Page 1 of 1
Hi,
I am reviewing my contract with the builder. I would like your thoughts on this:
How does this scenario play out?
- Builder says all work is done.
- Owner inspects, and disagrees. Variety of cosmetic and a few important issues. Owner signs list, Builder signs list.
If the Builder signing the list does not mean they agree something is wrong, and the Owner thinks there is something outstanding, how can clause 37.2 be fulfilled?
I think 37.5 and 37.6 covers it. The Owner appears to have no opportunity to challenge the notice under 37.3. So, under 37.2, Owner gives Builder a list. Builder takes the list, and turns around and issues a note saying "all done". Owner pays.
You then have a document trail for your dispute, but to my reading of the contract, the payment obligation under 37.4 is not conditional on agreeing with the notices. 37.5 (and 37.6 from the builder's side) allows for keeping it moving whilst reserving rights to dispute later.
I guess there is a reason builders are distrusted and disliked across cultures and languages.
There is, then, really, no point in the defect list; the builder has no incentive nor obligation to listen to anything the owner says is a problem. They get to appoint their own surveyors (yes, I know, they can't legally, but when they get people to sign with a surveyor without telling them there is a choice, or refuse to build for people unless a specific surveyor that just so happens to be the one the builder wants, there isn't a real choice available for the owner). So surveyor signs off, good or bad, builder says here, we're all done, and the owner pays without any avenue available to get anything finished, fixed, or up to scratch. The list is useless if it doesn't protect the owner in any way or mean the builder has to fix anything.
The lack of government oversight on this industry is a disgrace; where an industry demonstrates they cannot be trusted to self-monitor and regulate, and the only option available to clients stuck with crap work is to put in big money into legal fights the builder can afford to drag on, but the owner can't, well, it's time for the government to step in and step hard.
We live in hope.
I guess there is a reason builders are distrusted and disliked across cultures and languages.
There is, then, really, no point in the defect list; the builder has no incentive nor obligation to listen to anything the owner says is a problem. They get to appoint their own surveyors (yes, I know, they can't legally, but when they get people to sign with a surveyor without telling them there is a choice, or refuse to build for people unless a specific surveyor that just so happens to be the one the builder wants, there isn't a real choice available for the owner). So surveyor signs off, good or bad, builder says here, we're all done, and the owner pays without any avenue available to get anything finished, fixed, or up to scratch. The list is useless if it doesn't protect the owner in any way or mean the builder has to fix anything.
The lack of government oversight on this industry is a disgrace; where an industry demonstrates they cannot be trusted to self-monitor and regulate, and the only option available to clients stuck with crap work is to put in big money into legal fights the builder can afford to drag on, but the owner can't, well, it's time for the government to step in and step hard.
We live in hope.
Further along, you'll find Mediation is a waste of time, they'll throw you a bone and hope you stop barking... (humour)
Ive explained this in other threads recently.
The final payment hinges on the contract definition of completion. It wil be words to the effect of “built to plans and specifications”.
The only way to interpret this is that unless there is something missing, or you’ve identified say a noncompliance with the plans/specifications, then it is complete.
You can complete a home and still have defects.
For example, the plans and specifications will stipulate say a three-coat paint system. A couple blemishes, paint runs, or a visible touch up doesn’t mean it isn’t to specification. The specification was three coats, not three coats blemish and defect free. Of course, no one tries to introduce defects, so it’s assumed to be of a particular standard (usually described in Australian standard documents not publicly available to you without a cost).A feature wall painted the wrong colour would not be to specification. Both are defects.
One won’t be resolved before final payment is due, the other one will need to be as the home is not “complete” or “built to plans and specifications”.
The builder is obliged by law to deliver you the home as per the contract and specification. You will get that (barring an insolvency or some other horror story). The builder is then obliged by law to meet their statutory warranties and guarantees, which are a little more vague. They include terms like “professional and workmanlike manner” blah bläh blah. But the guarantees are no joke and can be relied on in court if it even needs to go that far. Things may not be 100% perfect everywhere, but they should be within a tolerance.
That’s where your guide to standards and tolerances comes in. You need to know that document inside and out to ensure that what you’re getting is within those tolerances. And conversely if it is out of them, they count as defects. A builder wont (shouldn’t) argue with you if things are out of those measurable tolerances. Its in black and white.
Some things will be in tolerance but still not acceptable to you as the client. For instance, you may have a paint touch up job on a main wall that is only obvious because of critical light. There are tolerances afforded to paint defects only visible in critical light. SO you need to be very careful in how you approach these situations.
For instance, if that wall is always bathed in critical light, you could argue that despite the tolerance its unacceptable to be seeing it all day critical light or not. I’ve had painters re-roll entire walls because each time they came to fix the paint defect, they introduced a bigger more visible touch up job ( I have dark paint). This is where your relationship with your builder is important.
Don’t be a douche. Be respectful, calm, keep records, and talk to them like a human being. You will find that in most cases your site supervisor will be amenable to things they wouldn’t accept themselves.
A builder pays their trades by the job, not by the hour. This is why they can build homes and know where their profit margins stand. So a builder doesn’t generally have much of a reason to not have issues fixed. Its in the contracts they have with their trades. If its not done right, not in tolerance, it has to be brought up to spec, or they don’t get paid. That should encourage trades to do the job well enough not to have to come back as doing so means they aren’t on another job earning money. Take some comfort that the system is designed in a way to make it as frictionless as possible, even though sometimes that isnt the experience.
But be pragmatic. Some defects just aren’t worth your time arguing about. You might have a small paint run in a spot you will be hanging a painting over anyway. Arguing to have that paint run fixed, will mean they come sand it, touch it up and you will likely have to argue to have the wall rerolled because the touch up is visible.
That doesn’t mean don’t tell them there is a defect there, tell them. Make sure they know you know. Then when it comes to it you can show your pragmatism and fairness by explaining to them they can forgo dealing with defects X and Y, but they have to address defect Z because even though it is “ïn tolerance” its not an acceptable finish to you. That’s why you need to keep your builder on side.
I have a wall that has a particularly poor plaster job on it. It’s a 12 meter span and it is bathed by critical light through the front door every afternoon. The wall looks bad because their cippies put holes in it arguing about alignment/plumbness etc and were blaming plaster glue setting from slow plasterers. Then the plasterers did a bad job patching the walls. Long story short wall looks embarrassing. We didn’t notice until after hand over. Builder inspected, they ummed and ahhd. They could see it was bad, but “critical light”. They sent it to their plasterers to take a look and the plasterers them selves said it was really bad and will replace it. So now 12M of main wall has be taken down, sparky, chippy and plasterers on site. Level 5 finish will be done, and repainted. 3 days of work.
Builders reputations are paramount to their continued operations. They have a vested interest in not screwing you over or you being so unhappy that you plaster really obvious terrible workmanship online. That doesn’t mean it doesn’t happen or they don’t try it on sometimes, but you can’t go into the relationship in a combative stance. Your best bet to ensure that everything goes smoothly is to understand your and your builder’s obligations, make sure you have all stages inspected independently by a private inspector (trust but verify). Set expectations with your builder/site supervisor that defects raised in the reports need to be fixed and photo evidence supplied of the fix (again, trust but verify).
So long story short, you’re over analyzing it. It’s a standard term and a better assessment of how the builder treats defects after handover is better determined by speaking to other customers to gauge what their experiences were. You will quickly find out who you have to be wary of.
If builder and owner signed at 37.0, then has to complete tasks on that list. 37.1 and 37.2 are what happens when no listed provided (37.1) or list provided (37.2).
Defects, incomplete work or whatever agreed. If builder does not sign at 37.0 then goes to dispute resolution.
Yes, agree with sentiment that there needs to be some enforceable measure for builders to fix their mess. Sometimes I am amazed by how some builders can turn good materials into garbage in a blink of an eye. I have paid out final monies owing and about to be handed my build. The builder and I both know I have lost any leverage and so the defects are all on me to fix. Forget Fair Trade and NCAT, unless the problems are big enough to be worth your while to incur legal expenses - and even then you will not recover anywhere near your legal and rectification costs. Also forget about certifier compliers pinging builders for structural defects, unless he is unusually conscientious in his duties. Consumers would be much better position if all these consumer protection bureaucracies were eliminated because it removes the false illusion that you have protection for when your build goes bad. It might lead to more effective protection measures such as builder and clients holding significant funds in trust to defray rectification costs.
The only thing that helped me mitigate the possible costs post handover was really ensuring as much as possible that your house plans really suited the block, keeping things for the builder as simple as possible, identifying all your requirements as much as possible before going to a builder and understanding the building standards and processes as much as possible. And don’t be afraid to pick up on defects with the builder as soon as possible. Sometimes during the build, I wished I had a solicitor for advice regarding disagreements about build inclusions and requirements. Also be prepared to double the time claimed by the builder to completion.
In this current climate of fewer good tradesmen and and supply shortages (and the everlasting Covid excuse) you have to be tough to enter into a building contract. You may want to ask yourself if buying an existing established property is better for your health and finances.
Ive explained this in other threads recently.
The final payment hinges on the contract definition of completion. It wil be words to the effect of “built to plans and specifications”.
The only way to interpret this is that unless there is something missing, or you’ve identified say a noncompliance with the plans/specifications, then it is complete.
You can complete a home and still have defects.
For example, the plans and specifications will stipulate say a three-coat paint system. A couple blemishes, paint runs, or a visible touch up doesn’t mean it isn’t to specification. The specification was three coats, not three coats blemish and defect free. Of course, no one tries to introduce defects, so it’s assumed to be of a particular standard (usually described in Australian standard documents not publicly available to you without a cost).A feature wall painted the wrong colour would not be to specification. Both are defects.
One won’t be resolved before final payment is due, the other one will need to be as the home is not “complete” or “built to plans and specifications”.
The builder is obliged by law to deliver you the home as per the contract and specification. You will get that (barring an insolvency or some other horror story). The builder is then obliged by law to meet their statutory warranties and guarantees, which are a little more vague. They include terms like “professional and workmanlike manner” blah bläh blah. But the guarantees are no joke and can be relied on in court if it even needs to go that far. Things may not be 100% perfect everywhere, but they should be within a tolerance.
That’s where your guide to standards and tolerances comes in. You need to know that document inside and out to ensure that what you’re getting is within those tolerances. And conversely if it is out of them, they count as defects. A builder wont (shouldn’t) argue with you if things are out of those measurable tolerances. Its in black and white.
Some things will be in tolerance but still not acceptable to you as the client. For instance, you may have a paint touch up job on a main wall that is only obvious because of critical light. There are tolerances afforded to paint defects only visible in critical light. SO you need to be very careful in how you approach these situations.
For instance, if that wall is always bathed in critical light, you could argue that despite the tolerance its unacceptable to be seeing it all day critical light or not. I’ve had painters re-roll entire walls because each time they came to fix the paint defect, they introduced a bigger more visible touch up job ( I have dark paint). This is where your relationship with your builder is important.
Don’t be a douche. Be respectful, calm, keep records, and talk to them like a human being. You will find that in most cases your site supervisor will be amenable to things they wouldn’t accept themselves.
A builder pays their trades by the job, not by the hour. This is why they can build homes and know where their profit margins stand. So a builder doesn’t generally have much of a reason to not have issues fixed. Its in the contracts they have with their trades. If its not done right, not in tolerance, it has to be brought up to spec, or they don’t get paid. That should encourage trades to do the job well enough not to have to come back as doing so means they aren’t on another job earning money. Take some comfort that the system is designed in a way to make it as frictionless as possible, even though sometimes that isnt the experience.
But be pragmatic. Some defects just aren’t worth your time arguing about. You might have a small paint run in a spot you will be hanging a painting over anyway. Arguing to have that paint run fixed, will mean they come sand it, touch it up and you will likely have to argue to have the wall rerolled because the touch up is visible.
That doesn’t mean don’t tell them there is a defect there, tell them. Make sure they know you know. Then when it comes to it you can show your pragmatism and fairness by explaining to them they can forgo dealing with defects X and Y, but they have to address defect Z because even though it is “ïn tolerance” its not an acceptable finish to you. That’s why you need to keep your builder on side.
I have a wall that has a particularly poor plaster job on it. It’s a 12 meter span and it is bathed by critical light through the front door every afternoon. The wall looks bad because their cippies put holes in it arguing about alignment/plumbness etc and were blaming plaster glue setting from slow plasterers. Then the plasterers did a bad job patching the walls. Long story short wall looks embarrassing. We didn’t notice until after hand over. Builder inspected, they ummed and ahhd. They could see it was bad, but “critical light”. They sent it to their plasterers to take a look and the plasterers them selves said it was really bad and will replace it. So now 12M of main wall has be taken down, sparky, chippy and plasterers on site. Level 5 finish will be done, and repainted. 3 days of work.
Builders reputations are paramount to their continued operations. They have a vested interest in not screwing you over or you being so unhappy that you plaster really obvious terrible workmanship online. That doesn’t mean it doesn’t happen or they don’t try it on sometimes, but you can’t go into the relationship in a combative stance. Your best bet to ensure that everything goes smoothly is to understand your and your builder’s obligations, make sure you have all stages inspected independently by a private inspector (trust but verify). Set expectations with your builder/site supervisor that defects raised in the reports need to be fixed and photo evidence supplied of the fix (again, trust but verify).
So long story short, you’re over analyzing it. It’s a standard term and a better assessment of how the builder treats defects after handover is better determined by speaking to other customers to gauge what their experiences were. You will quickly find out who you have to be wary of.
Builder's reputations maybe meant something to them back in the day. As long as they are the cheapest, or next cheapest builder in a new estate, that's what will get them business. Sure, you can argue you get what you paid for, and that's true, but when new estates overwhelmingly home migrants and low income earners, an observant person might query whether a builder's target audience can afford (or even know how) to stand to them.
The truth is the HIA and others like it are member organisations, unions of sorts. The sort of legal documents that are meant to still protect home owners have also been influenced to reflect what builders want. Inspections that used to be required to be done by the surveyor are suddently not that important and actually don't worry about inspecting. How convenient!
Then there are the slimey, less forthcoming things they do, like making you sign on with a surveyor they suggest (without telling you can in fact choose! or that they, in fact, are not allowed to appoint them, and YOU should be appointing someone you want) so they can rope you in, and by the time you realise what is going in, is simply too late.
I think we can all agree, that a spotty bit of paint work on a wall is annoying it is not the same as a slab that heaves. But the lack of any sort of regulatory bodies that still have the power and money to crack down on unethical builders, surveyors and the like, means we'll continue to have a horribly unfair, delicately dancing on the tightrope of legality, unethical, and unsuistainable system. So when things do go wrong, like they do more often than not, that slab that heaved, the mouldy bathroom, and the tiles coming off the wall, are also dealt with within the same system. Good, hey?
Industries can't self-regulate, why would they change the winning horse, and do things harder for them? Similar to when the police corruption was at its highest ever, and the same police force was also tasked to investigate corruption. Even if you had 1 good cop, you can't outweight a system stacked up against you.
The circle of slime.
Ive explained this in other threads recently.
The final payment hinges on the contract definition of completion. It wil be words to the effect of “built to plans and specifications”.
The only way to interpret this is that unless there is something missing, or you’ve identified say a noncompliance with the plans/specifications, then it is complete.
You can complete a home and still have defects.
For example, the plans and specifications will stipulate say a three-coat paint system. A couple blemishes, paint runs, or a visible touch up doesn’t mean it isn’t to specification. The specification was three coats, not three coats blemish and defect free. Of course, no one tries to introduce defects, so it’s assumed to be of a particular standard (usually described in Australian standard documents not publicly available to you without a cost).A feature wall painted the wrong colour would not be to specification. Both are defects.
One won’t be resolved before final payment is due, the other one will need to be as the home is not “complete” or “built to plans and specifications”.
The builder is obliged by law to deliver you the home as per the contract and specification. You will get that (barring an insolvency or some other horror story). The builder is then obliged by law to meet their statutory warranties and guarantees, which are a little more vague. They include terms like “professional and workmanlike manner” blah bläh blah. But the guarantees are no joke and can be relied on in court if it even needs to go that far. Things may not be 100% perfect everywhere, but they should be within a tolerance.
That’s where your guide to standards and tolerances comes in. You need to know that document inside and out to ensure that what you’re getting is within those tolerances. And conversely if it is out of them, they count as defects. A builder wont (shouldn’t) argue with you if things are out of those measurable tolerances. Its in black and white.
Some things will be in tolerance but still not acceptable to you as the client. For instance, you may have a paint touch up job on a main wall that is only obvious because of critical light. There are tolerances afforded to paint defects only visible in critical light. SO you need to be very careful in how you approach these situations.
For instance, if that wall is always bathed in critical light, you could argue that despite the tolerance its unacceptable to be seeing it all day critical light or not. I’ve had painters re-roll entire walls because each time they came to fix the paint defect, they introduced a bigger more visible touch up job ( I have dark paint). This is where your relationship with your builder is important.
Don’t be a douche. Be respectful, calm, keep records, and talk to them like a human being. You will find that in most cases your site supervisor will be amenable to things they wouldn’t accept themselves.
A builder pays their trades by the job, not by the hour. This is why they can build homes and know where their profit margins stand. So a builder doesn’t generally have much of a reason to not have issues fixed. Its in the contracts they have with their trades. If its not done right, not in tolerance, it has to be brought up to spec, or they don’t get paid. That should encourage trades to do the job well enough not to have to come back as doing so means they aren’t on another job earning money. Take some comfort that the system is designed in a way to make it as frictionless as possible, even though sometimes that isnt the experience.
But be pragmatic. Some defects just aren’t worth your time arguing about. You might have a small paint run in a spot you will be hanging a painting over anyway. Arguing to have that paint run fixed, will mean they come sand it, touch it up and you will likely have to argue to have the wall rerolled because the touch up is visible.
That doesn’t mean don’t tell them there is a defect there, tell them. Make sure they know you know. Then when it comes to it you can show your pragmatism and fairness by explaining to them they can forgo dealing with defects X and Y, but they have to address defect Z because even though it is “ïn tolerance” its not an acceptable finish to you. That’s why you need to keep your builder on side.
I have a wall that has a particularly poor plaster job on it. It’s a 12 meter span and it is bathed by critical light through the front door every afternoon. The wall looks bad because their cippies put holes in it arguing about alignment/plumbness etc and were blaming plaster glue setting from slow plasterers. Then the plasterers did a bad job patching the walls. Long story short wall looks embarrassing. We didn’t notice until after hand over. Builder inspected, they ummed and ahhd. They could see it was bad, but “critical light”. They sent it to their plasterers to take a look and the plasterers them selves said it was really bad and will replace it. So now 12M of main wall has be taken down, sparky, chippy and plasterers on site. Level 5 finish will be done, and repainted. 3 days of work.
Builders reputations are paramount to their continued operations. They have a vested interest in not screwing you over or you being so unhappy that you plaster really obvious terrible workmanship online. That doesn’t mean it doesn’t happen or they don’t try it on sometimes, but you can’t go into the relationship in a combative stance. Your best bet to ensure that everything goes smoothly is to understand your and your builder’s obligations, make sure you have all stages inspected independently by a private inspector (trust but verify). Set expectations with your builder/site supervisor that defects raised in the reports need to be fixed and photo evidence supplied of the fix (again, trust but verify).
So long story short, you’re over analyzing it. It’s a standard term and a better assessment of how the builder treats defects after handover is better determined by speaking to other customers to gauge what their experiences were. You will quickly find out who you have to be wary of.
Builder's reputations maybe meant something to them back in the day. As long as they are the cheapest, or next cheapest builder in a new estate, that's what will get them business. Sure, you can argue you get what you paid for, and that's true, but when new estates overwhelmingly home migrants and low income earners, an observant person might query whether a builder's target audience can afford (or even know how) to stand to them.
The truth is the HIA and others like it are member organisations, unions of sorts. The sort of legal documents that are meant to still protect home owners have also been influenced to reflect what builders want. Inspections that used to be required to be done by the surveyor are suddently not that important and actually don't worry about inspecting. How convenient!
Then there are the slimey, less forthcoming things they do, like making you sign on with a surveyor they suggest (without telling you can in fact choose! or that they, in fact, are not allowed to appoint them, and YOU should be appointing someone you want) so they can rope you in, and by the time you realise what is going in, is simply too late.
I think we can all agree, that a spotty bit of paint work on a wall is annoying it is not the same as a slab that heaves. But the lack of any sort of regulatory bodies that still have the power and money to crack down on unethical builders, surveyors and the like, means we'll continue to have a horribly unfair, delicately dancing on the tightrope of legality, unethical, and unsuistainable system. So when things do go wrong, like they do more often than not, that slab that heaved, the mouldy bathroom, and the tiles coming off the wall, are also dealt with within the same system. Good, hey?
Industries can't self-regulate, why would they change the winning horse, and do things harder for them? Similar to when the police corruption was at its highest ever, and the same police force was also tasked to investigate corruption. Even if you had 1 good cop, you can't outweight a system stacked up against you.
The circle of slime.
I don't disagree with most of what you said.
Except that migrants aren't a target market. The fact many migrants are in new estates is reflective of the socio economic conditions. A builders target market is anyone who has money for a house. Most volume builders have wide ranges of size and price points.
Also I disagree about inspections by surveyers not being suddenly important or not happening. AfAIK, nothing has changed in this space any time recently. Inspections still occur. Intact my builder didn't get their final one passed by the surveyor due to some missing work thT had to be rectified prior to reinspection/pass.
Any service or product that you are required to sign a contract for is largely misunderstood by most. How many people, even well educated, do you think actually read every word and understand what they are signing when they get a credit card, buy a car, build a house? Most people have a general understanding of what they are getting into, and assume that there aren't pitfalls written into these contracts. Most of the time, the contracts transact and nothing bad ever happens. This gives people a false sense of security when it's time to sign the next. Less to do with migrants, or inability to understand what they're purchasing.