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Home building laws in every state or territory ensure tradespeople are appropriately qualified for the work they perform on residential properties. However, the home building laws do not cover all trades. If you are a tradesperson in New South Wales (NSW), you need to know when the Home Building Act 1989 (NSW) (the Act) may apply. This article will explain when and how you comply with home building laws in NSW.

How Does the Act Define Home Building?

The Act refers to homes as dwellings. According to the Act, a dwelling means a building or part of a building that is designed, constructed or adapted for use as a residence. Examples that fall within this definition include:

  • detached or semi-detached houses;
  • terrace or townhouses;
  • duplexes;
  • villa-homes
  • strata or company title home units;
  • residential flats;
  • spas;
  • pools;
  • cabanas; and
  • balconies.

Meanwhile, home building (known as residential building work under the Act) is the:

  • construction;
  • alteration;
  • addition;
  • repair;
  • renovation;
  • decoration; or
  • protective treatment of a dwelling.

The definition also includes:

  • erection of prefabricated metal-framed home additions and structures;
  • general building work;
  • kitchen, bathroom and laundry renovation;
  • structural landscaping;
  • swimming pool building;
  • roof plumbing work in connection with a dwelling;
  • water, food or atmosphere heating and cooling;
  • ventilation; and
  • filtration of water in a pool or spa.

Trades

The Act has regulations that specify what trades fall within the definition of residential building work. These trades include:

  • bricklaying;
  • carpentry;
  • decorating;
  • dry plastering;
  • excavating;
  • fencing;
  • general concreting;
  • glazing;
  • joinery;
  • metal fabrication;
  • minor maintenance, cleaning and trade work;
  • painting;
  • roof plumbing, slating or tiling;
  • stonemasonry;
  • swimming pool repairs and servicing;
  • underpinning or piering;
  • wet plastering;
  • wall and floor tiling; and
  • waterproofing.

If your trade is not on the list, the laws are unlikely to apply to you. However, the only exceptions are if the trade is classified as specialist work. Under the Act, those trades are:

  • plumbing and drainage work, other than roof plumbing work;
  • gasfitting work; and 
  • electrical wiring work.

Therefore, if you carry out any of the above work on a dwelling as defined under the Act, your trade will be covered under the Act.

What Does the Act Exclude? 

The Act does not apply in many circumstances. Some exclusions are:

  • any work (other than specialist work) under $5,000;
  • any work (other than specialist work) related to movable dwellings;
  • internal painting that is not related to a residential building work contract;
  • removal and transport of a dwelling that is not related to a residential building work contract;
  • architect supervision;
  • owner-builder supervision or of someone with a building licence;
  • demolition work;
  • flooring (except for tiling) that does not create structural changes to the floor; and
  • buildings such as retirement homes, schools or boarding houses.

Contract Requirements

If your trade is covered by the Act, you will need to provide a written contract that includes details about the work you will provide. What you should include in your contract will depend on the price of the job.

For small jobs between $5,000 and $20,000, you should include:

  • details of the parties: Include business details, your contractor licence details and the details of your customer;
  • works: Describe the scope of work in detail, including any plans or technical specifications (if necessary);
  • price: Outline the price of the work (if known) clearly to the customer;
  • quality: State you comply with any relevant laws (including the Building Code of Australia), development applications or certificates; and
  • variations: Mention any variations to the contract will only occur if you and your customer agree in writing.

Works that are more than $20,000 will require you to include the above considerations. Additionally, you must also include details on:

  • payment process;
  • how you or your customer can vary the contract price;
  • a cooling-off period; and
  • insurance.

Furthermore, you are required to provide a checklist of the key considerations in the contract. If your customers are not sure whether the contract meets all 15 points, they are unlikely to sign the contract. Therefore, you should ensure your contract thoroughly covers all the points raised in the checklist.

Warranties

You will need to set out warranties in any home building contracts with homeowners. That means, as a tradesperson, you guarantee that:

  • the work will be done with due care and skill according to plans set out in the contract;
  • all materials supplied are good and suitable for the purpose to be used;
  • you will comply with all relevant laws when completing the work;
  • the work will be done with due diligence in the stated timeframe or within a reasonable time if there is no stated timeframe;
  • the work will lead to a house that is reasonably fit for occupation; and
  • if the homeowner states the particular purpose or result for the work to be done, your work will be reasonably fit for the purpose or result.

Licences

The Act requires everyone who engages in residential building to work to get a relevant licence. You will need a contractor licence if you are engaged in:

  • any work where the labour and materials costs exceed $5,000;
  • electrical wiring, plumbing, draining or gasfitting work; and
  • air-conditioning and refrigeration work.

You should obtain a contractor licence before supplying any of the above services. Otherwise, you may face a fine or your contracts with customers will be void. You should apply to the NSW Department of Fair Trading for your contractor licence.

For example, if you are a carpenter, you will have to complete an application form and checklist where you have to supply evidence of your qualifications and answer questions on financial and criminal history.

Key Takeaways

The trades listed in the regulations (and outlined above) as falling within the definition of residential building work catch the attention of many of the Act’s most significant provisions. If you are performing specialist works on someone’s home, the Act will apply.  If you have questions, get in touch with LegalVision’s building lawyers on 1300 544 755 or fill out the form on this page.

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