*ARCHIVE* - Weathertightness News - No. 3, Aug 2003
- Weathertightness problems by territorial authority
- Mediation and adjudication - resolution options for leaky homes claims
- Safety check - decks, balconies and balustrades\
By the end of July, the Weathertight Homes Resolution Service (WHRS) had received 926 applications from homeowners covering 1,793 individual dwellings.
The territorial authorities with the greatest registered number of dwellings affected by weathertightness problems are represented in the graph above. The table on the following page shows the figures for all territorial authorities.
The WHRS was set up by the Government in December 2002 to help owners of homes less than 10 years old that are leaking and causing damage. The Service also helps homeowners with alterations less than ten years old that are causing leaks.
Assessments to determine eligibility for the Service and the extent of property damage are provided at no cost to homeowners. If claims are eligible, homeowners can choose to use the WHRS's voluntary mediation process, opt for compulsory adjudication, or decide to take no further action.
Homeowners are required to pay $200 towards the cost of mediation and $400 towards the cost of adjudication. The mediation and adjudication processes are discussed in this issue of Weathertightness News.
The WHRS freephone help line number for homeowners is 0800 116 926 and operates Monday to Friday from 8.30am - 7.00pm, except on statutory holidays.
Homeowners can also access the WHRS through the weathertightness website www.dbh.govt.nz which contains information about the work of the Service and issues related to leaky homes.
Mediation and adjudication - resolution options for leaky homes claims
There are now 71 claims in the Weathertight Homes Resolution Service (WHRS) system that have entered the mediation process and 22 where adjudication is the chosen option.
The WHRS was set up to provide mediation and adjudication services to assist homeowners with leaky properties in resolving their claims.
What is mediation?
Mediation is a voluntary and informal process where the mediator helps the parties to work out what the issues are, the interests of each party and possible options for resolution.
The mediator does not make a decision for the parties, or give legal advice of any kind. Any agreed settlement is binding on those agreeing to it and can be enforceable in the District Court.
Mediation has several advantages. It is a constructive, co-operative approach. Parties can develop and agree upon workable and mutually acceptable solutions - often outcomes that could not be achieved at adjudication or court.
"Mediation and adjudication are being increasingly used as alternative dispute resolution methods."
Mediation is essentially confidential and those involved in a homeowner's claim are asked to give an undertaking that they will keep information about the claim confidential. However if a territorial authority is a party to mediation it is under a legal obligation to keep certain information in a publicly accessible form. Mediation is likely to be less expensive than adjudication or court action and the process is relatively quick compared with adjudication or the courts.
What is adjudication?
Adjudication is a formal process in which an independent person (the adjudicator) determines the parties' dispute.
After each party has put forward their case, the adjudicator makes a decision according to law. The adjudicator's decision is binding, with limited rights of appeal to the courts.
The proceedings are conducted in public, and are officially recorded. There may be expenses for legal advice and expert witnesses but not as much as would generally be the case if the claim went to court. Once the process has begun, certain stages have time limits. However it will generally take longer to get through the adjudication process than through mediation.
What is the procedure?
If the homeowner decides on mediation, they fill in a form (which officially refers the claim to mediation) and pay the filing fee. The WHRS case manager then contacts the other parties and asks for their participation. Even if not all potential parties agree to participate, the homeowner may still go ahead with mediation with some parties if they wish.
The next step is a short preliminary meeting, called a pre-mediation meeting, arranged and attended by the case manager and a mediator. At the pre-mediation meeting a mediator explains the process and answers any questions. A date is allocated for the mediation, and the mediator identifies any further information required or further steps that need to be taken before then. Pre-mediations are being conducted by teleconferencing to save time and expense.
Once the claim is ready the parties attend the mediation, which may take up to a day. Mediations are held in locations as close as practicable to the parties involved. Parties may choose to have legal representation.
If the claim is resolved, an agreed settlement is signed. If agreement is not reached through mediation, the homeowner may choose to go on to adjudication.
If the homeowner decides to refer the claim to adjudication or if they proceed to adjudication after an unsuccessful mediation, they submit a "notice of adjudication" form to the WHRS accompanied by the filing fee. The case manager notifies the other parties by serving on each of them a "notice of adjudication" together with copies of the documents relating to the claim.
All those parties (called "respondents") are required to send back a completed response form within 25 days. Copies of all responses must be sent to all parties as well as to the adjudicator.
All parties are then usually required to attend a preliminary conference where the adjudicator may deal with requests for more information or for additional parties to be "joined" to the claim as respondents. A timetable is set for the further stages leading up to the hearing.
The adjudicator has authority to conduct the hearing in what they consider to be the most appropriate way. The parties are required to provide the best possible evidence for their position with regard to the claim. They may choose to have legal representation.
At the conclusion of the hearing the adjudicator makes a determination, stating which parties are liable and what remedies there should be. This determination is the equivalent of
an order of the District Court and may be enforced in the same way as a court order.
Adjudicators have considerable powers. They may order people to become respondents if they think it is desirable. They may request any information, appoint an expert adviser, call a compulsory conference of parties, issue a summons to a witness, and determine that a particular party must pay costs and expenses in certain circumstances. They can also order a claim to be transferred to a District Court or High Court if the claim is particularly complex or unusual. The adjudicator's power to make a determination is not affected by the failure of a party to respond to the claim.
Mediation and adjudication are being increasingly used as alternative dispute resolution methods. The model used by the WHRS is a new configuration and its outcome will be watched with interest.
For more information please contact Kate Harray at (04) 495 7200 or email@example.com
Safety check - decks, balconies and balustrades
Last year, serious concerns about the safety of balconies, decking and balustrades emerged in the wake of the investigations into the weathertightness of houses.
Public warnings were issued twice during 2002 by the Building Industry Authority.
Structures that pose a risk are those that rely on timber beams for support. Sometimes these beams are hidden behind cladding. Structures at most risk are on buildings with flat, lightweight claddings with plaster-type finishes, balconies supported by untreated kiln-dried timber and balconies where water pools rather than draining away.
If you have a balcony, consider these questions:
- Has untreated kiln-dried timber been used for structural support?
- Is the building clad with lightweight materials with a plaster finish?
- Does water puddle on the surface rather than drain away?
- Are there any holes or cuts in the balcony floor surface?
- Is it on a split-level or two or three storey house or a multi-storey apartment building?
Look at the balustrade:
- Is it clad with lightweight material with plaster finish?
- Does it have a flat top where water sits?
- Does it have a railing where water
is able to leak down screw holes?
- Balconies that move when walked on.
- Damp spots or stains where the balcony joins the main part of the building.
- Cracks, particularly near joints and corners.
- Balustrades that wobble.
- Balustrades where damp spots or stains can be seen on the cladding.
The BIA recommends concerned property owners seek advice from a qualified expert as soon as possible.
Balustrades/Parapets and Handrails
- relying on texture to make top surface watertight
- handrail fixings penetrating the top of the wall
- no slope to top of the wall
- no drip edge or maintenance gap (clearance) where abutting a horizontal surface
- untreated framing used with particularly monolithic claddings
- provide a sloped cap flashing to the wall
- fix handrails to the side of the wall
- provide a drained cavity behind the cladding
- provide cavity ventilation to the wall
- provide required clearances and drainage at the bottom of cladding
- specify H3 treated framing
Doors and Balconies
- waterproofing threshold between inside and deck
- insufficient level difference between inside and outside
- insufficient slope on deck to drain water
- undersized drainage outlets
- no overflows
- no air seals around doors
- cladding finished hard onto deck surface
- deck framing fixed directly to and damaging cladding
- provide sill tray flashings (metal or membrane) to all doors
- ensure level of deck 150 mm below inside floor level
- provide a minimum of two overflows
- slope the deck away from the building with sufficient fall to drain water
- install air seals
- cut back the cladding to provide a gap
- rebuild the connection of the deck to building, incorporating flashings
For more information:
BRANZ: Ph 0900 59090 or www.branz.co.nz
Institute of Building Surveyors: Ph 0800 113 400 or http://www.buildingsurveyors.co.nz
Weathertight Homes Resolution Service: www.dbh.govt.nz
Or call your local city or district council for further advice.
Legality of BIA Interpretations
Only the courts can issue binding interpretations of the Building Act 1991 and Regulations. Indications and guidelines issued by the Department of Building and Housing, either in Weathertightness News or other communications, are provided with the intention of helping people to understand the legislation. They are, however, offered on a “no-liability” basis, and, in any particular case, those concerned should consult their own legal advisers.
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Published by the Department of Building and Housing ISSN 1176-3159. Print run: 11,000