In Western Australia you are protected by several laws when you engage someone to undertake building work for you. These laws and obligations extend to builders, carpenters, roof plumbers, tilers and handymen. This includes most people involved with building your new home or undertaking building work within your existing home. The principles and obligations for entirely new homes are the exactly the same for renovations, extensions- for example a new deck, a new patio or a new bathroom.
We are often asked what are my rights? What can the builder be made to do to make sure I get what I have paid for? To explain this process it may be best to propose a simplified scenario with very simplified legal provisions. Please note that the information below is a typical scenario and to keep the scenario simple not all legal avenues are explored.
For the example Lets say John engages a builder to construction a new home.
In the beginning..
The start of the business relationship begins when John signs the contract. This is known as acceptance of an offer. The builder has offered to build the home for a certain amount of $$$ and John accepts the terms which includes the price, addenda, plans etc.... At this point John is protected (amongst other laws) by Contract Law. In Australia there are provisions within contract law to protect John from such things as signing away his legislative rights such as agreeing to a lesser minimum defects liability period. The contract also provides the basis for the rights, obligations and duties between John and his builder. Most home building contracts are HIA Lump Sum Building Contracts which have already been proven legally and should be considered to be relatively fair to both parties. Some contracts may be verbal, an email or may be written on a scrap of paper. All contracts should be shown or discussed with your lawyer to ensure that you understand what you are signing and that are not agreeing to a contract which may be to your detriment later.
Building Inspections and the law
An independent inspection should be undertaken at or prior to PCI or handover to ensure that you have gotten what you paid for and that there are no outstanding items to be completed. At this stage if defective work is discovered it will likely fall under one of three categories:
1. Work which has not been completed in a proper and proficient manner.
2. Work which has not been undertaken in accordance with the Building Code of Australia of N.C.C.
3. Contractual disputes.
There are provisions within civil law which ensures that you are protected as a consumer, as a contract holder and as a home owner for all three.
Defective building work
All home building work must be completed in accordance with accepted industry practice, the Building Code of Australia and other legislative requirements. Work which is not completed in accordance with these laws, standards and codes is considered defective and you are entitled to seek a remedy from the builder. To rectify defective building work it is highly recommended that you first seek an expert witness report for a registered building services provider. This report can be used at the Building Commission, State Administrative Tribunal or local court to seek a remedy.
A remedy is an order to rectify or compensate the person who has been negatively affected by defective building work.
To order a remedy an adjudicator (such as at a tribunal or court) must first know (if defective) what the defect is, why is it important, what is the industry accepted method of installing the product and what type of remedy are you seeking. A thorough expert witness report should include all this information as a minimum. Failure to do so may mean that you are not able to proceed with your case - as there will be insufficient evidence for an adjudicator to make a decision.
The Building Code of Australia performance requirement are a legislative requirement which must be complied with. Courts and tribunals have the power to order rectification work under the provisions of the Building Act and Building Regulations Act for non-compliant building work.
Australian Standards not included within the Building Code of Australia exist to set the benchmark for an accepted industry standard. Failure to comply with this standard indicates that your builder has not undertaken the work in accordance with accepted industry practice. There are provisions within the Competition and Consumer Act which enable breaches of Australian Standards to be recognised as defective building work, therefore protecting you as a consumer.
