Occupation Certificate required by Owner to have benefit of New Works – How will you obtain an Occupation Certificate? Best Alternatives – Owners protect yourself before entering into a Building Contract

15/10/2017

Often we at Watson & Watson are approached by an Owner or a Builder, where the Owner claims that all moneys have been paid for the building works and that the Builder will not provide the Certificates required to enable the issue of an Occupation Certificate relating to work that has been undertaken at the home.

An Owner should at the Contract stage attempt to protect his or her rights with very clear terms relating to the obligation of the Builder to provide the Certificates throughout the building process.  If you are at a stage prior to entering a Contract please contact the experienced Building & Construction Lawyers at Watson & Watson so that we can provide assistance, if required, as this is mostly not considered at the time of the Contract.

Builders often take the view that they are entitled to hold onto the Certificates until payment has been made.  Additionally there are often disputes or differences of opinion as to whether all payments have been made for the works.

On many occasions we receive enquiries where the Builder will not provide the Certificates and the Owners require an Occupation Certificate to enable the Owner to occupy the property.  There are alternatives available which need to be considered by you as an Owner.

We have been involved in numerous projects including various high end projects where this problem has existed.  There are different alternatives available depending on the circumstances that you as the Owner find yourself at the end of a project or near the end of a project.

One thing is for sure namely that at this stage all alternatives need to be considered before making a commercial decision as to which course you as the Owner will adopt in attempting to obtain an Occupation Certificate which will enable you to occupy the property.

One option is to seek an order from the Court that the Certificates for the work which the Builder has undertaken, be provided to the Certifier to enable the Certifier to consider whether the Certifier has the necessary documentation to issue an Occupation Certificate.  Often the Certifiers are nominated by the Builder and have a bias to assist the Builder notwithstanding the rights and wrongs of that course.  Care needs to be taken to consider your position.

If your position is that you commence proceedings it is likely that the Builder will take action often without any legal basis asserting rights that outstanding payments have not been made and a lien over the Certificates.

An alternative is to consider whether you as the Owner can satisfy the Certifier in relation to the outstanding Certificates required by the Certifier to obtain the Occupation Certificate.  In a recent matter a Builder refused to provide the Certificates to enable an Occupation Certificate to be issued to the Owner and demanded payment of a significant sum which the Owner believed was excessive.  The Builder maintained its position and would not provide the Certificates.  The Builder acknowledged that he could provide the Certificates if the appropriate sum as demanded was paid.

In that particular case, there were alternative solutions available with the proper expertise from the appropriate experts to obtain the necessary outstanding Certificates which the Builder would not supply.  The Owner took a strong line in not paying the amount improperly demanded by the Builder.   The Owner sought (with our help) to obtain critical Certificates which were outstanding by way of engaging an appropriate alternative Building Consultant to satisfy the Certifier as to those matters that were outstanding.  Eventually after the Builder realised the Owner was not going to pay the amount demanded for the Certificates and had obtained an Occupation Certificate, the Builder accepted a small sum which was paid by the Owner to resolve the matter.

If you are contemplating entering into a Contract for the construction of a home please contact the experienced Solicitors at Watson & Watson by contacting Richard Watson or his Personal Assistant Shereen DaGloria for an initial conference to discuss the matter.  Our experience is gained from many years of dealing with disputes and adverse positions taken by Builders, Owners and other persons encompassing legal issues and negotiation issues and achieving a positive resolution.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.