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WA Builder Says Damage to Council Fence will be My Responsibility

Discussion in 'Property Law Forum' started by winsomeness, 4 October 2015.

  1. winsomeness

    winsomeness Member

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    Hi All
    Firstly. I Appreciate your help and the intent of this forum to help people.

    I have signed up with a large builder to build our first Home.

    The block we have signed up for happens to have a drainage reserve on one side and has been fully fenced and locked up by the council.

    My builder had 2 points in the building contract relating to this fence.
    Point 1: no provision has been for removal / rectification of the fence and the client is responsible for removing the fence for construction of the boundary wall.
    Point 2: Client is responsible for fence during the entire period of construction.

    When I had questioned it, the sales consultant told us that they had to have the fence removed in order to build our garage / boundary wall and that it was a construction requirement. So given that we were told, it's unavoidable and that there is no way around, we signed it and was going to speak to the council about the process. We signed it as we didn't have much time left else we could lose the land.

    On speaking to the council and a building consultant we found out that it's not a construction requirement and that the builder can still build from within our lot boundary.

    When we asked the builder first after speaking to council, they said it had to be removed and it's my problem after I told them that I have advise from a building consultant they agreed that it can be done without removing the fence.

    Now they are saying that while they try to keep the fence clean and damage free, it is still my responsibility till end of construction as per point 2.

    I don't believe that as I have no control of that process, if their Trades damage the fence I think it should be from their insurance or the builders insurance. How can I take responsibility for something that I cannot control?

    I don't want to challenge them now or at least till our prestart is finished. So that we have final costs tied down.

    Please help if I have any grounds to challenge this.

    We signed the contract only because they said it's a construction requirement but clearly it's not a construction requirement and it's just their preference.

    Thanks again for taking time .

    Best regards.
     
  2. Therese

    Therese Well-Known Member

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    Hi Winsomeness,

    My understanding is that as you have signed the contract and one of the clauses in the contract says you are responsible for the fence - the building insurance would be able to deny liability if damage occurred.

    However to support your position maybe you would have a case to try and make the contract void as you were coerced into signing the contract on false pretences and essentially given no choice.

    I would perhaps consider getting advice from the Consumer Protection WA - Building Commission or involving a solicitor to see if your grounds are strong enough to make the terms of the contract void that involve the fence.
     
  3. winsomeness

    winsomeness Member

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    Hi Therese,

    Thank you for the post.
    I shall get in touch with consumer protection / building commission and look at my options.
    I really did not have an option at the time we signed it, the builder said that it's a mandatory construction requirement and there was no choice and that the fence has to be removed and they generally do not do it and will need the client to organize for it.

    Hope I don't get hit all those extra costs.

    Thanks again for your input.

    Best Regards
     
  4. Therese

    Therese Well-Known Member

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    No problems!

    Hope it all works out.
     

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