Strata owners
1. What remedy would the Opal Tower owners be entitled to under the statutory warranty?
For contracts signed on or after 1 February 2012, the statutory warranty period for major defects is six years, and two years for all other defects. If the loss becomes apparent in the last six months of the statutory warranty period then the homeowner has a further six months from becoming aware of the loss to enforce the statutory warranty.
If you are still seeking compensation or rectification of this work that is nearing the end of the statutory warranty period, lodge an application with the NSW Civil and Administrative Tribunal.
Throughout the period of the statutory warranty owners can request the builder/developer to rectify defects. If they fail to do so the owner may seek assistance from Fair Trading to resolve disputes including issuing orders to compel the responsible builder to rectify defects. Owners may also make a claim with the Tribunal seeking money orders for the costs of defects.
Read about entitlements under a statutory warranty.
2. Am I covered by the Home Building Compensation Scheme?
Home Building Compensation cover is not required for work involved in the construction of new multi-storey buildings (buildings with a rise in storeys of more than three and containing two or more separate home units, and where ‘storey’ and ‘rise in storeys’ have the same meaning as they have in the Building Code of Australia of the National Construction Code Series (clause 56 of the Home Building Regulation 2014).
Owners are however covered by the statutory warranty protections (see question 1). All residential or partially-residential properties that are four or more storeys and commenced construction after 1 Jan 2018 will be covered under the Strata Building Bond and Inspections Scheme.
This scheme includes a building bond by the developer and mandatory defect inspections and reports on the development by an independent building inspector. It provides a structured, proactive process that resolves building issues quickly and cost effectively, early in the life of the building.
3. As a strata lot owner/occupier am I entitled to compensation for the period I have been unable to reside in my property?
Please contact the Strata Manager for details of the strata scheme's insurance arrangements.
Tenants and landlords
4. The property is not deemed safe therefore the tenant is unable to return to the property. Can the tenancy agreement be terminated without penalty?
If the property is destroyed or wholly or partly uninhabitable and/or ceases to be legally used as a residence the landlord or tenant can issue a termination notice.
Either the tenant or the landlord can give a termination notice in writing to end the tenancy. The notice, once served, can take effect immediately or can specify a later date. No rent is payable from the day the tenant moves out. Any rent already paid in advance must be fully refunded.
If you are unable to reach an agreement tenants or landlords/agents can use Fair Trading's free tenancy and real estate complaint service. Fair Trading’s experienced staff will talk through the issues or contact the parties involved in an attempt to negotiate an agreement.
5. What avenues would be available to tenants who wanted to break their lease?
If the property is deemed safe, habitable and the tenant can move back into the property the agreement cannot be ended based on a frustrated agreement.
Unless the landlord and tenant mutually agree to end the tenancy without penalty, the break lease fee may be applied in this instance.
Read about tenants obligations and rights regarding breaking a lease.
6. I was required to find and pay for my own accommodation. Am I entitled to a refund from the landlord?
If you were required to find alternative accommodation and pay for this for the period you were unable to reside in the property you may ask the landlord to reimburse you for these costs. To request reimbursement, you may email the landlord/agent the details including copies of receipts.
If you are unable to reach an agreement tenants or landlords/agents can use Fair Trading's free tenancy and real estate complaint service. Fair Trading’s experienced staff will talk through the issues or contact the parties involved in an attempt to negotiate an agreement.
7. Am I liable to pay rent whilst I am not able to reside in the property?
If a tenant is required to move out temporarily based on the property destroyed, or wholly or partially uninhabitable the rent may be waived or reduced. Whether any rent is payable at all and, if so, the amount payable will depend on the extent of the damage and the amount of use the tenant has of the property.
To negotiate an agreement tenants are encouraged to contact their landlord/agent in writing. If you are unable to reach an agreement tenants or landlords/agents can use Fair Trading's free tenancy and real estate complaint service. Fair Trading’s experienced staff will talk through the issues or contact the parties involved in an attempt to negotiate an agreement.
8.I am a tenant and would like to receive more information. Who can I contact?
You may contact Fair Trading on 13 32 20 for information regarding your tenancy.
Fair Trading also provides funding for the Tenancy Advice and Advocacy Service who provides free advice to tenants in NSW. The Advice Line reopens on 7 Jan 2019 from 10am-1pm and 2-5pm weekdays and can be contacted on 1800 251 101.
Airbnb
9. What do I do about my accommodation booked through Airbnb?
If you have booked your accommodation through Airbnb please refer to your contract for the terms and conditions. You may also wish to contact Airbnb.
If you are unsuccessful you may lodge a complaint with Fair Trading.
Building and certification
10.What responsibility do building companies have for building damage such as that affecting the Opal Tower?
Throughout the period of the statutory warranty owners can request the builder/developer to rectify defects. If they fail to do so the owner may seek assistance from Fair Trading to resolve disputes including issuing orders to compel the responsible builder to rectify defects. Owners may also make a claim with the Tribunal seeking money orders for the costs of defects.
Read about entitlements under a statutory warranty.
11.What is Fair Trading's role in relation to building certifiers?
The Building Professionals Board (a Fair Trading business unit), administers the accreditation scheme for certification work under the Building Professionals Act 2005.
Certification work means:
- the determining of an application for any development certificate, or
- the carrying out of the functions of a principal certifying authority under the Environmental Planning and Assessment Act 1979, or
- the carrying out of inspections for the purposes of section 109E (3) (d) of that Act, or
- the carrying out of inspections for the purposes of section 22C of the Swimming Pools Act 1992 and the issuing of certificates of compliance under that Act.
Accredited certifiers are able to issue development certificates in NSW. Development certificates include:
- Construction certificate
- Complying development certificate
- Compliance certificate
- Occupation certificate (at completion of development)
The Board also investigates the professional conduct of certifiers to ensure they comply with legislative requirements. Since 2005 the BPB has made over 430 decisions against certifiers and suspended or cancelled 15 accreditations.
What the Building Professionals Board can and can't do
- The Board can investigate and take disciplinary action against a certifier.
- The Board cannot order building work to stop.
- The Board cannot order unauthorised work to be rectified.
- The Board cannot perform the functions of a Consent Authority.
A Consent Authority has wide enforcement powers even when they are not the principal certifying authority for the development. A Consent Authority may issue a range of orders if a development does not comply with the development consent or complying development certificate. For example, a Consent Authority may order the property owner to comply with the consent or to rectify non-compliant work.
A Consent Authority can take action in relation to:
- development that does not comply with a consent
- unauthorised development.
12.What is Fair Trading doing in relation to the building certifier of the Opal Tower?
NSW Fair Trading will commence an investigation into the certifier of the Opal Building.
If you need more help
13.Who can I talk to about financial hardship?
Fair Trading provides funding for The Salvation Army Moneycare Western Sydney Financial Counselling Service services. To speak with a financial counsellor you may contact 9633 5011.
14.Is there a counselling service available?
For anyone seeking counselling support, a hotline has been established by the Acute Care Team (NSW Health Western Sydney Local Health District). Please contact 1800 011 511.
15. Further information from Fair Trading
If you have any questions or need further assistance please contact Fair Trading on 13 32 20.