Written for Property Poser
Our Property Poser reader, who has taken ownership of a property bought off plan only months ago, is experiencing a problem with damp.
He approached the trustees, developer and builder, but cannot find any solutions.
After speaking to some of the other owners in the same complex, it came to his attention that the damp problem in his unit is by no means an isolated case.
According to a plumber who inspected the property, the developer or the builder has used incorrect piping for the plumbing.
The reader feels it is unacceptable for him to have reparations of this nature done so soon after taking occupation of the newly built unit and would like to know from our panel of experts what his rights are.
According to Warren Jack, from the Warren Jack Property Group in Port Elizabeth, a sectional owner will normally be responsible for the cost of repairs relating to the defects inside his section.
“If a problem experienced by one owner appears to be something burdening the whole scheme and not just one or two of the sections, the owners may jointly decide to have the whole building repaired.”
In the case of new developments, Jack says owners often have a claim against the developer to repair the defects, or to finance the cost of such repairs, instead of having to pay for it themselves.
“If the owners in the reader’s development do have a claim against the developer for defective workmanship, they may pass a resolution authorising the trustees of the body corporate to demand repair work from the developer within a specified time period.”
According to Jack, if there is a dispute as to whether the repairs fall under the warranty given by the developer, or whether the problems are as a result of defective or substandard workmanship, the matter may be resolved by obtaining an opinion of an independent expert or by referring the matter to arbitration. He says litigation is also an option.
Grant Howard, from Kaplan Blumberg attorneys in PE, says if the trustees have difficulty in their dealings with the developer, they can contact the National Home Builders Registration Council (NHBRC) for assistance.
He says the Housing Consumer Protection Measures Act, No 95 of 1998, makes it obligatory for builders who operate in the mortgage bond market to register with the NHBRC. All new homes enrolled with the NHBRC are covered by a deemed warranty as determined by the act.
Howard says this warranty means that, by law, a builder must rectify any defects that occur in the first three months after occupation. “The builder must also rectify roof leaks that occur in the first 12 months after occupation as well as any major structural defects that occur in the first five years after occupation.
“The NHBRC will investigate the complaint and, if found valid, contact the developer and insist that the problems are attended to.”
Even though the warranty applicable to general defects, as provided for in the act, only stands for three months after occupation, Howard says if the reader listed the defect on the snag list and it was never tended to by the developer, the claim will stand even though the three-month period has passed.
“It is advisable that the reader or the trustees of the body corporate obtain legal advice regarding the enforceability of their claim against the developer,” he says.
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