These Q&As are about the cost of building faults in Queensland. Who is responsible for the cost of repair? This has been answered by Frank Higginson and Todd Garsden, Hynes Legal.
Question: We have a building fault. The exhaust for the fire pump diesel engine is directed into the basement car park and fills the car park with fumes and smoke when tested once a month. Who do we chase to have the work rectified?
Our building is four years old and recently it was discovered by our new fire management company that we have a building fault. The fire pump set, which all buildings require, was installed contrary to not only the requirements of the Fire and Emergency Services Act but also the Health & Safety legislation. The members of the committee have always felt that it was a shoddy design but didn’t think we had any redress at all.
In short, the exhaust for the diesel engine is directed into the basement car park and fills the car park and the close units with fumes and smoke when tested once a month.
Clearly, this needs to be rectified but at whose expense? My approach to the builder has been met with stony silence, so I need to know who I should chase to have the building fault rectified. Would it be:
- the installer who the builder engaged to have it installed;
- the builder’s project manager;
- the certifier who signed off on the installation
- or does the body corporate have to wear the rather large expense to have the exhaust directed outside the building and up the outside wall.
Any assistance you can give will be greatly appreciated.
Answer: Effectively, the body corporate is placed in the developer’s shoes for the purposes of the contracts that were entered into.
There are a number of avenues that a committee can take in a situation like this – but effectively, the body corporate is placed in the developer’s shoes for the purposes of the contracts that were entered into. So the starting point is what documentation around the works the body corporate has (where the developer has an obligation to provide the documents to the body corporate).
We have assisted a number of bodies corporate in similar situations and have published a guide for committees that can be accessed here: Concerned about building defects in your building?
That may assist the committee with more information about what avenues it can take.
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This post appears in Strata News #278.
Question: A serious building defect affects every lot. Some lot owners have had the problem repaired at their cost. If the body corporate was found responsible, can those lot owners seek reimbursement?
Assume a 100 unit building under the Queensland standard module with an identical costly serious problem for each unit that some owners have had fixed of their own accord at their cost.
Should it become evident subsequently that the body corporate was in fact responsible for such repairs, are those owners entitled to seek reimbursement for the reasonable costs incurred?
Alternatively, and further assuming insufficient sinking fund monies are available, is the body corporate legally able to raise a special levy that is only payable by those owners yet to have their work done or does a special levy need to be raised that is payable by all owners that includes a sufficient amount to reimburse the reasonable costs of those who have already had the work done?
Answer: This is obviously a difficult one to answer and will depend on the circumstances.
As always – it depends.
The starting point is to determine who is responsible for the issue – is it:
- Owner; or
- body corporate.
If it is in fact body corporate, the next question is whether owners carried out the repair work:
- as an improvement; or
- to fix the issue that the body corporate is responsible because the body corporate had failed to carry out its obligation.
This is obviously a difficult one to answer and will depend on the circumstances – i.e. did the owner demand any repair work from the body corporate, did they improve the area requiring repair work, etc.
If the work was carried out by owners because the body corporate hadn’t the owners would have a decent position to be able to recover those costs from the body corporate. However, if the body corporate needs to raise a special levy, it cannot be selectively applied only to some owners.
We can probably provide considered and specific advice if the poster gets in touch with us.
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This post appears in Strata News #258.
Question: What happens when building faults in one unit cause damage to another unit? Defective plumbing installation to one unit has cause damage in the unit below. Who is liable?
The plumbing in a unit on the second level was defectively installed such that the outlet pipe for the condensate from the air conditioner was not connected to a water evacuation pipe. The air conditioner itself was correctly installed with the outlet hose correctly inserted into the internal piping within the wall.
Unfortunately, the internal piping finished in the ceiling of the unit below. This position was established when the condensate generated by the air conditioner in the unit on level 2 leaked through the inside of the wall and saturated the carpet in the unit directly below on level 1. The wall is an internal wall separating the lounge from a bedroom.
The building fault has now been rectified at a cost of approx $3000 of which the owner of the unit on level 1 anticipates an insurance recovery of $1500.
The units are less than 2 years old but the builder and the plumber have both gone bankrupt or been placed in liquidation.
The owner of the unit on level 1 is seeking to recover the excess of costs of approx $1500 from the owner of the unit on level 2. The owner of the unit on level 2 only recently purchased the previously unoccupied unit and obviously was unaware of the building fault, in this case, defective plumbing installation. He accepts no responsibility for the damage to the carpet and wall in the unit below and is refusing to pay any amount of the costs of rectifying the problem.
Who is liable for the damage caused to one unit due to building faults in another unit?
Answer: It isn’t relevant that the owner of the lot on level 2 was unaware of the building faults. The Lot Owner on level 2 would be responsible for the consequential damage.
Owners are responsible for maintaining utility infrastructure that only services their lot. So if the installation was done poorly for the pipe servicing only the lot on level 2 and that caused damage to the lot on level 1, the owner of the lot on level 2 would be responsible for the consequential damage. It isn’t relevant that the owner of the lot on level 2 was unaware of the defect.
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This post appears in Strata News #224.
Question: Is there an official line of recourse in Queensland for purchasers when building faults in an apartment block continue to appear shortly after the ‘builder’s guarantee period’ has expired?
As a regular reader of your Strata News, I would like to inquire if there is an official line of recourse in Queensland for purchasers when building faults in an apartment block continue to appear shortly after the ‘builder’s guarantee period’ has expired.
Building faults, in this case, are plumbing problems and a ‘final plumbing certificate’ has never been presented to the Body Corporate. The builder has always maintained that the building would never have been given its final certificate (now 7 years since) if there had been any problems with the plumbing.
Answer: There is essentially a statutory cap on taking actions for issues more than 6 years after the issue was created.
The answer to this is potentially very long. The shortest of short versions is that there is essentially a statutory cap on taking actions for issues more than 6 years after the issue was created. This can be extended if the issue was not known about provided that it could not have been known about.
On top of that is the commerciality of taking any action. Legal proceedings can be expensive (and are never guaranteed for matters of this nature) so you need to assess the costs / benefit of that against what it would cost just to fix the building faults on your own.
The developer has statutory obligations to hand over records, but many do not. I think it would start with making enquiries of the local authority about what they may have as part of their records and then chasing the developer for what they had if the local authority had nothing.
This post appears in Strata News #216.
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