Will the real registered builder please stand up!
Paul Cott discusses the issue of unregistered builders carrying out works and the consequences of doing so.
It is probably well known in the industry that building practitioners in Australia must be registered to carry out certain work. Of course, there are exceptions, as there always are but we will discuss these exceptions later.
Registration occurs with the Building Practitioners Board and if you are not registered as a builder and you do carry out certain work, you risk prosecution in the Magistrates Court. This is because of the fact that it is an offence to do building work as defined if not registered. If you do so, you could be subject to a large fine, be reprimanded, have to undergo further training and if in time registered, could be subject to conditions on your ‘ticket’.
Other categories of building industry professionals such as building surveyors and inspectors, among others, also need to be registered.
You would also not be permitted to say that you are a registered builder when in fact you are not. If your registration is suspended for some reason, you are in effect not registered.
As stated, the ‘certain work’ is where the work exceeds a certain value in dollar terms, that is, $5000 currently in Victoria. The exceptions where registration is not required are where the works are (only):
tiling (wall and floor);
plumbing, gas fitting or draining;
installation of floor coverings;
attachment of external fittings such as awnings, security screens and balustrades;
attachment of a chain wire fence around a tennis court; and
erection of a mast, pole, antenna, aerial or similar structure.
The fines can be hefty. It is possible for the fine to be in the order of $100,000 or more and in a prosecution you can be ordered (unless you agree to) to pay part of or all of the prosecuting authority’s costs (the Victorian Building Authority). These fines can increase from year to year.
If all this is not serious enough, a report can be made (which sometimes does in fact occur) alleging misconduct to the Victorian Building Authority. The author has recently acted for a ‘builder’ in such a situation. This type of case typically arises where the works done are allegedly defective and the home owner feels aggrieved at the situation and ‘plots revenge’ as they are in a sense entitled to do by ‘dobbing in’ the builder.
Of course, if you are a home owner (as of course, builders also are) the case of building works being done by an unregistered builder has consequences too. Not only does the unregistered builder not have insurance cover for such works, but he/she could be left to ‘carry the can’ as far as rectification costs are concerned. The home owner has a real concern though as they are not covered by such insurance (unless of course they have their own separate insurance cover).
Related ‘consumer protection type issues’ may also arise in these cases. That is, it is common for the contract to not be in writing, as they are often required to be. There is therefore no written record of the agreement reached between the builder and owner, increasing the risk of disputes. In such cases, other requirements or the lack thereof often go hand in hand, such as a lack of a required building permit for the works. A great deal of building work, as many readers will know, requires a building permit.
These things bring consequences for the builder. The lack of a required ‘major domestic building contract’ for works over $5000 can also result in prosecution. Even arranging as ‘head contractor’ relevant works can result in prosecution. In addition, hence this article may assist; it is true to say that ‘ignorance of the law is no excuse’.
The ‘scope’ of works which can bring trouble to an unregistered builder include not only ‘new’ construction work but also repairs, demolition, renovations and extensions. Professional assistance or an inquiry to the VBA should be made if one is in doubt as to what relevant building works are covered or not covered by this situation.
There is a lot of what may be termed ‘handyman work’ which one could be mistaken for thinking may not be the subject of a requirement to be registered but which in fact are.
As stated, even arranging and not directly carrying out, and or drawing of plans and specifications in relation to domestic works, can require one to be registered. However, importantly, due to the ‘protection’ gained to the builder or subcontractor, a ‘subbie’ to a registered builder is not required to be registered.
Builders and the public can check the builder registration status of a builder on your state’s building authority website for free. Misconduct by a builder can also be checked.
In a sense there is an onus on an owner to check the builder’s status if they intend on using a particular builder.
However a magistrate will likely not be interested to hear in a ‘plea’ by the builder in a prosecution that the home owner didn’t check their status. In that sense, the onus shifts completely to the builder to make damn sure they are registered, and registered in the appropriate category or class of builder for the relevant work.
Of course, from an owner’s perspective, if the alleged building practitioner is registered, the likelihood of better quality work is increased where the practitioner is registered.
Again from a builder’s perspective, it is simply not worth the huge risk to not renew your registration when it comes up for renewal and continue to do relevant building work.
Different requirements apply altogether to owner builders; again professional assistance or the advice of your local building authority or Consumer Affairs should be sought.
As always, there are traps and tricks in this area so if you are unclear, it is best that you seek professional advice in a timely fashion.