By Harvey S. Jacobs June 12, 2015

We have lived in our newly built townhome for a little over one year. The builder advertised it as luxury, upscale and high-end.

We have had numerous problems, but the biggest one is the hardwood flooring. The flooring was an issue from day one, and we probably should not have closed on the home after the final inspection. The subcontractor for the flooring has verbally agreed to replace the hardwood. It is Bruce engineered flooring, and we did pay for the upgraded version. We are hesitant to replace it with the same product.

Can we insist on a different product? If it is at a higher price, can we make the builder eat the additional cost?

The Bruce flooring product was the builder’s choice. Should we hire an independent hardwood floor expert?

Any advice will be appreciated. Replacing the floor on two levels of our home will be a big and inconvenient endeavor.


I have handled wood-flooring cases. We used an expert witness in one case to prove that the flooring that was installed was not what had been selected. We also proved that the manufacturer’s installation method was not followed and caused warping and cupping.

In your case, it appears that unless the flooring is somehow not what you selected, is defective or was installed improperly, you may be liable for the cost of replacing it. Sales promotions using words such as luxury, elegant or high-end are not enforceable. The courts call those sales efforts merely puffery, and the builder cannot be held to such subjective criteria.

Check your contract to see whether it covers your situation. Most new-home contracts allow the builder to substitute materials for any or no reason. If defects in workmanship or materials are the issue, then check your new-home warranty promptly. Often new-home warranties will require you to make any claims within one year.

If your flooring subcontractor has already agreed orally to replace the hardwood, get that in writing. Make sure the writing addresses who is responsible for the materials, labor, warranty, the time frame, any necessary permits and the disposal of the old materials. Finally, make sure that subcontractor is licensed, bonded and insured.

Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates Attorneys at Law in Rockville. He is an active real estate investor, developer, landlord, settlement attorney, lender and Realtor. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact Jacobs at (301) 417-4144 or e-mail or