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Home Builder Disputes



My Builder Won't Complete My House – What Can I Do

Lately, our firm has seen an increase in complaints regarding builders that fail to complete houses or buildings they have contracted to build within a specified timeframe. Owners are left with partially completed houses, where no work has been done for months and no indication of when the work will be done.

What can an owner do to complete the house or building?

What can be done to force the builder to complete the construction of a house or building will depend on the wording of your contract. In most circumstances, the contract will provide certain remedies to the owners in addition to their common law remedies.

In general, the owner will have the following remedies:

  1. 1. ask the Building Commissioner, SAT or a court to order the builder to complete the house or building.
  2. 2. terminate the contract and engage another builder to complete the house or building. The owner might then demand damages from the original builder for any increased cost or expenses.
  3. 3. keep the contract on foot and claim damages from the builder for late completion of the house or building. This may include additional rental or mortgage costs and costs of services.

You can speak to us about your best way forward. A letter of demand from a lawyer may be enough to get the builder to complete the house or building or to come to the negotiating table to resolve the matter. If your matter has to proceed beyond this point, we can advise you whether you should approach the Building Commissioner, SAT or a court.

Notices for an extension of time to complete the house or building

Builders often attempt to delay completing the house or building by issuing a notice extending the time under the contract (‘Notice’). We have seen these Notices rely on delays caused by COVID-19, shortages of labour and materials, or inclement weather.

Homeowners should not accept such a Notice unless sufficient information is provided about the cause of delay. Notices can be successfully attacked on several grounds, namely:

  1. 1. the builder failed to comply with the provisions of the contract when issuing the notice, such as issuing the Notice within the 20 days provided for in the contract.
  2. 2. the Notice was issued simply as a tactic to delay the completion of the house or building, and the builder has little chance of proving that it was indeed delayed for some or all of the period it claimed an extension for.
  3. 3. the notice is disguised as a rise and fall clause that is prohibited by the Home Building Contracts Act 1991 (WA).

The procedure and content of a Notice is often determined by the contract.

Liquidated Damages

Contracts generally contain a clause that the builder should pay liquidated damages if it fails to complete the house or building on time. Many contracts specify liquidated damages that are obviously inadequate to compensate the owner.

Liquidated damages are supposed to be a genuine pre-estimate by the owner of the damages they will suffer if the house or building is not completed on time. Unfortunately, owners are usually provided with a contract by the builder that already contains a low amount pre-printed in the clause. Owners should ask that the amount be amended to a more realistic amount before executing the contract.

Liquidated clauses are notoriously difficult to overturn on the basis that the estimate is too low. However, there may be particular circumstances in your case that will allow you to ask that the clause be declared void and open the door to claim the full damages that you suffered.

Whether or not the above is available to you will depend on a large number of factors. Call our experienced team of lawyer to understand the options available to you regarding liquidated damages.

Rise and fall clauses

Rise and fall clauses can allow the builder to increase the contract price to reflect an increase in the cost of labour and materials.

It is important to note that these clauses are usually void under the Home Building Contracts Act 1991 (WA), except in very specific circumstances.

Please contact Douglas Cheveralls lawyers if you need advice concerning a delay in completing a house or a building by a builder. We have extensive experience in this area and can give you advice or act on your behalf to resolve the issue.