http://www.straitstimes.com/archive/sunday/premium/invest/story/less-perfect-new-home-20130929
A less than perfect new home
When defects show up, fixing them can be a headache – who is liable, and who pays?
Published on Sep 29, 2013
By Melissa Tan
Address the problem as soon as possible
Fixing defects in private condominiums seems a simple procedure at first glance but it can be a frustrating process that leaves owners feeling like they are banging their heads against a brick wall.
Tricky issues surface, like mould on a damp wall: Who is to blame, who pays, when do legal safeguards kick in and when do they lapse?
Recently at The Sail in Marina Bay, an underground water pipe burst and in the past week, three glass panels shattered. The development was completed in 2008.
At Sentosa, the three-year-old condominium The Coast had reports of flooded staircases and a rotting timber pool deck.
These are not isolated cases. Previous incidents include a leaking basement carpark at the eight-year-old Emery Point in Tanjong Katong, and cracks in the plaster at the 15-year-old Seasons Park in Yio Chu Kang Road.
More defects nowadays?
Defects, which can range from water leaks to electricity problems and termite infestations, can often leave developers, residents and the estate's Management Corporation Strata Title (MCST) at loggerheads over who is liable for the defect.
This is especially so if it is not immediately obvious whether the problems are caused by poor workmanship, routine wear and tear, neglect or other factors.
Experts say the growing number of condominium projects built by possibly untrained foreign workers has likely led to more building defects arising. However, the Building and Construction Authority told The Sunday Times that there "doesn't seem to be an increase in the number of complaints" about building defects this year compared with previous years.
Liabilities and warranties
Developers are legally responsible for fixing any defects found in individual units and common property for 12 months after the unit is handed over. After that point, its liability expires.
The Real Estate Developers Association of Singapore (Redas) said developers usually provide warranties for different components of a project. For instance, external painting works usually have a warranty of five years.
These warranties are usually managed by a project's MCST.
Regardless of the warranties, defects that show up after 12 months can land in a grey area, said Mr Jimmie Ling, chief executive of the Association of Management Corporations in Singapore.
"Why should the MCST cover the cost of fixing a defect if it's found to be due to the developer?" he asked, noting that it could take up to five or six years for latent building defects to surface.
"For some aspects such as kitchen appliances and flooring, under normal usage you should be able to see any defects within one year.
"But there could be material defects that the naked eye can't see. The MCST can't do much about maintaining embedded pipes, for example."
Mr Ling also said that the later a defect is found, the harder it usually becomes for residents or MCSTs to get developers to fix it as they claim "fair wear and tear".
Building experts pointed out that the root cause of a building defect may not be immediately obvious. A water leak, for instance, could be due to an unsuitable building design, shoddy construction or insufficient maintenance.
"Some designs are imported from Mediterranean countries, for example, and may not be suitable here. They may have short roof eaves and bay windows protruding... which can lead to water seepage problems," said Mr Chin Cheong, managing director of building quality surveyor Building Appraisal.
Another building surveyor said he has seen water leaks caused by clogged drains, which could have been prevented by regular maintenance.
"A lot of complaints could have been avoided if the place had been better maintained. MCSTs are reluctant to arrange planned preventive maintenance," added the surveyor, who declined to be named because he is acting for parties involved in a court dispute over building defects.
In general, the more complicated a project, the higher the chance that something will go awry at some point during the construction, experts said.
"Developers have little control over the construction process. Construction takes months and there are so many permutations of what could go wrong," Mr Chin said.
Going to court
A statute of limitations states that developers cannot be sued 15 years after a building is completed.
Lawyers said that if there are defects in the unit or common property, homeowners or MCSTs typically have six years to sue developers beginning from the project's completion date.
WongPartnership lawyer Christopher Chuah said that if homeowners want to sue after the first six years over a "latent defect which could not have been discovered at the date of completion by reasonable inspection", they still have three years from the earliest date that they could have "reasonably" found out about the defect.
But he pointed out that there is an "overriding" maximum period of 15 years after the completion of the development to sue developers.
Homeowners who find defects in individual units cannot sue MCSTs as these bodies are responsible only for maintaining and repairing common property.
Another issue, lawyers said, is that homeowners who bought the unit on resale have no right to sue the developer for breach of contract.
"As the sale and purchase agreement is concluded between only the developer and the direct purchaser, only the direct purchaser can sue the developer for breach of contract," Mr Chuah said.
Someone who bought a unit on resale would have to sue under tort for breach of duty instead.
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Additional reporting by Walter Sim
WHAT TO DO IF YOU FIND A BUILDING DEFECT
If a defect is detected within one year of completion:
Ask the developer to fix it.
If a defect is found after one year but within six years after completion:
Check if the defect is covered by warranties provided by the developer.
Determine whether the defect is due to the developer. This can involve calling in a building expert.
If it is the developer's fault, ask the firm to fix it.
If the developer refuses, homeowners may consider suing the developer for breach of contract.
If the unit was bought on resale, the owner cannot sue for breach of contract but may be able to sue the developer on tort, which is breach of duty of care.
Suing the developer for breach of contract is seen as an easier option, as suits under tort allow the developer to offer the defence of having hired an independent contractor, for instance.
If a defect is found between the sixth and 15th year:
Homeowners may be able to sue the developer within three years after the date that they could have reasonably found out about the defect.
Building and legal experts may have to be called in to determine what is a reasonable date.
If a defect is found after 15 years:
Homeowners can no longer sue developers to fix defects and may have to work with the Management Corporation Strata Title to resolve the problem or fix it themselves.