Choices

Leaky home owners have different choices to make regarding their future. Some of these choices are "Do I claim for compensation before, or after repairing my home?", or "Where will I get the money?". The only way to decide which choice is right for you is to understand what choices are available to you.

Liability

First up, you must establish if any liable parties exist. The three rules of liability are:

• There must be tangible 'damage'
• The person you are claiming against must (legally) owe you a duty of care. In other words, they must be held legally responsible for what they have done, such as a council when they issue a Code Compliance Certificate.
• You must prove that the party has breached that duty of care, and that breach caused the damages.

Over and above the liability debate, your claim must be within the 10-year limit if you wish to attempt to recover any of your costs through the legal system. If you have fallen off the 10-year 'cliff', your choices are extremely limited.

If Your Home is Over 10-Years Old

You should seek legal advice before making a decision, but if you are told there is no chance of compensation you have two choices:

• Have the house fixed professionally and pay for it yourself
• Sell the house as-is

Doing nothing is not an option, because the house will gradually become dangerous and a health hazard. If the house is fixed, it's value will be restored so the bank will be happy, or at worse at least it will be in a sellable condition.

Selling the house as-is should be done with the understanding that Real Estate agents are legally required to disclose any know faults with property, and most pre-purchase inspectors these days will pick up the faults anyway. So better to be up front from the start.

(Image: myspiritmatters.com)

Repair First or Claim First 

The advantages of repairing first are:

• You have a quantum (concrete number) to work with in your claim. Having this reduces arguments about how much repairs should cost, but there will still be arguments about how much was spent. 
• There is no chance that a cash award based on 'estimates' will fail to be enough for the actual rebuild. In many cases, material price rises or regulation changes can cause the remediation cost to rise, meaning the payout from the WHT or High Court is not enough.
• Your home is repaired quicker, and your life can return to 'normal'. Health hazards like mould and unsafe decks should be repaired as quickly as possible.

The disadvantage of repairing first is:

• Time. You will have to wait longer for any compensation, meaning more time in doubt of whether the money will come. Also, in the time it takes to remediate the house parties you were going to claim against can go bust, and laws can change.

The advantage of claiming first is:

• You get the money up front, and can then decide exactly how you want to spend it. You are in control of your destiny.
• You can end the process quicker, if you decided to sell the house as-is for example.

Weathertight Homes Tribunal or High Court

Weathertight Homes Tribunal

The Weathertight Homes Tribunal (WHT) is good for hearing cases based on hard facts, and the opinions of trade experts. It uses case law to guide it's decisions, and is on the whole fairly reliable if not a little cumbersome and disorganised. It's main advantage is time, a WHT Hearing can be all over and done with in under a year, you are looking at more like two to three years for the High Court.

The WHT will only hear cases relating to weathertightness, so if your home has additional defects these cannot be claimed for in the WHT.

Overall, for cases which are fairly clear-cut in their legal argument and contain self-explanatory evidence the WHT is a good choice.

High Court

Depending on the amount being claimed you will either apply to the District or High Court for your case to be heard. The courts base cases on legal principle first and foremostly, with accountable evidence to back it up. 

The courts will hear cases relating to any building defect, so for large claims or large buildings (such as apartments) it is a good idea to thoroughly research all of the defects and include them in the claim. 

If you are looking to set a legal precedent, that is a decision that brings a new argument to the forefront or overturns previous ones, the High Court or possibly the Supreme Court is the only place to do it. This of course will take lots of time, and lots of money, but it is the only way laws and views can be changed. Make sure you get your local MP and bankers on your side.