Question: Is the developer responsible for completing a fence on a common pathway if there is a safety hazard?
At our new strata building, we haven’t held our first AGM yet. The common pathway has a fence that extends only halfway, with a drop to the garden. The developer said that the drop into the garden isn’t enough to require fencing.
Is the developer responsible for completing the fencing? What if someone falls and is injured? Owners are concerned about safety and the implications if someone were injured. Only a third of the units have sold so far.
Answer: A developer may be liable under the statutory warranties, but whether a fence is required and injury liability are separate questions that need legal advice based on the specific facts.
With the information available, I am unable to comment on whether the pathway requires a fence or on the risk of injury claims. Commenting on building defects generally:
Section 18B of the Home Building Act 1989 (NSW) (“HBA”) implies to each contract for residential building work warranties for that work (“Warranties”), including that:
- the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract;
- all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new;
- the work will be done in accordance with, and will comply with, this or any other law; and
- the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time.
A building contract for a new build would usually be between the builder and the developer, and in that context, the builder provides the Warranties to the developer. Pursuant to section 18C of the HBA, the immediate successor of title to a developer also gets the benefits of those Warranties: section 18C(1) of the HBA. Additionally, the developer also owes the same Warranties to the immediate successor in title: section 18C(2) of the HBA. The immediate successor of title of the common property in a strata title building would be the owners corporation: c.f. section 24(2), Strata Schemes Development Act 2015 (NSW).
Additionally, section 37 of the Design and Building Practitioners Act 2020 (NSW) (“DBPA”) imposes a duty of care on those who carry out construction work. Owners can seek recovery of damages for losses incurred as a consequence of a breach of that duty. Section 38 of the DBPA says that the owners corporation (or community association) is taken to suffer economic loss if they bear the cost of rectifying defects (including damage caused by defects) that are the subject of a breach of the duty of care.
This post appears in Strata News #795.
Matthew Lo
Kerin Strata Lawyers
E: matthew@kerinstratalawyers.com.au
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