knowledge do something that more informed people would avoid.

Sweet_tea and chisue are both right. Talking to the builder BEFORE speaking to your lawyer is a recipe for disaster. It is called 'tipping your hand' to the dealer. If your going to be that careful then why not talk to your lawyer first? Is it worth losing your deposit because you think the people who sold you a unit next to a biker bar are going to be fair? I'd be asking my attorney to pick over the contract with a fine tooth comb to be sure I don't miss a thing. If he speaks to them he will have a much better chance of getting you what you want. He might even be able to get them to say something that would incriminate themselves to your benefit (returned dep, better unit, etc).

I've lived near bars and they are a major public nuisance. Especially (in your words) "a loud, obnoxious biker bar". You said the owner has owned it for 50+ years. Does he have a son or relative that might take over the business when he retires?

Noise ordinances are broken all the time. Bar owners make tons of money on alcohol. They could care less about fines. In fact, some of them consider fines to be part of the cost of doing business. They are also known to be generous to public officials!

Plus, plenty of bikers carry guns. Even if the roar of their hogs/bikes leaving the bar at 2 a.m. doesn't bother you, a passed out patron on your back patio might (who couldn't drive home) . Or worse, a stray bullet from a fight....

State budgets are suffering all over the country. Many cities are having to cut back on police and fire services. Will your city be one of those who will only be able to support one officer per car/shift?

Has the builder sold all of the units yet? If enough prospective buyers get wind of the biker bar, then the other units might not sell that fast (or at all). Who will pay the extra HOA fees then? What if the builder goes out of business? Many builders are folding because their bank will not longer give them credit. You've probably seen those developments with many available lots but only a few completed houses. Good luck getting your deposit back from a bankrupt builder. My banker has said as much. He says he has 5 developers that he can't loan a dime to because of the credit crunch. The real estate the bank has cannot be sold so it is being rented until the market 'improves' (?). What kind of people might rent these townhouses? Are they likely to take as good care of the units as the owners will?

Much useful advice and food for thought has been offered. Many well-meaning readers will be curious to see if you take this "bull" (builder) by the horns yourself (or allow your lawyer to do his job)!

    Bookmark   July 15, 2009 at 10:37AM
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I'm going to wait to talk to the lawyer first. The bar isn't strictly a biker's bar, there's maybe 3-4 bikes there on the weekend. I don't want to make it seem like they are the stereotypical biker bar. Still not optimal. They're also pretty well isolated by a big hill. I can't see them from my unit at all. STILL, not optimal, they will be heard if they are loud enough.

As far as the builder, they're actually doing really well. Still selling units left and right, and with lots of people at their sales office lately. The real estate market here is not bad. I'm in a more affluent section of the state, where real estate is not completely dead. People are still jumping on deals.

All the units in my building sold out within a couple months. The builder is doing well, at least at our complex.

The town I'm in is not cutting back on cops too much and just invested in a huge new police headquarters. I have a few friends that have relatives on the force there. It's a pretty solid PD. Who knows what happens in the future, but lately I've still been seeing 8 cops for a DWI in that area. I think they've got plenty of staff.

    Bookmark   July 15, 2009 at 11:19PM
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Oh, what irony. After 59 years of business, the bar was sold *this week*. What crazy timing.

My current roommate heard from someone that works at her bank that the new owners want to make it into a classy place and not like the dump it was before. Not sure if they will be renovating and whatnot. Going to try to get more info.

    Bookmark   July 17, 2009 at 11:07AM
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Ah, lucky you! You probably don't even remember the good deed you did that has brought you good karma now! LOL

    Bookmark   July 17, 2009 at 12:13PM
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