I have a building Complaint.. What now??

If your complaint is regarding home building work and contract disputes The Building Commission of Western Australia may be able to help. An expert witness report from SHS Building Inspection services can clearly identify what the building defect / concern is so that the commissioner may consider your case. Failure to provide enough clear evidence with reference to acceptable standards and Building Code requirements or present the evidence in an expert witness report may harm your chances of a desired outcome. SHS Building Inspection services can help with this.

The following information has been obtained from the Building Commission website https://www.commerce.wa.gov.au/building-commission/building-complaint

Who can make a complaint?

A complaint under the Building Services (Complaint Resolution and Administration) Act 2011 can be made by any person who is adversely affected by the carrying out of regulated building services.

A complaint may be made to the Building Commissioner by:

• a person whose interests are being or have been adversely affected by the carrying out of a regulated building service (ie the owner of the work or an affected third party); or
• an owner or builder under a contract for home building work valued between $7,500 and $500,000.

Not only may a person who has directly contracted a building service lodge a complaint, but also any person adversely affected by that building service. This can include a neighbour whose property has been damaged as a result of unsatisfactory building services or some other third party.

Time limits for making a complaint

There are time limits for lodging complaints with the Building Commissioner. In general, a complaint cannot be considered more than six years after completion of the work.

You should consider the following when ascertaining the completion date of a regulated building service:

• If the work was done under a permit and the person responsible for the work ceases their responsibility under the permit, the work is completed when the notice of cessation is given.
• If not the above, the work is completed when the notice of completion is given.
• If the work is not carried out under a permit, then the work is completed on the date that practical completion is achieved.

For specific home building work contract matters (contract variations, breach of contract, termination payments) the time limit for making a complaint is generally three years from when the contract was entered into or when the breach first occurred, whichever is later.

Making a complaint

Before initiating a complaint with the Building Commission, read the important information provided in the Building complaint resolution guide. Complete the Notice of proposed complaint and provide it to the party against who the complaint is going to be made at least 14 days before submitting a formal complaint to the Building Commissioner.

If a satisfactory response to your notice of proposed complaint is not received, complete the Building complaint form and lodge it with the Building Commission together with copies of relevant documents and the complaint fee.

When preparing your complaint form, detailed information is required to enable proper investigation of the complaint. The Building Commissioner may, in writing, require a person making a complaint provide further details about the complaint. Where these details are not provided within a reasonable time, the Building Commissioner may refuse to accept a complaint.

Implied warranties and consumer guarantees

The law requires a builder to meet certain obligations when they do building work. An SHS Building Inspection will identify when a breach of the builders warranty has occured.

The warranties in the Domestic Building Contracts Act, and ‘consumer guarantees’ within  Australian Consumer Law allow you certain rights under both laws.

Consumer guarantees and implied warranties apply by law and cannot be signed away.

Warranties under building law

Builders and tradespeople must honour the implied warranties in the Domestic Building Contracts Act, which require that they:

• carry out the work in a proper and workmanlike manner, in accordance with the plans and specifications set out in the contract
• ensure all materials supplied are good and suitable for the purpose and are new, unless otherwise stated in the contractcarry out the work in accordance with all laws and legal requirementscarry out the work with reasonable care and skill and complete works by the date (or within the period) specified by the contract
• ensure new homes, extensions, renovations, repairs and kit homes (or similar) are suitable for occupation when completed
• ensure other types of work and the material used are reasonably fit for the intended purpose.
• Implied warranties automatically apply to all building work, regardless of the cost or whether or not there is a written contract.

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We are often asked why the building code doesn't explain in details how buildings are to be constructed (ie how to install ceramic floor tiles to prevent water escaping?).

Simply put the Building Code of Australia (also known as the National Construction Code - or N.C.C) is a performance based list of requirements which does not contain a lot of specific information on HOW to achieve those performance requirements. The expected performance is based on the probability that something untoward may occur as the result of the building work not being undertaken in a proper and tradesman like manner. To establish the method for writing an expert witness report I will use the example of water ponding on a shower recess floor, creating a slip hazard.

We are often asked why the building code doesn't explain in details how buildings are to be constructed (ie how to install ceramic floor tiles to prevent water escaping?).

Simply put the Building Code of Australia (also known as the National Construction Code - or N.C.C) is a performance based list of requirements which does not contain a lot of specific information on how to achieve the performance requirements.  The expected performance is based on the probability that something untoward may occur as the result of the building work not being undertaken in a proper and tradesman like manner. To establish that there is a defect I will use the example of water ponding on a shower recess floor, creating a slip hazard.

The Building Code of Australia states:

"O2.2
The Objective is to—
(a) safeguard occupants from illness or injury and protect the building from damage caused by—
(i) surface water; and
(ii) external moisture entering a building; and
(iii) the accumulation of internal moisture in a building; and
(iv) discharge of swimming pool waste water; and
(b) protect other property from damage caused by—
i) redirected surface water; and
(ii) the discharge of swimming pool waste water"

This really just means that the tiles must be laid so that nobody gets hurt and no property is damaged as a result of the installation.

You will note that at this stage we only know that there is a defect because water is ponding or pooling on the floor. We know that the BCA states that this should not occur, but we have no idea what may have been done differently.

To do this we look at the Australian Standard for Waterproofing. Compliance with The Australian Standard is not necessarily a mandatory requirement but we can learn what is an industry accepted method of achieving compliance with the BCA (which is a mandatory requirement)

The standard states:

“3.4 Shower Floors

Falls in shower floors shall be sufficient to prevent—

(a) surface water from being retained on the shower floor (except for residual water remaining due to surface tension); and

(b) water from discharging outside the shower area..”

So now we know that the water is ponding on the shower floor which is a slip hazard - contrary to the requirements of the BCAand we know what could have been done to ensure that the tiles were not installed as a slip hazard. In this way we have established what is defective, why it is considered defective, and what should have been done in the firts place. This is the format of an SHS expert opinion report which may be used at the Building Commission of Western Australia.

There is not likely to be a too many large scale projects that you may consider to undertake in your life than when deciding to build a home. Building a new home can be financially and emotionally demanding and require a significant amount of your time. Many people state that they have become somewhat reluctant experts during the build. We have found that the stress and confusion can be somewhat eleviated by employing a building consultant, who is an expert in such matters to assist and advise you. 

• The contract.

Building Contracts are usually very generic and most homes in Perth are constructed under a HIA Lump Sum Building Contract which has been written in compliance with legislative requirements. You may find that this and other contracts may seem daunting at first, especially with the new words and terminology with which you may not be familiar. The best advice  is to read the contracts fully and ask for clarity regarding any questions you may have - or contact SHS building Consultants for advice. The second piece of advise is to include your own requirements within the contract such as specific brands or even penalties for time delays where you may be out of pocket if the building is not constructed on time.

• What is the Building Commission?

Western Australia’s Building Commission oversees the regulation of building, painting, building surveying and plumbing services. The commission is the regulatory body for building work, building professional and consumer complaints.

• What if the home building work is poor or defective?

Speak with your builder and document the alleged defect. If you do not consider your builders response to be appropriate then organise an independent building inspection. If the builder maintains that there is no defect then you may need to contact the Building Commission of W.A.

It is important to note that Nonregulatory bodies such as the HIA exist primarily to represent members of the organisation- which are the builders and building professionals-who have paid for membership. It is suggested that if you have a complaint regarding workmanship and defects during the build, you should first contact your builder, or organise an independent building inspection of the alleged defect to ensure that the assessment is an independent one.

Contact SHS Building Consultants for clarity on where to find this information, or for specific advice.

• How can I be sure the build is going well and that there are no defects

Organise an independent building inspection at any time of the build to ensure that everything is going well and also to ensure that your concerns are being met.

Although the builder is contractually obliged to return to the residence within a minimum 120 days to rectify any defects observed after (or during) Practical Completion, your builder is also responsible to rectify defects and incomplete work for 6 years from the date of practical completion. If your builder dies or becomes insolvent the building work is insured under a home owner warranty or building warranty and your insurer will take over.

WHat is building handover?

Legislation provides for a minimum 120 days defects liability so that your builder may complete the home building work. The 120 days begins on the same date as practical completion. (Practical Completion is the date which the building work is ready for use - ie with reference to homes this is the day that you can move in.) In short this means that although your house may not be finished the builder has 120 days to finish the work, so long as that work does not stop the building being lived in, or otherwise used for the intended purpose.

We are often asked what is the purpose of Pracical Completion. It is a commonly misunderstood and extemely important date. Generally people assume that the date of PCI is also the date which the building should be finished. This is only partially correct. The legislated prupose of PCI and some common misconceptions are outlined below:

Practical Completion (also known as PCI) is an extemely important date in the life of your new home and also an extremely important date within your building contract. This is the date on which the builders minimum defect liabilty period begins. In accordance with legislation your builder has a minimum of 120 days - taken from the date of practical completion - to perform the home building work in a proper and workmanlike manner and to ensure that all building materials are of a merchantable quality and reasonably fit for purpose. Technically this means that even on the day of practical completion your builder has 120 days to finish the building work- with some exceptions (see below)

In addition to being the start date of the 120 day defects liability period, Practical Completion is also the date  - in accordance with legislation - where the home building work must be completed (except for any omissions or defects which do not prevent the home building work from being reasonably capable of being used for its intended purpose.) This means that although the builder has a minimum 120 days to finish off the building work, the home must be reasonably able to be used (ie lived in) from the handover date. If there are any structural defects, or other defects which do not permit the residence to be inhabited or used - then Practical Completion has not been reached.

Secondary to the above legislative purpose of PCI the builder usually requests final payment at PCI. Often people think, do I have to pay the final amount if the house is not finished? Mostly the answer is yes, as long as Practical Completion has been reached.

A new home is a big investment and SHS building report will save you money and time by identifying incomplete or defective work before your builder hands the property (and any problems - including time delays or non-acceptance for defect liability rectification) over to you. We can advise if Practical Completion has been reached and we will include all building components which are considered defective in accordance with legislation so that your builder can rectify the items prior to PCI, handover or prior to the defects libility period running out.

Why do buildings crack and what can be done. Is my builder is responsible?