Builder Says the Defects Are “Out of Warranty”? Here Are the Real Warranty Periods in Every State

Eighteen months after handover the shower base has cracked and water is tracking under the tiles. You email the builder. The reply is quick and confident: “The defects liability period under your contract was 13 weeks. This is outside warranty. We can quote you for the repair.” Some builders will even attach the contract clause.

That clause is real. It’s also irrelevant. The contractual defects liability period is the builder’s promise to come back for minor items in the first few months. It sits on top of the statutory warranty, which runs for years and cannot be reduced by anything the builder wrote into the contract.

Your rights

Statutory warranties are implied into every residential building contract by legislation. A contract term that purports to limit or exclude them is void. The warranties cover workmanship, materials, compliance with the Building Code and laws, and habitability. Crucially, they apply to defects that appear within the warranty period, not just defects you reported within the first three months.

Two other things builders don’t mention. First, the warranties run with the land: if you bought the house from the original owner within the warranty period, you can enforce them against the builder. Second, the Australian Consumer Law (s 60 due care and skill, s 61 fitness for purpose) applies alongside the state warranty, and a “major failure” gives you the right to have the problem fixed or to recover the cost of fixing it.

By state

• New South Wales. Home Building Act 1989, s 18B and s 18E: 6 years for major defects, 2 years for all other defects, from completion of the work. A major defect is one in a major element (structure, waterproofing, fire safety) that makes the home unusable or likely to collapse or destroy it. Building Commission NSW, then NCAT.
• Victoria. Domestic Building Contracts Act 1995, s 8 warranties; Building Act 1993, s 134 gives a 10-year limit from the occupancy permit or certificate of final inspection. Compulsory conciliation through the dispute resolution service of the Building and Plumbing Commission (BPC), then VCAT.
• Queensland. QBCC Act 1991, Schedule 1B. QBCC can direct rectification within 12 months (non-structural) or 6 years 6 months (structural) of completion, and the Queensland Home Warranty Scheme covers structural defects for 6 years 6 months. QBCC, then QCAT.
• Western Australia. Home Building Contracts Act 1991. A building service complaint must be made within 6 years of completion under the Building Services (Complaint Resolution and Administration) Act 2011. Building and Energy (the Building Commissioner), then SAT.
• South Australia. Building Work Contractors Act 1995 statutory warranties run for 5 years from completion. CBS conciliation, then the Magistrates Court (not SACAT).
• Tasmania. Residential Building Work Contracts and Dispute Resolution Act 2016: proceedings within 6 years of completion. CBOS complaint, then the Magistrates Court.
• Australian Capital Territory. Building Act 2004, s 88: 6 years structural, 2 years non-structural, from the completion day. Access Canberra, then ACAT.
• Northern Territory. Building Act 1993, s 54B: 6 years structural, 1 year non-structural. NT Consumer Affairs (Commissioner of Residential Building Disputes), then NTCAT up to $25,000 or the Local Court above that.

The Claim Done document asks your state first and drafts to that state’s warranty periods, definitions of “major” or “structural”, and tribunal.

What to do right now

1. Find your completion date. The occupancy certificate, final inspection or handover date is when the clock started. Write it down next to each defect with the date the defect appeared.
2. Classify each defect. Waterproofing, structure, fire safety and anything that stops you using part of the home is “major” or “structural” in most states and gets the long period. Cosmetic items get the short one. Don’t let the builder classify for you.
3. Get an inspector’s report. For anything near the 2-year line, an independent report that says “structural” or “waterproofing failure” is what keeps you in the 6-year window.
4. Send a notice that names the statute. Quote the section, the period, and the completion date. Then list the defects, give a fix-by date, and state that a contractual defects period does not limit the statutory warranty.
5. Lodge with the regulator before the period expires. If you’re close to a deadline, lodge now and send the letter in parallel. The tribunal application must be filed within the period; the letter alone doesn’t stop the clock.

The “defects liability period” trick, explained

Most standard-form building contracts (HIA, MBA, state templates) contain a defects liability period of 13 to 26 weeks. It obliges the builder to return and fix listed items during that window without argument. It is a benefit to you, not a limit on you. When a builder says “outside DLP, we’ll quote”, they are describing the end of the easy process, not the end of their liability. The statutory warranty continues, and the regulator will tell them so. Put that in writing, in one paragraph, and the “out of warranty” line usually disappears.

Who to complain to

Building Commission NSW; the BPC; QBCC; Western Australia Building and Energy; South Australia Consumer and Business Services; Tasmanian CBOS; Access Canberra; NT Consumer Affairs. Each can take a complaint against the builder’s licence as well as help resolve your defect claim. For the money or a rectification order: NCAT, VCAT, QCAT, SAT, the South Australia or Tasmanian Magistrates Court, ACAT, or NTCAT / the Northern Territory Local Court.

Enforce the real warranty — $79

Claim Done drafts a Home Building Defects Claim that sets out your completion date, the statutory warranty period that applies to each defect in your state, an itemised defect schedule, and a fix-by date, and demands rectification or the quoted cost of rectification before you lodge with the regulator and tribunal.

Draft My Statutory Warranty Claim — $79 →

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