VIC – HENDRY building surveyors advise that before commencing any protection work required for building works under the Building Act 1993, an owner must make a full and adequate survey (building audit) of the adjoining property and record in writing or by any other appropriate method, all existing defects and cracks in the adjoining property.
But how is an owner able to establish access to an adjoining property and what course of action is available if access is not provided? Section 94 of the Building Act 1993 allows for this.
The first step in the process is to provide no less than 24 hours notice in writing of the building audit to the adjoining owner. The building audit can be conducted between the hours of 8am to 6pm.
In the case of a building containing multiple owners with a body corporate (owners corporation), the notification must be provided to all affected owners and the body corporate.
An adjoining owner is exposed to a penalty if they refuse to admit access to their property under Section 96 of the Building Act 1993. However, where an adjoining owner is not responsive to allowing access, an owner has the following options to pursue:
- Obtain a court order to force access.
- Ask the Building Commission to enforce the Building Act 1993 and to take action against the adjoining owner.
Penalties for breaches of the Act carry maximum penalties between 5 and 10 penalty units plus one penalty unit each day for a continuing offence.
Interestingly, if a body corporate is found guilty of an offence, any person who takes part in the management of the body corporate can also be guilty of an offence.
An owner who is carrying out protection works must pay the reasonable expenses incurred by the adjoining owner in relation to the protection work matters under Section 97 of the Building Act 1993.
An owner, when serving notification of a building audit to an adjoining owner must ensure the correct ownership is established. This may require undertaking title searches to establish the correct ownership.
The issue of notifications to an incorrectly stated owner could jeopardise establishing rights of access for a building audit, etc. and require recommencement of the whole protection work notification process under the Building Act 1993.