The WEATHERTIGHT HOMES RESOLUTION SERVICES ACT 2006 (the WHRS Act) provides a specialist dispute-resolution process for owners of leaky homes. The Act came into force on 1 April 2007.
The WHRS Act provides for owners of leaky homes to lodge a claim with the Weathertight Services unit at the Department of Building and Housing. Weathertight Services assesses claims and provides mediation services. If claims aren't resolved through negotiation or mediation, the Weathertight Homes Tribunal can make a binding decision. You can use the process in the Act only if your home was built or altered within the previous 10 years.
The WHRS Act replaced the Weathertight Homes Resolution Services Act 2002, and is intended to provide faster, cheaper and more independent resolution of leaky homes claims than under the process set up by the 2002 Act. The 2006 Act sets up the new Weathertight Homes Tribunal, with new measures such as preliminary conferences aimed at getting the parties who are responsible for the damage to engage in the resolution process as quickly as possible. The Act also sets up a special streamlined process for resolving lower-value claims (under $20,000). The Act also allows claims for potential damage, as well as actual damage.
Weathertight Services has a website at www.weathertightness.govt.nz, which contains more information about the processes explained below.
To be able to use the scheme in the Weathertight Homes Resolution Services Act 2006 you must meet the following eligibility criteria:
There are special rules for claims for apartments, flats, townhouses or units within multi-unit complexes. These complexes can bring a single claim under the WHRS Act: for more details see below, "Claims for multi-unit complexes".
You can claim for -
No. You can claim only if you own the property.
If you're renting a leaky home, you should raise the problem with your landlord. If your landlord doesn't fix the problem, you can take the dispute to Tenancy Services and the Tenancy Tribunal: see related articles How to: The rights and obligations of residential landlords and tenants and How to apply to the Tenancy Tribunal.
Yes, but only if your tenants are using the property mainly as a home rather than as business premises. If your tenants use the property for business purposes, you cannot claim.
Yes, you can carry out repairs before you make a claim, or at any point during the claims process.
No. If you want to, you can use other options for resolving the dispute, such as â€“
If you've made a claim under the Weathertight Homes Resolution Services Act, you can pursue a claim through the courts or the Disputes Tribunal without closing your WHRSA claim. However, you can't apply to the Weathertight Homes Tribunal while you have a case going through the courts or the Disputes Tribunal.
You're not required to have a lawyer, but you can have one if you wish.
If you want to hire a lawyer but can't afford one, Legal Aid is available: see How to obtain civil Legal Aid.
If at 1 April 2007 you had a claim going through the process set up under the 2002 Act, the effect of the new 2006 Act depends on what stage your claim was at and on what options you choose. Detailed information is available from the Weathertight Services website at www.weathertightness.govt.nz.
Claims received after 1 March 2007 are dealt with under the new Act.
There are special rules for claims for apartments, flats, townhouses or units within multi-unit complexes â€“ that is, units held under unit title, cross-lease title, or company share licence. These complexes can bring a single claim under the Weathertight Homes Resolution Services Act, and accordingly can get a single assessment report and go through a single dispute-resolution process.
There are four different types of multi-unit claim:
The owners in a multi-unit complex authorise a representative to bring the claim on their behalf, as follows â€“
You should contact Weathertight Services at the Department of Building and Housing and get an application form:
Once you've lodged a claim, Weathertight Services will make an initial assessment of whether your case meets, or could meet, the eligibility criteria (see "Who can use the weathertight homes dispute-resolution scheme?").
If your case passes this initial assessment, Weathertight Services will arrange for an expert assessor to visit your home and make a report.
You'll need to choose which of two different kinds of assessments you should get. A Weathertight Services claims advisor can help you decide which is better for your claim.
If you choose an eligibility assessment, this doesn't stop you later asking for a full assessment before you go on to the resolution process (unless you've already repaired the property by then).
The assessor's report then goes to Weathertight Services to confirm whether or not your claim meets the eligibility criteria.
If the assessor's view was that your claim is ineligible, you have 20 working days to make submissions to Weathertight Services before it makes a final decision about your eligibility.
If Weathertight Services decides your claim is not eligible, you can appeal its decision to the chairperson of the Weathertight Homes Tribunal.
If after an assessment Weathertight Services confirms that you're eligible, the particular resolution process will depend on the value of your claim:
These are explained in more detail below.
If your repair costs (actual or estimated) are $20,000 or less, you can apply for Weathertight Services to provide you with access to negotiation and mediation services to try to resolve your claim.
Negotiation is an informal discussion between all the parties aimed at resolving the dispute. Weathertight Services will arrange the meeting, but you the claimant will chair it.
If negotiation doesn't resolve the dispute, Weathertight Services will arrange mediation. They will provide a professional mediator to run the mediation session. The mediator is neutral: his or her role is to help you and the other parties come to an agreement. The mediator does not make any decisions about the claim.
If mediation doesn't resolve the dispute, you can apply to the Weathertight Homes Tribunal to make a decision on your claim. They will do this "on the papers", which means they'll decide on the basis of all the relevant documents, without holding a hearing. The Tribunal is required under the WHRS Act to make the process much faster, simpler and cheaper than when it decides a standard claim (see below), minimising the amount of evidence and the involvement of lawyers, and using informal means as much as possible to resolve the dispute.
You can get more information about applying to the Weathertight Homes Tribunal from the Tribunal's website at www.justice.govt.nz/wht.
If your repair costs (actual or estimated) are more than $20,000, you can apply to the Weathertight Homes Tribunal to make a decision on the claim. There is a $400 fee for applying to the Tribunal.
The Tribunal is supported by Ministry of Justice staff, not by the Department of Building and Housing. Therefore, once you apply to the Tribunal, your claim will be handled by a Ministry of Justice case manager, rather than by a Weathertight Services claims advisor.
A single member of the Tribunal will deal with and decide your claim.
The process will have these stages:
It's an offence to disobey an order or direction made by the Tribunal, or to fail to turn up if the Tribunal has summonsed you as a witness. The penalty is a fine of up to $2,000.
You can appeal the Tribunal's decision to the courts on any issue of law or fact. You appeal to:
You must file your appeal with the court within 20 working days after the Tribunal's decision, or within any longer time that the court allows.
If you've reached a written agreement through negotiation, you can enforce this in the District Court only if a Weathertight Services mediator signs a statutory declaration.
This binds all the parties who agreed to it and can be enforced in the District Court.
The Tribunal's decision has the same effect as a District Court order, and can be enforced like any other court order.