This question about the next steps to take after a builder refuses to repair a major strata building defect has been answered by Stuart Mellington, Select OwnersCorp Management.
Question: We have a number of strata building defect issues with the building and the builder now refuses to carry out any more work. We are communicating through his solicitor, but still, nothing gets done. Where do we go from here?
We are lot owners in a 9 apartment, two story building completed in August 2015.
We have a number of strata building defect issues with the building and the builder now refuses to carry out any more work. We are communicating through his solicitor, but still, nothing gets done.
A number of issues centre around failure to adhere to Australian Building Codes which have resulted in water leaks and fire protection failures. Two years into occupancy a fire protection audit found that the basement garage did not comply with fire protection regulations in a number of serious areas.
This has since been rectified with months of disruption. There are serious concerns with regards to correct waterproofing of external first-floor balconies with the tiles ripped up and replaced 3 months into occupancy with no explanation.
Subsequently, one apartment was badly water damaged from a balcony leak and had to be tiled again. Another apartment still has rainwater coming out of a smoke detector hole and the builder has given up on fixing the problem.
We are now preparing a strata building defect case for VCAT and would appreciate your comment on the following:
The motor unit fitted as new to the double width garage door, according to the distributor, is a domestic model, out of production for 12 years (no spare parts available) and deemed not suitable for the purpose of apartment use. We had a problem with it in the first year and the installer carried out a dodgy quick fix repair which leaves the unit basically unfit for purpose. Again, the builder continually refused to deal with the issue.
Are we entitled to a replacement of the unit?
The air-conditioner units for some apartments are on the roof along with all the motor units for the emergency extractors for the garage. However, there is no access to the roof area from within the building and external access can only be made by access from within the apartment lots.
What problems could we face here when it comes to carrying out required maintenance on the units? Should a common area access have been featured in the building?
Answer: Due to the extent of the strata building defect problems you are experiencing I would recommend the engagement of a building consultant to conduct a detailed defect report.
Due to the extent of the problems you are experiencing I would recommend the engagement of a building consultant to conduct a detailed defect report. This should be done prior to the expiration of the building warranty period which is usually a 12 month for builders rectification period. However, under the Domestic Constructions Contracts Act there remains a warranty period that extends to 10 years for major building defects. Water ingress is considered to be fairly major.
This report should identify any breaches of the building code and also those items not fit for purpose, such as the garage door motor. This use of domestic actuators for multi-unit developments a very common issue in cost savings in construction with the owners inheriting the issue of replacing this in the very near future as the operation of these in a multi-unit development wears the drive units out very quickly.
On the completion of the report wherein the consultant has identified the defects including items not fit for purpose this should be initially lodged with the builder. Once this is registered then the matter may require the engagement of a suitably qualified/experienced legal representative but the builder must address the items listed.
In regards the matter of the air conditioning units on the roof there is a very good legal precedence from a Supreme Court ruling wherein it is mandatory that access be made available to service common facilities and it cannot be via another lot. It follows that a means to access the service area on the roof must be provided via an avenue other than through private property of another owner.
This post appears in Strata News #208.
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