re: taking delivery of a new home - defects rectification

Hello,

Last week I took delivery of a new home. I am now starting to discover a number of maintenance issues.

The building contract states I can only provide one list of defects and this has to be done within 13 weeks of settlement. Obviously it is not in my interest to submit one until close to 13 weeks after settlement so I can include as much of defects as I can find.

However I found defects that cannot wait. They have not given me installer code for my alarm system and I cannot secure the home. There is stagnant water in the storm water detention pit breeding mosquitoes. The pit does not have a childproof cover as required by Council and hence is a safety hazard as it is in front the house where kids in the neighbourhood play. I tried contacting them (including the site supervisor) but there is no response as the industry shuts down for 5 weeks at this time of the year.

Any suggestions as to what I should be doing?

Regards,

Jaya

The relevany alarm codes should have been given to you at handover. You shouldn't need the installer code to operate the alarm, because that's for .... installers. If you haven't received any codes, look at the alarm manual: mine (from Wisdom) clearly has the default master code in it, as well as instructions on how to change it.
As for the rest of the stuff, contact them when the office re-opens in the new year

Hi trayracer,

I cannot secure the property without installer code. It is required to connect my security device. Also, in case you are not aware, the installer code can be used to disarm the system bypassing the master code altogether.

Having handed over the property, I would have thought the builder should not retain any backdoor access to my security system. When I contacted the installer as per information on the system, I was told that if it is not the default code as per instruction manual, then the electrician would have set up his own installer code and I have to contact the builder for it.

I forgot to mention they could not find the keys to my external doors for days after they handed over the property. I had to hunt for a locksmith five days before Christmas to re-key external doors at my expense for peace of mind over the break and also for insurance purposes.

Regards,

Jaya

Assuming you're on a Ness system, look at Page 13, it'll do what you want http://nesscorporation.com/Installation ... rev7.7.pdf

It will indeed trayracer if I had the installer code.

As you can see on page 13, powering on with the reset pin will take you into directly into installer mode where you can set a new installer code without knowing the old one

Hi raytracer,

Thank you for the reset instructions. We could discuss intimate details of what resetting the system entails and why it is not the solution, but that would be digressing off-topic.

I am more interested to hear from others who may have been left in similar predicament as I have been on handover with urgent issues to deal with over the industry shutdown period. In my case, keys to external doors, installer code, and flooded storm detention pit, to name a few. I like to know how they dealt with it.

Regards,

Jaya

Contract law cannot over ride statute law. New homes come with a 6-7 year warranty by law, and therefor a defect can be notified at any given time during that. Your builder sounds like a typical a55hole.

I agree, having to reset the system yourself is not ideal, but given the priority you've placed on this and the shutdown period, it allows you to work around it. Out of interest, did you try the default installer code?

I've built with Wisdom, and whilst they're not perfect, I'm relatively happy, and would gladly build with them again, especially when I read tales of other builders.

As qebtel has pointed out, Wisdom are obliged to rectify warranty issues beyond the "13 week/one off defect list". Only a couple of weeks ago, I had issues with the electrics/air con on a 2+ year build. I ended up out of pocket for calling out UltraAir to look at the issue, but I felt it was worth it compared to having no aircon over the last two weeks. Yes, Wisdom was obliged to fix it, but it would probably have been the other side of the new year. To me, these issues are relatively small

I agree, missing keys are a showstopper (I had the SS install a lock I supplied on handover day), but personally, the rest don't make the house inhabitable

Hi gebtel,

Thanks very much for the information. I followed up on your lead and indeed you are right. It is 6 years for major defects and 2 years for other defects:

http://www.fairtrading.nsw.gov.au/ftw/about_us/legislation/changes_to_legislation/major_changes_to_home_building_laws.page#Disputes,_defects_and_statutory_warranties_

The maintenance certificate specifically states:


It so happens I refused to sign. I was surprised they accepted my refusal.

The relevant clause in the HIA Contract reads:

I would have thought it would be unlawful to absolve warranty obligations by including in the contract such a clause and trick unsuspecting clients into agreeing to it.

What do I reckon I should do? I could ignore the clause in the agreement. Alternatively take it up with HIA as it is in their standard contract that the builder adopted. If all else fails then have it adjudicated by our Office of Fair Trading and/or our Civil and Administrative Tribunal.

Regards,

Jaya

First off, alarm codes are not a defect, you should just ask for them ,and receive them without anyone rectifying anything. What I was talking about in my previous post was more major defects that require fixing to comply with building codes.

The list they want within 13 weeks are more to do with minor finish issues. Its reasonable for you to supply such a list with 13 weeks as the more you occupy the house, the greater the probability that you create further finish defects that they dont want to be responsible for.

The Maintenance Certificate holds no water so it doesnt matter whether you sign it or not, thats why they dont care. what they said in there about defects is misleading and potentially unlawful. Just be aware the 6yr warranty is there to be used to for major defects right up to its expiry.

Hi qebtel,

I agree keys and alarm code are not maintenance issues but just sloppy handover.

The 13 weeks for cosmetic defects make sense. During the handover I was told it relates to all defects that builder is obliged to rectify and so that was clearly wrong advice.

Aside, now I have not been able get the builder to respond to a problem that cannot wait for a month without my incurring costs.

The storm water design calls for 4 x 90mm weep holes at the bottom of the pit through 600 x 600 x 200 deep of gravel wrapped in geotextile fabric. As constructed there are no weep holes in the pit. There is 600 x 600 x 400 deep of stagnate water in the pit that is breeding vermin. It costs me to get someone to pump out the water each time it rains.

Oh, and the overflow from the pit is supposed to go to the street according to the certificate I was issued. This outlet is nowhere to be found. Aside, the design calls for childproof lock on the cover and this not the case. It is in open area where kids come and play. Clearly the implementation does not correspond to the design and the drainage certificate appears not kosher.

I could sit wait till they respond when they are back in month's time and risk being held to account for in the meanwhile of breaching safety and health regulations. Alternatively I could get have it rectified at my expense and claim these from the builder. Even it I get someone to pump out the water that would be out of pocket expense for me. They still have not responded to my claim for having to re-key the external door locks. So I doubt they will respond.

I probably have to bite the bullet, take matters into my own hands, and claim my out of pocket expenses by way of an application to the Tribunal.

Wondering if anyone has other suggestions.

Jaya

Its probably $100 or so to apply to civil court, or for that you could also get a solicitor to send them a letter telling them to pull their head in. That might have a pretty substantial effect in persuading them to mend their ways.

Hi qebtel,

I sent an 'important notice' to the builder to agree to remove the clause that limits defects liability to 13 weeks and one report. Last Friday the builder formally refused. So I guess this issue will end up in the NSW Civial & Adminstrative Tribunal.

I send a note to HIA which clause the builder is relying on. I provided feedback that it appears to be at odds with statutory warranty obligations. So it looks like an industry wide issue they should be looking into.

Jaya

Everyone should relize HIA and similar groups are there mainly for the builders, not the consumer, and the old line, it's a standard HIA contract really means, jackshiit for home owners.

Hi everyone,

I would like to share with this forum advice I received on defects rectification / maintenance and warranty periods that my builder appears to be misrepresenting.

1. The contract (in general) defines maintenance period and it relates to relatively minor cosmetic (as in not functional) defects that needs to be fixed by the end of the contractual relationship. This is usually stated as 13 weeks or 90 days defects rectification period in NSW Office of Fair Trading Contract or maintenance period in my builder's contract.

2. The law (in NSW, the Home Building Act 1989) defines warranty period as 6/2 years for major/other defects. My builder represented to me that anything other than structural defects must be provided in one list and at the end of the 90-day maintenance period. This cannot be true as under the warranty clause in the Act, any work that is not in accordance with the plans and specifications set out in the contract is covered by statutory warranty.

For example, they did not install first flush diverters or non-return valves in my storm water detention system as required in the specifications set out in the contract. My builder is treating this as a maintenance issue.

One of my air-conditioner ducts is coming from first floor roof to ground floor through 90mm gyp rock walls. Yes unbelievable you would say. Another outlet is in the middle of the living area when it is supposed to be near the entrance some three metres away. Again my builder is treating this as a maintenance issue.

The list of defects that falls under the statutory warranty continues. I am assuming that anything that is functional (as in not cosmetic) is covered by statutory warranty and I am not restricted to raising it within the 90 day period and as one list. I am wondering if this is the right approach.

Jaya

Hi Jaya

You are correct in relation to the statutory warranties under the Home Building Act.

In NSW, the builder is responsible for minor defects for a period of 2 years after practical completion of the dwelling and for 6 years for major defects.

Taking a note of any issues that may arise in the first weeks or months after handover then compiling a single list at or close to the end of the first 90 days makes it easier for the builder to keep track of the items that he is required to come back and fix (as opposed to receiving multiple notifications of issues as they arise). Also, it is likely that most of the minor issues will be noticed as you begin to live in the house.

If this is the builder's preferred way of attending to the initial issues, it is usually a good idea to stick to that method, however you can raise minor defects (and expect to have them fixed in a timely manner) any time within the first two years after completion.

In relation to major defects, I would suggest raising these with your builder as soon as you become aware of them. They are covered under statutory warranty for 6 years after completion.

The Home Building Act defines a major defect as:

(a) a defect in a major element of a building that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance requirements of the National Construction Code (or any combination of these), and that causes, or is likely to cause:
(i) the inability to inhabit or use the building (or part of the building) for its intended purpose, or
(ii) the destruction of the building or any part of the building, or
(iii) a threat of collapse of the building or any part of the building, or

(b) a defect of a kind that is prescribed by the regulations as a major defect.

Hope this helps. GM.

Hi Jaya
So what did they submit to the council's engineering dept regarding stormwater compliance?

Hi StructuralBMGuy,

In my case it is builder appointed private certifier. It appears the certifier was provided with the necessary certificates and was unaware the stormwater drainage system was not compliant. The builder handed keys to me on 19th December 2016 without an occupation certificate despite my insistence they provide one.

On taking possession I noticed the detention pit did not have weep holes (4 x 90mm) at the bottom, no strainers, no hinged cover secured with childproof J-bolts and no outlet to the kerb. All of these are shown on the approved stormwater plans. I asked the builder for works as executed plans that I was charged for in the contract but not provided. The builder refused claiming the charge will be refunded.

When my electrician hand digged the area where the infiltration pit is supposed to be he didn't not find any. I got the certifier involved. I have a letter from the certifier to the builder dated 31st January 2017 that states that hydraulics engineer must provide a certificate in respect of the drainage system prior to issue of interim Occupation Certificate.

I authorised the builder to connect the drainage system to the street to prevent flooding, and expressly forbid any further works to the rain/storm water system until works as executed plan issued and an independent inspection carried out.

In the pretext connecting the drainage system to the kerb, the builder fixed the storm water pit, and had his storm water consultant inspect and issue an interim certificate based on which an interim Occupation Certificate was issued on 9th February 2017.

The builder is still refusing to provide works as executed plan. I believe this is because there are substantial omissions underground.

I reported the matter to our Office of Fair Trading. A site inspection and meeting is scheduled for 10th April. In the meanwhile I don't have access to the rainwater tank and it is turned off at the mains.

Jaya

Hi GM,

What you say concurs with the advice I got from a community legal center. However my builder has very different views.

On practical completion date alone the builder claims there are multiple dates: for purposes of extension of time it is 19th September 2016; for purposes of the completion inspection it is 27th October 2016; for purposes of handover it is 19th December 2016; for purposes statutory warranty it is 31st January 2017; and I am waiting for another one to be declared as the practice completion advice to HCBF has since been reversed.

Jaya