Understanding Minor vs Major Defects in NSW Strata Buildings Under the Home Building Act

Introduction

Strata owners in New South Wales face unique challenges when building defects arise in their apartment buildings. Understanding the difference between minor and major defects under the Home Building Act 1989 (NSW) is essential, as this distinction determines your rights, the available remedies, and the time limits for making a claim.

This guide is designed to help strata owners navigate the legal framework, statutory warranties, and practical steps required to address building defects effectively. By knowing your obligations and protections, you can take timely action to safeguard your property and investment.

Interactive Tool: Check If Your Strata Defect Is Major or Minor & Warranty Status

Understanding Your Rights as a Strata Owner Under the Home Building Act 1989 (NSW)

The Legal Foundation of Statutory Warranties

As a strata property owner in NSW, your rights are protected by the Home Building Act 1989 (NSW). This legislation provides a crucial safety net by automatically including a set of legal guarantees, known as statutory warranties, into every residential building contract.

These warranties legally require builders to uphold specific standards of quality, safety, and compliance in their work. If a builder fails to meet these standards, it results in a breach of warranty, which typically manifests as a building defect.

Key Guarantees Under the Home Building Act 1989 (NSW)

The statutory warranties ensure that builders are responsible for delivering a high standard of work. Understanding these guaranteed protections is the first step in holding a builder accountable for any defects.

The key warranties include the following requirements:

• Performing work with due care and skill: All construction must be carried out professionally, following the plans and specifications outlined in the contract while also complying with all relevant building laws and codes.
• Using suitable and new materials: The materials used in construction must be new, unless otherwise agreed upon, and appropriate for their intended purpose to ensure durability and safety.
• Completing work within a reasonable timeframe: The project must be finished diligently and within the timeframe specified in the contract, or within a reasonable period if no specific date is set.
• Ensuring the home is fit for occupation: Upon completion, the finished dwelling must be reasonably suitable and safe for habitation.
• Delivering work fit for a specified purpose: If you communicated a specific requirement to the builder, such as the need to properly waterproof a particular area, the work and materials used must be fit for that exact purpose.

Distinguishing Between Major & Minor Strata Defects

Defining a Major Defect

Under the Home Building Act 1989 (NSW), a major defect is a serious issue found in a major element of a building. The problem must arise from one of the following:

• Defective design
• Faulty workmanship
• Substandard materials
• Failure to meet the structural performance requirements of the National Construction Code

A “major element” of a building refers to critical components essential to its stability and safety. These include:

• Internal or external load-bearing components such as foundations, footings, floors, walls, roofs, columns, and beams
• Fire safety systems
• Waterproofing

For a defect to be classified as major, it must cause, or be likely to cause, one of the following consequences:

• The inability to inhabit or use the building, or part of it, for its intended purpose
• The destruction of the building or any part of it
• A threat of collapse of the building or any part of it

Case law, such as in Stevenson v Ashton, has clarified that the defect does not need to pose an imminent threat. Instead, a “reasonable possibility” of future harm is sufficient for a defect to be considered major, which provides a more flexible interpretation for strata owners.

Identifying Minor Defects in Your Strata Property

The Home Building Act 1989 (NSW) does not provide a specific definition for minor defects. Instead, a minor or non-major defect is understood to be any issue that does not meet the serious criteria of a major defect.

These problems are often cosmetic or affect the general appearance and functionality of a strata property without making it uninhabitable or unsafe.

While less severe, these defects can still be frustrating and impact the quality of your property. Common examples of minor defects in a strata building include:

• Thin cracks appearing in walls or ceilings
• Cosmetic issues such as paint blemishes, peeling paint, or uneven finishes
• Sticking doors or windows that do not operate smoothly
• Minor dents or marks on walls
• Corrosion affecting fixtures or fittings
• General deterioration or problems with the functionality of fittings and fixtures

Statutory Warranty Periods for Strata Defect Claims

The Six-Year Period for Major Defects

Under the Home Building Act 1989 (NSW), owners of a strata property have a six-year warranty period to make a claim for major defects. This period begins from the date the building work was completed.

Major defects are the most serious issues, such as:

• Structural integrity problems that threaten the building’s stability
• Defects affecting habitability, making the property unsafe or unfit for occupation

It is crucial for the owners corporation to be aware of this deadline. Failing to commence legal proceedings within the six-year window can result in the loss of rights to have these serious defects rectified by the builder or developer.

The Two-Year Period for All Other Defects

For building defects that are not classified as major, a shorter statutory warranty period applies. The Home Building Act 1989 (NSW) provides a two-year timeframe for these less severe issues.

These typically include:

• Cosmetic problems like cracked tiles
• Uneven finishes or other minor workmanship issues

Similar to the warranty for major defects, this two-year period also commences from the date the work was completed. However, if a strata building has unfinished work, the warranty period starts from the date the contract was terminated or when the work ceased.

Understanding the Six-Month Extension Rule

A critical provision in the law allows for an extension in certain circumstances. If a defect becomes apparent during the final six months of either the two-year or six-year warranty period, the timeframe for taking action is extended.

In this situation:

• The owner is granted an additional six months from the end of the original warranty period to commence legal proceedings
• This rule acknowledges that some defects may take time to manifest and provides a crucial safety net for strata owners who discover issues late in the process

The Step-by-Step Process for Resolving Strata Building Defects

Documenting Defects & Notifying Your Owners Corporation

When you discover a defect in your strata property, it is vital to act promptly. The first step is to thoroughly document the issues you have found. This process should include:

• Taking detailed photos and videos that clearly show the nature and extent of the problem
• Keeping written notes detailing when you first noticed the defects

Once you have gathered this documentation, you must inform your Owners Corporation in writing. The Owners Corporation is responsible for the building’s common areas and will have a procedure for managing defect reports. This is a critical step to formally begin the resolution process.

Engaging with the Builder & Developer

After notifying the Owners Corporation, the next step is to formally engage with the parties responsible for the construction. Under the Home Building Act 1989 (NSW), both the builder and the developer are typically jointly liable for rectifying defects. You should provide them with written notification of the defects, including the evidence you have collected.

It is important to maintain a written record of all communications, as this creates a paper trail that can be used if the dispute escalates. In some cases, builders may dispute their responsibility, so having clear documentation is essential.

To strengthen your position, you might consider:

• Engaging an independent building consultant to provide an expert report confirming the cause and scope of the defects
• Ensuring all correspondence and reports are kept in an organised file

Lodging a Complaint with NSW Fair Trading

If the builder or developer refuses to cooperate or fails to rectify the defects satisfactorily, you can escalate the matter by lodging a complaint with NSW Fair Trading. This government body can facilitate mediation between you and the builder to help resolve the dispute without formal legal proceedings.

If mediation is unsuccessful, a Fair Trading inspector may:

• Assess the issue and issue a rectification work order compelling the builder to fix the problems
• Authorise you to proceed with a formal application to the NSW Civil and Administrative Tribunal (NCAT) if the builder fails to comply with this order

Commencing Proceedings in NCAT or Court

Taking legal action is generally considered a final resort when all other attempts at resolution have failed. You can commence proceedings in the NSW Civil and Administrative Tribunal (NCAT), which has the authority to resolve residential building disputes.

NCAT can issue binding orders that require the builder to either rectify the defective work or provide financial compensation to cover the cost of repairs. Given the technical nature of building defect claims, it is highly advisable to seek advice from a lawyer specialising in construction and strata law to navigate this process effectively and ensure your rights are protected.

How to Prove a Major Defect Claim for Your Strata Property

The Critical Role of Expert Evidence & Reports

To successfully prove a major defect, a strata owner must present concrete evidence that the flaw affects the building. Relying on assumptions or speculation is never enough.

Courts insist on proof that the defect is likely to cause one of three specific consequences under the Home Building Act 1989 (NSW):

• Uninhabitability of the premises
• Destruction of all or part of the building
• A genuine threat of collapse

Expert evidence—usually a detailed report from a qualified building consultant or engineer—is therefore indispensable. This report must be clear, rational and understandable, explaining both the observations made and the criteria used to reach each conclusion.

When assessing whether defects may lead to uninhabitability, destruction or collapse, the expert will typically evaluate:

• The building’s design life and expected performance over time
• The materials used and their capacity to withstand foreseeable loads and conditions

Using Lay Evidence to Support Your Claim

Alongside expert reports, strata owners can rely on lay evidence—factual testimony from non-experts—to establish the seriousness of a defect. Such evidence is especially persuasive when it shows how the defect interferes with the property’s intended use.

The decision in Stevenson v Ashton [2018] NSWCATCD 25 confirms that lay evidence can include a variety of records:

• Personal observations from residents or caretakers
• Detailed notes documenting when and how problems appear
• Photographs capturing visible damage or deterioration
• Videos that illustrate ongoing or intermittent issues

By combining expert analysis with these firsthand accounts, owners create a robust, verifiable foundation for a major defect claim.

Conclusion

Understanding the distinction between major and minor defects under the Home Building Act 1989 (NSW) is crucial for any strata owner facing building issues. Navigating the strict statutory warranty periods and following the correct resolution process are essential steps to protect your property and legal rights.

If you are dealing with building defects in your strata property, it is vital to act promptly and seek professional guidance. Contact the specialist strata building defect lawyers at PBL Law Group to ensure your claim is handled effectively and your rights are protected. For broader assistance with strata matters, you can also consult our experienced strata lawyers for comprehensive legal support.

Frequently Asked Questions