In February 2012 I wrote an article for ITM called “What is a producer statement?” That is available as a newsletter on the Madison Hardy website if you can’t find it elsewhere. This is a follow-up to that newsletter, and it deals with the issue of whether building consent authorities (for convenience I will call them Councils) can avoid liability for signing off defective building work, by pointing to the fact that someone has given them (or should have given them) a producer statement in respect of the defective work. Does that let the Council off the hook?
The starting point is that Councils in New Zealand owe a duty of care to current and future owners of residential properties, when issuing consents, carrying out inspections, and issuing code compliance certificates.
Americans use the expression “no-brainer” when something is so blindingly obvious that you don’t even have to think about it. This newsletter explains why it is a no-brainer that you should take out one of the new guarantees that are now available.
Apart from help with building contracts, there are two main reasons why builders come to us for legal assistance. One is to recover some money from a client in a dispute situation. The other is to defend an allegation that the builder has done defective work.
Remember what a “record of work” is? It is something that a licensed building practitioner must hand over to his client and the local territorial authority, when he completes “restricted building work” on a house or a small-to-medium apartment building.
There is some confusion about what it is actually called, as many people refer to it as a “memorandum”. The Building Act 2004 (sections 88 and 317(1)(da)(ii)) refers to it only as a “record of work”, but the Building (Forms) Regulations 2004 call it a “Memorandum from licensed building practitioner (record of building work)”. They are the same thing.
As a general rule, 10% of people are inherently honest, 10% are inherently dishonest, and the other 80% are as honest as the circumstances require.
That rule applies to people in all walks of life, and all occupations. So just as it applies to builders, so it also applies to homeowners. And it is just a matter of luck whether you happen to come across a client who falls into that 10% dishonest bracket.
The Construction Contracts Act 2002 (the “CCA”) was introduced because the New Zealand construction industry was behaving badly at the turn of the century.
Payments weren’t flowing down the chain to where they were badly needed, and disputes took far too much time and money to resolve. So the Government followed the lead already taken by a number of other western countries, and passed the CCA to address these issues. The main thrust of the CCA is to get payment to the contractors at the bottom of the pile promptly, and the two main ways it does that, are payment claims and adjudication.
When the Government appointed Messrs Hunn, Bond & Kernohan to enquire into the causes of the leaky building syndrome in 2002 (they were called “The Overview Group on Weathertightness”) they took it upon themselves to investigate and report on all the failings of the construction industry in New Zealand. In their otherwise excellent report (issued in two parts on 31 August & 31 October 2002) they offered the following comments:
“it is understood that [the Companies Act] offers little … protection to a home-builder/buyer consumer in the event of the vendor company … being put into voluntary liquidation by the directors”
“there is currently nothing to stop the unscrupulous … builder from liquidating their company … to avoid claims and action from dissatisfied purchasers”
In 2010 the (then) Department of Building and Housing announced its final round of building law proposals that arose out of the leaky building crisis.
The proposed reforms were broadly intended to achieve two objectives. The first was to ease the burden on Councils, who were inheriting the lion’s share of liability for the cost of leaky home repairs, and were getting overly-cautious and risk-averse as a result. The second was to encourage homeowners to be better informed when embarking on building projects and to give them more rights and remedies when things went wrong.
Most builders will be aware by now that since 1 January 2015 you have had to provide to your residential clients four different documents – a checklist, a disclosure statement, a written building contract, and an owner’s manual.
The checklist is easy because it’s a standard form you download from the MBIE, and the written building contract is easy if you belong to Certified Builders, Master Builders, or one of the volume builders or franchises. It’s the disclosure statement and the owner’s manual that present a few problems. Here’s how to deal with them.
There are currently five laws holding residential builders accountable for their workmanship or materials (and only two in the case of commercial builders).
They are the law of contract, the law of negligence, the Consumer Guarantees Act 1993, the implied warranties under section 362I of the Building Act 2004, and the 12 month defects warranty under section 362Q of the Building Act. Of those five laws, in only two of them is it necessary to prove (or disprove) that there is a “defect” in the workmanship or materials. In the other laws you have to prove something else – in the case of negligence a breach of a duty of care causing foreseeable loss, in the case of the Consumer Guarantees Act a breach of an implied guarantee, and in the case of the Building Act implied warranties a breach of one of those warranties.
If you sell a spec house, usually your lawyer or your real estate agent will prepare an agreement for sale and purchase of real estate in the standard form, and that will be the terms of the sale between you and the purchaser.
Or so you think. These days there are a lot of Acts of Parliament that insert special terms into agreements, whether you know it or not. These are known as “implied terms” and they override anything that your agreement may say. The Building Act is no exception. So when you sell your spec house, you might not be aware that there are a lot of rules built into your agreement for sale and purchase that you don’t necessarily know about, and some of them are fairly tough.