Looking to begin a new building project, or having issues with your current builder? In this article, we explain your rights in respect of the duties owed by builders and subcontractors in New Zealand.
Duty of Care
All builders and subcontractors owe a duty to undertake their work with reasonable skill and care, in accordance with good trade practice, the building consent and in compliance with the Building Code. This duty is owed to all future owners and can be sued on for up to 10 years from the date of the construction.
This duty means contractors must undertake their work to a reasonable standard, so it is fit for its purpose. If this duty is met, you should not have any problems with the construction.
In addition, the Building Act 2004 contains implied warranties which are statutorily included in the contract for all residential construction in New Zealand. These warranties require a builder to construct the dwelling in accordance with:
- Good trade practice;
- The consented plans and specifications; and
- The Building Code.
While these standards are often considered in leaky building claims, they apply to all aspects of construction.
The Building Code can be found in the regulations under the Building Act 2004. It sets a minimum standard for all building work undertaken in New Zealand. It is important to understand the Building Code as building work must comply with it even if the work does not require a building consent.
The Building Code is a performance-based code which means it sets minimum standards building elements must meet for a specified duration: 5, 15 or 50 years. The requirements of the Building Code may be met by applying the Code’s acceptable solutions. However, these are not the only way to meet the requirements and other solutions can be applied.
For example, clause E2 – External Moisture – requires external claddings and roofs prevent the penetration of external moisture which could cause undue dampness or damage, for a minimum period of 15 years (B2). This clause is commonly breached when external moisture enters the building and damages the building elements. This causes what is commonly known as a leaky building.
What to do if you have problems with your builder
If a dispute arises in respect of a construction project and you believe the builder or subcontractor has breached their duty of care, there are steps you can take to resolve it before engaging in litigation.
At the first sign of trouble, it is good practice to engage a lawyer as they will be able to assist you in reviewing your building contract to see what rights and remedies you are entitled to. The best avenue to go down will depend on the unique circumstances of each case.
While we are equipped to deal with all construction litigation proceedings, our priority is to keep you out of court and in control. Our advice will outline all your options and explain the law in plain language to assist you to reach your desired outcome.
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