For homeowners, the relationship between a builder and an independent building inspector can sometimes be confusing.
Here are some of the questions we are commonly asked about builders and independent inspectors.
- What is an independent building inspector?
An independent building inspector is generally engaged by the homeowner, rather than the builder, to inspect aspects of the building work.
Depending on the scope of the engagement, the inspector might attend the site at various stages of construction and report on whether the work appears to comply with the relevant plans, specifications, and the applicable standards.
- Isn’t the certifier already inspecting the building?
Many people forgo an independent building inspector to save money, and because they trust that the private certifying authority (“PCA”) will ensure compliance by attending the building site and reviewing the certificates from the various trades certifying that they did the work correctly.
However, we have seen certificates where the trade did not even attend the site to ensure the works were done, let alone compliant, before issuing the certificate. Accordingly, skipping independent inspections to save thousands of dollars can compromise your house and cost hundreds of thousands of dollars, if not millions.
- When should my inspector attend?
Independent inspectors cost money and time, and so, it’s easy to believe that just getting one inspection at practical completion before handover is enough. However by that stage, the critical infrastructure has already been covered up – by plasterboard/drywall, cladding, tiles and concrete – and it is no longer visible without further testing, which is often invasive. In that case, the inspector is unable to inspect the critical, structural elements because they are covered up. What’s left to inspect are the cosmetic items and the visible sections of the plumbing, which are relatively easy for the home owner to detect
We recommend that the independent inspection takes place at the following stages, to catch the following critical defects that we have seen take place:
- Excavation and footings
- are there requisite number and depth of screw piers? Otherwise, the house is not on strong grounds and can sink, leading to cracked walls, slab, cornices, and doors not closing.
- is the depth and location of the excavation correct? Otherwise, the house is on the wrong place, and the slab may not have the requisite depth to provide the strength to withstand cracking.
- Before slab pour
- Is there a waterproof membrane? Is it compromised? Otherwise, your house can have rising damp problems.
- Is the steel reinforcement the correct thickness, number and in the right location? We have seen wrong thickness being used, reinforcement missing in places, or the chairs for the steel missing or broken, such that the steel is exposed, which can lead to the steel rusting and potentially concrete spalling.
- After slab and framing
- Is the concrete slab in the right place? Otherwise, your frame could be overhanging the slab beyond the acceptable tolerance, meaning that the frame is not stable. We have seen frames installed for a two storey home frame be taken down and replaced due to this issue, causing months of delay for the home owner.
- Is there exposed steel reinforcement, or insufficient depth of the slab? These could lead to cracking of the slab.
- Is the frame correctly installed? We have seen missing bottom plates, incorrect connections, incorrect locations of rooms and doors.
- Are the windows properly installed with flashing so that it won’t let rain in? Are they in the correct place, shape and size? Windows in the wrong location, wrong size, or missing, can be complicated to fix at practical completion stage.
- Waterproofing
- Did the waterproofing membrane correctly adhere to the surface? Is it applied down into the drain? Up to the correct level on the wall? What about the holes for the taps?
- Did the waterproofer use correct materials for the bathroom walls and floor? Did they follow the manufacturer’s instructions on how to affix it to the frames? The correct nail spacing, nail type, glue type can differ by company and by product.
- Practical completion
- Does the roof have the correct flashings to prevent water leaks?
- Is the sarking installed? Does it have any holes and tears that may have occurred during installation?
- Was the on-site detention tank installed?
There can be significant value in inspecting work before it is covered up. Once work is concealed, identifying the cause of a problem can become considerably more difficult and expensive, requiring destructive inspection methods.
- Can my builder restrict my inspector’s access to the site?
We have seen various cases where a builder might claim that a particular inspector is not permitted on site on the basis that builder has exclusive possession of the site. Note that the builder’s exclusive possession of the building site may be required under the building contract.
Builder’s refusing access to an independent inspector usually occurs if the inspector is known to the builder from previous jobs, and where the builder believes that the inspector should not be allowed on their jobs for one reason or another.
The builder may also require compensation for allowing access. Sometimes building contracts provide that if the owner uses an inspector other than the inspector stipulated by the builder, the owner must pay the builder for their time to supervise the independent inspector. More commonly, the building contract may state that the owner is allowed a certain number of independent inspections, after which, the owner must pay the builder for each visit and an additional period of time for the works is added to the building period.
The building contract also may state that the owner is permitted on site during the build only for a limited number of visits, and only whilst supervised by the builder for safety reasons.
The legality of the above is not straightforward, and depends on the contract and the wording of the builder’s statements. On one hand, exclusive possession means the right to exclude others – no reason needs to be given. On the other, it makes every sense for customer to have the right to inspect the build to verify that the build is in accordance with the Australian Standards as required, or that the builder is entitled claim a progress payment because the stage of work has indeed been performed. Absent a contractual right to inspect, the avenues to demand inspection could be a costly and lengthy process.
Therefore, having your building contract reviewed and negotiated before you sign the contract is important to protect this valuable right to inspect.
- Can the builder choose my inspector?
We have seen practices where the owner goes with an inspector that the builder recommends.
The builder’s recommendation can be: “because the particular inspector has worked with the builder so much, they are familiar with the process, and so, the inspection can take place much quicker. If you go with someone you choose, it’ll add weeks to you building schedule. Is that what you want?”
Sometimes, the contract mandates that the owner must go with the inspector that the builder chooses.
From a homeowner’s perspective, the principal benefit of an “independent” inspector is, unsurprisingly, independence.
We have seen cases where, because the inspector knows that a builder always builds in a certain way, and so, that the inspector will accept that practice, even if it is not in accordance with the Australian Standards, because the inspector can see that the builder’s process, albeit not compliant, seems to be “good enough”.
- What happens if the builder disagrees with the inspector?
Disagreements are very common.
The builder may consider that the work complies with the contract, while the inspector takes a different view. There can be a range of reason for this:
- Is the correct version of the National Construction Code (NCC) being applied? Which version applies depends on when the construction certificate was applied for.
- Does the Australian Standard allow for different, acceptable methods? For example, acceptable ways of waterproofing a shower stall vary depending on whether or not it has a hob, a step down, open or closed.
- Can the builder claim ‘performance solution’, in that, although the building method may not comply with the prescriptive rules, does it achieve the performance purpose? Can they demonstrate this?
Sometimes, the builder just tries to bully the inspector and argue that “that’s just how it’s done. We’ve done it this way for years”, “no one in the industry can comply with all the NCC in practice” or “you don’t know what you’re talking about.”
What’s important is that the inspector applies the correct standard and discusses the disagreement with the builder to come to a resolution that is compliant.
Sometimes the builder continues to build the house despite protestations by the inspector. This is for many reasons: the builder only can claim progress payments when the build is progressing. If they stop the build, they don’t get paid. Or sometimes, they disagree with the inspector. Or, the builder plans to fix the defect without stopping the build as a whole, rather than replacing the defective section.
If a defect is found, and the builder will not address it, or address it properly, there are several approaches that may be taken, which will be discussed in a separate article.
- What should I do if the inspector identifies a defect?
We don’t know any home owner who would want a home that is ‘completed’ with major defects. Even if the home owner obtains a favourable outcome in NCAT, there are risks of the builder declaring bankruptcy, the liquidated damage for delay is unlikely to cover the alternate rent and mortgage interests, and there are limits on when and how much the Home Owner’s Warranty will cover. And the builder doesn’t want to have to tear down the completed house to re-build it, at a substantial cost to the builder.
So, what is best for both parties is if the defect is caught as early as possible, so that the issue is fixed properly and quickly. And an independent building inspector can assist with that.
Bottom Line
If there is a disagreement about defects or responsibility, it is better for both parties to obtain advice early — before the dispute becomes substantially riskier for both parties: difficult, expensive and time consuming to resolve.
Please be aware that this is general information. It is not a legal advice. You should speak to a lawyer if you have any concerns to receive advice tailored to your situation.
Author: Chris Kim