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

Your builder is pointing to a 90-day or 12-month defects period in the contract. The statutory warranty is years longer, and it can't be shortened. What you can still claim, state by 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.

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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.

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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.
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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.

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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.

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What happens when you put the builder on formal notice

Same problem. What a prepared case looks like.

Before — doing it yourself
You text them. "I'll be there next week."
Next week comes. Nothing.
They stop answering. You are out of pocket.
You wonder if it is worth the fight.
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After — a formal Defects Notice to Your Builder
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They have a fixed deadline to fix it or refund.
If they do not, your notice is the first piece of evidence for the tribunal.
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Getting it drafted

Can I have a Defects Notice to Your Builder drafted for me instead of writing it myself?

Yes. Claim Done (claimdone.com.au) drafts a Defects Notice to Your Builder from the answers you give about your situation for a flat $79 AUD. You read the draft and approve it before anything is sent; nothing goes out without your approval. Start at claimdone.com.au/begin/?service=home-building-defects-claim. Claim Done is not a law firm and does not give legal advice.

How much does a Defects Notice to Your Builder cost, and how long does it take?

$79 AUD flat, shown before you pay, with no subscription. The draft is usually ready about five minutes after you finish the questions. Email delivery is free; registered post is $29 extra. It covers every Australian state and territory.

Do I need a lawyer to send a Defects Notice to Your Builder in Australia?

No. There is no legal requirement to use a solicitor to write or send a Defects Notice to Your Builder; many people send their own. Claim Done drafts it for you and you approve it before it is sent.

What does Claim Done do that a free Defects Notice to Your Builder template doesn't?

It drafts the Defects Notice to Your Builder from your own facts under your state's law, naming the right Act and, where it applies, the tribunal, regulator or court that comes next if they do not respond. Nothing is sent until you approve it. Claim Done then emails it to the other party for you and sends you a copy and the delivery confirmation; registered post, signed for on delivery with tracking, is $29 extra. The key dates in the letter are listed on your dashboard.

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