- This topic has 5 replies, 2 voices, and was last updated 11 years, 6 months ago by .
-
Topic
-
Some strata managers advised (counselled or cajoled) Owners Corporations into lodging building claims under the Home Building Act 1989 before the recent amendments came into force on January 15. They were told that if they did not lodge their claims by then, the new restrictions on warranties coming into force from that date would mean they would not be able to require developers to make good any defects.
I cannot find any official statements justifying that. s.48(i) of the HBA empowers any person to lodge a building claim. s.48K gives the Tribunal power to determine building claims up to a value of $500,000. But it seems in s.48K(3) to limit claims to not more than three years from the date of supply (completion) whereas previously it seems to have been unlimited.
What was/is the situation? Were strata managers justified in advising SPs to lodge claims against their developers and builders? It seems that some lawyers made a pretty penny lodging these claims at fees of $1000 or so a time.
-
Replies
-
The main reason many strata managers and lawyers were rushing to register their defect claims was that the changes in the act redefined defects hugely and retrospectively. Tha meant any defects that were deemed to be not “major” – and that’s most of them – were restricted to a two-year claims window. For many buildings, that window had already passed and they would have missed out completely had they not slipped in before the law change.
$1000 is a tiny amount compared to the hundreds of thousands of dollars worth of “minor” defects that show up in some buildings.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
@Ancestor said:
Thanks – I understand that. But I don’t see how lodging a claim listing the still-existing defects can entitle a strata to any greater benefits than it was entitled to previously, if for example the building was five, six or more years old. If it was out, or almost out of warranty under the old system it was always open to the owners corporation to institute legal action against the builder or developer for defects not rectified.As I explained, if the claims had not been made before the new law came into effect, “non-major” defects in buildings 2 to 6 years old would have been ruled out of time. Non-major defects are anything that needs fixing but doesn’t mean the building or part of it is uninhabitable (although water seals and fire safety were switched at the last minute into the “major” column).
If you are looking for a conspiracy, I would check the Government and the developers who are the major beneficiaries of a change in the the law that wipes out 90 percent of the defect claims in buildings 2 to 6 years old, not to mention all the new buildings where owners discover the clock has almost run down on their claims before they even get a chance to get a survey done.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
@Ancestor said:
I am sorry to have to observe that my genuine questions have been met with condescension and now irrelevant suggestions of “conspiracy.”What you read as condescension is frustration at having answered your questions only to have them asked again in a slightly different way. Regarding references to conspiracy, this is what you said in your first post:
“Were strata managers justified in advising SPs to lodge claims against their developers and builders? It seems that some lawyers made a pretty penny lodging these claims at fees of $1000 or so a time.”
I am perfectly capable of reading the act and the many explanations of the amendments which legal firms have put on the internet. I have also read the speeches in the debate in the House of Assembly.
So why are you still asking the same questions?
What I wanted to know is just how much protection could have been gained by lodging a building claim by Jan 15 IF the building was already out of its warranty period, or close to that point.
If it was “almost” out of the claims period, then it was still in the claims period, even if by only one day. As in tennis, a ball that is 99 percent out is in. Obviously if the building was out of time already then the claim would fail – but i haven’t heard of anyone making a claim that was clearly out of time.
Also, you said in your earlier posts that being out of the claims period made no difference – owners corps could still take legal action. I quote: “… it was always open to the owners corporation to institute legal action against the builder or developer for defects not rectified.”
Have a look at this report on a decision by the High Court late last year that builders do not have a duty of care to apartment owners to rectify defects which are out of time for claims against developers.
Many owners corporations would have served lists of defects on their developers since their strata was registered. In many of these cases OCs and developers are working their way through the list, co-operatively.
So they have registered claims, if only by contacting the developers and telling them that they want their defects fixed. But many of those who haven’t, have missed the boat.
A survey by the UNSW found that 85 percent of new apartment blocks in NSW had building defects. What percentage do you imagine are working this out amicably and co-operatively with their developers?
The claims lodged by Jan 15 are in a different category – formal legal notices served on developers. In some cases to my knowledge this has ruptured good working relations between the parties which now have to communicate and negotiate everything through solicitors.
I know some of the biggest developers are keen to deal with defects amicably and sensibly because the value their reputations. They are also savvy enough to realise that owners making claims before the deadline were often just giving themselves some insurance in case things went pear-shaped.
Have you seen a contract of sale for a new apartment in a multi block scheme? They fill ringbinders to bursting.
By the way, I also know of other developers who unleash their heavy-hitting lawyers at the first hint of even an amicable defects claim.
Some developers even tell their owners corps that there are defects in the building because the law says (or said) that a claim must be made within six months of the owners being aware of their existence and the developer knows that many brand new owners corps won’t get round to it in time.
Small independent developers, especially, are notoriously lax when it comes to doing the right thing by their customers.
I pointed out that I could not find any statements – official or otherwise – made when the amendments were enacted, which advised stratas to lodge claims by Jan 15. It did seem to have been a well-kept secret. Just how many strata managers did advise their clients to lodge claims? How many took the advice?
Just because you were unaware of this, doesn’t mean it was “a well-kept secret.” I personally wrote several articles about this in the Sydney Morning Herald and there were many, many other attempts to bring this to the public’s attention. And I know personally members of several law firms who were working frantically to register claims before the curtain came down.
As far as official statements goes, the Government, naturally, presented the HBA changes as a good thing – claiming that defects law would be easier for owners to understand. But why do you imagine they didn’t tell the two-to-six year old buildings they’d better get their claims in pronto?
To get an idea of how extensive the publicity about this was, have a look under “More News” HERE or have a look at these links.
https://www.ocn.org.au/news/abc-702-changes-building-defects-laws
https://www.ocn.org.au/news/defective-argument-defects
https://www.ocn.org.au/news/too-late-defect-claims-brand-new-unit-blocks
I am a lot owner; I resent the lecture in your final paragraph and the insinuation that I am some pawn of developers. I suppose it was easier to sneer than to understand and answer my points.
What has being a lot owner to do with anything? Most of the people who come to this forum are or they wouldn’t be here.
I answered all of your points several times and you either didn’t understand or didn’t like the answer – and I didn’t sneer.
This was my final paragraph:
“If you are looking for a conspiracy, I would check the Government and the developers who are the major beneficiaries of a change in the the law that wipes out 90 percent of the defect claims in buildings 2 to 6 years old, not to mention all the new buildings where owners discover the clock has almost run down on their claims before they even get a chance to get a survey done.”
Where is the sneering? Where are the insinuations that you are a pawn of developers?
I am happy to try to explain things, several times, if need be. But if you are just going to insult me when you don’t get the answer you want, you should probably ask your questions in a forum that is more amenable to your point of view.
This topic is now closed.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
- The topic ‘Home Building Act s.48’ is closed to new replies.