Home Building Contracts (Home Indemnity Insurance Exemptions) Regulations 2002

The regulations are organised around a small set of statutory constructs and definitions that determine when Part 3A of the Home Building Contracts Act 1991 does not require HII.

• Home indemnity insurance (home indemnity insurance, HII) , defined as a policy complying with Part 3A Division 2 of the Act or “corresponding cover” (reg 3(1)). In Part 5, HII cover is defined by reference to section 25D or 25G of the Act or corresponding cover (reg 12). Where the regulations require particular insurance terms, they do so explicitly (for example, reg 10(2) and reg 11(3) set out minimum claim periods, limits and insurer authorisation requirements).
• Multi‑storey multi‑unit development , a building comprising two or more independent dwelling units where any part has either a rise in storeys of more than three or has more than one basement storey (reg 3(1)). The definition relies on the Building Code of Australia for technical terms such as “storey” and “rise in storeys” (reg 3(1)).
• Builder’s notice , the prescribed notice the builder must give to the other party to a contract to qualify for the multi‑storey multi‑unit exemption (reg 4(1); Schedule 1 Form 1). The builder’s notice must be given before the builder enters into the relevant contract if the exemption is to apply, or in some circumstances must be given before later contracts (reg 6).
• Developer , defined for multi‑storey multi‑unit developments as a person for whom residential building work is to be performed and who carries on a business of selling, leasing or dealing in dwelling units of such developments with a view to profit or capital gain (reg 3(1)). The definition matters because purchasers who are developers do not have the rescission protection that other purchasers have under some rules (reg 4(2)).
• Rescind/rescission right , the statutory right granted to purchasers who did not receive required notices in prescribed moments; the right must be exercised by a written notice before the earlier of one month after receipt of the builder’s notice or settlement (reg 4(3), reg 6(4), reg 7(6), reg 8; Schedule 1 Form 1 sets out a model rescission notice).
• Leased retirement village , a retirement village in which all dwellings are occupied under a residential tenancy or other lease or licence (reg 3(1)). For such villages to be exempt the owner must lodge a memorial with the Registrar of Titles that there is no HII and give a statutory declaration to the permit authority before the building permit is granted (reg 9(1)(b)(i)-(ii)).
• SDA and exempt building , the 2024 amendments add a regime for buildings intended to be leased as SDA buildings (reg 12-15). Exempt work is residential building work exempt under regulation 13(1) when the building owner intends to use a class 1b or class 3 building as an SDA building and files a statutory declaration before the building permit is issued (reg 13(1)).
• HII cover requirements where sales occur within defined periods , multiple provisions require that a sale occurring within the relevant post‑completion period (commonly six years; reg 10(1), reg 11(2) and reg 15(1)) may not proceed unless policy or corresponding cover meeting detailed criteria is in force and a certificate in a form approved by the Minister is given to the purchaser (reg 10(1)(a)-(b); reg 11(2)(a)-(b); reg 15(2)). Those criteria include coverage for loss where the builder is insolvent, dead or missing, a claims period of up to six years from practical completion, minimum cover thresholds or the cost of the building work, and insurer authorisation and ministerial approval (reg 10(2)(a)-(d); reg 11(3)(a)-(d)).

Several definitions and operational mechanics are set by reference to other statutes or codes: Building Code of Australia (technical storey/rise definitions) (reg 3(1)); the Building Act 2011 is referenced in the transitional “commencement day” concept and affects how former exemptions operate (reg 6(1A)); the NDIS SDA Rules are engaged for enrolment obligations (reg 12; reg 14); the Insurance Act 1973 governs insurer authorisation (reg 10(2)(d); reg 11(3)(d)); the Building Services (Complaint Resolution and Administration) Act 2011 provides the definition of a “building remedy order” relied upon by the insurance requirements (reg 10(2)(a); reg 11(3)(a)).

The mechanics therefore combine technical building classifications, pre‑permit documentary steps (statutory declarations or Registrar memorials), prescribed notices, ministerial approvals and insurance/certificate gateways for resale transactions within limited durability windows.

The regulations allocate duties, rights and potential penalties across several identifiable classes of actors:

• Builders and building contractors , required to give the prescribed builder’s notice (Schedule 1 Form 1) to the other party to a building contract or sale contract in order to bring their multi‑storey multi‑unit work within the exemption (reg 4(1); reg 6). A failure to give the notice before entering the contract triggers purchasers’ rescission rights (reg 4(2); reg 6(3)). Builders are the primary actors whose entitlement to avoid the Part 3A insurance requirement depends on compliance with the notice and timing rules.
• Developers , defined as commercial sellers of dwelling units in multi‑storey multi‑unit developments (reg 3(1)). Developers who receive a builder’s notice must give a copy to purchasers in particular circumstances: before entering into a sale contract where settlement is to occur within six years (reg 7(2)(a)) and to purchasers who already have contracts within 10 days of receiving the builder’s notice (reg 7(2)(b)). Failure carries a fine of $5 000 for the developer (reg 7(2) penalty) and gives purchasers rights to rescind in some circumstances (reg 7(3)-(6)).
• Purchasers of units in multi‑storey developments, buyers in sale contracts for leased retirement village dwellings, and purchasers of Housing Authority dwellings , the regulations create statutory protections for purchasers who do not receive required notices, typically a right to rescind within prescribed time frames (reg 4(2)-(3); reg 6(3)-(4); Schedule 1 Form 1 paras 9-11). Where exemptions apply, purchasers may be exposed to the risk that the builder has not taken out HII, and the regulations require disclosure and in some cases HII or corresponding cover at resale if the sale occurs within defined post‑completion periods (reg 10(1), reg 11(2), reg 15(2)).
• Owners of retirement villages intending to operate them as leased retirement villages , must lodge a memorial at the Registrar of Titles notifying that there is no HII for the dwellings and give a statutory declaration to the permit authority before the building permit is granted (reg 9(1)(b)). The Registrar registers the memorial on payment of the appropriate fee and may cancel it after six years from practical completion (reg 9(5)-(6)). The statutory declaration can be relied on by the permit authority (reg 9(3)).
• The Housing Authority , explicitly granted an exemption in respect of work for dwellings for letting or leasing (reg 11(1)), but subject to conditions if the Housing Authority seeks to enter into a sale within six years of practical completion (reg 11(2)-(3)). The Housing Authority must provide purchaser certificates evidencing prescribed insurance when selling within the six‑year window (reg 11(2)(b)).
• Building owners intending to enrol buildings as SDA , must provide a pre‑permit statutory declaration of intent (reg 13(1)) and must apply to enrol the building as an SDA building within 12 months of practical completion or face a $5 000 fine, subject to a defence for unforeseeable events (reg 14(2)-(3)).
• Insurers and funds , the regulations require that any HII policy or “corresponding cover” be issued by an insurer authorised under the Commonwealth Insurance Act 1973 and approved in writing by the Minister for certain contexts (reg 10(2)(d); reg 11(3)(d)). Approved funds may provide corresponding cover for replacement of insurer policies (reg 10(3); reg 11(5)).
• Permit authorities and the Registrar of Titles , the permit authority is the body to which statutory declarations are given and which may rely upon those declarations when issuing permits (reg 9(1)(b)(ii); reg 9(3)). The Registrar registers the memorial and may cancel it after six years (reg 9(5)-(6)). These offices make administrative decisions which determine whether the exemption conditions are satisfied in practice.
• The Minister , retains a role in approving forms of purchaser certificates and in approving insurers in writing for some insurance requirements (reg 10(1)(b); reg 10(2)(d); reg 11(2)(b); reg 11(3)(d)). That ministerial role is an administrative gate for resale where HII cover is required.

Who pays and who decides: The direct costs and compliance tasks fall primarily on builders, developers, building owners (for memorials/declarations), and the Housing Authority where applicable. Purchasers bear the residual risk where HII is not in place but may exercise rescission rights if notices were not given in accordance with the rules. The Minister, permit authorities and the Registrar of Titles exercise administrative decision‑making power over approvals, certificates, memorial registration and reliance on statutory declarations.

The regulations create a set of obligations and corresponding rights structured by building type and transaction timing. Below are the principal duties, the statutory sources, and the purchaser protections they trigger.

Builder duties (multi‑storey multi‑unit)

• Give a builder’s notice in the form set out in Schedule 1 Form 1 to the other party to each building contract or sale contract that the builder enters into before the building permit is to be granted, if the builder wishes to rely on the multi‑storey multi‑unit exemption (reg 4(1)). If the builder does not give the notice before entering a contract and the other party is not a developer, that purchaser may rescind the contract (reg 4(2)-(3)).
• If an exemption previously applied under regs 4 or 5 but the builder later enters into contracts after a building permit or licence has been issued without having given the required builder’s notice, the exemption ceases until the builder provides the builder’s notice for each contract (reg 6(1)-(2A) and (2)). Once the builder subsequently gives the notice to the relevant party, the exemption re‑applies (reg 6(2)).

Developer duties

• A developer who receives a builder’s notice must, before entering into a sale contract, give a copy of that builder’s notice to a purchaser if settlement is to occur within six years of practical completion (reg 7(2)(a)). The developer must also give a copy to each person with whom the developer has already entered a sale contract, within 10 days after receiving the builder’s notice (reg 7(2)(b)). Failure to comply with reg 7(2) carries a fine of $5 000.
• If the developer fails to give the copy before entering a sale contract as required, the purchaser may rescind the sale contract (reg 7(3)).
• A purchaser who received a sale contract before the developer received the builder’s notice may rescind unless the developer gave a developer’s notice in the form in Schedule 1 Form 2 before the contract was entered into (reg 7(4)-(5)).

Persons other than developers

• A person who receives a builder’s notice (and is not a developer) must give a copy of the builder’s notice to any purchaser before entering a sale contract if settlement is to occur within six years of practical completion (reg 7A(1)-(2)).

Rescission rights and mechanics

• Purchasers who did not receive required notices have a statutory right to rescind (reg 4(2); reg 6(3); reg 7(3)-(4)). To exercise the right they must give notice of rescission to the builder or developer before the earlier of: one month after the day on which the builder’s notice is received by the purchaser; or settlement (reg 4(3); reg 6(4); reg 7(6)). Regulation 8 and Schedule 1 Form 1 provide a model “Notice of exercise of right to rescind”.

Leased retirement village duties and rights

• To rely on an exemption for construction of a leased retirement village, the owner must, before a building permit is granted, lodge a memorial at the Registrar of Titles that there is no HII in respect of the dwellings and must give a statutory declaration to the permit authority confirming the intention to be a leased retirement village and that the memorial has been lodged (reg 9(1)(b)(i)-(ii); reg 9(2)). The permit authority may rely on the statutory declaration (reg 9(3)). The Registrar registers the memorial on payment of the appropriate fee and may cancel it after six years of practical completion (reg 9(5)-(6)). The regulation does not apply to work for which a building permit had been granted before the regulation’s commencement (reg 9(7)).

Resale constraints where exemptions applied

• Where residential building work was exempt for a leased retirement village (reg 9), a sale contract within six years of practical completion must not be entered into unless a policy meeting defined insurance criteria is in force or corresponding cover is provided, and a purchaser has been given a ministerially approved certificate evidencing that policy or cover (reg 10(1)(a)-(b)). The required insurance must, among other things, insure purchasers and successors in title against loss where the builder is insolvent, dead or cannot be found; allow claims for up to six years from practical completion; provide minimum monetary cover (at least $100,000 or other prescribed amount, or the cost of the work, whichever is the lesser); and be issued by an insurer authorised under the Commonwealth Insurance Act 1973 and approved by the Minister (reg 10(2)(a)-(d)). Corresponding cover by an approved fund is permitted (reg 10(3)).

Housing Authority duties

• The Housing Authority is exempt from Part 3A for residential work carried out by or on its behalf relating to dwellings for letting or leasing (reg 11(1)). If the Housing Authority proposes to sell such a dwelling within six years of practical completion, similar HII or corresponding cover must be in place and the purchaser must be given a ministerially approved certificate (reg 11(2)). The insurance standards mirror those in reg 10(2), but reg 11(4) modifies the cost base for certain placed or relocatable dwellings such that “cost of the building work” includes placing the dwelling and any subsequent work after placement (reg 11(4)).

SDA building duties

• For class 1b or class 3 buildings intended to be used as SDA buildings, the building owner must give a statutory declaration to the permit authority before the building permit is issued stating the intent to use the building as an SDA building (reg 13(1)). After practical completion the building owner must ensure an application to enrol the building as an SDA building under the NDIS SDA Rules is made within 12 months (reg 14(2)); failure to do so carries a $5 000 fine but a defence exists for reasonable excuse arising from unforeseeable events after the statutory declaration (reg 14(3)). A sale of an exempt building within the “relevant period” (6 or 7 years depending on Division of Part 3A that would otherwise apply) requires written notification to the purchaser that HII cover is not in force (reg 15).

Administrative duties and ministerial role

• Permit authorities may rely on statutory declarations (reg 9(3)), the Registrar of Titles is to register and may cancel memorials (reg 9(5)-(6)), and the Minister approves certificates and insurers for the relevant HII (reg 10(1)(b); reg 10(2)(d); reg 11(2)(b); reg 11(3)(d)).

Documentary form requirements

• The builder’s notice content is prescribed in Schedule 1 Form 1, including explicit statements about the nature of HII, consequences of its absence, and the rescission mechanics including entitlement to return of deposits (Schedule 1 Form 1 paras 2, 3, 5, 9-11). A developer’s notice (Form 2) is separately prescribed (Schedule 1 Form 2).

Time limits and conditions for rights

• Rescission time limits are strict and tied to the earlier of one calendar month after receipt of the builder’s notice or settlement (reg 4(3); reg 6(4); reg 7(6); Schedule 1 Form 1). Where a developer had contracts already in place, purchasers cannot rescind until they have received the copy of the builder’s notice or the 10‑day period has expired (reg 7(5)). These timing mechanisms allocate the window of opportunity carefully and are central to purchasers’ effective protection.

The regulations employ a mix of civil remedies (statutory rescission rights) and prescribed monetary penalties for non‑compliance. They also create administrative tasks for permit authorities, the Registrar of Titles, and the Minister.

Monetary penalties

• Developer failure to give required copies of a builder’s notice under reg 7(2) is penalised by a fine of $5 000 (reg 7(2), penalty).
• An owner of a leased retirement village who sells a dwelling within six years of practical completion without the required insurance or certificate is subject to a fine of $5 000 (reg 10(1), penalty).
• A person who fails to make the required NDIS enrolment application within 12 months of practical completion faces a fine of $5 000 (reg 14(2), penalty), subject to a statutory defence of reasonable excuse for unforeseeable events after the declaration (reg 14(3)).
• A person who enters into a contract to sell an exempt SDA‑intended building within the relevant period without notifying the purchaser that HII cover is not in force commits an offence attracting a fine of $5 000 (reg 15(2), penalty).

Statutory rescission rights

• Purchasers who did not receive the builder’s notice before entering a contract (and who are not developers) may rescind the contract (reg 4(2); reg 6(3)). The rescission must be effected by notice to the builder or developer within the specified time frame (reg 4(3); reg 6(4); reg 7(6)). Schedule 1 Form 1 contains a model rescission notice and specifies that rescinding entitles the purchaser to recover deposits and payments and prohibits the builder or developer from recovering expenses against the purchaser (Schedule 1 Form 1 para 10).

Administrative enforcement and approvals

• Permit authorities may rely on statutory declarations given by owners to justify granting permits in trust that the owner intends a leased retirement village or SDA use (reg 9(3); reg 13(1)). The Registrar of Titles registers memorials indicating the absence of HII and may cancel those memorials after six years of practical completion (reg 9(5)-(6)). The Minister has approval roles for the forms of certificates to be provided to purchasers and for insuring entities for certain required policies (reg 10(1)(b); reg 10(2)(d); reg 11(2)(b); reg 11(3)(d)).

Enforcement visibility in the instrument

• The regulations do not establish a single designated regulator or complaint handling mechanism within their text. Instead enforcement occurs through (a) statutory monetary penalties if prosecuted, and (b) private rights (rescission) exercisable by affected purchasers. Administrative functions (registration of memorials, approval of insurers, certificate forms) are allocated to public offices, placing compliance burdens on those offices and on private actors who must interact with them.

Risks of non‑compliance

• Immediate commercial consequences include a purchaser’s right to rescind and potential fines. Indirect consequences include jeopardising future sales (because of required disclosures or insurance gates) and administrative rejection or delay of building permits if statutory declaration or memorial requirements are not met in the pre‑permit process (reg 9; reg 13). The obligation to obtain ministerially approved certificates and to use insurers authorised under the Commonwealth Insurance Act 1973 restricts the pool of acceptable providers and may create practical constraints on satisfying the resale gateway before sale within the relevant post‑completion period (reg 10(2)(d); reg 11(3)(d)).

The regulations operate by reference and interface to a number of other legislative instruments and codes. The most significant interactions are as follows:

Home Building Contracts Act 1991, Part 3A

• The regulations create specific exemptions from Part 3A of the Home Building Contracts Act 1991. Whether home indemnity insurance is required is determined by the Act, but the regulations specify when an exemption to that Part applies (reg 4-6; reg 9; reg 11; reg 13). The definition of HII in the regulations cross‑refers to Part 3A Division 2 of the Act and to specific sections (reg 3(1); reg 12).

Building Code of Australia and National Construction Code

• Technical terms such as “storey” and “rise in storeys” are defined by reference to the Building Code of Australia (reg 3(1)). The classification of buildings (class 1b and class 3) used in the SDA exemptions (reg 13) is likewise a Building Code classification (reg 12). These references determine which physical structures attract the multi‑storey exemption and the SDA eligibility criteria.

Building Act 2011

• The regulations explicitly reference the Building Act 2011 for transitional application, creating a defined “commencement day” that alters how former exemptions operate (reg 6(1A)). Regulation 6 establishes the effect of the Building Act 2011 commencement on the operation of existing exemptions under regs 4 and 5, and the conditions under which an exemption ceases or re‑applies when building licences or permits are in place.

Building Services (Complaint Resolution and Administration) Act 2011

• The insurance conditions in regs 10 and 11 require that any HII insure purchasers against being unable to take advantage of an entitlement to, or to enforce or recover under, a “building remedy order” as defined by the Building Services (Complaint Resolution and Administration) Act 2011 section 3 (reg 10(2)(a); reg 11(3)(a)). That Act therefore determines the substantive remedies that the insurance must cover if required.

National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Commonwealth)

• The SDA exemption and follow‑on obligations rely on the NDIS SDA Rules. The regulations require intended SDA buildings to be enrolled under the NDIS SDA Rules section 26 as a dwelling for SDA (reg 12). They also require the building owner to make an application under the NDIS Rules section 25 to enrol the building within 12 months of practical completion (reg 14(2)). Thus Commonwealth administrative enrolment interacts with the State exemption track.

Insurance Act 1973 (Commonwealth)

• The regulations require that insurers issuing required policies be authorised under the Commonwealth Insurance Act 1973 to carry on insurance business in Australia (reg 10(2)(d); reg 11(3)(d)). That federal regulation therefore restricts which companies can be accepted as insurers under the State‑level resale gateway.

Retirement Villages Act 1992 and Residential Tenancies Act 1987

• Definitions and the conceptual framing of retirement villages and residential tenancy agreements in reg 3(1) make the exemptions in regs 9-10 relevant only to villages that meet the statutory definitions in those Acts.

Land registration law

• The requirement to lodge a memorial with the Registrar of Titles (reg 9(1)(b)(i); reg 9(5)) creates an interaction with land law practice: memorials affect title records and are registrable instruments administered under the Titles Office. The Registrar’s power to cancel a memorial after six years of practical completion creates a time‑limited notice on title.

Ministerial and permit authority functions

• The Minister’s approval role (certificates, insurer approval) and the permit authority’s discretion to rely on statutory declarations create a multi‑agency administrative environment. Those actors’ policies and processing times will affect the practical availability of the exemptions.

Interplay and potential sequencing effects

• The exemptions are sequencing sensitive. For example, reg 9 conditions leased retirement village exemptions on pre‑permit memorial lodgement and a statutory declaration to the permit authority. Failure to comply in the pre‑permit stage places the parties back into the default Part 3A regime. Regulation 6’s transitional rules relating to the Building Act 2011 tie exemptions to whether building licences or permits were issued and whether required notices were given before contracts entered after those administrative events. Practitioners must track Building Act commencement timing, permit/licence events, and the timing of contract entry to determine whether an exemption applies or has lapsed.

The compilation table and the text record the legislative history and the major amendments to the regulations.

Key milestones in the instrument’s history (as recorded in the compilation table):

• Original instrument: Home Building Contracts (Home Indemnity Insurance , Multi‑storey Multi‑unit Developments Exemption) Regulations 2002, published 19 April 2002, commenced 20 April 2002 (compilation table).
• 2003 amendment: Gazette 8 Apr 2003, with material inserted (heading) and amendments recorded at reg 3 and citation (Gazette references in the text).
• 2004 amendments: Home Building Contracts (Home Indemnity Insurance Exemptions) Amendment Regulations 2004, Gazette 16 Nov 2004; these amendments inserted new provisions including Schedule 1 updates and likely reworked developer notice obligations (see reg 7 insertion note and Schedule 1 amended 16 Nov 2004).
• 2007 amendments: Amendment Regulations 2007, Gazette 21 Dec 2007, which produced further changes to the forms and possibly procedural matters (Schedule 1 Form 1 and Form 2 records amendments up to 21 Dec 2007).
• 2012 amendments: Amendment Regulations 2012, Gazette 11 May 2012, which amended several definitions (reg 3 amended 11 May 2012), and adjusted transitional or procedural provisions (reg 6 and Schedule 1 references amended 11 May 2012). The compilation table notes r.6(b) in 2012 contains an omitted amendment due to a drafting error.
• 2024 amendments: Home Building Contracts (Home Indemnity Insurance Exemptions) Amendment Regulations 2024, SL 2024/287, registered 18 Dec 2024 and mostly commencing 19 Dec 2024. These amendments added Part 5 with definitions (reg 12) and the SDA‑related provisions (regs 13-15), and inserted reg 5 (see reg 5 inserted: SL 2024/287 r. 4) and other consequential edits (regs 6 and 7 amended: SL 2024/287 r. 5; reg 9 amended: SL 2024/287 r. 6; reg 14 and reg 15 inserted: SL 2024/287 r. 8). The Schedule 1 forms were also amended by SL 2024/287 r. 9.

Recorded amendments visible in the text

• Regulation 3 was amended at least in 2003 and 2012 (reg 3 amended: Gazette 8 Apr 2003 p. 1100; 11 May 2012 p. 2059-60). The definitions section shows several inserts and updates over time.
• Regulation 4 was amended 16 Nov 2004 and 11 May 2012 (reg 4 amended: Gazette 16 Nov 2004 p. 5049; 11 May 2012 p. 2060).
• Regulations 5 and 6 were subject to later insertion and amendment: reg 5 was inserted by SL 2024/287 r. 4; reg 6 shows multiple amendments with references to the Building Act 2011 commencement (reg 6 amended: Gazette 16 Nov 2004 p. 5049; 11 May 2012 p. 2060-1).
• Regulation 7 was inserted 16 Nov 2004 and subsequently amended (reg 7 inserted: Gazette 16 Nov 2004 p. 5050; amended: Gazette 11 May 2012 p. 2061; SL 2024/287 r. 5).
• Regulations 7A and 8 were inserted or amended at later dates (7A inserted 16 Nov 2004; amended 11 May 2012 p. 2061; reg 8 amended: 16 Nov 2004 p. 5051).
• Part 3 leased retirement village provisions were inserted 8 Apr 2003 and subsequently amended 11 May 2012 and by SL 2024/287 (reg 9 inserted: Gazette 8 Apr 2003; amended: Gazette 11 May 2012; SL 2024/287 r. 6). Regulation 10 was inserted 8 Apr 2003 and amended subsequently (reg 10 inserted: Gazette 8 Apr 2003; amended: Gazette 11 May 2012; SL 2024/287 r. 7).
• Part 4 (Housing Authority) inserted 11 May 2012 (reg 11 inserted: Gazette 8 Apr 2003 p. 1102-4; amended: Gazette 11 May 2012 p. 2062-3).
• Part 5 (SDA) was a 2024 insertion (SL 2024/287 r. 8) adding regs 12-15 and new definitions and obligations for SDA buildings.

Practical significance of amendments

• The 2004 package appears to have inserted developer notice and copy obligations (reg 7 and Schedule 1 Form 2). That change allocates duties to developers who sell off the plan.
• The 2012 amendments adjusted definitions and transitional operations (notably reg 6’s reference to Building Act 2011 commencement day), indicating the regulations were updated to align with building regulatory reforms introduced at State level.
• The 2024 amendments expanded the scope to include SDA buildings intended for NDIS specialist accommodation and created a specific duty to apply for NDIS SDA enrolment within 12 months of practical completion (reg 14), indicating a policy link between State HII exemptions and Commonwealth SDA enrolment.

The compilation table in the instrument is the primary recorded source of amendment chronology. The text includes marginal notes showing where specific regulations were amended and when the Schedule 1 forms were updated.

The regulations’ text and accompanying compilation table do not cite or summarise any judicial decisions, administrative tribunal rulings, or litigation history. The document itself contains no case law references and no annotated decisions. The Schedule, forms and marginal notes record administrative and amendment provenance but do not record litigation.

Consequently, there are no cases named in the instrument or in the compilation table that would indicate how courts have interpreted the regulations, the rescission rights, the sufficiency of statutory declarations or memorials, or the scope of ministerial approvals. Practitioners requiring authoritative judicial interpretation must search court and tribunal databases for decisions referring to these regulations or the Home Building Contracts Act 1991 Part 3A; such searches are outside the scope of the statutory text provided.

Absent reported decisions in the source, the following areas are potential focal points for litigation if disputes arise and would be the principal issues litigated:

• The validity and timing of a builder’s notice and whether a purchaser’s rescission was timely and effective (reg 4(2)-(3); reg 6(3)-(4); Schedule 1 Form 1).
• The sufficiency of a developer’s or other person’s passing on of the builder’s notice, and the effect of a developer’s failure to comply on purchasers’ rights (reg 7(2)-(6); reg 7A).
• Whether a statutory declaration to a permit authority or the lodgement of a memorial satisfies the pre‑permit conditions for a leased retirement village exemption (reg 9(1)(b)-(3)).
• Whether the HII policy or corresponding cover meets the statutory requirements when a sale occurs within the six or seven year periods (reg 10(2); reg 11(3)), and whether the Minister’s approval of insurers or certificate forms was properly exercised.

Because the regulations provide private remedies (rescission) and public fines, contested enforcement may also proceed through criminal/penalty prosecutions for non‑compliance and through contract litigation relating to rescission effects.

Practitioners should flag several practical traps and timing sensitivities in the regulations that commonly generate transactional risk.

1. Timing of notice vs contract entry (multi‑storey developments)

   • The builder must give the builder’s notice at a specific time to obtain the exemption: before entering into the building contract or sale contract if the exemption is to apply (reg 4(1)). If the builder does not give the notice before contract entry, purchasers (if not developers) gain a rescission right (reg 4(2)). The rescission window is the earlier of one month after receipt of the notice or settlement (reg 4(3)). Practitioners must record and evidence the date of receipt of the builder’s notice to protect or exercise rescission rights (Schedule 1 Form 1 recommends evidence of time and date of sending).

2. Exemption lapsing and re‑application (reg 6)

   • Regulation 6 creates a non‑intuitive sequencing rule: if an exemption existed under regs 4 or 5 but the builder later enters into relevant contracts after a building permit or building licence without having given the required notices, the exemption ceases until the builder provides the notices for those transactions (reg 6(1)-(2A)). The exemption can then re‑apply once notices are given (reg 6(2)). This requires careful record‑keeping around building licences, permits, and contract entry dates, particularly since the “commencement day” concept relates to the Building Act 2011 (reg 6(1A)).

3. Who is a “developer” matters (reg 3(1); reg 4(2))

   • The rescission protection is not available to purchasers who are themselves “developers” as defined (reg 3(1)). The definition requires both an intention to have residential building work performed for the person and an ongoing business of dealing in dwelling units for profit or capital gain. Parties should clarify the status of purchasers to assess rescission exposure.

4. Developer obligations to existing purchasers and timing (reg 7)

   • Developers who receive a builder’s notice must give copies to purchasers within 10 days for existing contracts (reg 7(2)(b)), and must give notice before entering new sale contracts when settlement will occur within six years (reg 7(2)(a)). Failure is a fine and confers rescission remedies for purchasers (reg 7(2)-(4)). Developers selling off the plan must plan their contract timing relative to when they receive any subsequent builder’s notice.

5. Form and content of notices

   • The builder’s notice and developer’s notice content are prescribed (Schedule 1 Form 1 and Form 2). Deviations from the form may be risky because the statutory regime contemplates these forms as the vehicle for disclosure and triggering rescission rights (reg 4(1); reg 7(4)).

6. Leased retirement village memorials and certificates (reg 9-10)

   • For leased retirement villages the owner must lodge a memorial at the Registrar of Titles prior to the building permit and give a statutory declaration to the permit authority (reg 9(1)(b)). The memorial stays on title and may be cancelled six years after practical completion (reg 9(6)). However, any sale within six years requires HII or corresponding cover and a ministerially approved certificate (reg 10(1)). Owners who expect to sell within six years must ensure insurance or approved corresponding cover is in place or face a $5 000 fine (reg 10(1)).

7. Minister and insurer approvals narrow options

   • When insurers must be authorised under the Commonwealth Insurance Act 1973 and approved by the Minister (reg 10(2)(d); reg 11(3)(d)), market availability may be constrained. This is a practical gating issue for sales within the specified periods.

8. Housing Authority special cost definition (reg 11(4))

   • Where Part 3A Division 2 applies to work of the Housing Authority, the "cost of the building work" for the insurance cap is limited to certain placement and post‑placement work (reg 11(4)). This narrower cost base can materially reduce the insurance cap calculation but should be checked carefully against the description of work in any particular contract.

9. SDA regime sequencing and 12‑month enrolment obligation (regs 13-15)

   • The 2024 SDA provisions require a pre‑permit statutory declaration of intent and a mandatory application to enrol as an SDA building within 12 months of practical completion (reg 13(1); reg 14(2)). Failing to apply within 12 months risks a $5 000 fine, and the defence for reasonable excuse is strictly limited to unforeseeable events after the statutory declaration (reg 14(3)). Building owners intending SDA use must therefore coordinate construction completion dates and NDIS enrolment processes swiftly.

10. Notifications where HII is absent (reg 15)

• For exempt SDA buildings, a sale within the “relevant period” cannot proceed unless the seller notifies the purchaser in writing that HII cover is not in force (reg 15(2)). The relevant period depends on whether Division 2 or Division 3 of Part 3A would have applied (reg 15(1)). Failure to notify carries a $5 000 fine.

11. Evidence burdens and rescission remedies

• Schedule 1 Form 1 emphasises that purchasers should have evidence of the time and date they sent rescission notices. Practitioners should use traceable forms of delivery and keep contemporaneous records to avoid disputes over timeliness.

12. Interaction with building permits and licences

• The calculations of when notices must be given, and when exemptions cease or re‑apply, are sensitive to whether a building permit or building licence was issued and to the Building Act 2011 commencement day (reg 6(1A)). Contracts entered after a building licence or permit may re‑open the requirement to give the builder’s notice for exemption to be effective.

This section sets out practical steps and checklists for the principal actors to comply with the regulations and to document compliance.

For builders (multi‑storey multi‑unit developments)

• Determine early whether the project satisfies the definition of a multi‑storey multi‑unit development (reg 3(1)): confirm storey counts and basement storeys against the Building Code of Australia definitions.
• Before entering any building contract or sale contract for work to be exempted, prepare and give the prescribed builder’s notice in Schedule 1 Form 1 to the other party to each contract (reg 4(1); reg 6). Maintain dated proof of delivery and an acknowledgement signed by the recipient (Form 1 contains an “I acknowledge” section).
• If the builder has previously relied on an exemption and subsequently issues contracts after a building permit or licence is granted, review reg 6 to ensure notices are given for contracts entered into after those administrative events (reg 6(1)-(2A)). If notices were not given in the pre‑permit phase, give them as soon as possible to restore the exemption (reg 6(2)).
• Retain copies of all notices and acknowledgements for the entire defect/claims period (commonly six years), to demonstrate compliance if questions arise.

For developers and other persons who will sell units

• If you receive a builder’s notice, determine whether any sale contracts you will enter into provide for settlement within six years of practical completion. If so, provide a copy of the builder’s notice to the purchaser before entering the sale contract (reg 7(2)(a); reg 7A(2)). For existing sale contracts entered before receipt of the builder’s notice, provide a copy within 10 days of receipt (reg 7(2)(b)).
• Use Schedule 1 Form 2 where required (developer’s notice) and retain proof of delivery and dated acknowledgements from purchasers (Schedule 1 Form 2 contains an “I acknowledge” line).
• If you fail to comply with the developer duties in reg 7, a purchaser may have a rescission right and you expose yourself to a $5 000 fine (reg 7(2) penalty). Work with counsel to draft standardized off‑the‑plan documentation that addresses the notice obligations and records recipients’ acknowledgements.

For purchasers

• When buying into a multi‑storey multi‑unit development, check whether you received the builder’s notice before you entered into the contract. If not, and you are not a purchaser that qualifies as a “developer”, you may have a statutory right to rescind (reg 4(2)). Exercise rescission by giving the model Notice of exercise of right to rescind in Schedule 1 Form 1, and ensure delivery documentation shows receipt by the builder or developer within the earlier of one month after receipt of the notice or settlement (reg 4(3); reg 6(4); reg 7(6)). Keep evidence of sending and receipt.
• If you receive a copy of a builder’s notice after you have a contract, the form explains that rescission entitles you to the return of deposits and payments and prevents the builder or developer from recovering expenses (Schedule 1 Form 1 para 10). Use legal advice promptly to quantify entitlements and effect rescission if desired.

For owners of leased retirement villages

• Before any building permit is granted, lodge the memorial with the Registrar of Titles stating there is no HII for the dwellings (reg 9(1)(b)(i)), and give a statutory declaration to the permit authority verifying intent to operate as a leased retirement village and that the memorial has been lodged (reg 9(1)(b)(ii); reg 9(2)).
• Pay the appropriate fee to the Registrar to register the memorial and retain proof of registration (reg 9(5)). Note that the Registrar may cancel the memorial six years after the day of practical completion (reg 9(6)).
• If a sale is intended within six years of practical completion, ensure HII or corresponding cover compliant with reg 10(2) is in force and provide a ministerially approved certificate to the purchaser (reg 10(1)(a)-(b)). Confirm the insurer is authorised under the Insurance Act 1973 and approved in writing by the Minister (reg 10(2)(d)) or that corresponding cover is provided by an approved fund (reg 10(3)).

For the Housing Authority

• Document the nature of the work to confirm it falls within the exemption in reg 11(1) (work carried out by or on behalf of the Housing Authority relating to a dwelling for letting or leasing).
• If selling within six years of practical completion, secure HII or corresponding cover complying with reg 11(3) and provide the purchaser with a ministerially approved certificate (reg 11(2)). For placed dwellings described by reg 11(4), use that section to calculate the appropriate cost base for the insurance cap.

For building owners intending SDA use

• Before a building permit is issued, file the statutory declaration required by reg 13(1) verifying the intent to use the class 1b or class 3 building as an SDA building.
• After practical completion, ensure an application under the NDIS SDA Rules section 25 to enrol the building as an SDA dwelling is made within 12 months (reg 14(2)). Keep documentary evidence of the application and the date it was lodged. If circumstances prevent timely application, document the unforeseen events and reliance on the statutory defence in reg 14(3).
• If selling the exempt building within the relevant period, provide the purchaser with written notice that HII cover is not in force (reg 15(2)). Confirm whether the “relevant period” is six or seven years as defined in reg 15(1) depending on the Division of Part 3A that would have applied.

Record‑keeping and operational recommendations

• Use the prescribed forms in Schedule 1 without alteration where possible, and keep signed acknowledgements of receipt. If alternative forms are used, ensure they contain at least the same substantive content as the prescribed forms to reduce dispute risk.
• Maintain a central compliance register of,(a) dates builder’s notices were issued and received; (b) dates memorials were lodged and registered; (c) statutory declarations given to permit authorities; (d) insurance policies taken out or corresponding cover arranged; and (e) ministerial certificates or approvals obtained,so you can evidence compliance if challenged.
• For sales within six or seven years of practical completion, confirm insurer authorisation under the Insurance Act 1973 and ministerial approval in writing if required. Allow lead time for ministerial approval and insurer due diligence.
• If in doubt about rescission timing or the sufficiency of a given notice, seek formal legal advice promptly. The rescission windows are short and tied to settlement dates; late action risks loss of statutory remedies.
• Coordinate with permit authorities and the Titles Office early in the pre‑permit stage for leased retirement villages or intended SDA buildings to ensure memorial and statutory declaration requirements are completed before permits are issued (reg 9(1)(b); reg 13(1)).

Practical checklists, templates and internal controls should be established by builders, developers and owners to ensure the pre‑permit and pre‑contract steps are completed in the correct sequence, that ministerial approvals and insurer authorisations are obtained where required, and that documentary evidence is preserved for the statutory coverage and rescission periods specified in the regulations.