What is defective work?
In Queensland, the QBCC Act describes defective building work as work that is faulty or unsatisfactory, with those words used in their ordinary sense. Work that doesn't comply with the Building Act 1975, the National Construction Code (NCC, which includes the Building Code of Australia) or an applicable Australian Standard can be defective. Assessing the quality of the work may need an expert.
Work is also defective if a manufactured product has been used, assembled or installed in a way that doesn't follow the manufacturer's instructions.
The QBCC doesn't have to pinpoint a breach of the Building Act, the NCC or the manufacturer's instructions to find work defective. If there are signs of a defect but the root cause isn't known, the work can still be found faulty and the builder directed to fix it.
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Types of defective work
For QBCC Home Warranty Insurance, defects are split into structural and non-structural, and the timeframes are different for each (see the QBCC's home warranty page for the details).
Structural defects
Structural defective building work is faulty or unsatisfactory work (other than work causing subsidence) that does one or more of the following:
- adversely affects the structural performance of a building
- adversely affects the health or safety of persons residing in or occupying a building
- adversely affects the functional use of a building
- allows water penetration into a building.
Non-structural defects
Non-structural defective building work is any other faulty or substandard work (other than work causing subsidence), where the construction or finish doesn't meet the standard expected of a licensed contractor.
Minor settling-in defects, like small plaster cracks or sticking doors, are treated as non-structural. Report them to your builder in writing as soon as you notice them.
Tier 1 defective work
The QBCC Act also defines "tier 1 defective work", the most serious kind, which can have consequences for the builder's licence. It's work that doesn't meet the standard expected of a licensed contractor and either:
- The structural performance of the building has been detrimentally impacted to the extent that substantial reconstruction or demolition would be necessary in order for it to fulfil its intended purpose.
- Conditions that endanger a person's life or health (e.g. inadequate fire protection) are present.
What timeframes apply in Queensland?
Lodge complaints promptly. The home warranty timeframes are set by legislation and strictly applied:
Structural defects: home warranty cover lasts 6 years 6 months, and you must lodge a claim with the QBCC within 3 months of noticing the defect.
Non-structural defects: the defect must appear within 6 months of completion, and you must lodge a claim within 7 months of completion.
Directions to rectify: a complaint asking the QBCC to direct the builder to fix defective or incomplete work, or consequential damage, should be made within 12 months of noticing it.
Examples of defects
The QBCC produces a Standards and Tolerances Guide for building contractors and consumers to refer to when determining defects in building standards and quality.
You can download a copy of the guide below:
This guide focuses on the construction work defined by the Act and does not cover electrical work which is regulated by the Electrical Safety Office.
The guide specifies that gutters are deemed defective if more than 10mm of water is retained in them, and for floor and wall tiling within the first 12 months, tiles will be considered defective if they are cracked, pitted, scratched or loose unless the cause can be attributed to external factors beyond the contractor's control.
Consequential damage
A building contractor may be responsible for repairing consequential damage that is the result of defective building work.
According to the Act, consequential damage is defined as damage resulting from building work performed at a residential property, regardless of any actions taken by the person performing the work. Damage may include:
- the impairment of drainage;
- the undermining of a fence, retaining wall or other boundary structure;
- the compromising of the structural integrity of a building, swimming pool, or wall;
- the cracking, lifting or cratering of a driveway or path;
- water penetration; and
- termite infestation.
The ‘defects liability period' and how it works
The defects liability period is a time set in the contract during which the builder must fix defects in their work that show up after completion.
In Queensland, under QBCC standard domestic contracts (for example the New Home Construction Contract, GC 29.1), the defects liability period is 12 months from practical completion. Other contracts set their own period, so check yours.
Don't confuse the contract's defects liability period with the QBCC home warranty timeframes above. They run side by side, and the strict 6 and 7 month non-structural deadlines can expire well before the 12-month contract period ends.
Why specify a defects liability period in a contract?
The defects liability period provides clarity for both parties regarding the process of remedying any discovered defects after practical completion.
A defects liability period can be used to address any issues with the build that are apparent at practical completion but are difficult to resolve while other contractors and trades are present.
It is often sensible to engage the contractor who completed the original work to correct any defects, as they will be familiar with the property and task. This approach is likely the most cost-effective for any rectification work.
A contractor may want to be the only authorised party to do any repairs within a certain time frame as quality of work and follow-up repairs could affect their reputation.
Once a defect is fixed does a new period restart?
The duration of any defects liability period after rectification work is complete will be determined by the terms of the construction contract.
It is essential for the home owner and contractor to have clarity on this issue before signing a contract.
Questions and Answers about Defective Building Work
Question 1: What are common examples of defective building work in residential construction?
Some common examples of defective building work in residential construction include:
- Cracked or uneven foundations
- Leaking roofs or walls
- Poorly installed or inadequate insulation
- Faulty electrical wiring or fixtures
- Poorly installed or inadequate plumbing
- Incorrectly installed windows and doors
- Uneven or poorly laid flooring
- Poorly finished walls and ceilings
- Inadequate ventilation or air conditioning
- Non-compliance with building codes and regulations
Question 2: What are the legal responsibilities of builders and contractors when it comes to defective building work?
Builders and contractors have a legal responsibility to ensure that any work they do is performed to a reasonable and expected standard. This includes complying with all building codes and regulations, using appropriate materials, and using competent and qualified tradespeople.
If a builder or contractor fails to meet these responsibilities and defective building work results, they may be liable for damages. Home owners may be able to seek compensation for the costs of repairing or rectifying any defects, as well as for any other losses they may have suffered as a result of the defective building work.
In some cases, builders and contractors may also be subject to fines or other penalties for non-compliance with building codes and regulations.
Question 3: What are the consequences of defective building work for home owners?
The consequences of defective building work for home owners can be significant. Defective building work can not only result in costly repairs and rectification, but it can also impact the safety and liveability of the home.
Serious defects can pose a risk to the health and safety of occupants, and may even require the home to be vacated while repairs are carried out. Defective building work can also impact the value of the property, making it more difficult to sell or refinance in the future. Home owners may also experience stress and inconvenience as a result of dealing with the defects and trying to get them resolved.
Question 4: How can home owners identify and report defective building work?
Home owners can identify and report defective building work by conducting regular inspections of their property and looking out for any signs of defects or faults. It is important to keep detailed records of any defects or issues that arise, including photographs and written descriptions.
Home owners should also report any defects to their building supervisor or contractor as soon as possible, and in writing, so that there is a record of the complaint. It is also advisable to take a photo of any defect to accompany your written advice to your contractor. If the builder or contractor fails to respond or address the defect, home owners may need to escalate the matter to the relevant regulatory authority or seek legal advice.
Question 5: What is the process for resolving disputes related to defective building work?
The process depends on the nature and severity of the defects and the state you're in. In Queensland, you'll usually need to raise the issue in writing with your builder first and give them a chance to fix it, and the QBCC also offers early dispute resolution before you lodge a complaint. If that doesn't work, you can lodge a complaint with the QBCC, and some disputes go to QCAT (Queensland Civil and Administrative Tribunal) or court.
Get legal advice early so you understand your rights and options.
Question 6: How long do home owners have to report defective building work after construction is completed?
It depends on the state, the contract and the type of defect. In Queensland, the contract's defects liability period is usually 12 months from practical completion, non-structural defects must appear within 6 months and be lodged with the QBCC within 7 months of completion, structural defects are covered for 6 years 6 months (lodge within 3 months of noticing), and requests for a direction to rectify should be made within 12 months of noticing the defect.
The safest approach is to report any defect in writing as soon as you notice it.
Question 7: What are the potential costs associated with rectifying defective building work?
The potential costs associated with rectifying defective building work can vary depending on the nature and severity of the defects, as well as the extent of the required repairs.
Minor defects may only require relatively simple and inexpensive repairs, while more serious defects may require extensive and costly re-mediation. Home owners may also incur additional costs such as legal fees, expert reports, and alternative accommodation while repairs are carried out.
It is important for home owners to understand the potential costs associated with rectifying defects and to seek professional advice to help them assess their options.
Question 8: How can home owners protect themselves from defective building work?
Home owners can protect themselves from defective building work by taking a number of proactive steps, including:
- Conducting thorough research before choosing a builder or contractor
- Checking the builder's or contractor's license details and speak with past customers who had positive and negative experiences - understand why they did.
- Ensuring that the builder or contractor is properly licensed and insured
- Including detailed specifications and requirements in the building contract
- Ensuring the contract is properly set out, is clear and you understand what you are signing before you sign.
- Conducting regular inspections during and after construction
- Keeping detailed records of any defects or issues that arise
- Reporting any defects to the builder or contractor as soon as possible, and in writing
- Seeking legal advice if necessary
Conclusion
Defective building work can mean costly repairs, safety risks and legal disputes. Know your timeframes, choose your builder carefully, inspect during and after construction, and report defects in writing as soon as you find them.
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