^^^ agree - locking someone out of a home and property THAT THEY OWN, is a bit of a shot across the bow. Sometimes people do things because they have gotten away with it in the past, and not being they are really entitled to do it. It's time for a proportional amount of pushback and level setting here. Their attorney should help but preferably in the background and not front and center - so they could be used as a future escalation point, if needed.

And just to be clear - I am not advocating being a jerk. The OP still wants to maintain a relationship with the builder and get her / his home completed to an acceptable level within a reasonable time. I am suggesting that s/he assert themselves in a reasonable and professional manner to ensure s/he doesn't get walked over. You can be assertive and protect your interests, AND get this relationship back under control.

The builder stated OP can visit the property with a builder rep. I am sure they will be ok even unaccompanied with construction visits during hours. But the lock box is for OFF HOURS visits. As a GC I would have concerns for my equipment, tools, scaffold, hvac, etc.

This issue should be amicable resolved, that would satisfy both parties.

OP pick your battles. Little dent or sun bleached subfloors - are relatively minor issues.

If a Realtor did the referral, then there is a very good chance they are getting a commission from the builder. The OP should have them get involved to help open the channels of communication with the builder.

The insurance excuse is lame ... in my case, we, the landowners are paying for insurance, so I certainly have every right to inspect my home that is being built on my property.

OP, my builder has no problem with us pointing out issues. Sometimes he explains and it turns out to be nothing, other times he says it is being fixed by sub XYZ and other times he thanks us for pointing it out and goes to take a look a few hours later.

@Chipsa sounds like your builder is more reasonable and approachable than mines. He also measured wrong for the iron rod railings and now charging us an extra $2000 to complete the staircase. As you can see in the blue print, our stairs are supposed to mirror the image and he shorted us 10ft in the mortgage. I informed him that I would purchase the additional railings from Menards but he is refusing to except. He stated that they are purchasing from his supplier, which I refused to pay. These are serious issues to me being a first time builder. Does anyone have any advise how to proceed without a delay in occupancy?

@BT I am a first time builder and I have a problem spending a lot of money for dented and damaged materials. I’m looking at if I bought dented cans from the grocery store, you receive a discount. Why am I not provided a discount or replacement?

Building is like no other. Accountability is thin. And the homeowner pretty much always pays. It’s total garbage and shouldn’t be that way but I seriously doubt it changes. Everyone has an excuse for something that doesn’t place blame on them.

That all said you also need to be realistic. Dented cans is actually a great example. Food tastes the same either way. Don’t think you would get a discount. Railing is a good one to hold onto with frustration and expect resolved. Some other stuff isn’t.

I am new to the HOUZZ fam and a new builder. I value everyone’s comments. However, I want to be treated fairly and receive a high level of craftsmanship and discernment from my builder. If the builder quits the job isn’t he abandoning the project and breach of contract? Also, I feel that he’s locking me out because he wants to throw together anything and run with the money for shabby work. Look at all the issues that Holmes and Holmes find from so called license contractors they have been hidden with drywall.

@WestCoast how would you resolve the railing issue?

Talk to your loan/mortgage person about your concerns and the realtor too.

I don’t see how the loan/mortgage person or realtor can help? Realtor is likely moved in at this point and has no skin in the game. At least here the money is up to us to manage appropriately with builder and meet certain marks with bank. But if we don’t then it’s on us not the builder.

In terms of how to resolve, if you have proof that this is their error, then you need to ask them to resolve it. At the same time if the added cost would have been incurred if done correctly, because it’s more material etc, then while it sucks to have an added cost you need to pay it because that’s how much it costs.

Part of our driveway was laid incorrectly. We didn’t pay the labour for the do over as it was their error but we did for the additional materials as they were needed from the start and not used because the wrong thing was done. If the correct driveway had been done we would have paid that material cost anyway. You can’t expect to get materials for free but you shouldn’t pay again for labour, in my opinion.

Well can’t I buy materials from wherever I want, since I’m paying out of pocket now

"Look at all the issues that Holmes and Holmes find from so called license contractors they have been hidden with drywall."

You cannot compare actually building a home and made for TV BS construction work.

It sounds like you're expecting custom level service from a production level home, honestly.

If you're concerned with code violations, hire your own inspector.

Regarding the railing... I would expect to pay for the materials going in my home. Unless you have a lump sum contract and it says the contractor will pay for any changes (which I doubt) I would expect to pay for it. Also, virtually no tract/production builders will allow you to source your own materials, regardless of whether you can get them for less. That generally only happens in custom homes.

Is this a custom home or tract? I thought you said you are owned the lot? If this is a custom home comment above not valid.

Builders don’t have to let you buy materials from wherever you want. It all depends on the contract. Also you are always paying out of pocket. If this is your build you pay for it. I may have missed how you are being billed?

Ah I see it is tract. Unfortunately that really changed things. You have little to no recourse

Oh for heaven's sake.

the mortgage holder is likely approving draws on the construction loan. On my construction loan, I have an inspector that comes and reviews the work. This could be a real help to you. The inspector is there to protect the bank's interest but should have decent knowledge about construction. Also - if they don't aproove - your GC won't get paid.

It would be helpful to know a little more about the builder / lot / customization as I don't think it's strict tract / production - but it's not 100% important - because - as stated the OP owns both the lot (after closing the construction loan) and the building upon it.

Your set up was not mine Just_Janni. While we needed to show progress to get draws we laid the builder ourselves. The bank didn’t have any connection to them in the least and never vetted them. It was our responsibility to make sure the draws were used for we said they were. Before each new draw they sent an appraiser over to confirm, aka check work was done, and having been here each time for that process I can attest it was not an inspector but simply someone snapping pics of progress and asking a few questions.

The second or third comment says it’s tract. Really it all comes down to the contract and very little
Of that is being shared

It is not really a tract home. The OP owns the lot and there is a construction loan. It is difficult to make any real guesses at the actual terms of the contract, however, there are a few contractual obligations that must exist in a build on your lot relationship.

The difference is pretty significant. If the builder owns the lot and is financing the house then the transaction is arms-length (the typical relationship between any supplier or merchandiser and a customer). However, if the home is being built on your lot then it creates a legal duty for the builder. That legal duty will switch back and forth between a duty of due care (for fixed price portions of the contract) and a fiduciary duty (for any cost plus portions of the contract). So some things that you normally see in a tract builder, such as design centers, are gone. Anything that is not a fixed price in the contract can't have any hidden markup.

If the OP is paying for the railing the builder may insist that the railing come from a quality supplier, but the OP must be made completely aware of the builder's cost after all discounts are taken. This is not saying that the OP should be paying for the railing in the first place, it is hard to know the terms of the contract. If the contract has an undisclosed fixed price portion then the railing likely should have been included in that portion and the OP should not have to pay for it. However, if the entire contract is cost plus then the OP should have knowledge of the builder's cost and profits.

We were only charged for 20ft of railing and need additional 10ft to complete. Do we have to purchase from the builders supplier or can he accept our purchase from Menards?

You need to clarify the type of contract you have. It’s not a simple question. It’s entirely based on the contract. Are you shown actual bills for materials and then you pay for them? Or are you paying a fixed price? Did you need 30ft of railing from the start? Where was the error on that? Is the new railing you want to buy the same or different?

Do we have to purchase from the builders supplier or can he accept our purchase from Menards?

I don't know if you have to purchase it at all, but if you do have to purchase it you will have to purchase from the builder's supplier. Having said that you will get his discounts but he will be allowed to mark it up by whatever amount is specified in your contract.

The builder has to warranty the various installations against failure and collateral damage in the event of failure and he can't reasonably do that if you are sourcing the cheapest materials available.

@bry911

We are building a production/tract home in a development. We had to purchase the lot from the builder and finance the build, but the process was the same as if it were a tract home. Our builder has the buyer do construction loans for final costs that exceed a certain threshold (probably to limit their risk). We went to the design center and had to choose from their options. We had limited ability to make changes to the interior. So it's not entirely correct that just because the builder is building on the OP's lot that it can't be exactly like a tract build.

The OP hasn't really explained her situation exactly so it's tough to know.

As the client, you get a voice in a lot of things when building a home. But you cannot change the terms of your contract or dictate the builders' process. These are things you should have reviewed and confirmed prior to signing the contract. If you are unsure about your contract, pay to have a real estate attorney explain it to you. Then figure out if the builder is abiding by their own terms. If they are not, you need to negotiate with the builder, hopefully amicably, for a resolution. If they are, you need to adjust your expectations to fit what you signed up for. You seem very early in the process and there's a whole lot of house to still build. You don't want to continue in an adversarial way if it can be avoided.

@anj_p - You can get away with anything so long as people are willing to let you. Contracts and case law are only beneficial when you are willing to enforce them.

This is a well adjudicated issue. If there are allowance accounts in the contract they are deemed to be fiduciary accounts (I believe that holds true in every state). There is no situation where you are given a spending allowance and the builder is allowed to hide his actual cost from you. The courts have almost unanimously ruled against opacity in any type of trust relationship.

ETA: Just to be clear, the builder can still demand that you use his design center but he can't have an undisclosed markup for any item that is outside the fixed price portion of the build. A builder can hide all of the profit he wants in everything that is fully specified and included in the fixed portion of the contract, but once he adds in an allowance then he can't hide any profit on that portion. So you can't turn design centers into profit centers which is the typical arrangement for a tract builder.

We own the land and currently pay a mortgage and taxes

What does the contract say? You keep saying you own it but aren’t clarifying the type of contract at all

There’s nothing in the contract that I can see that the homeowner can not have the lock code, it does say not to visit the home while trades are there and visit with site manager. However, I’ve been visiting the home prior without a issue, until I asked him questions about the damages. now it’s a lock on the house

Sorry what does the contract say about the process. Is it fixed price? Allowances and change orders? Cost plus? It all matters

Allowances and change orders are in the contract

Putting a lock on the house is standard practice. You don't want everyone who walks by wandering through your house, especially once the expensive stuff starts getting installed. No contract is going to specifically say "You won't get the code to the lock box." It was probably coincidence that he added the lockbox after you voiced some concerns. They literally can't put one on until there's a door. Your contract states that you have to visit with a site manager so that's what you should do. Like everyone's been telling you. If you talk to your builder about making site visits instead of a bunch of internet strangers you might have better luck.

Items Not Offered By Builder:
If Builder agrees to install any item not offered by Builder, Purchaser and Seller agree that the
cost of that item and any and all installation charges or required changes will be the responsibility
of the Purchaser. Builder will do its best to accurately price the item but if it is determined in the
course of installation that additional changes or installation charges are required for the
Purchaser requested item all additional charges will be the responsibility of the Purchaser and will
be paid for prior to the completion of the installation. If the Purchaser elects to not proceed with
the installation BUILDER'S liability shall be limited to issue a credit for the amount paid by
Purchaser for any such change less any costs incurred by Builder up to that point for that specific
change.
BUILDER shall not be required or obligated to make any changes in the work or provide any item
not specifically agreed to between the parties at the time of execution of this Purchase
Agreement and selections or subsequent change order. For each item the builder agrees to
change after 30 days the customer agrees to pay a one hundred seventy-five dollar ($175.00)
administration change order fee in addition to the item cost quoted by the BUILDER. Any
change order not paid in full within 5 business days of Buyer and Builders acceptance, as
evidenced by both signatures, will be subject to a fee of the greater of 7% per annum or $20.00
per day. Any deviations and/or changes to the Residence (regarding Customer Feature
Sheet Selections) shall be made only by agreement in writing signed by both parties and
any charges for any such changes shall be paid at the time of the signing of the written
order. There will be a re-stocking charge of thirty (30%) percent to Purchaser for any
change where item has to be re-stocked. Anything in this Purchase Agreement to the contrary
notwithstanding, BUILDER'S liability for failure to make any written agreed upon change shall be
limited to issuing a credit for the amount paid by Purchaser for any such change

Above is what’s in the contract

@anj_p this is a open forum discussion you can choose not to provide your opinion or perspective. I appreciate everyone past experiences and knowledge

I think the tricky part about the railing is you are partially using their product and partially wanting to use yours. Is that correct? If so, I feel like it makes sense for them to say no. This would be different than you saying I’d like to buy an oven on my own and have it on site for you etc.

With it being allowances and change orders are you then given a copy of the actual invoices to prove if the cost is over the allowance?

I don't think the tricky part has anything to do with partially their material and partially the OP's. I strongly suspect that the friction in this situation is the typical friction you see in these situations. The builder went to an attorney to get a good contract drawn up, and then proceeded to completely ignore all the provisions that the attorney built into the contract because this is the way he has been doing business for X amount of time. It isn't a new story, I would guess that 90% of builders don't follow their own change order procedures and don't care a bit about the actual meaning of the terms in the contract.

The real question is why is the OP out of pocket for a railing that was specified in the construction documents? Even a cost plus contract doesn't give the contractor license to underbid the contract by not including specified items.

This thread is a train wreck and I keep coming back to see which poster is arguing with which other poster right now.

It seems to me that the OP has posted his/her own remedy (about 9 posts upthread): he/she said the contract states that he/she is allowed site visits with a site manager. So why doesn’t the OP do that?

@Mzs SJP - A criminally brief primer on construction contracts:

Construction contracts come in three main flavors:

(1) A fixed price contract - In a fixed price contract the builder agrees to deliver the house you specified to you for X amount of dollars. Unless you have change orders, you will receive a completed house with all the specified finishes for the exact price you were quoted.

(2) A cost plus contract - In a cost plus contract the builder agrees to deliver the house you decide on for a specific fee. That fee can be set as a specific dollar amount or a specific percentage (usually called the builder's percentage). In this case, the materials can be decided up front or during the build process. You are paying the builder his services and are out of pocket for the cost of materials. However, there can be no other hidden profit, discounts, or kickbacks. If your builder is cost plus, then he has to be fully reveal every unrefunded penny he paid.

(3) Hybrid contracts (a.k.a. a fixed cost contract with allowances) - In this arrangement the builder agrees to deliver the house to you with all specified items for the price you agreed to pay for those specified items and he establishes allowance accounts for unspecified items, such as appliances, flooring, etc. In these arrangements the profit for the specified portions can be opaque, but the builder must fully reveal every unrefunded penny he paid for allowance items. They are essentially cost plus contracts inside a fixed price contract.

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A fully specified cost plus contract should be perfectly convertible into a fixed price contract. If your contractor sends your lumber package out to be bid, that bid becomes a firm commitment from the lumber yard. Firm commitments have time limits and so as prices change the prices quoted in a firm commitment may change, but the items don't. If your builder didn't catch a mistake in the lumber package bid, such as not enough railing, that is his fault and the fault of whoever did the takeoffs. It is not your fault and doesn't suddenly become your fault because he didn't do his job.

In reality, there are always going to be a few things omitted and you should pick your battles. I don't know the cost of the railing, nor do I know how many of these omissions you have had. So this might be one of those things you just eat to keep the relationship together and it might be a line you draw in the sand.

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Please remember that things in the past can't be changed. Every day your goal is to get the best house you can from where you are at today. Which may be a completely different path than it yesterday. I am still going to advise you see an experienced construction attorney and see if they can spot potential problems in the contract versus the actual build, I strongly suspect there will be some. Then decide where to go from there.

Good luck

Litttle bug they have mentioned more than one issue now. Access to the site, original question, is clear although they don’t like it. The questions about who pays for what and why and if you can order elsewhere have been brought up since and are related in that they are tied to builder but not the original question. I don’t think anyone is disagreeing. Everyone is trying to discern what is meant with the tidbits of info provided.

Access to the site, original question, is clear although they don’t like it.

Why would the OP not like it? It is clear that the builder can't remove their access. Give me a state and I will get you case law for it.

Did they not say in the contract that they are supposed to have access with a rep for the builder? If they agreed to that up front why would they expect it changed now?

Perhaps I’m wrong and some posters do want to debate this. Personally I’m good. If I agree to something like access with a rep for builder then that’s what I get.

Did they not say in the contract that they are supposed to have access with a rep for the builder? If they agreed to that up front why would they expect it changed now?

Perhaps I’m wrong and some posters do want to debate this. Personally I’m good. If I agree to something like access with a rep for builder then that’s what I get.

These clauses are not enforceable, they are illegal clauses in a contract. They have been deemed illegal constructive evictions and they are not allowed. There are literally pages of construction lawyers answering this exact question on AVVO and a group who never agree on anything all manage to agree on this.

Furthermore, where did the OP state they agreed to only visit with a rep for the builder. I can only find where they said, "Nothing about you can’t visit, but it does mention walkthrough with builder and you can’t hold the builder liable for any accidents while your on site." The walkthrough with the builder is going to be in most construction contracts, that is where you develop the punch list. Nothing in that statement says the OP agreed to only walkthroughs with the builder. Moreover, why would the builder need an indemnification clause if you are not allowed on site?

https://www.avvo.com/legal-answers/can-the-builder-lock-you-out-of-your-house--3482308.html

https://www.avvo.com/legal-answers/can-a-builder-lock-us-out-of-our-home--5254962.html

https://www.avvo.com/legal-answers/can-a-construction-company-legally-lock-me-out-of--4573798.html

https://www.avvo.com/legal-answers/can-my-contractor-lock-me-out-of-my-house--3353897.html

I was wrong. Someone does want a debate. On that note I wish the OP well and hope you find a resolution that works for you and the builder. I’ve learned repeatedly in life that “right” doesn’t always matter and sometimes being right is worse off for you. Cuts both ways over and over in many ways in a build. Really hope you find a way to enjoy this process and make it to the end well

I’m gonna consider everyone’s perspectives and will start with asking to schedule a walk through and speak with a realtor attorney about the stair issue

There is a difference between sage advice and legal advice. I don't disagree with advising the OP to pick their battles, but representing that sage opinion as an interpretation of their contractual rights is not OK.

I’m gonna speak with a construction attorney regarding the lock out because we haven’t received the letter of occupancy, but we have closed already with a construction-permanent loan

Yes, and you should have him look over your contract while you are at it, so that you completely understand the terms you agreed to.

Not advising them of their contractual rights. A lawyer should. A lawyer should have before they signed. No one here on a random public forum is giving legal advice. If someone comes here and thinks otherwise that’s an even bigger issue. All of us are always simply interpreting what info we’ve been given and not even remotely in any kind of binding way for the OP.

If you are unsure about your contract, pay to have a real estate attorney explain it to you

NO. Pay to have a CONSTRUCTION LAWYER explain it. Big difference!

It is unique to home construction that an expensive building would be built without a design/construction professional to represent the interests of the owner by overseeing the work, clarifying the design intent, resolving problems and reporting to the owner.

I provide construction oversight on all of the projects I design and I don't visit the work site without the knowedge of the general contractor although I don't need permission.

The money saved by forgoing representation is sometimes less than the cost of changes, repairs and dispute resolution not to mention the cost of aggravation.

The worst thing I've discovered in the field was a notch cut out of the flange of a steel beam for a pipe that had been hurriedly covered up with drywall. I learned to show up an hour early for a scheduled site visit, to keep a set of the permit drawings and the building code in my car and to photograph everything.