Q: I have received a list of defects from a client that include scratches in the glass of several windows, air bubbles in the bathroom grout and a bedroom door that is warped. Items that he has listed as defects are not what I consider to be defects. How can convince my client that what he is considering defects are not defects?
A: The question of what is considered defective work is frequently asked.
Legislation in the Australian Capital Territory (ACT), the Building ACT 2004 requires that building work must:
The Building ACT 2004 then refers to the Building (General) Regulations 2008 when considering whether building work has been carried out in a proper and skilful way.
These considerations include that work has been done to meet reasonable minimum industry standards which includes meeting tolerances.
Schedule 3 of the Building (General) Regulations 2008 defines defective tolerances as Ã¢â‚¬Ëœ’the amount stated in the tolerances guide for the element as the amount by which the element may deviate from a stated dimension in the approved plans for the building work, or a result from working out a dimension using a method stated in the tolerances guide, for the element”
The Ã¢â‚¬Ëœ’tolerances guide” referred to under legislation is the Guide to Standards and Tolerances 2007 (the Guide).
The content of the Guide is based on technical standards and industry tolerances that describe (or refer to) what is considered an acceptable standard of finished workmanship in domestic building construction.
The Guide has been developed for use by builders and building owners as a convenient reference for acceptable standards of workmanship in domestic building construction.
It is intended to address areas that are not prescribed under legislation or under a domestic building contract.
It should be understood that it is a guide only and that all other documents prescribing statutory and contractual requirements, relevant to the contract, take precedence over the guide.
The Guide can be of assistance when considering acceptable tolerances when it comes to finishes in building work and what would be considered a defect in the ACT and the Guide should be used as a reference when assessing the defects or items that you have mentioned.
If you view the building regulations you may notice that the tolerance guide referred to in legislation is 2007. This documents, the 2007 version, is not the current version however the legislation makes provision for this by stating that the tolerance guide means the Guide to Standards and Tolerances 2007, as in force from time to time.
The tolerances guide can be viewed at, or downloaded here.
Although your client has raised the issue of defects I assume that this has not delayed progressing through the practical completion stage of the contract. The defects you have mentioned could be dealt with in accordance with Clause 27 of the MBA ACT Home Building Contract.
Practical Completion is defined in the MBA ACT Home Building Contract as to be considered to have been achieved when the works are complete with exception for minor omissions and/or defects which do not prevent the building to being reasonably fit for occupation or use by the owner.
The defects that you have mentioned, scratches in the glass of several windows, air bubbles in the bathroom grout and a bedroom door that is warped should be considered as minor defects.
Practical Completion excludes such things as letterboxes, driveways, non-structural retaining walls and the like which do not affect the internal amenity of the house.
An application for Certificate of Occupancy and Use can be applied for at the Ã¢â‚¬Ëœ’completion of the building works”.
The completion of the building works is defined under Section 85 of the Building Act 2004;
(1) Completion day, for the residential building work, means the day the work is completed or the day the contract relating to the work ends, whichever is the latter
(2) Without limiting subsection (1), the work is taken to have been completed no later than the day a certificate of Occupancy (if any) is issued for the work.
Also, just as a reminder for those who have been issued with a Fidelity Fund Certificate issued by MBA, please remember that at the completion of each project the builder should notifying MBA that work has been completed. This notification is done by providing a copy of the Certificate of Occupancy or Use (C of O) to MBA as soon as practicable after the C of O has been issued.
Should the builder not advise MBA that the work has been completed the builder will not be issued further certificates if the maximum number or limit granted has been reached.
If you have any technical questions you can contact Master Builders ACT on (02) 6175 5900