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WA: Q&A Steps to Take When Dealing With Defects

The LookUpStrata Team
defects water leaks

This WA Q&A article is about dealing with defects in WA apartments. What steps should your Council of Owners take? What do they need to look out for and what are the warranty periods for WA apartment buildings?

Table of Contents:

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Question: A few years ago cracks appeared in the walls of lots in our building. Owners repaired the cracks but they have returned. Common walls also have cracks and stitch repair work may be required. Should lot property cracks be repaired by strata along with the common property repairs?

I am an owner of an apartment in a strata complex of 80 units. A few years ago we noticed cracks on the walls. Strata told us it was the owner’s responsibility to get the cracks fixed. We carried out the repairs. Now, on the same walls, there are larger and longer cracks appearing, stretching from the middle of the wall all the way up to the ceiling. Other owners have the same issue.

A building inspector was employed to inspect the common property of the building for the 10-year plan. He reported that cracks are also occurring in some areas of the common property. His report sates:

“There were cracks consistent with age and type of construction noted. It is recommended that these cracks are repaired and monitored and if they continue to open up then stitch repair work would be required.”

Would this apply for the owners with the same issue in their apartments? Who would pay for the work to be done?

Answer: A forensic engineer should be engaged to identify the underlying cause of the cracking.

The responsibility will be outlined as per the boundaries of the strata lots. This is different on each strata property, so we would recommend this be checked on the registered strata plan. This will determine if it is the owner’s responsibility to maintain or the strata company’s responsibility.

Based on the information available, a forensic engineer should be engaged to identify the underlying cause of the cracking. Only then, can a remedial repair be determined and a scope of works compiled. It should be noted that crack stitching strengthens a part of the wall locally, however, may simply result in the wall cracking in a different location, hence diagnosis is instrumental in determining a long term/permanent solution.

Chantell Kennebury Sedgwick P: 08 9210 9103 E: chantell.kennebury@au.sedgwick.com

This post appears in the October 2022 edition of The WA Strata Magazine.

Question: After living in my 10 year old property for 6 years, I’ve only recently discovered a flashing defect caused during construction. As I’m well outside 6 years after notice of completion, what chances do I have if I lodge a complain with the building commissioner in WA?

Answer: You would need to demonstrate that water was entering or causing structural damage shortly after your purchase.

Yes, the time elapsed does pose some problems for an Owner to pursue this. You would need evidence that you experienced damage within 6 years from construction, so if you bought the home approximately 6 years ago and the property was circa 4+ years old at that time, you would need to demonstrate that water was entering or causing structural damage shortly after your purchase. The fact you only became aware of the flashing defect 3 months ago won’t be sufficient (on a 10-year-old site) in pursuing the Builder or a defect under a warranty scheme. It is worth engaging Legal opinion on this.

James McIntosh Sedgwick E: james.mcintosh@au.sedgwick.com P: 0415 459 486

This post appears in the June 2022 edition of The WA Strata Magazine.

Question: Via a building inspection, we have learnt that many windows and doors in our 2003 WA complex were installed with little or no window sill flashing. Would this be a latent defect?

I am a newly elected chairperson of my 15 unit mixed use strata complex built in 2003 in Western Australia.

Via a building inspection report I have learnt that my own unit and other units have windows and sliding doors that may have been installed with little, or no, window sill flashing. Of course, we have water damage caused by leaking.

Is this a ‘latent’ building defect?

Answer: This would be a structural defect latent from the time of construction.

Yes, this would be a structural defect latent from the time of construction.

Being a class 2 building, the construction is subject to Volume One of the Building Code of Australia (or National Construction Code depending on construction date).

If it is proven a defect exists in the flashing (or lack of) in the windows resulting in water ingress, the below clause FP1.4 Weatherproofing is a Performance Requirement of the BCA that the Builder would be in breach of.

FP1.4 Weatherproofing ―

A roof and external wall (including openings around windows and doors) must prevent the penetration of water that could cause–

  1. unhealthy or dangerous conditions, or loss of amenity for occupants; and

  2. undue dampness or deterioration of building elements

James McIntosh Sedgwick E: james.mcintosh@au.sedgwick.com P: 0415 459 486

This post appears in Strata News #566.

Question: I’ve submitted quotes to repair damage caused by water coming into my unit from the common area. I’m unable to get the Council of Owners to action the repairs. What do I do?

I have an issue with water coming through my wall from the common area. The room has carpet damage, skirting damage and safe edge damage.

I have submitted 2 quotes to have the issue fixed. Last August, the area was too wet for repairs to be carried out. Now that the area is dry I’m unable to get a reply from the council of owner’s chair. The Strata Manager isn’t having any luck either.

I’m not able to rent the room or sell the property in its current state. What can I do to get the repairs actioned?

Answer: An application may need to be made to the SAT – State Administrative Tribunal.

I can only take your word that the water leak is coming from a common wall.

Usually experts are brought in to determine the exact location of the water source.

Once that is established and if it is coming from a common property area, then the strata company have a statutory obligation under section 91 to repair and maintain the common property.

91. General duty

  1. A strata company must —
    1. [(a) deleted]

    2. control and manage the common property for the benefit of all the owners of lots; and

    3. keep in good and serviceable repair, properly maintain and, if necessary, renew and replace —
      1. the common property, including the fittings, fixtures and lifts used in connection with the common property; and

      2. any personal property owned by the strata company,

      and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause.

The strata company may have financial constraints in that they don’t have sufficient funds to cover the quotes received; in which case they would have to convene an Extraordinary General Meeting (EGM) to raise the funds for expenditure.

Any further lack of action would place your insurance policy at risk from knowing about a defect and not reporting it to the insurer.

An application may need to be made to the SAT – State Administrative Tribunal.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #558.

Question: I’ve seen lots of news about strata owners in Sydney being affected by defects in their buildings. Is this the same in WA? What are the warranty periods for WA apartments?

I’m an owner in a relatively new apartment building in Perth. I’ve seen lots of news about strata owners in Sydney being affected by defects in their buildings. Is this the same in WA? What are the warranty periods for WA apartments? What should we watch out for?

Answer: Research shows that about 52% of apartment owners in WA have had or are experiencing defects.

The baseline is six years. That’s the statutory warranty period for any of these defects and the construction contracts that are signed up and the nature of whatever the problem is, may determine whether there’s any extension on that six years.

For argument’s sake, the construction contract might have said that the membrane to your balconies has a 15 year warranty, for instance. Just because your six years is expired, don’t automatically assume that you may not have any coverage, there’s a lot more exploration that can be done after that, in understanding even the original building contract and what was committed to and those sorts of things. If this is a relatively new building, there are many materials out there that do have 10 or 15 year warranties on them, so it’s a good idea to try and tease those out. Understand what are those warranties on those materials and are they a contributing factor to the problem?

Bruce McKenzie Sedgwick E: bruce.mckenzie@au.sedgwick.com P: 1300 735 720

This post appears in Strata News #530.

Question: Once a defect is located, what guidance should owners expect from their strata manager to put the CoO on the right track?

Owners are not experts on defects and remedial works. The first person contacted after the potential defect is found would probably be the strata manager. What guidance should owners expect from their strata manager to put the CoO on the right track?

Answer: I would expect they would get the right technical experts involved first up.

Bruce McKenzie, Sedgwick:

I guess from my perspective as a technical expert, what we would normally expect is that getting the right technical experts involved first up, I think and that’s that’s the key again, that’s the key to all of these things.

If it’s a small issue, an example could be a burst pipe or some sort of water issue, is it reasonable to get an expert involved or is it a simple fix by a plumber that you can get on with? Everything needs to be put in proportion and something like that, yes, I agree, wouldn’t necessarily need to get an expert involved.

But if it’s something that’s happened multiple times over, or it’s a significant issue, then definitely I would be getting someone in because you really need to understand if there’s any other connected issues to that. It might not be isolated, there could be two or three things that are all linked together, and unless they’re all fixed, you might you might not actually properly rectify the problem. So, that’s certainly what I’d be looking for.

Bruce McKenzie Sedgwick E: bruce.mckenzie@au.sedgwick.com P: 1300 735 720

This post appears in Strata News #525.

Question: My unit was impacted by water leaks following a major storm a few years ago and now has many defects. I’m not sure how to go about getting this fixed.

My block of units has had an ongoing water leakage problem which was verified in writing by our previous strata management company. My unit was specifically identified as being impacted by the water leak following a major storm a few years ago and now has many defects. The units are only 6 years old.

These are the problems I am dealing with in the apartment at the moment. This list has been compiled in a property inspection:

  1. A large part of the render on the wall bordering the property has fallen off. The damaged section faces the inside of my unit.

  2. Part of the backyard is sinking away and quite a large gap is forming between the flooring of the alfresco and lawn. This seems to be where the water is entering and flooding under the building.

  3. Even though the inside of the garage storage has been waterproofed, rising damp is forming indicating the waterproofing/sealing is not effective and water is still sitting behind the wall.

  4. Water pools outside the ensuite shower screen and this has caused damage to the door frame. Seals on the bottom of the shower screen appear to be missing.

  5. There is a watermark on the ceiling indicating a leak in the roof.

  6. Cracks are evident between the walls and the ceiling in the bedroom.

  7. When the window is closed completely there is still a gap and breeze that comes through in the bedroom.

I’m not sure where to go from here. Can you direct me on the best action to take to fix these defects which have been caused by water leaks?

Answer: First of all, review your strata plan and clearly establish where the Lot boundaries are.

You have raised a number of issues which would be difficult to respond in this forum. However, some general comments for you to consider include:

  1. It is important that you review your strata plan and clearly establish where the Lot boundaries are. This will enable to define which of the issues are Lot issues which you can to progress directly with the builder and which are Strata Company issues which the Strata Company/Strata Manager must progress with the builder. It is important that “the owner” of the property progresses the issue with the builder or if required the WA Building Commission.

  2. You can personally progress your Lot property defect issues directly with the Builder.

  3. The Strata company must progress common property defect issues (even the common property issues directly associated with your Lot) with the Builder. You should table these issue with the Council of Owners or at the next AGM to progress or rally support and progress.

  4. Suggest you also review the recently released WA Guide to Standards and Tolerances. This will provide you with some information on what is acceptable construction work and what is not.

  5. On occasion, a commercial overlay needs to be considered. At some point it may not be worth pursuing the builder, it may simply be cheaper to engage an alternative contractor to remediate defects. The pros and cons of each option need to be constantly evaluated.

  6. A quality Building Inspector should be able to advise you and or the Strata Company on how to progress.

  7. Finally, it important to understand that in WA builders have a statutory liability for construction defects for at least 6 years.

David Clark Houspect WA P: 0408 956 159 E: dclark@houspectwa.com.au

This post appears in Strata News #307.

Have a question about defects from water leaks or something to add to the article? Leave a comment below.

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Please note this advice was provided prior to the proclamation of the new strata title amendments and will be updated in due course.

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