Access and Possession (Vic)

Before you can begin building, you must have been given permission by the client to enter onto their land to perform the works. Under our contract, the permission is described as a “licence”.

HIA Victorian Contracts
This information sheet sets out the procedure in the HIA Victorian New Homes and Alterations, Additions and Renovations Contract. The relevant clauses in the HIA Victorian contracts are:

• Clause 25 - New Homes Contract (‘NHC’) (October 2004); and – Clause 28 - Alterations, Additions and Renovations Contract (‘AARC’) (October 2004).

What is the owner giving licence to?
Under the licence you are entitled to:

• enter onto the owner’s land
• access the building site
• remain on the land to carry out the building works
• allow or refuse anyone access to the land so that the building works are not hindered in any way.

Although you have a contractual right of access and possession, the Domestic Building Contract Act prohibits you from lodging a caveat against the title of the land if the owner intends to reside on the property. Also the licence should not be confused with the kind of rights that tenants have under a lease.

How does the owner give this licence?
Via a clause in the building contract, the owner gives you a contractual licence to remain on the land.

As the licence can only be granted by the owner, you should obtain some proof from your client that they are actually the owner. Examples of such proof include a current original rates notice addressed to the owner or, if one is not available, a recent certified copy of the title deed. This should be done before building commences (clause 13 of NHC and clause 14 of AARC).

Can the owner go on to site?
Yes, but only in certain circumstances. The owner can go onto the site to view any part of the building works but only if:

• entry it is at a reasonable time; and
• it does not delay or interfere with the progress of the building works: Clause 25 NHC and clause 28 of AARC.

The owner may appoint another person to view the building works on their behalf, but that person should provide some kind of evidence that they are authorised by the owner.

A person who is exercising a right of access granted under this section must not interfere with the carrying out of the building works. 

If the section has not been complied with you are not liable for any costs or delays, due to the failure to comply with the section but you must notify the owner within 5 business days that this section wasn't followed.

What about after handover of the building works?
Handover occurs when you hand the building works over to the owner once the works have reached practical completion and the owner has paid all outstanding moneys owing to you. Once handover has occurred, the owner is still required under the contract to allow you access during normal working hours during the next 3 months to fix up any defects: Clause 39.3 NHC and clause 42.3 of AARC

What about if the owner refuses you access or possession?
It is not uncommon for an owner to disagree with something you do and refuse you access to the building site. This can be done in a number of ways, including removing the keys from the site, changing the locks, chaining the front gate or simply telling you that you cannot enter onto the land or else the police will be called. Although the owner is breaching the contract by doing this, at the end of the day they are still the registered owner of the land. Technically, if you persist on site after the owner has evicted you, you become a trespasser and can be ejected from the land through the use of reasonable force (whether by the owner or the police).

If the owner takes early possession unlawfully - before final payment and without your consent:

• The owner is deemed to have accepted the building works as having reached completion (this also triggers the start of the defects liability period);
• The owner is no longer entitled to any late completion damages as from that day; and
• All moneys payable to you under the contract are a debt due and payable.

NOTE - these are the consequences if you do not give the owner your consent. If you do agree to the owner taking early possession (that is, before final payment is made), then you automatically lose all of the rights as listed immediately above.

If you are faced with this type of situation, the owner has committed a serious breach of contract and you should seek legal advice on your rights regarding this breach.

For more information call the HIA member Hotline on 1300 650 620

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