This is an article repost. Originally posted on 2018-10-29 and can be found on this link
As building notices continue to be issued to buildings across Melbourne, property owners are becoming increasingly frustrated with the pressure being put on them to remove and replace the cladding installed on their buildings.
One question being asked by many lot owners is whether or not the notice can simply be ignored or passed onto the builder.
As the current owner of the common property, building notices for cladding are served against the Owners Corporation of the affected property, which is comprised of all lot owners.
Understandably, lot owners believe it is unfair that they are required to address the notice and – in the worst cases – remove the cladding as they had no involvement in the specification, compliance and/or installation of the product on the building.
On the other hand, many builders argue that as long as the materials were permissible at the time the building was constructed and signed off by a building surveyor, they should not be held accountable retrospectively.
LEARN MORE: Learn how the experts determine what is and isn’t a defect here.
The Victorian Government banned the use of flammable cladding on all buildings earlier this year, and as part of its mandate in carrying out the cladding audit, the Victorian Building Authority (VBA) and local councils are seeking the removal of flammable cladding wherever it is found.
However, attributing blame or accountability for the removal of cladding on existing buildings is proving challenging for owners.
Information obtained from Consumer Affairs Victoria by Strata Plan suggests that the Domestic Building Dispute Resolution Victoria (DBDRV) – the resolutions body which owners and Owners Corporations must apply to before a domestic building dispute can progress to the Victorian Civil and Administrative Tribunal (VCAT) – will refer any cladding-related disputes to the VBA.
The VBA, however, does not offer a dedicated dispute resolution service.
Strata Plan obtained the following from a customer who had used the VBA’s web-chat service:
“Unfortunately the VBA does not assist with legal action. The VBA cannot award financial compensation or direct a building practitioner to provide financial compensation.
“If you are seeking financial compensation from a building practitioner, licensed or unlicensed plumber, or an adjoining owner, this is outside the jurisdiction of the VBA and you may wish to obtain legal advice and take civil action.
“You are welcome to lodge a complaint against a builder [via the VBA], though this would not involve any sort of compensation.”
The DBDRV and VBA positions only serve to further cloud where and how owners and their Owners Corporations should go about seeking to pursue others for the recladding of their building.
Buildspect consulting have over 40 years of building consultation experience and specialise in helping Owners Corporations prepare for building defect disputes with builders
Buildspect director John Coghlan said that while not appearing fair, owners should focus on complying immediately with any building notice or order regarding the removal of combustible cladding and in turn having any building notices on their property removed first and seek damages later.
“As the owner of the building and its common property, the responsibility falls to the Owners Corporation when any regulatory building notice/order is served” he explained.
“Simply saying ‘it wasn’t us’ who put the non-compliant cladding on the building and ignoring the notice is not an option. There are consequences for ignoring a building notice that affects all users of a building.
“Owners should resolve the issues raised by a building notice first then seek their options of compensation through advice from an experienced owners corporation lawyer.
Experienced legal advice will be able to determine if assigning responsibility after the fact can be achieved or not.”
Strata Plan continues to monitor the VBA cladding audit as it continues to unfold while assisting affected customers as required.
Owners and potential purchasers who want to know if their building has been audited by the VBA should head to their website’s Contact Us page and follow these instructions:
- Go to: https://www.vba.vic.gov.au/about/contact
- Enter your details
- Answer “Consumer” to the “Are you a consumer or practitioner?” question.
- Answer “Victorian Statewide Cladding Audit to the “What is your enquiry about?” question
- A new form field will pop up. Select the most relevant option from the “Victorian Statewide Cladding Audit” field.
- Enter a brief outline of your enquiry in the text area provided
See screenshot below:
Disclaimer: All information provided in this article is general in nature and should not be relied upon solely. If you are part of an Owners Corporation which has been served with a building notice, you should discuss the issue with your Owners Corporation manager for an update on how your Owners Corporation committee is responding.
For more information, contact firstname.lastname@example.org