Question: I signed a contract a little over two years ago to purchase a to be built condominium unit. I gave the developer a hefty down payment. My sales contract says that settlement must take place within two years. On a weekly basis, I inspect the building and it does not look like a lot of work has been done.

I asked the developer when I will be able to go to closing, and his response was that because of matters out of his control, he will not be able to meet the settlement deadline spelled out in the sales contract.

Based on the length of time this has taken, and the declining condominium market, I would like to cancel the contract and get my deposit back.

The developer is relying on a paragraph in the contract that excuses a builder from timely delivery based on "force majeure."

Exactly what does this mean?

Answer: It is French for "major" or "superior" force.

The Merriam-Webster Online Dictionary defines "force majeure" as "an event or effect that cannot be reasonably anticipated or controlled. Some people equate this concept with "an act of God."

Legal contracts of any kind -- including real estate -- often include a "force majeure" clause. A sample would read like this:

Contractor’s failure to perform any term or condition of this Agreement as a result of force majeure conditions beyond its control such as, but not limited to, war, strikes, fires, flood, Acts of God, governmental restrictions, power failures, or damage or destruction, shall not be deemed a breach of this Agreement.

As we all know, the condominium market has slowed down dramatically in many parts of this Country. Furthermore, many developers are now unable (or unwilling) – for a number of reasons – to meet the targeted settlement dates spelled out in their sales contract.

As a result, I am hearing from attorneys and consumers all over the country that developers are trying to use the "force majeure" clause as their legal grounds for not refunding the earnest money deposits to now unhappy contract purchasers.

The law of contracts is quite clear. A Court will only excuse a developer from performance when there is an actual impossibility, and not merely unexpected difficulties. Recently, the District of Columbia Court of Appeals addressed a case where one party to a contract attempted to void that document based on a force majeure type clause. The clause allowed termination of the contract for "any other emergency beyond the parties’ control, making it inadvisable, illegal or which materially affects a party’s ability to perform its obligations under this Contract."

According to the Court:

Such provisions are often called force majeure clauses, but attaching that label does not assist in our analysis. We must look to the language that the parties specifically bargained for in the contract to determine the parties intent concerning whether the event complained of excuses performance.

What does this mean?

A developer cannot merely say, "I cannot deliver because of force majeure." That is a label, which is too general. The developer must justify his position, providing proof that something truly beyond his control caused the delay in completing your condominium unit.

Take this example: recently, there was a serious wind and rain storm in the Washington area. Clearly, this was an "act of God." But in order to be excused from performance, it is not enough for the developer to cite to this storm. He must specifically show how and why the storm specifically impacted on his development.

One lawyer from Florida recently told me that developers in his area are abusing the concept. Any expense due to increased building costs are all labeled "force majeure," which seems to be the "excuse de jeure."

What can you do if you signed a contract for a piece of property and the time for delivery has elapsed? Send a demand letter to the developer, in which you include a signed form release. This document states that the contract is declared null and void and the earnest money refunded in full back to you. You should sign the release and ask the developer to do the same.

Your letter should also state that if he is relying on "force majeure," he should specifically document his claim. The burden is on the developer to prove not only that there was an unanticipated event, but how this event directly impacted on the development process.

And unless the developer can justify his position, you are entitled to a refund. Hopefully, you will not have to go to Court to collect.

A Florida Judge said it all when he wrote:

Inconvenience or the cost of compliance, though they might make compliance a hardship, cannot excuse a party from the performance of an absolute and unqualified undertaking to do a thing that is possible and lawful. Parties ... bind themselves by their lawful contracts, and courts cannot alter them because they work a hardship.

Send in the clowns. To grifters, cons and cheats, the devastated Gulf Coast is a three-ring circus with a captive audience of rubes ripe for the picking. Scam artists don't mind applying a little upward pressure on what Jersey City, N.J. based risk wrangler ISO Properties Inc. says will amount to at least $34.4 billion in insurance losses from Hurricane Katrina alone.

Fraud criminals know the insurance industry is fat with a 29.1 percent increase in net income in the first half of 2005 alone. They also know more than 850,000 housing units were destroyed, damaged, or left uninhabitable or inaccessible by recent Gulf Coast storms. They want a piece of the action and they don't much care how they get it. Fortunately, the Coalition Against Insurance Fraud says it has their number. Comprised largely of insurance companies and consumer advocates, the coalition expects a cottage industry of funny business offering everything from arson for hire to fake deaths to descend upon the devastated area looking to have a field day in rip offs.

The coalition is advising area residents, including those forced from the Gulf Coast area, not to be taken by the "generosity" of strangers claiming to be someone they are not. The group advises: * Use reputable local and licensed contractors. * Get a signed contract before work begins and pay only a portion of the coast at the onset and portions as the work progresses.

* Never pay in full before work begins. * Never pay any portions in cash. * Use only adjusters from your insurer to inspect damage before any work begins * Legitimate public adjusters, who work for consumers and take a portion of the paid benefits should be licensed, should have references and should not ask you to inflate insurance claims. The coalition also says it will be vigilant looking out for the following come-ons.

* Crooked public adjusters -- Some adjusters may charge homeowners a large fee, then disappear without handling the claim. They also may show owners how to file bogus claims, for a cut of the insurance money. Some adjusters may also refer victims to crooked contractors who bribe the adjuster for referrals. * Shady contractors -- Unlicensed or inexperienced contractors who perform shoddy work, but charge a victim's insurer large bills are already at work. Some contractors also will charge much of the money up front and then disappear without completing the work. * Lost or damaged property that never existed -- Claiming lost, stolen or destroyed cars jewelry, stereos, computers or other items never owned is illegal. So is inflating losses.

* Home arsons -- Likewise, anyone who lacks flood insurance and torches their home because their policy covers fire but not flood could spend time up a swollen river. * Phantom claimants -- Some swindlers will put a spin on identity theft and impersonate real claimants to steal insurance checks. * Fake deaths -- The creepiest cons claim they've lost a loved one whose body was never found. Outsiders use a ruse that a spouse or loved one "disappeared" while visiting the Gulf region to make bogus life-insurance claims for people who are still alive.