In a perfect world, every newly constructed building would be faultless.
New owners would move in without the worries that may face owners who purchase older buildings. However, in reality, there is no such thing as a perfectly constructed building.
New buildings will have imperfections, some of which will be defects that should be remedied by the original builder. These defects may result from poor workmanship or the use of component parts that are not of the quality that they should be. These defaults may be noticed straight after construction or could be triggered a few years later when faulty construction starts to weaken.
Though defects affect all new buildings, in a body corporate they are particularly inconvenient. Defects can impact on the quality of both private and common areas, reduce property values and rental incomes and can result in ongoing damage. Due to the nature of strata, the defect will inconvenience a large number of people.
The process of managing defects is also hindered in strata schemes. Deciding the best solution, making decisions and implementing actions can be a difficult and drawn out process due to the number of people affected. As the time in which you can make claims for rectification is limited, this prolonged process can be risky.
It is in the best interests of the community that building defects be identified, addressed, and rectified in the most efficient manner possible. For this to occur, the process needs to be organised by a functional and open team comprising the committee, body corporate manager and the building manager.
Losing track of time, being unsure of who is responsible for what and misplacing documents and records are sure ways to make the process of defect rectification nigh impossible. As an on-site manager, you are in a prime position to be proactive and organise the process. We’re not saying try to fix the defects yourself, in fact, we recommend hiring experienced and expert consultants but organisation is essential in all steps of the defect rectification process.
1. Identify defects as soon as possible by engaging the services of an expert, for example, a structural engineer. Your community manager will be able to refer consultants who they have used previously.
2. Contact the builder in writing, outlining all of the defects. Provide the builder with the report from the consultant, or have the consultant speak with the builder. Nominate a particular time frame, for example 14-28 days, for the builder to inspect the defects and respond. Make sure you ask what methods they intend to use to rectify the problems and ask them to outline an expected timeframe for them to be completed in.
3. Assess your builder’s response. Are you happy with the required time frame, or are they disputing the defects and refusing to rectify them?
4. If the builder fails to rectify defects, the body corporate may then lodge a claim with Queensland Building and Construction Commission.
Ensuring you are aware of all these steps and are vigilant in following them up is important as there are timeframes which limit when you can bring your complaints to the QBCC.
The QBCC splits defects into two categories:
Category 1 defects are major, such as roof leaks, subsidence of building, bath or shower leaks or tiles lifting. Complaints can be lodged with the QBCC up to six years and three months from the date of practical completion of works (this is when your certificate of classification was issued).
Category 2 defects are less serious, including hairline cracking of cornice, cracking paths and driveways, scratched surfaces and sticking doors and windows. Contractors are required to provide a six-month warranty. If the defect is not fixed after six months, lodge a complaint to the QBCC. This complaint must be within seven months of the completion of works.
Owners also have an avenue for redress under common law. You may bring a claim for damages against a contractor for breach of contract resulting in defects unless such a right is specifically excluded in the contract. Statutory limitations on common law claims are six years and the involvement of a lawyer is essential.
An essential part of the defect management process is to engage the proper experts. You may have to ‘spend money to save money’. Avoid the temptation to pick the cheapest engineer’s report, instead engage a consultant who will not only prepare the report but liaise with the builder about it and will lodge reports with the QBCC if necessary. This saves you and the committee being overwhelmed or confused by technical talk by the builder or incorrectly filling out forms, which may frustrate your attempts to get the defects rectified.
If your defects are serious, consider engaging an experienced solicitor to guide you in the rectification process. Again, your community manager can refer you to an expert in the field. Obtaining proper advice at the beginning can save you huge costs at the end.
Ensuring you have the right team (an experienced solicitor, an expert consultant, a knowledgeable community manager and a proactive building manager) will facilitate the defect-rectification process for the good of the community.