Defects are an emotional topic for property owners – however it is often a topic that is rife with misinformation, opinions and competing interests.
This can make the process of defect rectification a painstakingly long one.
The typical defect process can take over a year to resolve and cost 10s of thousands of dollars to finish.
To lot owners, it often seems unfair and that the system is stacked against them.
Where there are genuine defects – that is defects that have been verified as such by qualified building consultants – there is almost always a way to have them rectified.
However, proving a suspected defect is actually a defect is an area where the burden of proof lies with the current owners of a building.
So before an Owners Corporation can start down the long road of defect rectification, some ground rules need to be set.
Buildspect Consulting have over 40 years of building consultation experience.
They conduct thorough building inspections and VCAT compliant defect reports and have been giving expert evidence in court for several decades.
Buildspect principle John Coghlan told Strata Plan customers that when lot owners become aware of a potential problem or issue with the building, they usually fall into one of three broad categories.
The issue may genuinely be a defect – that is something that is not as per the agreed documents, variations or is non-compliant, not fit for purpose or a product of poor workmanship.
Otherwise, the issue may have been caused by a lack of effective maintenance or simply a product of wear and tear over time.
“When something is broken, there’s usually one of three things that have happened,” Mr. Coghlan said.
“If we talk about a door, for example, is that door broken because it was incorrectly installed? Is it the wrong door for the position? Has it been maintained? Or is it just worn out or misused?
“Our role is to identify which of those facets apply. Is it a defect? Is it a lack of maintenance, or is it simple wear and tear?
“If we apply that across a whole building, often we see a lot of the issues that are raised get thrown out because they maintenance issues or wear and tear – they are not defects.”
Most property owners have been around homes or houses long enough to have a gut feeling about what is wrong with their property.
Larger developments, such as apartment buildings and high-rises, are somewhat more complicated.
The automatic reaction from so many Owners Corporations to problems at their building during the first 10 years of that building’s existence is that the builder is automatically responsible and must come back to fix it.
The younger the building, the more emphatic that response is.
Most Owners Corporations will ask their Strata Manager to request the builder to come back and fix the issues.
This might work on rare occasions, but more often than not, a builder is going to require proof that the issue is a genuine defect and not simply a case of misuse or wear and tear.
The vast majority of builders are not going to return to site after the first three or six months because an owner has a gut feeling about an issue, or the local plumber thinks there is a defect.
While the suspected defects may indeed be genuine, it is important that your Owners Corporation gathers as much evidence as possible about a suspect issue before running to the builder for a fix.
Mr. Coghlan said while it’s easy for lot owners to compile a list of things about their building that don’t seem right, it’s harder to prove that those problems are genuine defects.
“Like in any allegation, you have to provide the facts that uphold that allegation to determine that the problem is defect or not,” Mr. Coghlan said.
“Our success has been in being able to articulate and provide that evidence.
“It’s more than just saying the door is broken. What’s the exact reason why the door is broken?
“Was it installed incorrectly? Is it the wrong door? What references in relation to that door have been breached or not complied to?
“Knowing the answer to those questions allows an informed decision to be made.”
Dealing with suspected defects can be an emotional time for property owners.
At times, it will feel unfair and that the whole world is against you.
Mr. Coghlan said he sees a lot of emotional reactions from property owners when defects are suspected, but said that emotion – while understandable – needs to be channelled into a productive means of action.
“It’s very hard because it’s your home, so I sympathise with [property owners] in that regard,” he said.
“I guess the fact that it’s not just their own home is important. They share space with a number of other people and the emotions just aren’t going to help resolve the issues.
“In fact, it can pull apart the communal attitude that needs to happen to solve the defects.
“When it’s something that they’ve inherited it can feel a bit unfair, especially for those who have done all their due diligence into the building they’re about to purchase in.
“It can be a shock, but without removing the emotion and making it black and white that it is a transaction for the betterment of your property, it’s the only way I can see everyone moving forward.”
As soon as you suspect a problem at your property, it’s vital you inform your Strata Manager, who will inform your Owners Corporation committee.
If you suspect the problem is a defect, or that there may be wider issues with the building, it’s important that these issues are investigated.
A report from a building consultant can be an expensive exercise, costing between $1000 and $3000 depending on your consultant and the amount of issues they are investigating.
It’s important that your Owners Corporation committee calls a meeting to discuss the issues that have been presented and decide on a course of action.
Usually, Owners Corporations will ask the builder to come back and have a look, however owners have to be prepared in the event the builder refuses.
If the builder refuses, it may be cheaper and more efficient to just engage a qualified contractor to perform the required works – even if you suspect the defect is genuine.
If your Owners Corporation would like to pursue some action, then you will need to assess whether or not there is enough money to commission a report and meet all of the building’s other financial obligations.
If there isn’t, you will need to raise the required money to commission a report.
Whatever your Owners Corporation chooses to do, it is always crucial to remember that it will take a communal effort to see progress and the more evidence you can present to support your claims, the better placed your Owners Corporation will be to get the result it seeks.
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