BUILDING A HOME IN 2013? DON’T LOSE YOUR DEFECT COVER!
If one of your New Year’s Resolutions is to build your own dream home, know that you have strong statutory protections against poor workmanship and structural failure. But you will lose them if you don’t ensure that both -
Your builder is (as required by law) registered with the NHBRC (National Home Builder's Registration Council), and
that his/her registration is current and not suspended, expired or deregistered; andYou have received, before building commences, a “certificate of proof of enrolment” confirming that your home has
Your rights
Next, have your building contract drawn or checked professionally with reference to the technical standards in the NHBRC’s “Home Building Manual”, and with reference to the warranties implied by law into your contract. In general terms, these warranties are that your home will be: -
Constructed in a “workmanlike manner”, and
Fit for habitation, and
Constructed in accordance with NHBRC Technical Requirements, plans, specifications etc.
Your remedies
Give immediate notice to the builder to rectify any problems – snags, deviations from plan, “deficiency related to design, workmanship or material” etc. Your general time limit for this is 3 months after occupation, but extended time periods apply to -
Any “major structural defect” which manifests within 5 years of occupation and results from non-compliance with
the Council’s Technical Requirements, and
Any roof leak “attributable to workmanship, design or materials” which manifests within 12 months of
occupation.
(Note that you can specify longer warranty periods in your building contract – the above are minimum periods set by law.)
If problems aren’t remedied after you report them, your first claim is against the builder. The Council should assist you in this via its complaints, conciliation and disciplinary procedures.
Can you claim direct from the NHBRC?
What happens if your builder refuses to (or cannot) comply with your demand for rectification? With the downturn in the construction industry it is a hard fact that many construction firms have failed, or will fail, leaving you with a worthless monetary claim and a defective house. The good news here is that you have a backup claim against the NHBRC’s warranty fund – but, unfortunately, only for major structural defects or roof leaks manifesting as above.
What is “a major structural defect?”
The formal definition is this: “A defect which gives rise or which is likely to give rise to damage of such severity that it affects or is likely to affect the structural integrity of a home and which requires complete or partial rebuilding of the home or extensive repair work to it, subject to the limitations, qualifications or exclusions that may be prescribed by the Minister”.
That’s quite a mouthful, but a recent High Court judgment provides a practical illustration. The home in that case had – within a year - developed severe cracking in the concrete floor slab. A structural engineer called in by the home owner reported that the cracks were structural in nature, but the NHBRC rejected the owner’s claim because its own expert (another structural engineer) concluded that the cracks were not structural but rather caused by shrinkage resulting from poor workmanship when the slab was poured.
The Court, having analysed both experts’ reports and evidence, held that the defects resulted from “a failure of the substructure of the house” and were thus structural in nature. As they were also clearly “major” defects as defined, the Court ordered the NHBRC to rectify them.
The limits
The NHBRC in rectifying such defects is only empowered to spend a maximum of R500,000 (or an amount equal to the “selling price of the home” if it is less than that).
BACK TO SCHOOL - WHOSE RULES RULE?
Two recent Supreme Court of Appeal (SCA) decisions confirm that governance of a public school is the responsibility of its governing body, and that provincial departments of education act unlawfully if they direct a school principal to ignore policies set by its governing body.
Case 1 – the pregnancy policy
In the first case, two schools had, in terms of their respective “pregnancy policies”, each suspended a learner from school. When provincial government, in the person of the Head of Department (HoD) of Education instructed the respective schools to re-admit the learners, the schools went to court.
The end result – government was interdicted in each case “from directing the school principal to act in a manner contrary to the policy adopted by the school governing body”. The Court held that even if such policies are unconstitutional or otherwise unlawful, they can only be set aside by a court on review - accordingly in this case “the conduct of the HoD, in instructing the principals not to implement the policies, was unlawful.” The provincial government should rather have approached a court to set the policies aside.
Case 2 – the admissions policy
In the second case, an applicant learner was refused admission to a school because she was far down on the waiting list, and the school had reached its capacity. The relevant HoD instructed the school to nevertheless admit the learner, and purported to withdraw the principal’s admission function.
On appeal, the SCA held that it is the governing body of a school that must determine the school’s capacity and admission policies. The authority of a governing body to govern a school is however not absolute, and provincial governments have an “oversight role” (albeit a limited one). Moreover, held the Court, a governing body must “necessarily act reasonably and rationally” both in determining the school’s capacity and in applying its policies. In addition, its admissions policies -
May not be unfairly discriminatory,
May not require an admission test to be administered to a learner, and
May not refuse admission to a learner because the parent has not paid or is unable to pay the school fees.
Two Important Footnotes:
Amended regulations introduced in Gauteng (in March 2012) provide that the HoD – not the governing body – shall determine the capacity of a school. The Court made no ruling on the validity or otherwise of these new regulations - they were introduced after the case in question arose and were therefore irrelevant to its outcome - but according to media reports their lawfulness is being challenged in separate legal actions.
Media reports suggest that the “admissions policy” case may be taken on appeal to the Constitutional Court. At least for the moment however, the power of governing bodies to “make the rules” in the circumstances of these two cases has been confirmed. But they must act lawfully or face court challenges to their policies - in particular, any policies which might impact on learners’ constitutional rights to education must be formulated with great care.
Take advice in doubt!
BUYERS, SELLERS BEWARE: NEW ELECTRIC FENCE REGULATIONS
From 1 October 2012, the “Electrical Machinery Regulations” require you to have an “electric fence system certificate” if you install, add to or alter any electric fence. Fences in place as at 1 October 2012 are exempt so long as they remain as is.
The risk for property buyers and sellers is that the requirement for a certificate kicks in not only if you extend or alter an existing fence, but also when the property is sold. And there is no clarity on whether it is the seller or the buyer who must obtain the certificate – that’s a recipe for dispute and delay.
Buyers: Your risk
Because the Regulations don’t specifically require the seller to provide you with a certificate, it is quite possible that the transfer could go through without one. And if that happens, you will find yourself in contravention of the law, and having to apply for a certificate yourself. As the Regulations aim to standardise fences to comply with set specifications, you could find yourself having to bring the fence up to spec at major cost and inconvenience.
Don’t risk that - insist on a clause in your sale agreement requiring the seller to provide the compliance certificate prior to transfer!
Note: A certificate once issued is transferable to a new owner. So a subsequent sale won’t require a new certificate unless the fence has been altered in the interim – where applicable, the seller should warrant that no such alterations have taken place.
DON’T FORGET! E-FILING TAX RETURNS DUE 31 JANUARY
If you are a provisional taxpayer filing your income tax returns via eFiling, you have until Thursday 31 January 2013 to submit your 2012 return. Don’t forget, delay will be costly!
THE JANUARY WEBSITES: PLANNING FOR SUCCESS IN 2013
“The Chinese use two brush strokes to write the word 'crisis.' One brush stroke stands for danger; the other for opportunity. In a crisis, be aware of the danger -- but recognize the opportunity.” (John F. Kennedy)
With any luck 2013 will produce the first green shoots of a global economic recovery. Whether it does or not, and even if it turns out to be as full of challenge and crisis as the less optimistic pundits are suggesting, concomitant opportunities will inevitably abound.
Get ready to take advantage of them with these suggestions -
Plan your year. Start by creating your own customised calendar at http://www.timeanddate.com/
Read “10 lessons for living a happier and more fulfilling life” by Karl Pillemer on Leader.co.za’s site at http://www.leader.co.za/article.aspx?s=1&f=1&a=3497
With those 10 lessons in mind, set your own goals for 2013 and beyond with “Personal Goal Setting: Planning to Live Your Life Your Way” on the MindTools website at http://www.mindtools.com/page6.html
Only then move on to formulating goals for your business with Inc.’s “How to Set Business Goals” at http://www.inc.com/guides/2010/06/setting-business-goals.html.
Have a Healthy, Happy and Successful 2013!
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