ComplaintsforCook Residential

• Initial Complaint

  05/17/2022

  Complaint Type:

  Order Issues

  Status:

  Resolved

  More info

  On 3/23/22 my mother, ************************* and I, found the home we thought was perfect for us and my two daughters. We were shown a floorplan of a house that was already complete by our realtor, who also had her licensed under Cook Residential. At the time, we were told all the selections would be the same in the house we purchased. The day we viewed this home, my mother gave our realtor a $5000 check as the lot deposit for the home. We received the contract, viewed it, and signed. On 4/29/2022, we did a walkthrough of the frame of the home with our realtor, the builder's superintendent, and another company employee. My mother began questioning some things that were not covered in the contract, the selections. At that time, the employees begin to question why she was inquiring and quickly realized this part of the contract had been excluded (Exhibit I - Selections). We were basing our decision to purchase the home on the information originally provided. When it was determined this section of the contract was missing, they quickly sent it to our emails. However, upon viewing these documents, we saw the selections were completely different than what we'd viewed in the completed home. The builder, *******************, advised they could make "small changes", but we were to pay the cost of labor upfront, $1250. We were then told, we had two weeks to decide if this was feasible and to let them know. We were also told; they believed our deposit was secure and could be returned if we chose to not proceed. After four days, and constantly being told they wanted to sale this home for a higher price, but didn't change the price on us, they rescinded the 2-week timeframe and requested an immediate response. On 5/6/2022, we requested our deposit returned, as the selections exhibit was listed as part of the contract: however, was not included, nor signed. This meant ************ had no full binding contract. Unfortunately, as of today, 5/17/22, ************ still refuses to return the deposit.

  Business response

  05/27/2022

  The home ********************* Bluff ****** was being sold as a SPEC home ( all selections had already been made by our **** Specialist ) with NO OPTION for selections/changes to be made by the buyer. Due to it being a SPEC home sale the selection exhibit was not used as part of the contract. It was advised to them since very early on in the process that all selections for the home had been made and NO CHANGES would be allowed. Those selections are also covered in our standards exhibit. Finally, we went out of our way to allow the buyer to upgrade and keep them satisfied. The buyer did not want to pay for the upgrade. Everything done in this home was done in compliance with our contract with the buyer. 

  On 3/8 an inquiry came thru to our inside sales line. A conversation was had, and ****************** was provided information on some of the homes in the Arbor Bluff community. They were advised that the homes being built are spec homes and selections are as-is, no changes can be made. Also advised of the contract process including the requirement of a non-refundable construction deposit would be due upon signing of the contract. A **** *********** team member Alys, reached out to **************** & **************** and went to look at the properties. While visiting the Arbor Bluff community, the buyers agent contacted the community agent, and inquired about 2 different plans and lots. She provided agent with selections for both homes and they were reviewed during the visit on 3/22 when **************** & **************** decided they wanted to move forward on a contract for ******. The community agent drafted up the contract. Buyers reviewed and signed contract on 3/27.  The Purchase and Sale contract on pg 1 section 2 states the following:

   Construction Deposits. Construction Deposits are NOT ******* Money and are NOT refundable.i. Payment of Construction Deposits. The Construction Deposits, if any,referenced herein shall be held and used by the Seller to pay for the construction of the improvements on the Property and will not be kept in a trust/escrow account. Since the Construction Deposit will, in many cases, be used to either customize or upgrade the Property based upon the Purchasers selections, it shall be retained by Seller as partial liquidated damages (and not as a penalty) in the event Purchaser fails to close on the purchase of the Property, (except if the failure of Purchaser to close is due to the Sellers default). The Purchaser has paid to Seller $__5000.00___________ as a NONREFUNDABLE CONSTRUCTION DEPOSIT that shall be applied towards the Purchase Price. In addition, all monies paid for upgrades in the home and change order fees are considered Construction Deposits. Again, these fees are NON-REFUNDABLE. Purchaser is strongly advised to discuss the financing of options with his or her lender before finalizing the selection of options.Lenders failure to approve the increased loan amount is not a condition of sale of the options or a condition to the Closing. Prices of all options/upgrades are subject to change without notification prior to placing an order. Current pricing will be quoted at the time of purchase. Purchaser acknowledges their responsibility for any difference between the Purchase Price and the appraised value, if an appraisal for a financed purchase transaction comes in below the purchase price.
  There were Exhibits attached to the P&S agreement of which include the floorplan, foundation, elevations, options & builder standards. The selections exhibit was unintentionally omitted. All signing parties missed that the document was not included when the contract was shared to be signed. Contract was signed and bound by sellers agent on 3/28 and shared to all parties involved.

  It wasnt until the framing walk on 4/29 when the buyers were being shown the home in the framing stage that the buyers were verifying selections. Upon review it was discovered that the selections that were shown to them prior to contract were not included as and Exhibit in the contract.Buyers agent reviewed them with **************** and **************** and in reviewing they stated that they wanted a different fireplace surround and a bench in the master bath shower. Buyers agent reached out to sellers agent to discuss possibility of making the requested change. As stated on 3/8 during first contact buyers were advised again that changes were not allowed. After further discussion with construction manager, he advised that they could allow for the change in the fireplace surround and adding the bench to the shower. Buyers were provided a cost of $1250 to make that change which is the change order fee of $250 + the difference in cost for the fireplace, reframing of the already framed fireplace and additional tile and installation for the bench in the master shower. Buyers were advised that time is of the essence and a decision on the change needed to be made as construction was about to move into drywall which would not allow for a change to the fireplace.  Approximately 4 days passed when buyers advised their agent that they did not want to move forward with the changes,and they wanted to terminate the contract. They asked if the construction deposit would be returned to which the seller advised that per the contract the Construction Deposit is NON-REFUNDABLE. On May 10th **************** called into the main line for Cook Residential on 5/10 and was transferred to the inside sales line. **************** spoke of her situation and disgust with *********** that he would not refund their construction deposit. She demanded a resolve of the issue, or she would be contacting every news station in *******.   

  We apologize for the inconvenience this may have caused **************** and **************** but everything in our end was done in compliance with our contract with them. 

  Customer response

  06/04/2022

   
  Complaint: 17211040
  
  I am rejecting this response because: The information Cook Residential provided is irrelevant to the real issue. I previously attached a copy of the original contract sent by their representative which did not include Exhibit 11 (selections). Upon doing the framing walkthrough, it was determined that part of the contract (22 pages) was not included, and needed to be. It also required signatures by my mother and myself, which they never received. The information of this home being a SPEC home and changes not being made would've been okay had the information about what was in the home been what was verbally told to us. NO CHANGES would have been okay, based on that information. However, what we saw in the home that was shown is completely different from what the pages included in Exhibit 11 stated. The only upgrade would have been the seat in the bathroom shower. Upon receiving the missing pages of the contract, and discussing of what was included, it was determined that the fireplace included in ****** was an upgrade. We did not want that fireplace. We wanted what we saw and was told would be the fireplace. That fireplace was not an upgrade, which would've reflected in the original price of the home. So, now we are supposed to pay for an upgraded fireplace AND the changes necessary to change it to what we were told it would be originally? How was this fair to us as the buyer?

  Their contract is 192 pages; however, they failed to include what they stated was included.  If this information did not matter and did not need to be included in the contract, as they stated in their response, why is it that the pages were sent over for viewing and signatures the same day as the walkthrough when they realized we had not seen them? If this was the case, saying to us this wasn't necessary to be included in the contract could have been verbally stated, correct? It's clear that they realized their mistake, and made the attempt to fix it.

  Also, in the attempt to reply to this complaint, they requested information they thought would give their story merit. There was none. This is because we were not given the information that would've allowed us to make an informed decision on whether or not what was actually included in ****** was what we wanted. Had this information been provided, as it should have, none of the contract would have been signed, nor would a check for anything been given, because we did not like or agree to the selections they chose for this lot. We were not given this opportunity as buyers should receive. There was no opportunity to go to their show room and pick out or discuss the options available for this lot, as they state we should have had the opportunity to do in their contract. They chose them, never provided the information, and attempted to fix their mistake to no avail. This means they do not have a complete contract that is legally binding. So, regardless of how the story goes, and the fact that their version doesn't align with the truth, the bottom line is they do not have a completely signed contract. This makes them keeping our $5000 is not only unethical, but illegal. 
  
  Sincerely,
  
  *************************

  Business response

  06/20/2022

  **************- re. 110 Hawthorn Ln/Arbor Bluff ****** was being sold as a SPEC home. Your agent at the time went over the selections of the home at the home site on 03/22 with you and ****************. Please see the attached email of the selections shared with your agent. You weren't given the option to visit our showroom because, as mentioned before, this is a SPEC home. SPEC home meaning all colors/fixtures etc. were predetermined by Cook Residential and there is no option to make any changes. However, we were willing to allow you to add the bench and change the ALREADY INSTALLED fireplace at a reasonable cost, considering that there are labor and material expenses involved in all changes to which you declined. 
  
  The **************** is a Buyer Beware State which puts responsibility on the buyer for their own due diligence. The selections are an exhibit to the contract. The Purchase and Sale is the contract and that is the document that gets bound. The contract CLEARY states the deposit is NON-Refundable. (see contract clause below)

  "Construction Deposits. Construction Deposits are NOT ******* Money and are NOT refundable. i. Payment of Construction Deposits. The Construction Deposits, if any, referenced herein shall be held and used by the Seller to pay for the construction of the improvements on the Property and will not be kept in a trust/escrow account. Since the Construction Deposit will, in many cases, be used to either customize or upgrade the Property based upon the Purchasers selections, it shall be retained by Seller as partial liquidated damages (and not as a penalty) in the event Purchaser fails to close on the purchase of the Property, (except if the failure of Purchaser to close is due to the Sellers default). The Purchaser has paid the Seller $__5000.00___________ as a NONREFUNDABLE CONSTRUCTION DEPOSIT that shall be applied towards the Purchase Price. In addition, all monies paid for upgrades in the home and change order fees are considered Construction Deposits. Again, these fees are NON-REFUNDABLE. The purchaser is strongly advised to discuss the financing of options with his or her lender before finalizing the selection of options. Lenders failure to approve the increased loan amount is not a condition of sale of the options or a condition to the Closing. Prices of all options/upgrades are subject to change without notification prior to placing an order. Current pricing will be quoted at the time of purchase. The purchaser acknowledges their responsibility for any difference between the Purchase Price and the appraised value if an appraisal for a financed purchase transaction comes below the purchase price. " 
  
  We had a legally binding contract and when you expressed discontent with the fireplace and bench upgrade you were given the option to remain under contract or terminate the contract and lose your NON-REFUNDABLE deposit. You willingly chose to terminate the contract, being fully aware that there wouldn't be a refund issued on the construction deposit. 
  
  Cook Residential stands firm that it is their option to retain any/all construction deposits received per contract but are willing to return the construction deposit to **************** & **************** to appease them and for good will. Seller requires a mailing address for refund. 

  
  

  Customer response

  06/29/2022

   
  Better Business Bureau:
  
  I have reviewed the response made by the business in reference to complaint ID ********, and find that this resolution is satisfactory to me. Please send refund check for $5000 made payable to ************************* to the address below:

  *************************

  4528 ***************************************

  *******, ** 30094

  
  Sincerely,
  
  ************************* & *************************

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