Appointment of a Certifier - Changes to HIA Contracts - NSW
For any residential building works that requires building approval (construction certificate or complying development certificate), the owner is required to appoint a principal certifying authority- be it council or a private certifier. It is not the builder’s responsibility to appoint this body, nor is it the builder’s choice as to who is appointed.
New contract term - Selection of registered certifier
From 1 July 2020 all contracts for residential building work, or specialist work, where a registered certifier will be required with respect to some or all of the work (including variations) must now include the following terms:
- The builder will notify the owner if a registered certifier is required with respect to particular work done under this contract.
- The selection of a registered certifier is the sole responsibility of the owner (subject to section 6.6 (4A) or 6.12 (4A) of the Environmental Planning and Assessment Act 1979).
- The builder will not object to the selection by the owner of any particular registered certifier.
Along with the Consumer Guide to Building, contractors will now also need to provide a further document that explains the role and responsibilities of a registered certifier at the time of entering the building contract.
Updated Consumer Checklist and Consumer Building Guide
Due to these changes, the consumer checklist has also been updated to include an item for the owner to check that the choice of certifier is theirs and that the contractor cannot object to such selection.
Fair Trading has also updated the Consumer Building Guide
What if I have a pre-1 July 2020 contract?
HIA is currently updating its contracts to comply with the new requirements.
A grace period of six months will apply from 1 July 2020 so that contracts can be updated to include the new term, updated checklist, updated Consumer Building Guide (July 2020) and information sheet about the role of certifiers. An educational approach will be taken in this time rather than enforcement.
Builders /contractors are still expected to take steps to comply as soon as practicable.
See below for detail as to how to update existing contracts to meet the above requirements (new clause, checklist and guide and information sheet about certifier role).
From 1 July it will be an offence for a licensed contractor to ‘unduly influence’ the owner’s choice of a certifier and require contracts to include certain terms about the appointment of a private certifier.
When will a contractor “unduly influence” an owner?
A contractor (which includes a builder) is taken to ‘unduly influence’ the owner (or attempt to) if the contractor:
- requires that for a contract to be entered into, the owner must or must not appoint a specific registered certifier;
- offered to change the contract price if a specified registered certifier would be or would not be appointed;
- refuses to carry out work under the contract if a specified registered certifier is or is not appointed.
This does not mean that a builder can’t suggest the appointment of a certain certifier. The builder however cannot automatically appoint that certifier, or pressure the owner to agree to use, or agree not to use a particular certifier.
How to update existing HIA Contracts
- Attach the following Insert Sheet (1 or 2, depending on your Contract) - by stapling it to the inside of your contract.
Insert 1 Insert 2
- Sign the Contract and Insert Sheet - both you and your client must, when signing the contract, sign the insert sheet.
- Provide the Owner with the updated Checklist to replace the Checklist in the Contract (Note: the Checklist is not required for works under $20,000 and is therefore not applicable for Small Works between $5,000 and $20,000)
- Provide the Owner with the updated Consumer Building Guide July 2020
- Provide the Owner with the document titled “Role of registered certifiers – Home Building Act 1989”, published by NSW Fair Trading.