This is the second article in a series of articles based on a number of workshops on weathertight remediation for builders which the Building and Housing Group in the Ministry of Business, Innovation and Employment has been running at centres all over New Zealand.
As discussed previously, there are increased risks in such projects, and it is essential that we as builders understand these risks and ways to minimise them. And this starts before we even swing a hammer on site.
When you are contacted by a designer or client it is crucial to know if an assessment has been carried out on the building.
If there is, what are the skills and experience of the assessor, and is the report current? If there is no assessment, in most cases it will be appropriate to advise the owner to obtain an inspection and report from a competent person.
Have plans been drawn up and consent applied for? What are the qualifications and experience of the designer and those supervising the repair process, providing ongoing design support and evidence collection?
Until the cladding is removed, it is often difficult to determine the extent of the work needed and details required. If a designer has little experience in remediation, will they be able to deliver details in a reasonable time frame?
Note that since March 2012 this is restricted work requiring the appropriate design licence. Case law has shown that builders can carry significant liability if they design missing or change existing details which then go on to fail.
When considering the legal ramifications of the duty of care that has been established under case law, how suitable is the proposed repair methodology, especially targeted or partial repair types? Working with the right experts can help mitigate this risk.
The “like with like” provision in Schedule 1 of the Building Act allows repairs and maintenance to be carried out on a building without a building consent, but only where the building has not failed the durability requirements of B2.
Due to these requirements, any building that has leaked within 15 years will, strictly speaking, require a building consent for repairs to the envelope.
Having an understanding of the whole remediation process and what options are available for potential clients has helped me differentiate from others in the market, and to develop a relationship with those clients.
Carrying out a quick assessment of the property in person or over the phone to determine the age, design features, building materials and why they think they may have a problem will be a useful first step in determining the options available. If their home has a CCC, who it was issued by and when is critical.
Whilst not the only limitation period on statute, the 10-year long stop limitation period of the Building Act 2004 is the most relevant to building projects. If a client falls outside these limitation periods their options for holding those to account for their loss through litigation narrow significantly.
Due to the complexity of such cases it is probable that a client will need the advice of other professionals for legal and expert advice to determine their most appropriate course of action.
If a client is unfortunate enough to own a leaky building they may also need to consider the potential health implications of residing in their home, and the length and stress of the whole process.
Options could include selling their home back to the defendants, the original builder perhaps, or demolition with consideration for land value and remediation costs.
A builder’s most obvious risk is, arguably, security of payment, so understanding how a client is intending to fund the repairs is essential.
A client may plan to 100% self fund for a small repair for example — but what if scope and budget significantly increase? They could then be driven to pursue parties using the WHRS or private litigation through the courts.
The client may also be using the Government’s new Financial Assistance Package (FAP), the subject of our next article in November.
• Harry Dillon is a builder and has been involved with the repair of more than 300 homes over the past 10 years. This article represents his views, which may not necessarily be the same as the Building and Housing Group.
• Article 1 of this series that appeared in the July issue was incorrectly credited to former DBH senior advisor, sector education, Albrecht Stocklein. The article was, in fact, also written by builder Harry Dillon. Building Today apologises for the error.
