Legally speaking - what does this wording mean?

mattwalker · Oct 16, 2007 9:23 pm

Hey all,

I need some expert opinions on this section of the Building Act please.

What does this next section mean in plain english speak??

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250. Right of owner to carry out required work on occupied building or land

(1) If the owner of a building or land is required to carry out any work or do any other thing under this Act or the regulations the owner may give a written notice to the occupier of the building or land—

(a) stating particulars of the work to be carried out or thing to be done; and

(b) requiring the occupier to permit the owner and any other person to enter the building or land and carry out the work or do the thing.

(2) If the occupier of the building or land does not comply with a notice within 7 days after the notice is given, the owner of the building or land may apply to the Magistrates' Court for an order.

(3) The Magistrates' Court may make an order requiring the occupier of the building or land to permit the owner and any other person to enter the building or land and carry out the work or do the thing.

(4) The occupier of the building or land must comply with the order. Penalty: 10 penalty units.

(5) While the occupier of the building or land fails to comply with the order the owner of the building or land is not liable for an offence for failing to carry out the work or do the thing.

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Thanks

Casa2 · Oct 16, 2007 9:29 pm

Matt,

I'm not an expert, but to me it's very clear. This would apply to a property that is rented. If the owner needs to do some work, then the occupier (renter), needs to allow it to happen.

You would hope that "required work" only applies to repairs. You wouldn't want to be renting and suddenly the landlord does a renovation to the house :shock:

Cheers,
Casa

mattwalker · Oct 16, 2007 9:40 pm

Casa,

here is the link:

http://www.dms.dpc.vic.gov.au/Domino/We ... 26a062.pdf

It is on page 319-320 (or 302-303 of the document)

If reading it in the context of the paragraph would that change your determination?

Matt

parker · Oct 16, 2007 11:05 pm

What are you thinking it might be referring to Matt?

mattwalker · Oct 16, 2007 11:08 pm

Site access.

Using Casa's well worded determination and putting the builder as the occupier and the owner as me.

parker · Oct 16, 2007 11:20 pm

Well even though I've only ever heard this used where the occupier was of the type more traditionally expected (a lessee), if the builder is claiming to hold an exclusive control over the property they are certainly occupying it in my opinion, so I can't see how it wouldn't apply to them as well.

http://www.thefreedictionary.com/occupy
See meaning 4.

Casa2 · Oct 17, 2007 1:42 am

Matt,

I'm not sure if the builder is an occupier. For example, Section 251 of the Building Act 1993 talks about rent. There is also the concept of an occupancy certificate, whch I doubt the builder has.

Also, in order for Section 250 of the Building Act 1993 to become active there is a need for "required to carry out any work or do any thing under this Act or the regulations". You would need to find out if the work is "required".

You might find the Domestic Building Contracts Act 1995 more useful. In particular Section 19 "Access to building site"

Also, look at the topic started by a wonderful forum member at https://forum.homeone.com.au/viewtopic.php?t=3256, which includes "It is a requirement of both your Building Agreement and of the Building Act. That your builder allows you, or anyone acting as your agent, fair and reasonable access to your New Home, if they refuse they can be penalised under the Building Act.

A more recent version of the Building Act 1993 (www.austlii.edu.au/au/legis/vic/consol_act/ba199391) talks about occupancy permits.

Not sure what all this means, but I think the Domestic Building Contracts Act 1995 may be the best place for you to look further.

If you want to PM me with your particular application I can give you my considered, but far from expert, opinion.

Cheers,
Casa