New construction: The problem of “what” is to be built

This article is the first in a series on new construction.  The contents of this series of articles apply to commercial as well as residential projects.

Defining “what” is to be built in a new construction contract can be tricky.

For starters, when buying an existing commercial building or house, you can see, touch, feel and inspect what is there, and based upon those observations decide whether or not to buy.   But in a new construction contract, we must define — using words and drawings — the end product.  And it is an end product with hundreds and thousands of components.  Thus, we must carefully use the contract to describe what the builder will build.

This would include dimensions, construction materials, fixtures, mechanical systems and equipment, appliances, and finish materials, such as millwork (cabinets), countertops, flooring, landscaping, etc.

Some of these items are left out of the contract, and references as “allowances,” which are to be addressed in a later article.  Be cautious with allowances, as they are frequently the basis for price disputes between builders and buyers.

Second is the intangible of “quality.”  The flatness of concrete floors, the waviness of walls, the precision of miter joints, are all exceedingly difficult to describe.  One way to tackle this drafting challenge is to refer to a “model” or “sample” that the builder has held out as the general quality of construction.  For example: “the general quality of construction — to the finishes and selections — will equal or exceed that of the model home shown to buyer by builder located at 1234 Main Street.”  Others try to reference objective standards of quality, but this can be cumbersome to wade through– and be cautious of who drafted these standards as they will invariably be tilted towards the drafter.

So, consider carefully how you define what is to be built, and the quality of the construction.  It can mean the difference between a quality project and a disappointment.

This article is one in a series on the Finney Law Firm blog on new construction.  Read more here:

New construction: The “when” >>

New construction: Change orders, allowances and selections can significantly impact price >>

New construction: On whose land are you building? >>

New construction: Cost-plus versus fixed-price >>

New construction: What form of contract?

New construction: Ohio residential buyers absolutely protected from liens in limited circumstances

Attorney | ‭513-943-6655 | chris@finneylawfirm.com | + posts

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