Leaky Buildings - Is the Weathertight Homes Service a Fiasco?

With Leaky Buildings becoming a hot topic in the last few years in this article we examine allegations that the service set up to deal with the issues is not doing its job properly.

Our Litigation department has seen a steady stream of "leaky building" claims over the last 4 years. We have successfully acted for homeowners who have purchased what turns out to be a "leaky home" as well as builders and developers who are facing such claims. In many cases these claims come across our desk only once a claim has been referred to the Weathertight Homes Resolution Service (WHRS) and the client needs some assistance to present their claim or defence.

The WHRS was established under the Weathertight Homes Resolution Services Act 2002 to provide owners of houses that are leaky buildings with access to speedy, flexible, and cost-effective procedures for the resolution of claims relating to those buildings. The Act provides that a claimant may request the preparation of an assessor's report on their property that will determine whether the claim is eligible under the Act. The report will also identify the cause of water entering the house; the work needed to do repairs and the estimated cost of those repairs. The Act also provides for resolution of eligible claims by mediation or adjudication upon payment of modest fees.

The WHRS has been subject to much criticism. It has been said that that assessors reports are inaccurate, that the process is too slow and too legalistic, that parties attending mediation feel obliged to settle and accordingly mediation does not produce fair results. Some of this criticism is justified. Certainly the processing of claims is very slow and often parties wait many months for an assessor's report to be completed once the claim is filed. However that is only half the story. Much of the criticism of WHRS has arisen because of dissatisfaction from claimants who have made claims without the benefit of legal advice. As a consequence they have not understood the Act, the processes it establishes and have unrealistic expectations of what they can achieve when representing themselves.

In many cases taking a claim through the WHRS will offer a claimant real benefits. These will include having an assessor's report prepared by an expert building consultant at no cost to them. That report may for the first time give the home owner some idea of what is wrong with their home and what the cost of repair will be. The Act offers access to mediation services by highly skilled mediators and may lead to the resolution of a claim in the most cost effective manner possible. However, in some cases the WHRS is not going to be the correct forum for resolving a claim.

What is not commonly recognised is that the WHRS does not create new law or provide homeowners with new rights and remedies under the law. The Act simply establishes processes for resolving claims that are an alternative to the normal Court processes. Claimants must still establish their claim at an adjudication hearing as they would in any other judicial process if they cannot resolve it by agreement or at mediation. This will normally mean a claimant will have to establish negligence in the construction of their home by the builder, developer or a territorial authority. This may raise complex legal and factual issues. The adjudication process is therefore necessarily legalistic and in most cases claimants would be wise to be legally represented. Before embarking on any claim a claimant must understand the different process available and make an informed decision on how to proceed.

We can help if you or a friend is facing a leaky building issue. Simply give our office a call to discuss your particular situation.

This article has been prepared by Cavell Leitch Law for general information purposes only and important exceptions and other relevant factors may not have been included.  If understanding the legal area covered by this article as it affects your specific circumstances is important to you then please contact us for a proper opinion.