Building defects: your responsibility as the principal contractor (QLD)

As every professional builder knows contact with your client rarely ends when you handover the keys for the finished project. Even after the standard 6 month minor maintenance period you can receive calls from the client or from subsequent owners of the property (in cases where the property has been sold), regarding items that they consider to be defects.

Most builders, due to good practices and being proud of the product that they produce, will go out and fix whatever problem the owner has found. However, the two questions that every builder asks are “Is this really a building work defect?” and if so “Is it my responsibility to rectify these defects?”

“Is this really a building work defect?”

You have to understand that your client has just paid a sum of money that they are likely never to pay again for just one product, so they can have a tendency to be particular with the finished work. The owner is not the expert when it comes to building work, so many items that they believe are problems are not really problems, unfortunately perfection is rarely achievable and that is why most Australian Standards for construction work contain tolerances on acceptable finishes.

Most defects that are brought to the builder’s attention are cosmetic defects, or to use the terminology of the Queensland Building Services Authority (BSA), they are Category 2 defects. In the BSA’s Rectification of Building Work Policy, there are certain timelines which builders and owners need to adhere to in regards to rectification of proposed defects, these are discussed below.

More serious defects are classed as Category 1 defects. These are defects which are either structural in nature, have allowed water to penetrate into the dwelling, or pose a health & safety risk.

As a builder you have to make a justified determination on whether the defect has been caused by the building work which you did. It is possible that the defect has been caused by other factors such as poor home owner maintenance, work completed by other contractors or persons after you left the site which has subsequently damaged your original work, storm damage etc. This leads us to the next question…..

“Is it my responsibility to rectify these defects?”

If you believe that the defect has arisen from work or factors not caused by you, your employees or sub-contractors, then you are not responsible for the rectification work.

If the defect has arisen from work that you or your subordinates have done then the following timelines apply:

• For Category 2 defects you are liable to rectify them up to 6 months after practical completion
• For Category 1 defects you are liable to rectify them up to 6 years 3 months after practical completion.

However, in all circumstances your warranty to rectify defects only applies if the owner has contacted you (or can show that they have repeatedly tried to contact you) first to return to the site to review the apparent defect. You need to be allowed to make a judgement on the building work problem to discern the cause and responsible persons, if any.

If the owner has engaged another contractor to fix the problem before contacting you, but then asks you to reimburse them for the cost of hiring that other contractor you are under no obligation to do so.

It is HIA’s recommendation that all members should visit the site to view the owner’s complaint and then make a justified decision on what action to take; to either:

• Rectify the problem, or
• Inform the owner that the issue is not a building work defect or that the defect has not been caused by your work.

Of course, if the owner does not agree with your determination, they can take the matter further to the BSA. The BSA will then follow the due process to resolve the issue.

HIA can provide all members with information on building work tolerances within Australian Standards as well as technical and legal advice on how to proceed with the consumer complaint.

For further information HIA members can contact HIA’s Building Services staff on 1300 650 620 or hia_technical@hia.com.au .

If you would like to become a HIA member, contact 1300 650 620 or enquiry@hia.com.au

_{The above is intended to provide general information in summary form. The contents do not constitute specific advice and should not be relied upon as such. Formal specific advice should be sought by members with respect to particular matters before taking action.}