Defects Assessment - The New Regime

Building defects are a constant issue for bodies corporate.  As well as bodies corporate having the obligation to maintain the common property, due to the recent legislative changes, Bodies corporate:

•  are now statutorily obliged to consider a motion to engage a suitably qualified and experienced expert to provide a defect assessment report, even if defects are not apparent; and

• may consider voluntary defect assessment plans for stand-alone buildings.

In this article, we briefly look at each of these issues:

Defect assessment motions

From 1 March 2021:

• a body corporate, other than a body corporate for a specified two-lot scheme, must include a defect assessment motion on the agenda for the next annual general meeting of the body corporate that is called after the first annual general meeting.
  
  For a body corporate for a scheme that is intended to be developed progressively, there are additional requirements;

• a body corporate of body corporate for a specified two-lot scheme must consider a defect assessment motion, on or before the second anniversary of the scheme’s establishment. . 

A “defect assessment motion” is a motion proposing the engagement of an appropriately qualified person to prepare a defect assessment report for property (other than a body corporate asset) that the body corporate must insure.

A “defect assessment report” means a report that identifies any building work, within the meaning of the Queensland Building and Construction Commission Act, that is defective and if reasonably practicable identifies the cause of the defective building work and the building work required to rectify the defective building work.

Why has this legislation been introduced?  The legislation has been introduced to ensure Bodies Corporate identify defects before rights that bodies corporate may have:

• under the contract for the construction of the building, to recover loss; and/or
• pursuant to the Queensland Building and Construction Commission Act, to have defects rectified, are lost.

Under the transitional provisions of the  Standard Module and Accommodation Module, the requirement for a defect assessment motion applies to schemes that have not called the relevant annual general meeting prior to 1 March 2021.  If a scheme has already called the relevant meeting prior to commencement of the new module and the meeting has not yet been held, the requirement for a defect assessment report does not apply.

Voluntary defect assessment plans

Subject to the scheme meeting certain criteria in its regulation module, the body corporate may establish a voluntary defect assessment plan under which it arranges for a defect assessment report to be prepared for stand-alone buildings for the owners of the lots.

Participation in the voluntary defect assessment plan is optional, and the owner of a lot who wants to take part in the plan must comply with all reasonable requirements made by the body corporate establishing the plan.

The owner of a lot who takes part in the voluntary defect assessment plan is liable to pay a contribution levied by the body corporate that is a proportionate amount of the total cost of the plan relative to the defect assessment report undertaken on the owner’s lot.

About Us

Active Law specialises in providing advice to bodies corporate regarding not only the application and interpretation of the Body Corporate and Community Management Act, but also remedies available under the Queensland Building and Construction Commission Act for the rectification of building work defects.

Brendan Cole is a member of Active Law’s dedicated building and construction law team.  Brendan specialises in construction law and has many years of experience.  Prior to joining Active Law, Brendan was a senior in-house lawyer at the Queensland Building and Construction Commission for 10 years.  Paul Hick is also a member of Active Law’s building and construction law team.  Paul also specialises in construction law and has many years of experience too.  Being an ex-builder, Paul enhances the skills of the building and construction law team with hands on experience.

Active Law can identify the need for expert building or engineering advice to support a claim or complaint and can recommend building experts and engineers with proven ability to comprehensively identify and report on defects and rectification.

Active Law has had great success in preparing building work complaints to the QBCC to achieve the rectification of defects at no cost.  In addition, Active Law remains involved throughout the process of inspections and decision making by QBCC and assists in obtaining internal and external review of any aspect of the outcome of a complaint that is not satisfactory.

Please speak with us about the options and entitlements available to bodies corporate for the identification and rectification of building defects.

Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.