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Ready to close and developer did not finish street improvement

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smutlydog

Member
Texas

We spent 9 months building this house and the city put the brakes on the final inspection. They said the developer had not completed street improvements. The developer told us he would complete the work within a few weeks and today is 2 weeks. He hasn't even started. Meanwhile I have about $125 a day in cost while this goes on. I just found out that he went bankrupt last year and is now operating under a new name. I bought the lot under the new name but he was actually in the middle of bankruptcy proceeding from the old name. Could he just go bankrupt again and let the entire subdivision go? I really don't know what to say or think. I am really worried
 


Taxing Matters

Overtaxed Member
The way you wrote your post suggests that this person is the sole owner of both businesses. If that's the case that narrows down the type of business entity he used for the business to either a sole proprietorship with two different names, a limited liability company (LLC) or a corporation. Which type of entity was the one that went bankrupt and which type is the one you signed your contract with? Is this a development project involving multiple homes, or was yours a single custom build? Was it the old builder that filed bankruptcy, the owner, or both? And what Chapter of the Bankruptcy Code did the business and/or owner file under?

A critical question: does the builder have bond that insures the project will be funded to completion?

In general, if both businesses were/are LLCs or corporations and only Business A filed bankruptcy and not the owner then the new Business B would be able to file bankruptcy, too. But the details matter a lot. If the bankruptcy is a liquidating bankruptcy then the business sells its assets, pays out the creditors in the order specified by the Bankruptcy Code and the Trustee and goes out of business. A lot of small businesses that liquidate and go out of business never file bankruptcy because it doesn't help the business out all that much. Business entities like corporations and LLCs do not get discharges of their debts in bankruptcy like individuals do. The owner of Business B won't want it to go into bankruptcy, too, because serial bankruptcies lead to suppliers, vendors, and large subcontractors avoiding doing business with him. When a lot of them refuse to do business, the guy will need to find a new way to make money because he can't get the services and supplies he needs to be a developer. Multiple failures also deter buyers as well

The large majority of home construction projects I've seen didn't finish their builds on time. That seems to be just a common way business is done. As long as Business B that you contracted with stays in business it's likely to continue to work on the development in the hope of successfully completing the project, which will make doing the next one easier. What all that ends up costing you depends a great deal on what your contract with the developer says.

It might help ease your worry a bit to consult a contract attorney familiar with real estate development projects review your contract and where things stand now and get advice as to what to expect and what you can do to be protect yourself if things go bad. Not knowing and fearing the worst causes more worry and anxiety, in my experience, than knowing exactly what you face and what your options are, even if your options aren't great. Having a plan in place now will help you get the most out of the deal should things go bad.
 

quincy

Senior Member
Texas

We spent 9 months building this house and the city put the brakes on the final inspection. They said the developer had not completed street improvements. The developer told us he would complete the work within a few weeks and today is 2 weeks. He hasn't even started. Meanwhile I have about $125 a day in cost while this goes on. I just found out that he went bankrupt last year and is now operating under a new name. I bought the lot under the new name but he was actually in the middle of bankruptcy proceeding from the old name. Could he just go bankrupt again and let the entire subdivision go? I really don't know what to say or think. I am really worried
Texas has been experiencing some pretty nasty weather in the last couple of weeks. Are you in an area where storms could play a role in the delay of the start of construction?

How long is the work expected to take? Two weeks does not equal “a few” weeks.
 

smutlydog

Member
Texas has been experiencing some pretty nasty weather in the last couple of weeks. Are you in an area where storms could play a role in the delay of the start of construction?

How long is the work expected to take? Two weeks does not equal “a few” weeks.
No we are part of all the bad weather. The weather has been really nice. The developers said 2 weeks worth of work 15 days ago.
 

smutlydog

Member
The way you wrote your post suggests that this person is the sole owner of both businesses. If that's the case that narrows down the type of business entity he used for the business to either a sole proprietorship with two different names, a limited liability company (LLC) or a corporation. Which type of entity was the one that went bankrupt and which type is the one you signed your contract with? Is this a development project involving multiple homes, or was yours a single custom build? Was it the old builder that filed bankruptcy, the owner, or both? And what Chapter of the Bankruptcy Code did the business and/or owner file under?

A critical question: does the builder have bond that insures the project will be funded to completion?

In general, if both businesses were/are LLCs or corporations and only Business A filed bankruptcy and not the owner then the new Business B would be able to file bankruptcy, too. But the details matter a lot. If the bankruptcy is a liquidating bankruptcy then the business sells its assets, pays out the creditors in the order specified by the Bankruptcy Code and the Trustee and goes out of business. A lot of small businesses that liquidate and go out of business never file bankruptcy because it doesn't help the business out all that much. Business entities like corporations and LLCs do not get discharges of their debts in bankruptcy like individuals do. The owner of Business B won't want it to go into bankruptcy, too, because serial bankruptcies lead to suppliers, vendors, and large subcontractors avoiding doing business with him. When a lot of them refuse to do business, the guy will need to find a new way to make money because he can't get the services and supplies he needs to be a developer. Multiple failures also deter buyers as well

The large majority of home construction projects I've seen didn't finish their builds on time. That seems to be just a common way business is done. As long as Business B that you contracted with stays in business it's likely to continue to work on the development in the hope of successfully completing the project, which will make doing the next one easier. What all that ends up costing you depends a great deal on what your contract with the developer says.

It might help ease your worry a bit to consult a contract attorney familiar with real estate development projects review your contract and where things stand now and get advice as to what to expect and what you can do to be protect yourself if things go bad. Not knowing and fearing the worst causes more worry and anxiety, in my experience, than knowing exactly what you face and what your options are, even if your options aren't great. Having a plan in place now will help you get the most out of the deal should things go bad.
Both are corporations and the code for the bankruptcy is Voluntary / 7
 

quincy

Senior Member
Both are corporations and the code for the bankruptcy is Voluntary / 7
Here is basic information on Chapter 7 bankruptcies:
https://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-7-bankruptcy-basics

To what is your “$125 a day in cost” attributed?

I think you need to speak to the developer again to have the expected construction time narrowed down.

You are fortunate to live in one of the few areas in Texas not affected by storms, floods, and/or excessive heat. Any one of those conditions would adversely affect construction projects.
 

smutlydog

Member
Here is basic information on Chapter 7 bankruptcies:
https://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-7-bankruptcy-basics

To what is your “$125 a day in cost” attributed?

I think you need to speak to the developer again to have the expected construction time narrowed down.

You are fortunate to live in one of the few areas in Texas not affected by storms, floods, and/or excessive heat. Any one of those conditions would adversely affect construction projects.
Loan Interest, property taxes and utilities
 

quincy

Senior Member
Let me get this clear in my head: You as builder took out a construction loan. The work on the house has been completed and your contractor has been paid.

You are now waiting on the developer for street improvements before you can either close on a mortgage or possibly have your construction loan converted to a mortgage loan (with what is probably a lower interest rate)?

Are you the end purchaser or do you have a buyer waiting to close on the property?
 

smutlydog

Member
Let me get this clear in my head: You as builder took out a construction loan. The work on the house has been completed and your contractor has been paid.

You are now waiting on the developer for street improvements before you can either close on a mortgage or possibly have your construction loan converted to a mortgage loan (with what is probably a lower interest rate)?

Are you the end purchaser or do you have a buyer waiting to close on the property?
I have a buyer waiting
 

quincy

Senior Member
I have a buyer waiting
Generally with a construction loan you only pay interest on what’s paid out (e.g., work performed by the contractor). If the work has been completed and the contractor has been paid, what are you paying interest on?

I can understand your antsy-ness in getting the developer to finish the street so the city will grant final approval on the project so that your buyers can close. Again I suggest you speak to the developer and get a better completion date than “in a few weeks.” Ask him when the work is going to start. Get a firm start date, allowing for conditions outside the developer’s control (like adverse weather events).

You could also approach the city to add some pressure on the developer to finish the project.

You really have a hard time with the developers you work with, huh?
 

Zigner

Senior Member, Non-Attorney
Generally with a construction loan you only pay interest on what’s paid out (e.g., work performed by the contractor). If the work has been completed and the contractor has been paid, what are you paying interest on?
The loan. Bank pays contractor, borrowers owes the bank.
 

smutlydog

Member
Generally with a construction loan you only pay interest on what’s paid out (e.g., work performed by the contractor). If the work has been completed and the contractor has been paid, what are you paying interest on?

I can understand your antsy-ness in getting the developer to finish the street so the city will grant final approval on the project so that your buyers can close. Again I suggest you speak to the developer and get a better completion date than “in a few weeks.” Ask him when the work is going to start. Get a firm start date, allowing for conditions outside the developer’s control (like adverse weather events).

You could also approach the city to add some pressure on the developer to finish the project.

You really have a hard time with the developers you work with, huh?
Its a commercial loan in which I get draws to pay contractors at different stages of the project. Supposedly the developer worked out something with the city to finish one small section which is 2 days of work. Monday I am going to go complain to the city about the developer if nothing is started. That's what my broker is telling me. As of a week ago the mortgage company and the customer are ready to close.
 

quincy

Senior Member
The loan. Bank pays contractor, borrowers owes the bank.
With a construction loan, the loan funds are paid to the builder. Payments are made by the builder, and received by the contractor, only for work that is performed by the contractor. The builder/borrower only pays interest on what is paid out, though. If nothing is paid out, there should be no interest.
Its a commercial loan in which I get draws to pay contractors at different stages of the project. Supposedly the developer worked out something with the city to finish one small section which is 2 days of work. Monday I am going to go complain to the city about the developer if nothing is started. That's what my broker is telling me. As of a week ago the mortgage company and the customer are ready to close.
I think you will have to wait until Tuesday. Monday is Memorial Day. Otherwise, it sounds like a good plan. Good luck.
 

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