Legal representation QCAT

The saying ‘A man’s home is his castle’ is attributed to 17th Century English politician and jurist Sir Edward Coke, who used the statement in argument for the supremacy of the common law and the right to privacy. Meanings other than the original have been given to the statement in the years since it was first used. But, is a man’s home his castle, and should that man have the right to build his own castle? The wrong advice could lead you to requiring legal representation QCAT.

The Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) gives him that right. But as with all rights, with that right comes responsibility.

The law allows the owner of a block of land the ability to build their own house. However, with the ability to build your own house on your own land, comes responsibilities to any subsequent purchaser, who might purchase that house within six (6) years of its construction. They must be given a warning in accordance with section 47 of the QBCC Act.

Property is the cornerstone of the wealth of the average Australian; and the house that stands upon that property, is in many respects their castle. Legally, a residential real estate transaction is the transfer of property, or more specifically it is the transfer of land. Specifically, it is the transfer of residential land. The house upon the land is a fixture to that land; however, to the average Australian their asset is the entire property, including the house. In Queensland, the construction of domestic buildings or houses is regulated by the Queensland Building and Construction Commission (‘the QBCC’).

However, to contract with the general public for the construction of domestic houses, an individual or a company must be appropriately licensed with the QBCC. The builder must be appropriately qualified and experienced before the QBCC will consider giving them a licence to build houses for the public. He must also have a secure financial position and provide financial information to the QBCC to confirm that position.

In the alternative, if the owner of a parcel of land wishes to build their own house, then upon an application to the QBCC, the QBCC will issue the owner with an owner builders permit. Of course they must complete an owner builders course. These can be completed online for as little as $185.00 with a 100% pass rate.[1] It requires no specific practical knowledge or experience. Simply register for the course, login, start the online exam and the certificate can be emailed and posted to the owner and the QBCC on the same day.

The QBCC Act does place some restrictions upon being an owner builder. You can only get one permit every six (6) years, and if you sell the house within six (6) years of completing it, you must provide the purchasers a warning[2] that the house was built by an owner builder.

So what happens if the owner does not get an owner builder permit or does not provide a warning to a prospective purchaser that a house was built by an owner builder? In Williamson v Diab[3], His Honour Connelly J expressed a view, in obiter, that a failure to give a prospective purchaser the warning, as required by the QBCC Act, made the contract for sale illegal as formed. However, in the event that an owner builder failed to obtain a licence and/or did not inform the purchaser that the house was constructed by an owner builder, the more likely outcome is that the owner would be required to give the purchaser a contractual warranty that the building work has been properly carried out.[4]

This is not a case of buyer beware. Section 47(2) specifically excludes any protection which might appear in the REIQ contract that could offer some protection to the vendor when selling a house. In the event that no warning, as required by s47, is provided then the owner builder / vendor provides the purchaser a contractual warranty that the building work has been carried out properly. The purchaser is able to therefore rely upon those warranties as if they had been provided by a QBCC licenced builder.

In the QCAT matter of Clarke v Duka[5] the tribunal noted that by failing to provide the s47 warning, the owner builder was responsible to either undertake to repair any defects work or pay compensation to the purchaser resulting from damage.

It is an obligation of an owner builder to disclose to a potential purchaser that they have built the house, particularly if the owner is selling within the six (6) year timeframe mandated by the QBCC Act. If for whatever reason they fail to do so, including the circumstance where they are not properly licenced by the QBCC to be an owner builder, then that owner/builder or vendor becomes liable for either the repair of any defects or compensation to the purchaser for damages.

However, the question must be asked, should that be the case?

This entire area of the QBCC Act is one that is does not ever seem to come up in either discussion about reform, or review of its operation. The notion that a man can build his own castle is enshrined in legislation.

The Building Code of Australian and all the accompanying Australian Standards relevant to the construction of the modern Australian domestic residence are complicated to say the least. Should we allow essentially untrained people to simply decide to have a go?

The consequences of an inexperienced and untrained owner builder getting it wrong are significant, and perhaps it is time to review this provision of the QBCC Act.

Should you require any legal advice regarding owner builder responsibilities, the QBCC, legal representation QCAT or any other building and construction related matter, please contact Becker Watt Lawyers on 07 3269 4888.

[1] www.ownerbuilderlicense.com.au/Home.aspx

[2] Queensland Building and Construction Act 1991 (Qld) Section 47.

[3] [1987] 1 Qd R 210.

[4] Queensland Building and Construction Act 1991 (Qld) Section 47(2).

[5] [2013] QCAT 250.