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Question DetailsAsked on 4/27/2017

can i get my 10k deposit back on a pool if the swimming pool cannot be built to agreed upon terms due to city code

Gave a 10k deposit and signed contract for a vanishing edge pool - after 3 months I was informed that the city rejected our plans due to setback codes. I am not confident in how this company handled our business so far -
(they want to revise the contract but keep telling me it is being engineered before I have even seen any revisions in writing) I am uncomfortable moving forward with them and I do not want to revise - but I do not want to lose my 10k either... the terms that were agreed upon cannot be fulfilled - can I walk away with my deposit ( minus any engineering or permitting fees of course)

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2 Answers

Voted Best Answer

Depends on contract terms, and on how reasonably the pool can be moved or reconfigured (maybe shape or orientation change) to get adequate property line clearance. Also depends on who got the permit - if you did, more likely you will lose at least some of the deposit. If the permitting was part of the contractor's responsbility, then the burden to get the job done is more on them and if they located it within legal setback without a good indication from the city that they could get a waiver for that, their responsbility level would go up and the reasonable amount of the deposit they could kepp would go down.

Most likely, with some relocation or resizing of dimensions you can still fit it onto your property, though whether the vanishing edge will have the desired background view or not depends on your site conditions. Generally, if it can reasonably be reconfigured to the approximate same pool size and view (if view over the vanishing edge was a consideration) then the contract should go ahead in the revised location. Who pays for the relocation surveying and design would depend on who was responsible for locating and permitting the pool - if their mistake they should pay for it, if you were responsbile for the pool location and permit and they were just responsible to build it, then those costs would fairly be out of your pocket.

If it does not work at all in the available space, then the contract would be cancelleable - with reasonable surveying, engineering and planning cost payable out of the deposit if it was not their initial location fault.

As for the reengineering - they should not be doing that without a change order approved by you if they intend you to pay more for it - I see no problem with them redesigning a new configuration to meet the setback rerquirements if out of their pocket, but they should have discussed the concept with you first to see if you would even potentially accept their new design/configuration/location. I would communicate in writing with them (say eMail) about what they are doing and their intentions before doing any redesign.

If you are uncomfortable with them now and do not want to continue that is, barring proof it cannot be done reasonably with reasonable relocation/reconfiguration, would be separate issue from the setback issue. If you want to terminate for convenience then the terms of the contract for termination for convenience by you would control how much deposit they get to keep - plus the reasonable costs discussed above unless the deposit terms specificlaly provide for different deposit loss amounts before and after pool planning/engineering phase.

IF you feel they are not competent or failed in their responsibilities under the contract then you can cancel the contract for cause - of course they can argue that they are in compliance, in which case it goes to arbitration or lawsuit or such.

If it went to arbitration or court, unless the failure to correctly place the pool was clearly their fault (like if they were responsible for layout and all permitting and zoning approvals), they would get paid their reasonable costs (including appropriate standard markups and profit) at a minimum - and if terminating at your convenience commonly they would get their planned profit for the entire job as part of the compensation.

You do not say specifically WHY you do not want to revise the contract (or what revisions they are proposing) - but relocating/reconfiguring the pool to meet setback requirements would seem a reasonable accommodation - as would applying for a zoning setback waiver. Those are commonly pretty easy to obtain unless your neighbor on that side objects - especially for landscaping things like pools as opposed to buildings where fire code spacing between buildings comes into play.

Of course, if you can not come to an agreement with them that both sides think is fair, then you need an attorney to pursue your interests.

Answered 3 years ago by LCD


Thank you for the response on my question. I was told my only option to revise is to either change my pool width to 8ft ( which to me is not something I am willing to do - my son is 6'2 he would literally hit the other side if he stretched out) or to make my pool a regular w/o a vanishing edge. We are located on a canal with a seawall and the city is very strict with setback codes... I just don't know why the company wouldn't know that up front... as far as revising to a regular pool - It may be my only option - but I would want additional quotes for a regular pool - just to compare costs...I guess I feel that my deposit is holding me hostage to their pricing. Which when they told me their cost - it appeared to be way out of range. Thank you again - you have given me lots of information to digest.

Answered 3 years ago by ANXIOUS


One thing to consider - if the conditions require a major change to the project (as opposed to minor orientation or dimensional changes or relocation in the same area as originally planned), unless you told them that was the firm (rather than desired) location and you (rather than them) were responsible for permits, you could claim force majeure (look it up) - that the project is not doable in essentially the original form (and especially if a vanishing edge pool is no longer feasible, like if it wassupposed to look out over the seawall) so the contract is not fulfillable - hence can be cancelled by either party.

Whether you get all the deposit back or not depends on the contract terms (especially if there was a specific provision about refunding the deposit under different conditions), but GENERALLY if the project was basically undoable from the get-go and they were doing all the planning and designs and permitting, then you should get everything back, because they were unable to fulfill their obligations under the contract. If YOU were doing permitting and location determination and such, you would get back what the contract provides for in any return of deposit clause, or the deposit minus their reasonable costs incurred on the project lacking a specific caluse - with normal overheads and profit. If jointly planned then something in between - but without having started construction (assuming they did no significant clearing or ground prep or such) which added up to substantial performance, no way they would get the full $10K deposit - more like some hundreds of $ more likely.

Lacking specific clauses in the contract regarding disposition of the deposit in the event of failure or inability to complete the work, it would NOT be sacrificed - would be considered a deposit or advance payment on the project to be applied to legitimate and due compensation for the effort they did put into the job - which might be zero if the entire failure to complete (or be able to start) the job is traceable to their failure or inability to get permits. Obviously, this argument would carry more weight if they are local and have done other jobs near the seawall than if they are out-of-towners, though if doing the permitting checking with Planning and Zoning department should have been about the first thing they did.

Obviously, if they get hard-nosed about this and they will not refund what you consider fair, you will probably need an attorney to at least write a strongly worded letter to them about force majeure and demanding $X amount of refund.


Now - from the technical side - if there is room for the pool between house and the seawall (it sounds like that is where you want it, anyway), and taking into account the risk of putting a pool real close to the foundation in case of leakage (especially if you have a basement there), one possibility to retain the vanishing edge would be to build the pool on an elevated pad or inside a retaining ring, with retaining wall running all around it (which might actually be the sides of the pool) - so set back the required distance from the seawall to keep the government agencies happy, and elevated enough to still have the vanishing edge look out over the water rather than into the lawn (?) and seawall. Like these images:

Course, you are going to pay a lot more for retaining structure to elevate it, but hey - vanishing edge pools are neat, cost is no object, right ?

For the Cousin Bubba or economy version, put in a conventional above-ground pool and leave that side a bit low so it overflows there into a collection trough (corrugated metal horse troughs or pig slop troughs are pretty cheap) and gets pumped back to the pool.

Or go whole hog and put it on your roof, though depending on house construction that solution is likely to require jacking up your house number by the front door, removing and replacing your house with a concrete framed house, putting the house number back on, and then putting the pool on top - like a rooftop hotel pool.

Good Luck

Answered 3 years ago by LCD

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