One of our readers wrote in with the following problem involving firewalls (or lack thereof!) which resulted in some back and forth correspondence:
I am hoping you can give me some advice. We are first time home owners and have just had transfer of our unit in a complex. While having insulation installed in the ceiling it was discovered that we have no firewalls in our ceiling and that we share a ceiling with two other units. We have full access to the trap doors and geyers for another two units, and there are also no drip for the three geysers in the same ceiling. Basically we have no insurance against fire since no one would pay out if there are no firewalls.
So how will the firewalls have to be built now? There's no structures in the ceiling at all. You can walk around freely. Will someone have to take the roof off and build the walls, or will they have to build via the trap doors? Is this even possible?
I hope you can give some advice. Next time I buy, I'm climbing in the ceiling to check first. I've informed the body corporate but they're ignoring the issue. Where does this leave me? I now know that the complex is illegal, however levies are being collected. Where can get copies of the actual law to submit to them? I've been told by a renovator that I shouldn't spend any money on the unit until the firewalls are up and have been inspected by the fire department.
Les did some investigation and advised as follows:
I need to do some research on some of the questions (mainly your legal options) that you have asked but I am able to answer most of them straight off.
I am amazed that an Occupancy Certificate was ever issued given that there are no firewalls in the building. Such firewalls would have been shown on the council approved plans and should therefore have been built by the developer. The National Building Regulations is quite clear on the subject (Reg TT6 and TT8 and in particular TT12.5) and the Municipality should not have issued the Occupancy Certificate without those clauses being satisfied. It is going to be extremely difficult and disruptive to build any kind of structure inside the roof space without taking at least a decent amount of roof tiles off. It can possibly be done using bricks or dry walling but both will be a practical nightmare and the likelihood of damage to the existing ceiling is high.
My first port of call would be your local municipality. If they issued the Occupation Certificate to the developer when the building does not comply with the building regulations, then they have something to answer for. The next issue is that the development as a whole (or your units separately) would have been enrolled with the NHBRC (National Home Builders Registration Council) by the developer (Legal requirement) and while I would not hold my breath too long on getting any assistance out of them, it would be worth a try. If they sidestepped the NHBRC then the developers have a huge problem and so do you because you will be unable to sell your unit without that NHBRC enrolment form.
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At the very least, I would find out if your particular unit was indeed enrolled with them by the developer.
I agree that you should not spend any money on the building until the issue has been resolved. The issue is also not between you and the Body Corporate but between you and the Developer. It is your legal right to be handed a dwelling that complies in all aspects with the National Building Regulations. I would therefore contact our local Municipality's Building Department and request a copy of the Occupancy Certificate for your dwelling and take it up with the Chief Building Inspector and with their Legal Department. From there your issue would be with the developer. If you run into difficulties getting the developer to do anything then you would probably need to take the legal route.
If you mail a fax number to me, then I will copy the NBR clauses that I quoted.
I hope that this helps you. Please feel free to contact me with any further queries that you might have.
Our reader came back to Les with the following information:
Thanks for the fax. When were these laws put in place? The building inspector is saying the fire wall laws may not have been applicable when the plans were passed. Seems they were passed in 1992.
Les replied as follows:
This is getting interesting. Firstly, the regulation was already applicable in 1990 so you are clear on that one. There was a similar problem here in Hermanus which no-one has been able to resolve so I am afraid that there is not too much good news for you.
Firstly, the builder is only liable for the first five years so he is off the hook. The Councils have many clauses in place which prevent them from being sued for any reason so they are off the hook, even though they approved the drawings.
The NHBRC likewise are only liable for five years so they are out of the picture.
As far as the body corporate goes, the end result would be that each owner would be liable for the cost of erecting the firewall in their unit anyway in that the levies would either go up to cover those costs or as a once off payment by each owner to cover the work. In the case of three units where only two walls are required the cost would be divided between the three owners. I would imagine that all the units in the complex are similarly without firewalls in the roof space between them.
The only issue that I can see as a possibility is that the agent who sold the unit to you along with the previous owner did not declare that there was no Occupation Certificate, no Electrical Certificate issued for the complex and no firewall in place between the units and all that they would be liable for would be for misleading you regarding what you were purchasing. This may not gain any recourse as far as getting a firewall installed goes, but it may give you grounds to have the sale reversed if you are not too far down the track on that one.
If you decide to take your chances regarding security and are able to insure your unit against fire, then you could possibly just leave things as they are. Your only other option is to get a smart lawyer and start fighting the system. That would probably cost as much as the firewall would and it is unlikely that you would get anywhere.
A cheap option for you to consider, more from a low end security point of view, (although it would also satisfy the half hour rating up to a point,) would be to have a builder install 15mm Nutec flat sheets against a truss which hopefully will be over the dividing wall between the units. They would just have to cut the sheets small enough to take them through the trapdoor.
This is quite a complex problem and I am sorry I cannot give you a more definitive answer than this, please let us know the outcome.