Under the laws of Australia, the home owner is 100% responsible for the house being built in a compliant manner. Not the builder. Not the Surveyor. You the Home owner. No matter what happens on site, if there is a defect, the home owner is responsible under the Australian Legislation. The home owner contracted the builder. The home owner contracts the surveyor.
Sometimes builders don’t like being told that they are wrong and that they need to fix something. With the increase in Private Inspectors, builders seek ways to keep them off site.
Builders will use all manner of behind the scene processes to cut cost of place special conditions in a contract to try and restrict the home owners’ rights. Before you fall in love with the design, ask for a standard copy of the contract and a standard copy of the specifications. Don’t accept a brochure. You want what you are going to sign. If they don’t give it to you, then alarm bells should be ringing. Watch out for smooth talkers. They are great at diverting you away from what you want.
One of the biggest issues is builders placing terms into the contract to stop you from using who you want as a private inspector. The law states that you can use anybody as per the Building Acts. The builder cannot in most cases restrict you. The Private inspector works for you. Not the Builder. Hence the builder has no control over them.
Another is to put specifications out that are not equal to the Australian Standards. Once you commit to the design and go through the colour selections and all of the other processes, you are emotionally and time committed. At this point, generally 3 to 6 months into the process, the builder presents the contract and specifications that have all of these hidden clauses.
Pressure is applied at that time to sign on the day or you will lose such and such a bonus. Do not sign anything that has not been checked by a lawyer of your choosing.
The second a builder starts talking about special conditions or you have a large amount of specifications that have building diagrams and clauses, seek the services of a professional construction lawyer immediately. If you sign the documents, you may have given away your rights to have the home built in a manner that is compliant with the Australian Standards. Remember it is your obligation to have the home built to the requirements of the National Construction Code. Not the builders or the Surveyors.
As an example, some builders will seek to restrict your rights to use a private inspector. Others will insert what they call Performance Solutions. Or they may call them special building processes.
This warning is given to all as a way of assisting you. Deal with a quality builder that has the runs on the board. Stay away from those that seek to hide behind clauses and conditions. Research the internet and see who is doing what in the contracts. Listen to them as they have had the heart break. Remember, just because it looks good does not make a house complaint. If it comes with conditions that are outside of the normal, then you are more than likely being suckered in.
Choosing a Builder
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I completely agree with the sentiment of your thesis, but i don't believe that your first sentence is correct.
The homeowner is responsible for ensuring that that the house is built in accordance with the approved plans and therefore you are correct that it is the homeowners responsibility for hiring the certifier, however under the HIA and NSW Fair Trading contracts and under other design and construct contracts, such as AS 4900-200 ( Formerly known as AS 4300), you are contracting out the obligation for the builder to construct the dwelling in accordance with the Australian Standards and WHS guidelines.
Which is why the builder has a building license and not the client. Typically it is the responsibility of the builder to obtain the occupation certificate, which in essence means that the dwelling has been built in accordance with the approved plans and Australian standards
The homeowner is responsible for ensuring that that the house is built in accordance with the approved plans and therefore you are correct that it is the homeowners responsibility for hiring the certifier, however under the HIA and NSW Fair Trading contracts and under other design and construct contracts, such as AS 4900-200 ( Formerly known as AS 4300), you are contracting out the obligation for the builder to construct the dwelling in accordance with the Australian Standards and WHS guidelines.
Which is why the builder has a building license and not the client. Typically it is the responsibility of the builder to obtain the occupation certificate, which in essence means that the dwelling has been built in accordance with the approved plans and Australian standards
I completely agree with the sentiment of your thesis, but i don't believe that your first sentence is correct.
The homeowner is responsible for ensuring that that the house is built in accordance with the approved plans and therefore you are correct that it is the homeowners responsibility for hiring the certifier, however under the HIA and NSW Fair Trading contracts and under other design and construct contracts, such as AS 4900-200 ( Formerly known as AS 4300), you are contracting out the obligation for the builder to construct the dwelling in accordance with the Australian Standards and WHS guidelines.
Which is why the builder has a building license and not the client. Typically it is the responsibility of the builder to obtain the occupation certificate, which in essence means that the dwelling has been built in accordance with the approved plans and Australian standards
The homeowner is responsible for ensuring that that the house is built in accordance with the approved plans and therefore you are correct that it is the homeowners responsibility for hiring the certifier, however under the HIA and NSW Fair Trading contracts and under other design and construct contracts, such as AS 4900-200 ( Formerly known as AS 4300), you are contracting out the obligation for the builder to construct the dwelling in accordance with the Australian Standards and WHS guidelines.
Which is why the builder has a building license and not the client. Typically it is the responsibility of the builder to obtain the occupation certificate, which in essence means that the dwelling has been built in accordance with the approved plans and Australian standards
SejaeD,
I want to run this past you to assist you with understanding the first sentence.
If two years after the builder has left the site and handed the house over to the home owner and the job is completed, at that point the local government inspect the home for one reason or another, and they find a fault that the builder has missed or the surveyor has missed, who does the council place the building repair notice on?
Is it:
(a) The builder.
(b) The surveyor.
or
(c) The home owner.
Any and all orders are placed on the home owner. They then need to chance recourse with the Surveyor or the Builder..... It is the home owner whom is obliged by law to ensure that the parties that they hire build in accordance with the laws of that state. Your quoting of AS 4900 is the method that the home owner uses to try and get compliance, however does not guarantee that builder or the surveyor will comply. It is a contract that may or may not be complied with.
If your position is otherwise, then what you are stating is that the laws in NSW are different to the other states and the local government would chase down the builder or the surveyor two plus years later, given the above example..
I hope this example assist you with the intent of my message.
I completely agree with the sentiment of your thesis, but i don't believe that your first sentence is correct.
The homeowner is responsible for ensuring that that the house is built in accordance with the approved plans and therefore you are correct that it is the homeowners responsibility for hiring the certifier, however under the HIA and NSW Fair Trading contracts and under other design and construct contracts, such as AS 4900-200 ( Formerly known as AS 4300), you are contracting out the obligation for the builder to construct the dwelling in accordance with the Australian Standards and WHS guidelines.
Which is why the builder has a building license and not the client. Typically it is the responsibility of the builder to obtain the occupation certificate, which in essence means that the dwelling has been built in accordance with the approved plans and Australian standards
The homeowner is responsible for ensuring that that the house is built in accordance with the approved plans and therefore you are correct that it is the homeowners responsibility for hiring the certifier, however under the HIA and NSW Fair Trading contracts and under other design and construct contracts, such as AS 4900-200 ( Formerly known as AS 4300), you are contracting out the obligation for the builder to construct the dwelling in accordance with the Australian Standards and WHS guidelines.
Which is why the builder has a building license and not the client. Typically it is the responsibility of the builder to obtain the occupation certificate, which in essence means that the dwelling has been built in accordance with the approved plans and Australian standards
SejaeD,
I want to run this past you to assist you with understanding the first sentence.
If two years after the builder has left the site and handed the house over to the home owner and the job is completed, at that point the local government inspect the home for one reason or another, and they find a fault that the builder has missed or the surveyor has missed, who does the council place the building repair notice on?
Is it:
(a) The builder.
(b) The surveyor.
or
(c) The home owner.
Any and all orders are placed on the home owner. They then need to chance recourse with the Surveyor or the Builder..... It is the home owner whom is obliged by law to ensure that the parties that they hire build in accordance with the laws of that state. Your quoting of AS 4900 is the method that the home owner uses to try and get compliance, however does not guarantee that builder or the surveyor will comply. It is a contract that may or may not be complied with.
If your position is otherwise, then what you are stating is that the laws in NSW are different to the other states and the local government would chase down the builder or the surveyor two plus years later, given the above example..
I hope this example assist you with the intent of my message.
A private certifier for all intents and purposes is acting as Council. So the recourse would be against the Certifier's PI and also the builder still as you have contracted them to build the dwelling in accordance with the approved plans.
For example if the dwelling was a meter higher than approved and the certifier has signed off on it, it would be the same as council signing off on it.
If you have come across an example of this where I am wrong please let me know
Now that you have expanded on your point I genuinely dont believe you are right.
Under the laws of Australia, the home owner is 100% responsible for the house being built in a compliant manner. Not the builder. Not the Surveyor. You the Home owner. No matter what happens on site, if there is a defect, the home owner is responsible under the Australian Legislation. The home owner contracted the builder. The home owner contracts the surveyor.
Sometimes builders don’t like being told that they are wrong and that they need to fix something. With the increase in Private Inspectors, builders seek ways to keep them off site.
Builders will use all manner of behind the scene processes to cut cost of place special conditions in a contract to try and restrict the home owners’ rights. Before you fall in love with the design, ask for a standard copy of the contract and a standard copy of the specifications. Don’t accept a brochure. You want what you are going to sign. If they don’t give it to you, then alarm bells should be ringing. Watch out for smooth talkers. They are great at diverting you away from what you want.
One of the biggest issues is builders placing terms into the contract to stop you from using who you want as a private inspector. The law states that you can use anybody as per the Building Acts. The builder cannot in most cases restrict you. The Private inspector works for you. Not the Builder. Hence the builder has no control over them.
Another is to put specifications out that are not equal to the Australian Standards. Once you commit to the design and go through the colour selections and all of the other processes, you are emotionally and time committed. At this point, generally 3 to 6 months into the process, the builder presents the contract and specifications that have all of these hidden clauses.
Pressure is applied at that time to sign on the day or you will lose such and such a bonus. Do not sign anything that has not been checked by a lawyer of your choosing.
The second a builder starts talking about special conditions or you have a large amount of specifications that have building diagrams and clauses, seek the services of a professional construction lawyer immediately. If you sign the documents, you may have given away your rights to have the home built in a manner that is compliant with the Australian Standards. Remember it is your obligation to have the home built to the requirements of the National Construction Code. Not the builders or the Surveyors.
As an example, some builders will seek to restrict your rights to use a private inspector. Others will insert what they call Performance Solutions. Or they may call them special building processes.
This warning is given to all as a way of assisting you. Deal with a quality builder that has the runs on the board. Stay away from those that seek to hide behind clauses and conditions. Research the internet and see who is doing what in the contracts. Listen to them as they have had the heart break. Remember, just because it looks good does not make a house complaint. If it comes with conditions that are outside of the normal, then you are more than likely being suckered in.
Sometimes builders don’t like being told that they are wrong and that they need to fix something. With the increase in Private Inspectors, builders seek ways to keep them off site.
Builders will use all manner of behind the scene processes to cut cost of place special conditions in a contract to try and restrict the home owners’ rights. Before you fall in love with the design, ask for a standard copy of the contract and a standard copy of the specifications. Don’t accept a brochure. You want what you are going to sign. If they don’t give it to you, then alarm bells should be ringing. Watch out for smooth talkers. They are great at diverting you away from what you want.
One of the biggest issues is builders placing terms into the contract to stop you from using who you want as a private inspector. The law states that you can use anybody as per the Building Acts. The builder cannot in most cases restrict you. The Private inspector works for you. Not the Builder. Hence the builder has no control over them.
Another is to put specifications out that are not equal to the Australian Standards. Once you commit to the design and go through the colour selections and all of the other processes, you are emotionally and time committed. At this point, generally 3 to 6 months into the process, the builder presents the contract and specifications that have all of these hidden clauses.
Pressure is applied at that time to sign on the day or you will lose such and such a bonus. Do not sign anything that has not been checked by a lawyer of your choosing.
The second a builder starts talking about special conditions or you have a large amount of specifications that have building diagrams and clauses, seek the services of a professional construction lawyer immediately. If you sign the documents, you may have given away your rights to have the home built in a manner that is compliant with the Australian Standards. Remember it is your obligation to have the home built to the requirements of the National Construction Code. Not the builders or the Surveyors.
As an example, some builders will seek to restrict your rights to use a private inspector. Others will insert what they call Performance Solutions. Or they may call them special building processes.
This warning is given to all as a way of assisting you. Deal with a quality builder that has the runs on the board. Stay away from those that seek to hide behind clauses and conditions. Research the internet and see who is doing what in the contracts. Listen to them as they have had the heart break. Remember, just because it looks good does not make a house complaint. If it comes with conditions that are outside of the normal, then you are more than likely being suckered in.
I am sorry but i don't think the home owner is entirely responsible for the building . it's like saying if you buy at woolies and you get food poisoning or you have semolina in your eggs and you get sick it's your fault in the first place whereas it was the responsibility of the store to provide you with the safe produce.
Builders are 100% responsible for the building . Duration of the build they own the site and construction. After all they have the license by the govt to build right .
I have used a private inspector for my build and I just make it a point that i keep sending the builders by registered mail all updates either observed by myself or by the certifier. I do feel that the SS doesn't make a big deal of anything and just nods on getting things resolved.
Quality i am sure has been compromised as most inspectors have mentioned but they generalize it for everyone and not any one builder.
Dear All,
I'm well aware of the issue and hence the reason for raising same. The home owner is the one that is responsible for the building compliance.
The fact is that they contract that out to the builder and the surveyor (Private Certifier's). However as the contract head they are responsible. What the home owner does is contract others to do the work whom have a licence. Having a Licence does not make them the fundamental holder of the responsibility.
The Home owner holds that position. A Fact that is not well known. If you feel I'm in error, obtain independent advise from a legal practitioner.
At the end of the day the home owner must ensure that those that they contract have built in accordance with the legislation in that state. The home owner and only the home owner......
I'm well aware of the issue and hence the reason for raising same. The home owner is the one that is responsible for the building compliance.
The fact is that they contract that out to the builder and the surveyor (Private Certifier's). However as the contract head they are responsible. What the home owner does is contract others to do the work whom have a licence. Having a Licence does not make them the fundamental holder of the responsibility.
The Home owner holds that position. A Fact that is not well known. If you feel I'm in error, obtain independent advise from a legal practitioner.
At the end of the day the home owner must ensure that those that they contract have built in accordance with the legislation in that state. The home owner and only the home owner......
With due respect, and this is not to have a go at you because I know you are well meaning, but the issue is more nuanced than what you are thinking,
I think you might not appreciate that there are some legal minds on this forum that will be able to explain this better than me.
I think you might not appreciate that there are some legal minds on this forum that will be able to explain this better than me.
SejaeD,
When builders try and dictate to home owners what is acceptable and what is not, empowerment of the home owner with an understanding of their legal obligations is all I was trying to express.
Home owners need to understand that the buck stops with them. Not the builder or the Surveyor. Yes the builder and the surveyor can be held accountable, however at the end of the day the home owner is the one that needs to seek rectification in the event of a failure.
Having this empowerment during the build allows home owners to stand up to the builders and express their position rather than being told that all is good.
I sincerely hope that this helps home owner say no to doggy contracts and specifications.
When builders try and dictate to home owners what is acceptable and what is not, empowerment of the home owner with an understanding of their legal obligations is all I was trying to express.
Home owners need to understand that the buck stops with them. Not the builder or the Surveyor. Yes the builder and the surveyor can be held accountable, however at the end of the day the home owner is the one that needs to seek rectification in the event of a failure.
Having this empowerment during the build allows home owners to stand up to the builders and express their position rather than being told that all is good.
I sincerely hope that this helps home owner say no to doggy contracts and specifications.
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