Are Boarding Houses provided warranties under the Home Building Act 1989?

In short, no. Boarding Houses are not afforded the same warranties for residential building work in accordance with the Home Building Act 1989 (the HBA).

It is necessary to consider the statutory warranty provisions set out at Part 2C in the HBA. Section 18B, provides a set of warranties that are implied in every contract to do residential building work.

“Residential Building Work” is defined in Schedule 1 clause 2 of the HBA as:

      … any work involved in, or involved in co-ordinating or supervising any work involved in —

• the construction of a dwelling, or
• the making of alterations or additions to a dwelling, or
• the repairing, renovation, decoration or protective treatment of a dwelling.

A boarding house is excluded from the definition of “dwelling” and therefore does not fall within the scope of “Residential Building Work” required under section 18B.

This means that no statutory warranties are afforded to purchasers/owners of a boarding house. 

However, section 96B of the HBA provides that any contract of sale for a property that is an “excluded dwelling” is to include a warning that that property is not afforded protection under the HBA. A vendor must not enter into a contract for the sale of land that is required to contain the warning unless the contract has the warning in it.

Should you, as a vendor, enter into a contract that does not contain the warning pursuant to section 96B, you may be liable for a maximum penalty of 200 penalty units.

It is important to note that section 96B of the HBA did not commence until 1 March 2015. Contracts prior to 1 March 2015 are not require to contain the warning setout in section 96B.

Take away points

It is important to understand that care must be taken in preparing Contracts when selling boarding houses to prevent Vendors incurring penalties under the HBA. It is likewise important for prospective purchasers and owners to understand their rights in relation to defects in accordance with the HBA. 

Should you have any queries in relation to this subject matter or any other matter, please do not hesitate contact our team so that we can determine if we are able to assist with your issue.