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Posted by: Anthony Wilkinson
Sunday, 24 April 2011
Owners Corporations in Victoria have a duty and obligation to repair and maintain the common property and for the benefit of all proprietors on a plan of subdivision. An essential part of this duty is to keep in good and serviceable repair, properly maintain and where necessary, renew and replace —
and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause. Thus in fulfilling its duties an Owners Corporation must rectify all inherent building defects that are on common property and the responsibility of the Owners Corporation.
What are building defects?
A defect is a fault or imperfection. A building defect is a fault or imperfection arising from the design and or construction of a building. A defect is usually measured against objective criteria such as:
A defect is a fault or imperfection. A building defect is a fault or imperfection arising from the design and or construction of a building.
A defect is usually measured against objective criteria such as:
Some practical examples of the types of building defects that we come across are as follows:
The above list is not exhaustive. There are many other types of defects that a strata company may be required to maintain and repair.
What causes building defects?
Building defects can be caused by a number of things such as:
If building defects arise from wear and tear or a lack of maintenance it is the responsibility of the Owners Corporation as liability cannot be traced back to the builder.
Applicable Law
There are two Acts of Parliament that apply to a building defects claim in Victoria, which are the Domestic Building Contracts Act 1995 and Building Act 1993. An Owners Corporation’s building defects claim is never against the developer, it is against the builder or contractor or performed the actual work to complete a structure or facility. Builder’s insurance is not compulsory for buildings constructed after April 2003 if they are in excess of three storeys in height. Any building defects claim issued in a Court or Tribunal in Victoria must be issued within 10 years of the occupancy certificate issued and within 6 years of the Owners Corporation becoming aware of the defect. In other words, if the Owners Corporation becomes aware of a defect on 1 July 2007, which is one year after the occupancy certificate is issued then the Owners Corporation must issue the claim in a Court or Tribunal by 30 June 2013.
An Owners Corporation’s building defects claim is never against the developer, it is against the builder or contractor or performed the actual work to complete a structure or facility.
Builder’s insurance is not compulsory for buildings constructed after April 2003 if they are in excess of three storeys in height.
Any building defects claim issued in a Court or Tribunal in Victoria must be issued within 10 years of the occupancy certificate issued and within 6 years of the Owners Corporation becoming aware of the defect. In other words, if the Owners Corporation becomes aware of a defect on 1 July 2007, which is one year after the occupancy certificate is issued then the Owners Corporation must issue the claim in a Court or Tribunal by 30 June 2013.
Process for Rectifying Building Defects
The process for rectifying building defects or obtaining an order to compel defects rectification can be broken down into four steps: Identify defects using an expert detailing why the workmanship or materials are defective. Issue preliminary notice to the builder of the development to rectify defects identified. If the builder fails to rectify defects then Owners Corporation must determine whether to issue claim in VCAT or Court. If Owners Corporation determines to pursue builder for defects it must pass a special resolution of the members before filing the claim in VCAT or Court and raise a levy to fund the action. Prior to any preliminary notice or complaint being issued, the Owners Corporation should obtain expert reports on the relevant defects and determine which defects are in fact the Owners Corporation’s responsibility. Following such action the Owners Corporation must determine whether it is in its best interests to either: rectify the building defects itself by striking a special levy; make an insurance claim; or approach and or sue the builder / developer / architect / engineer (party that is responsible for the defects) for the cost of rectifying defects. Anthony Wilkinson - Principal Lawyer
Prior to any preliminary notice or complaint being issued, the Owners Corporation should obtain expert reports on the relevant defects and determine which defects are in fact the Owners Corporation’s responsibility. Following such action the Owners Corporation must determine whether it is in its best interests to either:
Anthony Wilkinson - Principal Lawyer
Category: Owners Corporations / Body Corporates
Tags Body Corporate, Owners Corporation, Building Defect, Building Contract, Rectification, Domestic Building Contracts Act 1995
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