New Construction - Builder overbudget and might not close in time

Acworth, GA · Member since 2017 · 51 posts · 22 votes

Hello BP Community,

Have a question about my personal home. We are building a new home and did a construction to perm loan. We signed the contract last April and were originally supposed to be in by last fall. Here we are a year later, and we're still waiting for them to finish. We have a fixed-price contract, but the builder is saying that they are nearly $250,000 over budget (Contract price is $781,000). Additionally, we have gone past the 1-year mark for our construction loan. The mortgage company gave us a 3-month extension, but we are concerned that we still won't be able to get the CO in time for that deadline. If we don't make the deadline, they will give us another extension, but the rate lock will not be honored (we have 3.5% now). So, that means we will jump up at least 2% on the rate. If anyone here could give me some advice, I would be most appreciative! The major reasons for the delay are money related. The builder is doing several homes and we are confident he used the money from the draws to pay for other projects, so then, when the money was gone, he had to wait for other funds before resuming work again. They are suggesting that they're going to be asking me to come up with the additional $250k at some point in the near future. I'm happy to share more details if need be. Thank you in advance!

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Mike Wood

Developer · New Orleans, LA · Member since 2015 · 1k+ posts · 898 votes

@Duane Gunkler The fact that the framers are still owned money on your project is very, very, very bad. That would have been one of the first subs to get paid, and they have not. If they have not been paid, I bet most other have not. If this was me, I would hire an experienced lawyer in real estate and construction matters (make calls, talk to them and find one that knows what your taking about) and then fire the builder (unless your lawyer advises you otherwise). Next, I would reach out to each sub (that you can recall being on the project) and find out what's owned. Some of your subs will have to file for permits, so you can find them with the city (typically plumbers, electricians, hvac), but other you have to track down (foundation, framers, drywall, insulation, painters, roofers, exterior siding). Run a title report as mentioned by others. Hopefully the subs are not owned that much, but it could be quite a alot. Tally that up and figure out if you can pay for that in addition to finishing the house costs. Dont pay any subs yourself without a lien waiver.

Sorry this has happened to you. As @Jay Hinrichs mentioned, the value of the house in the last 16 months has gone up, so maybe you will be whole at the end. But I would not waste one more day with this builder. Lawyer up and fire him. I also agree with other, you wont get a dime from him. I would report him to the state contractors board, but I am not sure I would waste money suing him, as he likely has nothing at the end of the day, unless your lawyer thinks he can go after the builder in his personal name, not just his company.

Understand that firing him will mean delays and extra costs. While I would expect the major subs to stay with the jobs (electricians, plumbers, HVAC) most of the smaller subs will get replaced by your new builder. I would also expect that any new builder would only take on the project as a T&M project, not fixed price. They wont be able to get a good handle on whats done and still remaining, so the best I would expect is an estimate of total costs to finish.

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Chris MasonPro Member
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Lender · CA · Member since 2015 · 9k+ posts · 10k+ votes
4y
You-know-what rolls down hill. 2021 was full of builders notifying homebuyers of a choice: a) pay a new higher price, b) back out and don't buy our house, we'll just find someone else to sell it to, for at that new higher price. In both cases, basically all new builds were closing late, essentially no matter what. "Supply chain" bla bla bla.

I don't think misallocation of funds towards other project is necessary to explain the delay - if those other projects didn't have fixed-price contracts, or didn't have those fixed-prices as set in stone, and/or the other buyers were more willing to come in with extra money to get it done, then your project would go right to the back burner, pending materials prices coming down ("waiting game"). Meanwhile, materials prices have come down, but the labor shortage for folks in the trades is worse (depending on which numbers you want to trust), and general contractors run their businesses on debt, typically adjustable rate debt, so that 2% rate bump you are worried about -- they're already facing that.

There wasn't really a solution, just context. For the however many thousands of homebuyers of new homes in 2021 that got shafted, there was no solution for them. At some point in the future we may see class action lawsuits, who knows.
The developers building cookie cutter homes had the 'out' of selling the home to a different buyer, but in your case they can't do that, you presumably own the land, so you guys may be stuck in bed together to sort it out.
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Mike Wood
Developer · New Orleans, LA · Member since 2015 · 1k+ posts · 898 votes
4y
@Duane Gunkler I assume this is a custom home and you have a contract with the builder. If you have a contract, what does it say about defaults. Your bank likely have a construction inspector to verify that the draws are justified with the work completed. Is that the case? The interest rate on your perm loan is likely to be the real issue here. How far alone are you, like what is done in the house. You can get alot done in 3 months, but you would have to pretty far along to get it done (likely drywall finished at least, with exterior finishes installed).
Without more details, its hard to say what your options are. I dont care where your build is, in 16 months, almost anything could be built. The fact that you stated you have paid him draws means its not his house, its yours and he can not sell to another buyer. He is dragging his feet cause current costs have skyrocketed and he wants more to finish. I would suspect its time to think about firing him and finishing it with another contractor. But that depends on how bad you are on your draws and how much is done. Hard to say without more information.
I would consult an attorney. What options do you have to finish the house yourself? Have you discussed a default of the contractor with the bank?
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Jay HinrichsBusiness Member
Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
4y
Quote from @Chris Mason:

You-know-what rolls down hill. 2021 was full of builders notifying homebuyers of a choice: a) pay a new higher price, b) back out and don't buy our house, we'll just find someone else to sell it to, for at that new higher price. In both cases, basically all new builds were closing late, essentially no matter what. "Supply chain" bla bla bla.

I don't think misallocation of funds towards other project is necessary to explain the delay - if those other projects didn't have fixed-price contracts, or didn't have those fixed-prices as set in stone, and/or the other buyers were more willing to come in with extra money to get it done, then your project would go right to the back burner, pending materials prices coming down ("waiting game"). Meanwhile, materials prices have come down, but the labor shortage for folks in the trades is worse (depending on which numbers you want to trust), and general contractors run their businesses on debt, typically adjustable rate debt, so that 2% rate bump you are worried about -- they're already facing that.

There wasn't really a solution, just context. For the however many thousands of homebuyers of new homes in 2021 that got shafted, there was no solution for them. At some point in the future we may see class action lawsuits, who knows.
The developers building cookie cutter homes had the 'out' of selling the home to a different buyer, but in your case they can't do that, you presumably own the land, so you guys may be stuck in bed together to sort it out.

sounds like the construction loan is in the land owners name. and it sounds like the bank or whoever was monitoring construction draws was asleep at the switch if funds were diverted.. ( it happens to all of us) but in new builds we always have 3rd party .. on our little rehab deals with 10 to 30k its not that big of deal if the builder nips us for 5k or something like that.
prices on materials are softening but have not fallen like they rose by any means I am still paying huge money for lumber.
if the builder does not have the 250k to finish what are you going to do ?
this is how i got into building in the first place.. I funded a 14 lot development were I signed on the construction loans the builder did what he did to you he did it to me and I ended up having to pay for some subs even though my bank advanced on those items. It was then I said well **** if I am taking monetary risk I am going to learn to build LOL . And of course that builder went TU
Just like this builder if they dont have money your probably not going to collect from them very common. but the damage is done.. My lender at the time worked it out for me.. It was my local community bank and even though it was 2009 when things were crummy they hung in there and let me work out of it.
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Bruce WoodruffPro Member
Contractor/Investor/Consultant · San Diego / Phoenix · Member since 2021 · 12k+ posts · 15k+ votes
4y
@Duane Gunkler 1) Did your builder issue you a Change Order every time they went 'over budget' ? Did you sign these COs? 2) What does your Contract say about him running long on the schedule?
With a 'Fixed Price' Contract, you are only obligated to pay the amount on the bottom line where you both signed.......unless there are Change Orders that list what is being done as an extra, how much it is and the new total. Just because he needs more money does not mean he can legally receive it from you. Like I said, unless he has a signed CO. That's pretty black and white.
How do you feel about the additional money? Was it your fault or his fault that it was needed and spent? If you feel you have some culpability in the matter, then maybe you need to sit down and have a chat about this. Otherwise he needs to finish up and move along. Using money from one project to finish another is common, but it may be illegal depending on the state.
Another issue is this: Do you have signed releases from every sub-contractor that has completed work on the job? Like concrete, fire sprinklers or roof? Those are usually finished early on....? If you do not have releases in hand from these subs, your GC may not be paying them and using those draws from your job to pay them for other jobs.
For example, if concrete is done and the GC cannot provide you with a release, you need to stop all work right there.
You have a lot on your plate here and I would get a handle on this before you go any further. It is not too early at all to contact a Construction or Real Estate Attorney, it might even be too late. So that would be my first advice. Whatever you do, do NOT give him any more money to try and move him along.
Long time builder so PM me if you need any more help....
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Jay HinrichsBusiness Member
Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
4y
Quote from @Bruce Woodruff:

@Duane Gunkler 1) Did your builder issue you a Change Order every time they went 'over budget' ? Did you sign these COs? 2) What does your Contract say about him running long on the schedule?
With a 'Fixed Price' Contract, you are only obligated to pay the amount on the bottom line where you both signed.......unless there are Change Orders that list what is being done as an extra, how much it is and the new total. Just because he needs more money does not mean he can legally receive it from you. Like I said, unless he has a signed CO. That's pretty black and white.
How do you feel about the additional money? Was it your fault or his fault that it was needed and spent? If you feel you have some culpability in the matter, then maybe you need to sit down and have a chat about this. Otherwise he needs to finish up and move along. Using money from one project to finish another is common, but it may be illegal depending on the state.
Another issue is this: Do you have signed releases from every sub-contractor that has completed work on the job? Like concrete, fire sprinklers or roof? Those are usually finished early on....? If you do not have releases in hand from these subs, your GC may not be paying them and using those draws from your job to pay them for other jobs.
For example, if concrete is done and the GC cannot provide you with a release, you need to stop all work right there.
You have a lot on your plate here and I would get a handle on this before you go any further. It is not too early at all to contact a Construction or Real Estate Attorney, it might even be too late. So that would be my first advice. Whatever you do, do NOT give him any more money to try and move him along.
Long time builder so PM me if you need any more help....
I bet dollars to donuts thats exactly what has happened my bank will send an inspector and will require lien releases for the last draw when you go for the next one if you dont have those project stops.

(Another issue is this: Do you have signed releases from every sub-contractor that has completed work on the job? Like concrete, fire sprinklers or roof? Those are usually finished early on....? If you do not have releases in hand from these subs, your GC may not be paying them and using those draws from your job to pay them for other jobs)

Another issue is this: Do you have signed releases from every sub-contractor that has completed work on the job? Like concrete, fire sprinklers or roof? Those are usually finished early on....? If you do not have releases in hand from these subs, your GC may not be paying them and using those draws from your job to pay them for other jobs
Podcast Guest on Show #222
JLH Capital Partners51 Review
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Duane GunklerPro Member
OP
Acworth, GA · Member since 2017 · 51 posts · 22 votes
4y
Quote from @Chris Mason:

You-know-what rolls down hill. 2021 was full of builders notifying homebuyers of a choice: a) pay a new higher price, b) back out and don't buy our house, we'll just find someone else to sell it to, for at that new higher price. In both cases, basically all new builds were closing late, essentially no matter what. "Supply chain" bla bla bla.

I don't think misallocation of funds towards other project is necessary to explain the delay - if those other projects didn't have fixed-price contracts, or didn't have those fixed-prices as set in stone, and/or the other buyers were more willing to come in with extra money to get it done, then your project would go right to the back burner, pending materials prices coming down ("waiting game"). Meanwhile, materials prices have come down, but the labor shortage for folks in the trades is worse (depending on which numbers you want to trust), and general contractors run their businesses on debt, typically adjustable rate debt, so that 2% rate bump you are worried about -- they're already facing that.

There wasn't really a solution, just context. For the however many thousands of homebuyers of new homes in 2021 that got shafted, there was no solution for them. At some point in the future we may see class action lawsuits, who knows.
The developers building cookie cutter homes had the 'out' of selling the home to a different buyer, but in your case they can't do that, you presumably own the land, so you guys may be stuck in bed together to sort it out.

This was a custom home and we have a construction loan, so we own the land they are building on, so I'm not concerned with them trying to put us in that position, but I know there were a lot of people in those shoes with the cookie cutter homes.
I appreciate the context and input. Thank you!
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Duane GunklerPro Member
OP
Acworth, GA · Member since 2017 · 51 posts · 22 votes
4y
Quote from @Mike Wood:

@Duane Gunkler I assume this is a custom home and you have a contract with the builder. If you have a contract, what does it say about defaults. Your bank likely have a construction inspector to verify that the draws are justified with the work completed. Is that the case? The interest rate on your perm loan is likely to be the real issue here. How far alone are you, like what is done in the house. You can get alot done in 3 months, but you would have to pretty far along to get it done (likely drywall finished at least, with exterior finishes installed).
Without more details, its hard to say what your options are. I dont care where your build is, in 16 months, almost anything could be built. The fact that you stated you have paid him draws means its not his house, its yours and he can not sell to another buyer. He is dragging his feet cause current costs have skyrocketed and he wants more to finish. I would suspect its time to think about firing him and finishing it with another contractor. But that depends on how bad you are on your draws and how much is done. Hard to say without more information.
I would consult an attorney. What options do you have to finish the house yourself? Have you discussed a default of the contractor with the bank?

You are correct. It is a custom home and our contract is with a builder. The bank has been having inspections done prior to the draws, but there was plenty of things that have been done. We are past drywall. Most of the bathroom tile has been installed (we are still waiting on our Main Bath tile - coming next week). The dragging of his feet has mostly been to him running out of money and having to wait for other draws/projects to complete so that he can then move forward on ours. I have strongly considered firing him and finishing with someone else, but I don't know the legal ramifications of that. There is still roughly $139K left to be drawn from the bank. I think we are going to have to contact an attorney because this just doesn't look like it's going to end well.
Thank you for your input on the matter!
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Duane GunklerPro Member
OP
Acworth, GA · Member since 2017 · 51 posts · 22 votes
4y
Quote from @Jay Hinrichs:

sounds like the construction loan is in the land owners name. and it sounds like the bank or whoever was monitoring construction draws was asleep at the switch if funds were diverted.. ( it happens to all of us) but in new builds we always have 3rd party .. on our little rehab deals with 10 to 30k its not that big of deal if the builder nips us for 5k or something like that.
prices on materials are softening but have not fallen like they rose by any means I am still paying huge money for lumber.
if the builder does not have the 250k to finish what are you going to do ?
this is how i got into building in the first place.. I funded a 14 lot development were I signed on the construction loans the builder did what he did to you he did it to me and I ended up having to pay for some subs even though my bank advanced on those items. It was then I said well **** if I am taking monetary risk I am going to learn to build LOL . And of course that builder went TU
Just like this builder if they dont have money your probably not going to collect from them very common. but the damage is done.. My lender at the time worked it out for me.. It was my local community bank and even though it was 2009 when things were crummy they hung in there and let me work out of it.

Yes, the loan is in our name and we own the land. The lender has been helping us as much as they can, but there is only so much they can do. What I've started doing is buying the materials myself (like cabinets, tile, flooring, pool, etc.) and then the bank was giving ME the draw instead of the builder. That way, I know the money went to the supplier and the materials/work. I have now paid for pretty much everything I'm able to ahead of time. Everything else that needs done will be billed after the fact, like plumbing finishes, driveway and sidewalk pour, retaining wall, etc. So, my guess is that they're going to ask me for the money to do those things, and I'm going to be in a tough spot at that point. I don't yet know what I'm going to do.
Thank you so much for your input!
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Duane GunklerPro Member
OP
Acworth, GA · Member since 2017 · 51 posts · 22 votes
4y
Quote from @Bruce Woodruff:

@Duane Gunkler 1) Did your builder issue you a Change Order every time they went 'over budget' ? Did you sign these COs? 2) What does your Contract say about him running long on the schedule?
With a 'Fixed Price' Contract, you are only obligated to pay the amount on the bottom line where you both signed.......unless there are Change Orders that list what is being done as an extra, how much it is and the new total. Just because he needs more money does not mean he can legally receive it from you. Like I said, unless he has a signed CO. That's pretty black and white.
How do you feel about the additional money? Was it your fault or his fault that it was needed and spent? If you feel you have some culpability in the matter, then maybe you need to sit down and have a chat about this. Otherwise he needs to finish up and move along. Using money from one project to finish another is common, but it may be illegal depending on the state.
Another issue is this: Do you have signed releases from every sub-contractor that has completed work on the job? Like concrete, fire sprinklers or roof? Those are usually finished early on....? If you do not have releases in hand from these subs, your GC may not be paying them and using those draws from your job to pay them for other jobs.
For example, if concrete is done and the GC cannot provide you with a release, you need to stop all work right there.
You have a lot on your plate here and I would get a handle on this before you go any further. It is not too early at all to contact a Construction or Real Estate Attorney, it might even be too late. So that would be my first advice. Whatever you do, do NOT give him any more money to try and move him along.
Long time builder so PM me if you need any more help....

No change orders for any of the items that they went over budget on. There have been a couple things that we did know we were going over on, like the carpet padding and carpet for example, so we paid the extra $5K or whatever it was. We have also spent several thousand putting in a central vacuum, wiring the house for internet, etc. They only gave an absurd $3,000 for appliances, so we obviously went well over that. We have already put in about $50K of our own, above what the contracted price was. I am willing to come out of pocket some to help alleviate the rising prices of materials, but I'm not going to put in 32% above the fixed-price contract we signed. A large portion of that is them underpricing it to begin with, and mismanaging some of the steps along the way. 32% over is gross negligence on their part.
As for the contractors and liens, I am worried. I know that he has not been doing a good job paying many of them and I am very concerned about them coming back and putting a lien on the property. The contractor that framed the house is owed $67K still (that's between our house and another one they did for the builder).
A major reason for me posting this in this forum was in hopes that someone on here would have a good recommendation for an attorney or for someone with the legal background would connect with me through here.
Thanks so much for the input!
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Jay HinrichsBusiness Member
Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
4y
Quote from @Duane Gunkler:

Quote from @Bruce Woodruff:

@Duane Gunkler 1) Did your builder issue you a Change Order every time they went 'over budget' ? Did you sign these COs? 2) What does your Contract say about him running long on the schedule?
With a 'Fixed Price' Contract, you are only obligated to pay the amount on the bottom line where you both signed.......unless there are Change Orders that list what is being done as an extra, how much it is and the new total. Just because he needs more money does not mean he can legally receive it from you. Like I said, unless he has a signed CO. That's pretty black and white.
How do you feel about the additional money? Was it your fault or his fault that it was needed and spent? If you feel you have some culpability in the matter, then maybe you need to sit down and have a chat about this. Otherwise he needs to finish up and move along. Using money from one project to finish another is common, but it may be illegal depending on the state.
Another issue is this: Do you have signed releases from every sub-contractor that has completed work on the job? Like concrete, fire sprinklers or roof? Those are usually finished early on....? If you do not have releases in hand from these subs, your GC may not be paying them and using those draws from your job to pay them for other jobs.
For example, if concrete is done and the GC cannot provide you with a release, you need to stop all work right there.
You have a lot on your plate here and I would get a handle on this before you go any further. It is not too early at all to contact a Construction or Real Estate Attorney, it might even be too late. So that would be my first advice. Whatever you do, do NOT give him any more money to try and move him along.
Long time builder so PM me if you need any more help....

No change orders for any of the items that they went over budget on. There have been a couple things that we did know we were going over on, like the carpet padding and carpet for example, so we paid the extra $5K or whatever it was. We have also spent several thousand putting in a central vacuum, wiring the house for internet, etc. They only gave an absurd $3,000 for appliances, so we obviously went well over that. We have already put in about $50K of our own, above what the contracted price was. I am willing to come out of pocket some to help alleviate the rising prices of materials, but I'm not going to put in 32% above the fixed-price contract we signed. A large portion of that is them underpricing it to begin with, and mismanaging some of the steps along the way. 32% over is gross negligence on their part.
As for the contractors and liens, I am worried. I know that he has not been doing a good job paying many of them and I am very concerned about them coming back and putting a lien on the property. The contractor that framed the house is owed $67K still (that's between our house and another one they did for the builder).
A major reason for me posting this in this forum was in hopes that someone on here would have a good recommendation for an attorney or for someone with the legal background would connect with me through here.
Thanks so much for the input!

normally I am one that opines to get a lawyer as a last resort. But in this case your talking 250k or more.
here is the steps i would personally take.
1. first thing order a title report and see if in fact their are any liens you may not be aware of.
2. understand your lien laws. in Oregon properly file liens jump in front of the bank so the bank would pay them then come after you for the loss.
3. I would look locally for an attorney who specializes in this area of the law. Normally you get one free meeting then if your comfortable with that person engage them. They will probably want a retainer.
4. I would be talking to my bank as well and ask them what their draw process was.. did they give you the draws and you pay the contractor or did they pay the contractor directly.
5. See what the finished value is up until 90 days ago the market had risen such that over runs could be absorbed with increase in values.. see what your value is and if you have equity once you finish the house U may need to just sell it ??? If you have all your cash tied up in it and want some liquidity back.
6. If the builder has these big commingling things going unless they pull a rabit out of the hat probably is not going to have the funds to make you whole so you might as well deal with it now as oppossed to later as it wont get better. So just thinking Hey i have a contract and you must pay this.. thats all well and good if they have deep pockets but if they dont it wont matter they simply dont have the funds.
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JLH Capital Partners51 Review
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Bruce WoodruffPro Member
Contractor/Investor/Consultant · San Diego / Phoenix · Member since 2021 · 12k+ posts · 15k+ votes
4y

Good advice as usual from @Jay Hinrichs
I'm sure you are already aware of this Duane, but this has gone too far already. He has no COs so you are not obligated to pay and no judge in the world would do anything but laugh this guy out of court - or throw him in hail perhaps...
I would be on the phone tomorrow with an attorney, and DO NOT pay the builder anything else unless the attorney tells you to. At this point you are not going to get back money you've already spent.
His next likely step will be 'I'll promise to finish if you just pay more so I can keep going'......
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Mike Wood
Developer · New Orleans, LA · Member since 2015 · 1k+ posts · 898 votes
4y
@Duane Gunkler The fact that the framers are still owned money on your project is very, very, very bad. That would have been one of the first subs to get paid, and they have not.  If they have not been paid, I bet most other have not. If this was me, I would hire an experienced lawyer in real estate and construction matters (make calls, talk to them and find one that knows what your taking about) and then fire the builder (unless your lawyer advises you otherwise). Next, I would reach out to each sub (that you can recall being on the project) and find out what's owned. Some of your subs will have to file for permits, so you can find them with the city (typically plumbers, electricians, hvac), but other you have to track down (foundation, framers, drywall, insulation, painters, roofers, exterior siding).  Run a title report as mentioned by others.  Hopefully the subs are not owned that much, but it could be quite a alot. Tally that up and figure out if you can pay for that in addition to finishing the house costs. Dont pay any subs yourself without a lien waiver.

Sorry this has happened to you. As @Jay Hinrichs mentioned, the value of the house in the last 16 months has gone up, so maybe you will be whole at the end. But I would not waste one more day with this builder.  Lawyer up and fire him. I also agree with other, you wont get a dime from him. I would report him to the state contractors board, but I am not sure I would waste money suing him, as he likely has nothing at the end of the day, unless your lawyer thinks he can go after the builder in his personal name, not just his company.
Understand that firing him will mean delays and extra costs. While I would expect the major subs to stay with the jobs (electricians, plumbers, HVAC) most of the smaller subs will get replaced by your new builder.  I would also expect that any new builder would only take on the project as a T&M project, not fixed price.  They wont be able to get a good handle on whats done and still remaining, so the best I would expect is an estimate of total costs to finish.
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Bruce WoodruffPro Member
Contractor/Investor/Consultant · San Diego / Phoenix · Member since 2021 · 12k+ posts · 15k+ votes
4y
Quote from @Mike Wood:

I also agree with other, you wont get a dime from him. I would report him to the state contractors board, but I am not sure I would waste money suing him, as he likely has nothing at the end of the day, unless your lawyer thinks he can go after the builder in his personal name, not just his company.
That's right, depending on how this 'builder' has his entity structured, you may indeed be able to go after him personally. Because he sounds so amateurish, he may not have any corporate veils, and you can go directly after his personal residence or other assets he may have. Most builders that operate like this have a whole slew of 'toys', like boats and RVs, that you could possibly get in a court battle.
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