So my boyfriend happened to get in a conversation with someone at a burger place where the construction guys for our building go to eat regularly today and found out the reason for the "unavoidable delay" from November/December.
He was told the plumbing contractor cut all the holes in the building the wrong size. When they were asked to fix it, they didn't have the resources, so that company went bankrupt.
Hardly sounds like the "extreme circumstance" required to be an unavoidable delay.
Ide - I know you looked at the contract before and saw that
outside occupancy date of Nov 15 2015 (Nov 30 on my contract) as the date past which compensation is owed, but if you actually look closely at the contract, it implies that's only the penalty date UNTIL the "firm occupancy date" is set (which it was for all us for November/December 2014).
Once the firm occupancy date is set, delayed occupancy fees are owed for any delay past the FIRM occupancy date, not the outside occupancy date which is irrelevant at that point. The only circumstance in which a delay does not have a penalty after the firm occupancy date is if it can be considered an unavoidable delay. This can be seen where I attached an image of the contract with the appropriate paragraph highlighted below:
So the only question in whether we receive compensation or not then is whether their reason constitutes an "unavoidable delay".
To refresh everyone's memory - this is the EXACT definition in our contract:
"Unavoidable Delay" means an event which delays Occupancy which is a strike, fire, explosion, flood, act of God, civil insurrection, act of war, act of terrorism or pandemic, plus any period of delay directly caused by the event, which are beyond the reasonable control of the Vendor and are not caused or contributed to by the fault of the Vendor.
Note that it says it
IS one of those things and not
MAY BE. I don't know a lot about legal language but it seems likely to me that that limits the definition of an unavoidable delay to be one of those circumstances listed which a contractor doing something incorrectly doesn't fall under. Besides which, it's questionable whether the two month delay is something beyond the "reasonable control" of the Vendor and not "caused or contributed to by the fault of the Vendor".
I spoke with Tarion actually a few months back regarding this - the woman on the phone couldn't tell me one way or another what the decision would be (understandable that she wouldn't want to give me a false idea without knowing for sure). But she gave me an example of a time when the "unavoidable delay" clause was granted - and it was for the 1998 Ice Storm. This...doesn't seem to quite qualify in the same sense of an "extreme circumstance".
She also gave me the information on what to do next. When we move in, we will get an enrolment number with Tarion. We will then have access on their website to the delayed occupancy form. Fill out the form, send it back to Tarion, and their lawyers will then ask the builder for proof that this was an unavoidable delay. We're all going to have to fill these out at least for the past few weeks delay but I do think it'd be worth it for all of us to also see if it's possible to get compensation for the initial two month delay (up to the $7500 cap in total).
Prev
Linear Mode
