137BOffence for owner-builder to sell building without report or insurance

137B Offence for owner-builder to sell building without report or insurance (1) This section does not apply to— (a) the construction of a building (other than a home) by— S. 137B(1)(a)(i) amended by Nos 46/2018 s. 8, 40/2021 s. 11. (i) a registered building practitioner (other than a provisionally registered builder subcontractor or a registered builder subcontractor); or (ii) an architect registered under the **Architects Act 1991**; or S. 137B(1)(a)(iii) inserted by No. 26/2019 s. 123(1). (iii) an endorsed building engineer; or (b) except as provided in subsection (5), the construction of a home under a major domestic building contract; or S. 137B(1)(c) substituted by No. 52/1998 s. 311(Sch. 1 item 10.5), amended by No. 21/2017 s. 96(1). (c) a building that is exempted from the operation of this section by VCAT under the **Domestic Building Contracts Act 1995**; or S. 137B(1)(d) amended by No. 21/2017 s. 100(2)(a). (d) a building to which section 137E applies. S. 137B(1)(e) repealed by No. 21/2017 s. 100(2)(b). (2) A person who constructs a building must not enter into a contract to sell the building under which the purchaser will become entitled to possess the building (or to receive the rent and profits from the building) within the prescribed period unless— (a) in the case of a person other than a registered building practitioner— (i) the person has obtained a report on the building from a prescribed building practitioner that contains the matters that are required by the Minister by notice published in the Government Gazette; and (ii) the person obtained the report not more than 6 months before the person enters into the contract to sell the building; and (iii) the person has given a copy of the report to the intending purchaser; and (b) the person is covered by the required insurance (if any); and (c) the person has given the purchaser a certificate evidencing the existence of that insurance; and (d) in the case of a contract for the sale of a home, the contract sets out the warranties implied into the contract by section 137C. 1. 100 penalty units. (3) A contract entered into in contravention of subsection (2) is not void by reason only of the contravention but is voidable at the option of the purchaser at any time before completion of the contract. S. 137B(4) amended by Nos 17/1999 s. 22(3), 35/2000 s. 42, 30/2003 s. 82(1), 21/2012 s. 239(Sch. 6 item 5.1). (4) A person who enters into a major domestic building contract with a builder for the construction of more than 4 homes may, with the consent of the builder, apply in writing to the Director of Consumer Affairs Victoria within the meaning of the **Australian Consumer Law and Fair Trading Act 2012** to exempt the builder from the requirement to be covered by the required insurance in respect of that building work. S. 137B(5) amended by Nos 17/1999 s. 22(4), 35/2000 s. 42, 30/2003 s. 82(1). (5) If, on an application under subsection (4), the Director of Consumer Affairs Victoria, in writing, exempts a builder from the requirement to be covered by insurance in respect of building work— (a) the builder is not required to be covered by the required insurance in respect of that building work; and (b) this section (except subsection (2)(a)) applies to the sale of a home constructed under that major domestic building contract. S. 137B(5AA) inserted by No. 36/2008 s. 3(1). (5AA) A reference in subsection (2) to a person who constructs a building includes a reference to— (a) a mortgagee in possession of the land on which the building is situated; and (b) an executor or administrator of the estate of the person who constructed the building. S. 137B (5AAB) inserted by No. 36/2008 s. 3(1). (5AAB) A mortgagee, executor or administrator referred to in subsection (5AA) may rely on anything which was done by the person who constructed the building under subsection (2)(a) in the 6 months before a contract of sale is entered into by the mortgagee, executor or administrator as if it had been done by the mortgagee, executor or administrator. S. 137B(5A) inserted by No. 26/2001 s. 9(2), repealed by No. 21/2017 s. 100(1). (6) This section applies whether or not the construction of the building is complete at the date of the contract of sale. S. 137B(7) def. of *certified date of commence-ment* inserted by No. 36/2008 s. 3(2). ***certified date of commencement***, in relation to a building, means the date certified by the owner of the building by statutory declaration as the date of commencement of the building work for the construction of the building; ***completion date*** means— (a) the date of issue of the occupancy permit in respect of the building (whether or not the occupancy permit is subsequently cancelled or varied); or (b) if an occupancy permit is not issued, the date of issue under Part 4 of the certificate of final inspection of the building work for the construction of the building; ***construct*** in relation to a building, means— (a) build, rebuild, erect or re-erect the building; or (b) make alterations to the building; or (c) enlarge or extend the building; or (d) cause any other person to do anything referred to in paragraph (a), (b) or (c) in relation to the building; or (e) manage or arrange the doing of anything referred to in paragraph (a), (b) or (c) in relation to the building; S. 137B(7) def. of *home* amended by No. 52/1998 s. 311(Sch. 1 item 10.6), repealed by No. 11/2023 s. 21. S. 137B(7) def. of *prescribed period* amended by Nos 2/1996 s. 10(1), 75/1998 s. 19, 36/2008 s. 3(3). (a) in relation to a contract for the sale of a building on which domestic building work has been carried out— (i) 6 years and 6 months (or such longer period (not exceeding 10 years) as is prescribed) after the completion date for the construction of the building; or (ii) if neither an occupancy permit nor a certificate of final inspection is issued or required to be issued in respect of the construction of the building— (A) 7 years after the date of the issue of the building permit in respect of the construction of the building; or (B) if a building permit is not issued or required to be issued in respect of the construction of the building, 6 years and 6 months after the certified date of commencement for the building; and (b) in relation to a contract for the sale of any other building—10 years after the completion date for the construction of that building; S. 137B(7) def. of *prescribed building practitioner* amended by Nos 2/1996 s. 10(2), 52/1998 s. 311(Sch. 1 item 10.6), 26/2019 s. 123(2). ***prescribed building practitioner*** means— (a) an architect registered under the **Architects Act 1991**; or (b) a building surveyor or a building inspector registered under Part 11; or (ba) an endorsed building engineer; or (c) a person recognised by the Minister under section 28 of the **House Contracts Guarantee Act 1987** by order in force immediately before the commencement of section 166 of the **Domestic Building Contracts Act 1995**. S. 137C inserted by No. 91/1995 s. 142.