Building or renovating a home is one of the biggest investments you will ever make.
Unfortunately, many homeowners discover problems soon after moving in, from cracked tiles and poor finishes to leaking roofs. Others face serious defects such as failed waterproofing or serious structural faults. These building defects can cause stress, financial loss, and in severe cases make a home unsafe or unliveable.
The good news is that NSW law provides strong protections.
Under the Home Building Act 1989 (NSW), every residential building contract automatically includes statutory warranties. These warranties make your builder legally responsible for defective work, whether minor or major. You may also be entitled to repairs or compensation. Understanding these rights, and the strict time limits that apply, is essential for protecting your home and investment.
What statutory warranties protect NSW homeowners?
The Home Building Act 1989 (NSW) implies statutory warranties into every residential building contract. These warranties require your builder to guarantee the quality, safety and compliance of their work.
In practice, this means the builder is legally required to:
- Carry out the work with due care and skill, in accordance with the plans and specifications, and in compliance with all building laws and codes.
- Use materials that are new and suitable for their purpose, unless you have agreed otherwise.
- Complete the work diligently and within the agreed timeframe, or within a reasonable period if no timeframe is specified.
- Ensure that the finished home is reasonably fit for occupation as a dwelling.
- Deliver work and materials that are fit for any specific purpose you told the builder about. For example, properly waterproofing a basement if you explained that was required.
If a builder breaches any of these warranties, you are entitled to take action.
Depending on the circumstances, you may be able to require the builder to return and rectify the defects, or seek compensation for the cost of engaging someone else to fix the problems.
Minor vs major defects: what’s the difference?
Where a builder’s work breaches the statutory warranties, the result is usually a defect. The next question is whether that defect is classified as minor or major, because the law treats them differently and the time limits for making a claim are not the same.
Minor defects are issues like cracked tiles, sticking doors, paint blemishes or uneven finishes. These problems can be frustrating and unsightly, but they don’t affect the structural safety or livability of the home.
Major defects are far more serious. The Home Building Act 1989 (NSW) defines a major defect as one affecting a major building element. This includes foundations, footings, walls, roofs, beams, columns, fire safety systems, or waterproofing. Causes include poor design, defective workmanship, or faulty materials.
A defect is major if it makes the home unsafe or uninhabitable. It is also major if it destroys part of the building or risks collapse. Waterproofing failures that allow water to penetrate are specifically recognised as major defects.
How long do you have to make a building defects claim in NSW
The Home Building Act 1989 (NSW) sets strict time limits on when you can enforce your statutory warranty rights.
For major defects, you must commence proceedings within six years from the date the work was completed. Major defects are the most serious issues, such as structural faults or failed waterproofing, that affect the safety or livability of the home. For all other defects, the time limit is two years from completion.
If the building work is not finished, the law sets a start date for the warranty period. In those cases, time begins to run from the date the contract was terminated, or, if the contract was never terminated, from the date the work stopped.
The law also recognises that some defects take time to show themselves. If a defect appears in the last six months of the two or six-year period, you get extra time. You then have six additional months to start proceedings.
These deadlines are applied strictly. Even if you are still in discussions with your builder, the warranty clock does not stop running. It is therefore critical to seek legal advice as soon as you become aware of a potential defect, to ensure your rights are protected before time runs out.
How to deal with your builder if you find defects
If you discover defects in your home, the first step is to document the issues carefully. Take photos and videos, and make notes of when the problems first appeared. This evidence can be critical later if the builder disputes responsibility.
You should then notify your builder in writing, setting out the defects and asking them to return and fix the work. Keeping a written record is important, as it creates a paper trail that can be relied on if the matter escalates.
In many cases, it helps to engage an independent building consultant or engineer. An expert report can confirm the cause of the defect and outline what proper rectification looks like. This can prevent builders from downplaying problems or offering only superficial “patch jobs.” Remember, you are entitled to proper repairs, not temporary fixes.
Finally, it is wise to get legal advice early. A lawyer can advise you on your rights, ensure you do not miss the strict statutory deadlines, and help you take action if your builder refuses to cooperate. Acting quickly and with the right support puts you in the strongest position to protect your home and investment.
What to do if your builder refuses to fix defects
Unfortunately, many homeowners find that builders deny responsibility, shift the blame onto the owner, or simply refuse to return and fix the defects. If this happens, you are not without options.
The first step is usually to escalate the matter to NSW Fair Trading, which can arrange mediation between you and the builder. Mediation can sometimes resolve disputes without the need for formal proceedings, but it is not always successful, particularly where major defects are involved.
If the issue remains unresolved, you can take the matter to the NSW Civil and Administrative Tribunal (NCAT). NCAT has the power to make binding orders requiring the builder to rectify the defective work or to compensate you for the cost of repairs carried out by another contractor.
NCAT is designed to be more accessible than the courts. However, building defect disputes are often technical and strongly contested. Having a lawyer involved early can help you prepare the strongest case, supported by expert evidence, and give you the best chance of achieving a fair outcome.