Suggestions in what to do pls

[Snoopy]

Our builder has the roof finished and has started gyprocking the place. The attic was supposed to be a large 3rd bedroom and ensuite.

Just walked through the attic and the floor to ceiling height is much much lower than shown on plans.

The builder is blaming my architect for bad design and the architect is blaming the builder for bad roof framing.

How do I get this fixed without going down the legal path.

 

[pinkboy]

Stop progress payments! That will get them moving. It shouldn't be your problem. Whilst building, the site is the builders site, so it's up to them to rectify. If the architect drawings are difficult to read, but indeed accurate, then it's up to the builder to clarify, not the other way around.

pinkboy

 

[MTR]

Read your contract, in particular progress claims, you could try what PB said but you can also be charged interest if not paid?? that's what my contract said.

Anyway, I ignored this and stopped progress claim for getting the tiling wrong, the builder had always agreed to rectify the problem, however I still held it back until it was completed.

The larger builders would probably have charged me interest??

MTR

 

[pinkboy]

Agree with MTR regarding reading your contract.

I would say that if the roof height is lower than habitable height and the fact it's the roof frames, I'd say it's a significant structural defect which would stop the builder charging interest and need to rectify.

pinkboy

 

[MTR]

One thing I have learnt the hard way in the developing game is that on your specs the builder will always state "AS PER PLANS". If your designer gets them wrong, leaves something out you could be pushing sh@t up hill.

My g/friend had similar scenario where the builder blamed the draftee and the draftee blamed the land surveyor, but they all have clauses to cover their ****. She ended up having to wear the additional costs.

 

[Perp]

You first need to establish who's telling the truth: does what's built match the plans or not?

If the plans are the problem, you'll wear it because I'm sure you'll have signed off on them.

If the builder hasn't built in accordance with the plans, then what happens will depend upon your contract.

Did you get legal advice before entering into the construction contract? What remedies do you have? What does your lawyer recommend?

 

[MTR]

Perp

I agree with you. First establish what happened.

However, why get a lawyer involved at this stage, more money??

The plans are the key, the plan will state the height and that is what the builder refers to, he is not liable for the stuff up if he built as per plan.

If the architect stuffed up.... and it was signed off by the owner then that is going to be a difficult one.

However moving forward, if drawings are wrong, I would start off looking at costings to rectify the issue . Also is the height actually legal??? probably is, but something else to look at. Also time is money, while the project stops you are I assume paying out interest/holding costs, that's a big one so you need to resolve this quickly

 

[Perp]

However, why get a lawyer involved at this stage, more money??

Well, I don't think you should even have signed such a valuable contract without a lawyer already involved. Pre-contractual advice is something I presumed everybody did, and was horrified to discover - when my lawyer found a fundamental problem with my builder's "standard" contract - that nobody had ever done that before. Obviously my assessment of the worth of professional advice differs from many others.

If you haven't had a lawyer involved before now, I'd agree that you're probably already screwed and getting one involved now will be too late for them to help you.

Hence why I don't understand why everybody doesn't pay for pre-contractual advice.

 

[MTR]

Guilty, I have never had a lawyer look at my building contracts.

There is the generic contract set by Government body, standard for all, depending on State what contract is used.

My builders contract, basically detailing the specifications, its about 4 pages.

The key here is the drawings, would a lawyer check out every component on the drawings to ensure its all covered?? I doubt it, could be wrong.

 

[Perp]

There is the generic contract set by Government body, standard for all, depending on State what contract is used.

The contracts I'm aware of are written by builders' associations (Master Builders and HIA), and they're written with one parties' best interests in mind, which aint ours!

My lawyer paid most attention to progress payments (admittedly if using the standard schedule may not be necessary) and the specifications. Yes, my lawyer brought to my attention things that weren't included that usually are, and clarified if that was OK, highlighted what reasons builder had to vary costs and schedule, pointed out remedies for various things going wrong, etc. They also suggested several amendments that were incorporated. (Try doing that after you've signed. )

Just looking at how many people turn up here on Somersoft and clearly have no idea what their contract says convinces me it's worth every cent. Why would you enter into an obligation that could make or break you financially, without knowing precisely what you've agreed to?

 

[MTR]

Natspec Simple Domestic is much better than what you posted, as it will provide further protection, people in the game will know this, my certifier recommended this over the other building contracts, lawyer wont know zip about this.

 

[Perp]

Natspec is the one you should use which provides better protection, rather than the above you mentioned.

Then you clearly know enough to look after your own interests ; I'm betting most people who sign a construction contract don't use that.

My "standard" contract contained a provision that would have invalidated any ability to make a claim under Queensland's statutory warranty insurance.

 

[MTR]

OK, fair enough.
I am learning along the way, and if you feel you need a lawyer then do it. I am not against it, just concerned that they will not cover the most important elements, however in your case it was absolutely worth it.

 

[westminster]

Natspec Simple Domestic is much better than what you posted, as it will provide further protection, people in the game will know this, my certifier recommended this over the other building contracts, lawyer wont know zip about this.

Why won't lawyers know about this? It is well known the HIA contract is pro builder, not pro client but NatSpec is for specifications, not to replace the HIA Contract.

 

[MTR]

Yes, that's what my certifier advised and why we went NatSpec, what I understood that we use this to replace HIA and yes biased to builder.
Perhaps I got confused, not sure in terms of contracts???

I can only talk from my experience, have never used a lawyer for any of my builds and built many homes since 2001, never had any issues, does it mean I wont ever?? perhaps who knows? I personally not keen to pay for this service, but all to their own, if this helps then good for them.

I guess sort of like..... how many people/investors use a lawyer to check bank documents??? my guess is not many pay for a lawyer, these contracts are also pro bank... should be no surprises here. We had a lawyer go through at least 3 different bank docs/loans recently, incredible what we discovered that the average Joe/Jill would not know, but can't do anything about anyway....other than walk. Not fair, but a fact of life.

Perhaps this is why most dont bother????

MTR



MTR

 

[Michael Kelly]

Can you post pics of the plans so we can see if the plans have been drawn correctly? You are entitled to demand that it is constructed exactly as per the plans, if a detail does not work then your builder needs to tell you and have the details changed and a variation order signed.. they cannot just build it however they want.

 

[Perp]

Why won't lawyers know about this? It is well known the HIA contract is pro builder, not pro client but NatSpec is for specifications, not to replace the HIA Contract.

You're right. Of course construction lawyers know about the various construction contract formats. And even some other stuff besides!

 

[Snoopy]

Thanks for the replies. I am comfortable with my legal position. These things are never black and white and as i said I don't want to go down the legal path to find out exactly who's fault it is. I try and find win/win (lose/lose) commercial outcomes rather than seeking a legal outcome which would leave things in limbo for 18 months. I don't shy away from the legal process as a last resort.

The Architect did the DA drawings but the builder did the actual CC drawings themselves. Its the CC drawings that are part of the contract. The plans in the attic are not 100% clear. The floor plans show min 1500mm clearance between floor and ceiling at the walls. They have beams coming in the middle of the attic room at 900mm. If the builder had raised the issue during construction we could easily have changed things but the roof is finished it is a lot harder.

Its a very large builder and I have a meeting with their draftsman, my consultants on site hopefully later this week.

 

[Perp]

Several people seem to confuse "knowing the legal landscape" and "taking legal action". I wouldn't remotely suggest legal action is appropriate at this stage, but I don't think you can begin to negotiate a commercial outcome without knowing how legal action would be likely to play out, because the large builder is almost certainly going to know that and will negotiate with that in mind.

If you know that you have a strong case that is likely to succeed, even if you never want to take legal action, you can be much more aggressive in negotiating. If you don't have a legal leg to stand on, then you're likely to just be perceived as a joke if you start making demands.

 

[MTR]

Thanks for the replies. I am comfortable with my legal position. These things are never black and white and as i said I don't want to go down the legal path to find out exactly who's fault it is. I try and find win/win (lose/lose) commercial outcomes rather than seeking a legal outcome which would leave things in limbo for 18 months. I don't shy away from the legal process as a last resort.

The Architect did the DA drawings but the builder did the actual CC drawings themselves. Its the CC drawings that are part of the contract. The plans in the attic are not 100% clear. The floor plans show min 1500mm clearance between floor and ceiling at the walls. They have beams coming in the middle of the attic room at 900mm. If the builder had raised the issue during construction we could easily have changed things but the roof is finished it is a lot harder.

Its a very large builder and I have a meeting with their draftsman, my consultants on site hopefully later this week.

Keep us posted as I would be interested to see how it all pans out.
All the best