Myth Busting Records of Work
Remember what a “record of work” is? It is something that a licensed building practitioner must hand over to his client and the local territorial authority, when he completes “restricted building work” on a house or a small-to-medium apartment building. There is some confusion about what it is actually called, as many people refer to it as a “memorandum”. The Building Act 2004 (sections 88 and 317(1)(da)(ii)) refers to it only as a “record of work”, but the Building (Forms) Regulations 2004 call it a “Memorandum from licensed building practitioner (record of building work)”. They are the same thing.
If the licensed builder doesn’t hand it over promptly, he can be disciplined by the Building Practitioners Board. His only defence is that he had “good reason” for withholding it. Sometimes licensed builders neglect to provide records of work due to simple ignorance of the law or inadvertence, but more commonly it is because the builder’s client has refused to pay one or more of the builder’s invoices and the builder is using all the leverage he has to extract payment. The Building Practitioners Board has consistently said that none of those are good enough reasons.
Withholding a record of work isn’t actually an effective ploy anyway, because the owner doesn’t really need it. It is not a prerequisite to the issue of the Code Compliance Certificate (“CCC”). The Ministry of Business, Innovation and Employment has made it perfectly clear in several determinations that a Council cannot refuse to issue a CCCjust because a record of work has not been provided, nor can it make the provision of a record of work a condition of a building consent. When applying for a CCC, the owner must include with the application “any” records of work provided by licensed building practitioner. It follows that if the owner hasn’t received any, he or she doesn’t have to hand any over. For that reason, unlike a producer statement, withholding a record of work doesn’t give the builder any leverage.
WHAT ARE THEY FOR? What, then is the reason for records of work? It is simply to identify the people who carried out or supervised the restricted building work, in case this becomes important later on. Why might it be important? First, because there might be a need to find out (for example) what is under the concrete floor pad or behind interior or exterior claddings, and the simplest way to do that is to ask the person who did the work. But more likely, it is because latent defects have emerged and the owner at the time needs to know who to hold accountable. Even the original owner might not know precisely who did what work on the building, and as the years tick by and ownership changes several times, that knowledge is going to fade rapidly.
Therefore, the purpose of a record of work is to get every licensed builder to take responsibility for their work. The Building Act 2004 says that a record of work will not expose the licensed builder to any more liability than he already had, and that is true to some extent. But there is no question that the record of work makes it easier to hold the builder accountable under existing laws, because the record of work effectively says “Here I am, come and get me”. It certainly does create a strong incentive to do restricted building work competently.
SOME USEFUL THINGS TO REMEMBER: The Building Practitioners Board has issued some further guidance concerning records of work recently (in BPB Complaint No. C2-01170). Probably the most important point they made is that “each” licensed builder who carries out or supervises restricted building work must provide their own separate record of work. It is not sufficient if the most senior licensed builder in the relevant licensing class (for example, carpentry) provides one record of work for all the licensed carpenters. Every one of them must identify themselves and state (in the middle column of the record of work form) exactly what they did, even if they only did a minor part of the restricted building work. That is going to come as some surprise to some licensed builders.
The second issue is when to provide your record of work. Section 88 of the Building Act 2004 says it is “on completion” of “the” restricted building work. What restricted building work are they talking about? It is the restricted building work that you carried out or supervised? So the time to provide your record of work (to both the owner and the territorial authority, incidentally) is when there is no reasonable prospect of you being called back to do any more restricted building work on that project. Normally that will be when you have finished your allocated tasks and you have rectified any defects that have been identified during the project. But in building projects that have turned ugly, it will be when the owner has kicked you off site, never to return (whether or not he had a right to do so).
How quickly do you have to hand it over? The Building Practitioners Board says a “short time after” completion of your restricted building work. That is a bit vague, but the point is, it’s not a big job (the form is not that complicated) and you are best to do it when the project is still fresh in your mind and before other distractions start to intrude on your available time. Although there is no particular urgency, experts suggest you don’t leave it for any longer than a few weeks, unless you are dealing with an emergency and can’t get onto it any sooner.
Need to talk it through? Industry Expert Geoff Hardy has 40 years’ experience as a commercial lawyer and is the senior lawyer in the Auckland-based firm “Madison Hardy”. He guarantees personal attention to new clients at competitive rates. His phone number is (09) 379 0700, fax (09) 379 0504, and e-mail firstname.lastname@example.org. This article is not intended to be relied upon as legal advice.
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