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Can I get earnest money back if I cancel the contract due to builders false information on floor plan?

Katy, TX |

I purchased a to be build home with a builder in katy,texas last November, right before the pre-construction meeting, i was told that the ceiling of family room is 10 feet flat instead of 11 feet coffered ceiling as shown on the floor plan when I signed the contract, the reason is because there is a bonus room on top. Sales person did not mention anything about the ceiling change when I signed the contract, even she was not aware of it. so I talked with the builder about making the ceiling as shown on the floor plan, the builder refused to do anything because they build according to blueprint. I did not sign on blueprint, even not look at it before. I think the information that builder gave me during the purchase was misleading, not revealing all the change on structure. I want to cancel the contract and get my earnest money back, but builder said no. Is there anyway I can get my money back?

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Attorney answers 2


That depends on the exact language in the contract you signed. Did it incorporate by reference the blueprint, or did you have the chance to see it, so that your approval was implied? What does your contract say about cancellation, and return of your earnest money? Are you required to make a demand of performance? Give the builder notice of breach and time to cure? Mediate? Arbitrate?

No one can analyze a contract they haven't reviewed, so you need to consult a local real estate lawyer for help.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.


First read your contract documents, and focus on the specifics of what the builder has promised. If the contract documents are typical, the builder will have left itself with a lot of maneuvering room. So, you may have to be creative to prove what the builder reasonably led you to believe that you would receive. Examine the model and other similar homes to yours. You may consider retaining a home inspector to help evaluate what the builder built versus what you were promised.

Even if you find differences, you may still have a problem proving any damages.

Once you document the differences, and what you were promised, then write the builder a letter by certified mail, return receipt requested, to set out your findings and position, and to request the relief that you want. With the economy getting better, the builder may acquiesce.

Also, read your contract to see whether it requires arbitration, and if so, under what conditions. Sometimes, the contract requires arbitration in a remote location or under some inconvenient conditions.

Finally, I recommend that you retain a construction attorney to help evaluate your situation and to provide good advice.

Good luck.