Home Building Contracts (Home Indemnity Insurance - Multi-storey Multi-unit Developments Exemption) Amendment Regulations 2003 (WA)

8 April 2003 GOVERNMENT GAZETTE, WA 1099

CONSUMER AND EMPLOYMENT

('1301*

Home Building Contracts Act 1991

Home Building Contracts (Home Indemnity

Insurance — Multi-storey Multi-unit

Developments Exemption) Amendment

Regulations 2003

Made by the Governor in Executive Council.

1.           Citation

These regulations may be cited as the Home Building Contracts
(Home Indemnity Insurance — Multi-storey Multi-unit
Developments Exemption) Amendment Regulations 2003.

2.             Commencement

These regulations come into operation on the day after the day on which they are published in the Gazette.

3.             The regulations amended

" Exemptions ".

The amendments in these regulations are to the Home Building
Contracts (Home Indemnity Insurance — Multi-storey
Multi-unit Developments Exemption) Regulations 2002*.

[* Published in Gazette 19 April 2002, p. 2103-15.]

4.             Heading to Part 1 inserted

Before regulation 1 the following heading is inserted —

44  

Part 1 — Preliminary

5. Regulation 1

amended Multi-unit Developments Exemption" and inserting instead —

1100 GOVERNMENT GAZETTE, WA 8 April 2003

6. Regulation 3 amended
Regulation 3(1) is amended by inserting the following
definitions in the appropriate alphabetical positions -

"

"home indemnity insurance" means -

(a)	a policy of insurance that complies with Part 3A Division 2 of the Act; or
(b)	corresponding cover;

"leased retirement village" means a retirement village

in which all the dwellings are occupied under a
residential tenancy agreement or any other lease or

licence;

"practical completion" has the meaning given by

section 11 of the Act;

"residential tenancy agreement" has the meaning

given by the Residential Tenancies Act 1987;

"retired person" has the meaning given by the

Retirement Villages Act 1992;

"retirement village" means a complex of dwellings

that are intended for occupation by retired persons;

7.            Heading to Part 2 inserted

After regulation 3 the following heading is inserted -

Part 2 - Multi-storey multi-unit developments

8.	Parts 3 and 4 inserted After regulation 8 the following Parts are inserted
IF

Part 3 - Leased retirement villages

9.           Exemption - leased retirement villages

(1) Residential building work that relates to the

construction of a retirement village is exempt from the

requirements of Part 3A of the Act if—

(a)	the owner of the retirement village intends the retirement village to be a leased retirement village; and
(b)	before a building licence for the residential building work is issued -

(i) the owner has lodged with the Registrar

of Titles a memorial to the effect that
there is no home indemnity insurance in

8 April 2003 GOVERNMENT GAZETTE, WA 1101

respect of the dwellings in the

retirement village; and

(ii) a statutory declaration by the owner that

complies with subregulation (2) has
been given to the local government that

is to issue the building licence.

(2) In the statutory declaration referred to in

subregulation (1)(b)(ii) the owner must verify that -

(a)	the owner intends the retirement village to be a leased retirement village; and
(b)	the owner has lodged a memorial with the Registrar of Titles in accordance with this regulation.

(3) A local government may rely upon a statutory

declaration referred to in subregulation (2) as proof that

the memorial has been lodged.

(4) A memorial under subregulation (1)(b)(i) is to be in a

form approved by the Registrar of Titles.

(5) The Registrar of Titles must, on payment of the
appropriate fee, register the memorial against the
relevant land.

(6) The Registrar of Titles may cancel the registration of

the memorial after 6 years from the day of practical

completion of the leased retirement village.

(7) This regulation does not apply to residential building

work for which a building licence has been issued

before this regulation commences.

10. Sale of dwellings in leased retirement village within
6 years of practical completion

(1) If residential building work for a retirement village was
exempt from the requirements of Part 3A of the Act
under regulation 9(1), the owner of the retirement
village must not enter into a sale contract for one or
more dwellings in the retirement village, within 6 years
of the day of practical completion, unless -

(a) a policy of insurance that complies with

subregulation (2)is in force in relation to the
residential building work or corresponding
cover that complies with subregulation (3) is
provided in relation to the residential building
work; and

1102 GOVERNMENT GAZETTE, WA 8 April 2003

(b) the purchaser has been given a certificate, in a

form approved by the Minister, which
evidences the taking Out of the policy or the

provision of the corresponding cover.

Penalty: $5 000.

(2) The policy of insurance referred to in

subregulation (1)(a) complies with this subregulation
if -

(a) it insures the purchaser and the purchaser's successors in title against the risk of being unable to take advantage of an entitlement to,

or to enforce or recover under, a remedy under
section 12A of the Builders ' Registration
Act 1939 by reason of the insolvency or death
of the builder who carried Out the residential
building work or by reason of the fact that, after
due search and enquiry, that builder cannot be

found;

(b) it provides that claims may be made under it at

any time before the expiration of a period of 6 years from the day of practical completion;

(c) it provides for insurance cover of-

(i)     at least $100 000 or such other amount as is prescribed; or

(ii)     the cost of the building work,

whichever is the lesser; and

(d) it is issued by or on behalf of an insurer who

is -

(i)     authorised under the Insurance Act 1973 of the Commonwealth to carry on insurance business; and

(ii) approved in writing by the Minister.

(3) The corresponding cover referred to in

subregulation (1)(a) complies with this subregulation if
the cover is provided by an approved fund and the
purchaser, and the purchaser's successors in title, are in
the same position that they would be if a policy of
insurance that complies with subregulation (2) were in

force in relation to the residential building work.

Part 4— State Housing Commission

11.         Exemption - State Housing Commission

(1) Subject to subregulation (2), residential building work leasing is exempt from the requirements of Part 3A of the Act. carried out by or on behalf of the State Housing

8 April 2003 GOVERNMENT GAZETTE, WA 1103

(2) The State Housing Commission must not enter into a

sale contract for the dwelling referred to in
subregulation (1), within 6 years from the day of

practical completion, unless -

(a)	a policy of insurance that complies with subregulation (3) is in force in relation to the residential building work or corresponding cover that complies with subregulation (5) is provided in relation to the residential building work; and
(b)	the purchaser has been given a certificate, in a form approved by the Minister, which evidences the taking out of that policy.

(3) The policy of insurance referred to in

subregulation (2)(a) complies with this subregulation
if -

(a) it insures the purchaser and the purchaser's successors in title against the risk of being unable to take advantage of an entitlement to,

or to enforce or recover under, a remedy under
section 12A of the Builders ' Registration
Act 1939 by reason of the insolvency or death
of the builder who carried Out the residential
building work or by reason of the fact that, after
due search and enquiry, that builder cannot be

found;

(b) it provides that claims may be made under it at

any time before the expiration of a period of 6 years from the day of practical completion;

(c) it provides for insurance cover of-

(i)     at least $100 000 or such other amount as is prescribed; or

(ii)     the cost of the building work,

whichever is the lesser; and

(d) it is issued by or on behalf of an insurer who

is -

(i)     authorised under the Insurance Act 1973 of the Commonwealth to carry on insurance business; and

(ii)     approved in writing by the Minister.

(4) Where the policy of insurance referred to in

subregulation (2) relates to work described in
paragraph (b) of the definition of "home building
work" in section 3 of the Act, the cost of the building
work for the purposes of subregulation (3)(c)(ii) is only

the cost of—

(a) placing the dwelling on the land including

siting, stumping and any other work in
connection with that placement; and

1104 GOVERNMENT GAZETTE, WA 8 April 2003

(b) any building work to the dwelling after

placement.

(5)	The corresponding cover referred to in subregulation (2)(a) complies with this subregulation if the cover is provided by an approved fund and the purchaser, and the purchaser's successors in title, are in the same position that they would be if a policy of insurance that complies with subregulation (3) were in force in relation to the residential building work.
(6)	In this regulation — "State Housing Commission" means The State

Housing Commission continued under the
Housing Act 1980.

9.            Schedule 1 amended

Schedule 1 is amended in clause 5 by deleting "— Multi-story
Multi-unit Developments Exemption" and inserting instead —

" Exemptions ".

10. Home Building Contracts Regulations 1992 amended

Regulation 6 of the Home Building Contracts
Regulations 1992* is repealed.

[* Reprinted as at 7 June 2002.]

By Command of the Governor,

ROD SPENCER, Clerk of the Executive Council.