Should Building Contracts Require a Solicitors Certificate?
Should Building Contracts Require a Solicitor’s Certificate?
If you borrow money to buy a home, your lawyer may need to provide a solicitor’s certificate confirming you’ve received independent legal advice.
So why is there no similar safeguard before someone signs a building contract worth hundreds of thousands of dollars?
The Building and Plumbing Commission focuses heavily on regulating registered builders and plumbers. That’s only part of the problem.
Many of the disputes I see don’t begin with a registered builder doing defective work. They begin much earlier.
They involve:
- Unregistered people carrying out building work.
- Contractors accepting deposits they shouldn’t.
- Trades working outside the scope of their registration or expertise.
- Building contracts that don’t comply with the law from day one.
- The absence of DBI insurance and other risk issues…
By the time the regulator becomes involved, the damage has often already been done.
A compulsory solicitor’s certificate before entering a major domestic building contract could provide a simple first line of defence.
It doesn’t need to be complicated. A solicitor could confirm that basic legal checks have been undertaken, including:
- Is the builder appropriately registered?
- Does the contract comply with the Domestic Building Contracts Act?
- Are the parties meeting the requirements of the Building Act?
- Are there any obvious legal red flags before the owner commits?
Prevention is always cheaper than litigation and we have to acknowledge building law is getting more and more complicated and consumers and the regulator alone can’t be expected to resolve all of their own problems. Plus, this type of legal reform is win - win. Good builders who are doing the right thing are supported, less pressure on the system occurs and owners get the advice that they should get.
If we can reduce the number of unlawful or poorly documented building contracts being signed in the first place, we reduce the number of disputes that end up before the regulator, VCAT and the courts.
Perhaps the answer isn’t simply giving the Building and Plumbing Commission more powers.
Perhaps it’s stopping bad contracts from being signed in the first place.
What do you think? Is it time to consider a mandatory solicitor’s certificate for major domestic building contracts?
This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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