New Construction + Condos

Why this art-loving condo owner's lawsuit is a cautionary tale for any new construction buyer

By Virginia K. Smith | May 9, 2017 - 3:59PM 

While opting for new construction comes with obvious upsides—for starters, the pleasure of getting dibs on a brand new, never-been-lived-in space, in a building likely packed with amenities—buying an apartment that hasn't actually been built yet comes with some inherent risks, too.

And while it definitely reads as a "first world problem" of the highest order, this lawsuit against Toll Brothers is a perfect example. As Luxury Listings NYC reports, a buyer in new development 55 West 17th Street is suing to recover her $1 million down payment, after finding out that her new apartment wouldn't, in fact, have ceilings high enough to display her large pieces of art.

According to the suit, the buyer went into contract before seeing plans of the unit, based on promises from the selling agent and building representatives that the ceilings would be "just shy of 10 feet," tall enough to hold works of art up to nine feet tall. When the buyer was finally able to see the plans, she discovered lower ceiling heights than she'd been promised, and after visiting in person, confirmed that the walls would be unable to accommodate her artwork.

Toll Brothers hasn't commented on the suit, but the buyer's lawyer told LLNYC, "The height of the ceiling was paramount to our client."

While it might not always be possible, this dispute underscores the importance of seeing the full offering plan ahead of time to minimize your chances of being caught off guard. As we've written previously, prior to the closing, new developments will often let you "borrow" the plan for a small fee so you and your attorney can look it over and flag any potential problems. (This is also a good chance to find out about the building as a whole, including the state of its financials and its engineering.)

Plus, if you're buying a unit based on a very specific requirement such as ceiling heights, that should be spelled out in your contract so that the developer will be accountable if they don't come through. "Offering plans are chock-full of disclaimers, and will usually give a range of ceiling heights for all the units, not a specific height that's guaranteed for a specific apartment," explains SSRGA attorney Jeff Reich. "Because the offering plan is incorporated into the purchase agreement, all that disclaimer language is in the agreement, too. Which is why it's important to have it in the contract, for instance, that the ceiling height has to be no less than 10 feet."

While it might seem unfair, says Reich, it's likely that a court would consider this discrepancy in promised ceiling heights de minimis, or minimal enough that the developer hasn't legally reneged on their promises, unless you had this detail explicitly written into the contract. 

While your specific problem might not be an oversized art collection, checking the offering plan ahead of time can also help you avoid problems like, say, an unexpected beam in the middle of your living room. (It's been known to happen.) After all, while you might be buying in new construction in hopes of the novelty factor, you're probably not buying in hopes of an unwanted surprise.



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