Where can I find the size of the condo unit I’m buying in the builder’s pre-construction contract?
I frequently get asked this question when I review builder offers with clients. In more than half the contracts I see, the sad answer is that there is no reference at all to room sizes or the area of the home.
A purchase agreement without a measured floor plan allows a builder to deliver a unit smaller than what was promised in the sales materials.
Here’s how it works. In a typical builder sales office, purchasers will be shown a brochure containing a floor plan with all room measurements and the total size of the unit. Unfortunately, those measurements have been known to disappear from the same floor plans attached as a schedule to the purchase offer.
That’s what happened last week to clients of mine. They had two floor plans — one colour brochure showing area and room sizes, and the other without room sizes or total area — attached as a schedule to their offer.
All builder offers contain an “entire agreement” clause which states the binding agreements and details are in the offer itself. Sales brochures, plans and promises made by sales people are not part of the deal.
Having a plan without measurements in their agreement, my clients had no assurance of the ultimate size of their unit.
They emailed the builder to ask that a floor plan with measurements be made part of the offer. The builder replied that the sales office handout showed detailed room sizes, and the marketing material complied with the requirements of Tarion Warranty Corporation.
Since 1990, Tarion’s Builder Bulletin 22 has set out a mandatory method of calculating area measurements. It states that a two per cent tolerance of stated figures is acceptable. But there is no requirement to specify an area measurement so, if none is mentioned, the prescribed calculation method is irrelevant.
As a result, my clients and other new condominium and house buyers could face these situationss:
- A floor plan without measurements in the offer does not bind the builder to deliver a home of any particular size.
- The floor plan schedule in the offer is required to state that actual usable floor space may vary from the stated floor area. But when no area is stated, the builder can deliver a unit with significant size differences.
- The “entire agreement” clause in the offer prevents the buyers from relying on the sales material handed out at the sales office. Purchasers who claim that the unit as built is “materially different” in size from what was promised in the site office would not have a leg to stand on in court.
- Tarion does not enforce listing floor plans with room measurements and total area in builder agreements. As well, regulations do not guarantee buyers that they will receive a unit with the size promised.
- There is no contractual connection between the sales material and the floor plan in the purchase agreement.
When condo purchasers are paying as much as $800 or $1000 per square foot and the finished unit suffers from construction shrinkage, this reveals a gap in consumer protection.
It’s time for Tarion to revisit Builder Bulletin 22 and require every builder offer to have a floor plan with measured room sizes and total area. All the better builders already do this, to their huge credit.
Meantime, if you’re buying a house or condo and the floor plans show no size or measurements, ask your builder to provide them when considering the details of your purchase offer.
Bob Aaron is a Toronto real estate lawyer and chair of the Tarion consumer advisory council. He can be reached at email@example.com . Visit his website at aaron.ca.