06/10/2016, 09:00:AM
06/10/2016, 09:00:AM
Does your contract have a defects liability period?
When building works have not been completed properly it is defined as defective.
If there is defective building works, there is a breach of contract, and in the absence of contract provisions to the contrary, a breach gives rise to the owner of the property to seek rectification of the defective work and claim damages against the builder.
Standard form contracts used to build or renovate, provides a process why which the builder can be directed to rectify the defective works.
If prior to completion of the building works, the owner identifies defects, the owner can claim defect rectification work against the builder at that time, using the process of communication within the contract, and if the contract is silent on this point or there is no contract, communication can be opened directly with the builder, but caution should be applied in the way the communication occurs.
No matter what the defect is, it is important that written communication is extended to the builder on the defect that has been identified following discussion on the same. It is a normal process that the builder will want to inspect the defective claim, and time allowance should be permitted for the same, unless the matter is of a major safety issue, then attendance by the builder should be immediate.
Building contracts that are standard usually provide for a defects liability period.
So what is a defects liability period?
Subject to the provisions of the contract, a defects liability period usually commences when the build has been completed and continues for a period of time as stated in the contract.
Both builders and owners of property commonly misunderstand the defect liability period and how it operates under the contract. If a defects clause is intended to limit the builders’ obligations under the contract, clear words that express that term must be used in the contract.
Defect contract clauses are normally inserted into the contract for the benefit of the builder, and the builder has an obligation to rectify the defective work during the defect period at the builders own costs. However, if the property owner does not give the builder the opportunity to fix the defective work, then the owners claims for damages may be limited.
There are lots of issues that surround building defects and claims that may be made by a property owner. What may seem simple can end up in a complex fight between the parties, so before you make a claim, take a step back, call me, and get that legal advice to protect your legal rights & interests.
The comments in the aforementioned do not constitute legal advice and are general in nature, and if legal advice is required please contact: John Melis at Legal AU Pty Ltd (03) 9999 7799
Legal AU Pty Ltd Lawyers are “Liability limited by a Scheme approved under Professional Standards Legislation.”
