Strata vs Individual Homeowner: Who's Liable for Building Defects?
Building defects are one of the most contentious issues in Australian property ownership. Whether it’s cracking concrete, water ingress, or faulty workmanship, defects can lead to costly repairs and complex legal disputes. A common question under Building and Construction Law is: who is responsible when defects arise — the strata scheme or the individual homeowner?
Understanding liability is critical for owners, developers, and strata committees alike. This article breaks down defect responsibility under Australian Building and Construction Law, helping you navigate the legal landscape with confidence.
Understanding Strata Schemes in Australia
Strata schemes are common across Australia, particularly in apartments, townhouses, and mixed-use developments. When you purchase a strata property, you own your individual lot while sharing ownership of common property with other owners through the owners corporation (also known as the body corporate).
Under Australian Building and Construction Law, this distinction between lot property and common property is crucial when determining liability for defects.
What Is Considered a Building Defect?
A building defect generally refers to faulty or incomplete work that does not comply with:
The construction contract
Australian Standards
The Building Code of Australia
Statutory warranties under state legislation
Defects may be major (structural issues, waterproofing failures) or minor (cosmetic or non-structural problems). Liability often depends on the defect’s location and severity.
Strata Liability for Building Defects
In most cases, the owners corporation is responsible for defects affecting common property. Common property typically includes:
External walls and façades
Roofs and foundations
Load-bearing walls
Shared plumbing and electrical systems
Balconies (in many states)
If a defect impacts common property, the strata scheme has a legal duty to repair and maintain it. Failure to do so may expose the owners corporation to legal action under Building and Construction Law.
Strata schemes can pursue developers or builders under statutory warranties, provided claims are made within the required limitation periods. In New South Wales, for example, major defects carry a six-year warranty period.
Individual Homeowner Liability
Individual homeowners are generally responsible for defects located within their own lot, including:
Internal walls and finishes
Fixtures and fittings
Floor coverings
Appliances installed after purchase
If a defect results from owner modifications or renovations, liability almost always rests with the homeowner. Even if the defect affects common property, an owner may be liable if their actions caused or contributed to the damage.
This distinction is a recurring source of disputes under Australian Building and Construction Law, especially in older strata schemes.
Grey Areas and Shared Responsibility
Some defects fall into legal grey areas. For example:
Waterproofing membranes beneath bathroom tiles
Balcony membranes used exclusively by one lot
Windows and doors
Different states interpret these responsibilities differently. Courts and tribunals often examine the strata plan, by-laws, and construction contracts to determine liability. Professional legal advice is strongly recommended when disputes arise.
Defect disputes can involve multiple parties, insurance policies, and statutory deadlines. Whether you’re part of a strata committee or an individual homeowner, expert legal guidance ensures your rights are protected and responsibilities clearly defined.
