Potential Dereliction of Responsibility Under Building Statutory Warranty - Major Builder

burningrage on 19/08/2017 - 08:39
Last edited 19/08/2017 - 08:39

Hi everyone,

I am trying to gauge if anyone has the same experience and what you did or would do about it if it happens.

My home is under 6-7 years (the Statutory Warranty implied period) old. So I lodged a claim on leaked ceiling (currently not dangerous leak as yet) possibly due to heavy rain and it causes the particle board to get locally soaked, dilapidated, and over time, it created a hole (which is the first time I discovered it). The official claim was mainly due to the leak causing structural damage or potentially structural damage (we don't know how far has it gone other than the hole the water created from the leak) and we think it came from the roof so most likely improper construction allowing leak to happen.

In addition to this, I also lodged a claim for noticeable cracks on cornices particularly when the area of the crack is somehow nearby the location of the water leak.

After passing photos, the response I got was quite swift (literally 5 minutes later)

That I should engage an insurance claim and if the insurance says it is building issue, then we can give the report to them. Cracked cornice is considered building maintenance issue, not structural. Leaked roof due to non-cleaning of gutters are my responsibility (quite presumptive as there are literally no trees in my area being new estate) which is fair enough but that's not the cause. Cracked tile would also be a home maintenance issue but nobody has ever been to that area at all.

The issue at hand are these:
1. Has there been legislation change in VIC that statutory warranty claim that home owners must use their insurance first (ie: incurred excess) before doing this?
2. Can I claim under the DBDRV the builder has committed dereliction of statutory warranty responsibility and commence dispute resolution based on that reply? DBDRV requires attempt to resolve locally first but I claim the builder has no intention to honour their obligation in the first instance based on that rude email.
3. Has there been experience by anyone going to DBDRV that resulted in resolution of work AND compensatory for wasting people's time (what they call exemplary punitive penalities to dissuade the industry from engaging in misleading and deceptive conduct in the future)?

Any advice is appreciated.

Thanks in advance

Zz

Home & Garden

Comments

  • mskeggs on 19/08/2017 - 09:23
    +3

    Did you file the insurance claim?
    Is there any evidence that there was poor workmanship?
    Have you looked to see where the leak is coming from?
    I assume you have never owned a house before, if maintenance and responsibility to upkeep the house is something you want another party to do. You might be better off renting, where the landlord looks after these things.

    • burningrage on 19/08/2017 - 09:56

      With my previous builder (not this one), shower leak happened and when reported to the builder, they sent the team and concluded it was plasterboard defect and they ended up replacing the whole shower screen and placed a new plasterboard with new cornice.

      Again, I didn't have to go insurance for this and this is 5 years after I built with them.

      It is not therefore presumptive to expect the same from this builder.

      If I claim an insurance, my rating would be impacted, my premium would be affected and definitely, I will in the record of claiming EVEN if in the end, it would be a builder issue. In my insurance file, I have already made an enquiry. Should I have to go through this for a straight forward case of poor workmanship?

      This leads to the second and third point you said. It only happen on heavy rains. My initial check suggests, the gutter was, although very wide, could not hold huge streams of water leading the water to overflow to the adjacent tiles, which as you can understand, have gaps. Remember, this is a garage roof and the downpipe has 3 holes leading to the gutter. DUring heavy rains, the gutter fills up quickly and it probably overflows. That's why the leak is quite localized like a size of 50c hole but surrounding the area, the board is quite dilapidated.

      I can engage a tradesman to replace the board (happy to wear the cost even if I believe this is building defect), but it will happen again.

      I appreciate your comment mskeggs but I have done this before. I only ask if there has been a change of law in relation to building warranty that requires insurance involvement when claiming statutory warranty.

  • chumlee on 19/08/2017 - 09:27

    In Vic builders warranty isn't worth the paper it's written on

    • burningrage on 19/08/2017 - 09:56

      I have to agree. I may have to raise it with my local MP.

  • BertieBrown on 19/08/2017 - 09:35
    +1

    Yeah, I'd be inclined to go with the insurance option; they'll (insurer) very likely send out a builder, to have a look.

    I tend to agree with the builder, tiles and gutters are an owners responsibility, which is fair enough.

    I also get where you're coming from, in the sense that you feel it's presumptive of the builder to claim that these considerations are at play in your situation, but consider that they probably have a lot of instances where this is the case, so by engaging an insurer they can remain impartial. If they send someone out from their side to have a look and they say it's the gutters or tiles or whatever you might be inclined to not believe them, which would be understandable, which is why they've probably suggested the insurer.

    • burningrage on 19/08/2017 - 09:58

      If I go with insurance (which I have no problem of), I run the risk of being blacklisted for claiming. My ratings will increase, my premium will be affected EVEN if it is a building defect.

      I ask the community if this is a true understanding if I go this way.

      • BertieBrown on 19/08/2017 - 10:18

        The alternative would be a building inspector, I guess. What alternatives were you considering? Ordinarily, if you have a leak in your house then you'd be looking at insurance IMO.

        I don't mean to sound coy, but the builder has suggested a report from an insurer, that's the way I'd be leaning. If the builder doesn't come to the party then you'd be looking at insurance anyway yes?

        • burningrage on 19/08/2017 - 10:51

          I plan to engage a building inspector and charge the bill to the builder.

          As i said i am 100% confident this is covered under statutory warranty.

          If the builder doesnt cooperate then DBDRV is the path and i intend to pass my costs to the builder.

          If that happens i will consider naming the builder here arguing Public Interest defence under the law.

      • whooah1979 on 19/08/2017 - 10:18
        +1

        Do insurers blacklist clients that make claims?

        • BertieBrown on 19/08/2017 - 10:22
          +1

          Honestly, I've heard varying claims. Without acute knowledge of the industry, I'd say I'd lean more towards a bit of a myth. I've made three claims on our insurance, within about four years or so, and they haven't told us to rack off, yet, but it may also depend on the insurer.

          I guess it's one of those things that seems like it could be true but is really difficult to quantify.

  • Randxyz123 on 19/08/2017 - 13:10
    +2

    So you haven't cleaned your gutters? At all?

    What makes you so sure it isn't a build up of dirt and crap?

    • burningrage on 19/08/2017 - 13:54

      It looks clean on first check this morning

      • Randxyz123 on 19/08/2017 - 14:14

        oh so you got a ladder and actually checked ?

        • burningrage on 19/08/2017 - 14:36

          Yea. Its not that high. Just a garage roof.

  • TheBilly on 19/08/2017 - 14:03
    +1

    Why are people so paranoid about claiming insurance? Why pay it if you won't use it, and I have never heard of being "black listed" what does that even mean?

    Albeit, you don't have to go insurance as the building inspector route is the same end. But if the building inspector says it is not structural and not the builders fault, you are going to insurance anyway, but this time you loose the building inspectors fees.

    Go to insurance make a claim, if it is determined to be at fault, then you pay excess? If not at fault, then they chase builder. Simple. I would expect it works like cars.

    • burningrage on 19/08/2017 - 14:51

      Let me ask you another way.

      If we are all prepared to let the builder go and claim insurance (as the feedback so far suggests) then what is the point of having statutory warranty?

      What is the incentive to build with quality?

      Do remember this is home where people live.

      • TheBilly on 19/08/2017 - 15:31
        +1

        I agree with you about making the responsible party pay for damages, not saying don't. But my understanding was it was like car insurance. You make a claim, if it is not the builders fault, then you have to pay excess and your insurance fixes it. If it is the builders fault, then your insurance will chase the builder for all monies due as a result of negligent building practices. I could be wrong in thinking insurance works this way?

        • burningrage on 19/08/2017 - 15:36
          -1

          The contentious issue is that whenever you may an enquiry with an intent to claim, that is included in factoring your premium. RACV is one such insurer. I will look for the article on this.

          I am trying to avoid insurance path for this reason. In their mind once you make an enquiry it introduces risk.

          If i have to claim i want to claim big. Not $1000

          Example. I know this is uk but i did read one in aus and racv is one such insurer

          https://www.google.com.au/amp/s/amp.theguardian.com/money/20…

          And this is on blacklisting. Its called red lining

          http://www.dailytelegraph.com.au/moneysaverhq/startling-ways…

        • TheBilly on 19/08/2017 - 17:53

          @burningrage:

          I think you should just pay for a building inspector as you have planned and let him tell you what the issues are and whether the builder is liable for repairs.

          I think the 6 years stautory warranty is structural only so you will have to prove that these issues have resulted due to slab or framing failure and not just deterioration which is not covered under warranty.

      • burningrage on 19/08/2017 - 21:46
        +1

        Neg vote must be a builder. Lol.

  • driver33b on 20/08/2017 - 09:11

    A tile can get 'damaged' during installation and later 'fail' as a result of weather conditions…thunder, heavy rain, wind and or heat, typically wear and tear…all resulting in the condition of your leak, plaster and cornice..no builder is going to get involved with claims that the tile MAY have been cracked by his installer x years ago. The insurance is there for 'unforseen' claims, exactly what you got.

  • backpaqer on 20/08/2017 - 12:14

    My house is 2yo. I went through home insurance first. But they said they would fix damage but not cause of damage as part of the work. So I took it to the builders insurance thingy and lodged a claim. This is not an easy process as they need every shred of paperwork ever generated out of the house build. So I sent them a wad of paper about half an inch thick. But once that was submitted it was very quick and everything was fixed and I believe it's better than it ever was.

    • burningrage on 20/08/2017 - 13:46

      Thanks for the tips. This is a very good point. Insurance wont fix the cause.

  • backpaqer on 20/08/2017 - 12:15

    But don't delay getting a claim in as the clock starts from when they register it. It then doesn't matter if it drags out past the warranty period.

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