The New Home Buyers Protection Act

The New Home Buyers Protection Act

By:  Geoffrey Horne, Cameron Horne Law Office

As of February 1, 2014, any new home built in Alberta must comply with the provisions of the New Home Buyers Protection Act (the “Act”), which sets out mandatory warranty coverage for new home construction, or substantial renovations to existing homes.  For purposes of this discussion, we will be focusing on single family home construction.  The Act provides for coverage of condominium common property, which will not be discussed in this paper.

APPLICATION

The Act applies to new construction for which Building Permits have been issued by a municipality on February 1, 2014, or later.  Any new homes for which Building Permits were issued before February 1, 2014, are not subject to the provisions of the Act, and are subject only to any warranty program in existence prior to that date, if any.

A “new home” is defined in the Act as a building, or portion of a building that is newly constructed, or that is being re-constructed and is intended for residential occupancy, and includes:

• a self-contained dwelling unit that is detached, or semi-detached, and also includes secondary suites;
•   multi-family homes including semi-detached, row housing, townhouses, duplexes, stacked townhouses and apartment condominiums;
• common property, facilities and other assets of a condominium corporation;
•  a building intended for residential occupancy and that is a reconstruction which affects more than 75% of the square footage of the home, above grade; and
•  a manufactured home (a home constructed as an individual pre-assembled unit intended for delivery to a residential site, or from a number of pre-assembled units intended for delivery to and assembly at a residential site) on permanent foundations; and
•  dwellings on recreational properties.

A “new home” does not include a hotel, motel, dormitory, care facility, re-locatable work camp, or a multi-family dwelling built for rental purposes, if the dwelling is owned under a single title (an apartment building) and provided that a restrictive covenant is registered on the title restricting the sale of the building for 10 years after an occupancy certificate is issued or the title is registered.

Generally speaking, a new home cannot be built unless the home is covered by the mandatory insurance coverage under the Act and is registered with the Registrar appointed under the Act.  The Registrar is mandated to compile a registry of new home builders, new homes under construction and the required insurance coverage and to maintain an on-line registry, which is accessible to the public, containing all of the necessary information.  The registry is currently active and can be accessed at:

http://homewarranty.alberta.ca/public-registry

Searches can be entered by municipal address, legal description or LINC number.

As always, however, there are exceptions to this general rule.  A person building their own home, for their own use (an “owner builder”), may apply from an exemption from the mandatory insurance coverage.  However, this exemption applies only when the owner builder resides on the property.  If the owner builder sells, or transfer the title to the property, prior to the end of the warranty period (i.e. before 10 years), the owner builder must purchase sufficient insurance to cover any subsequent owner to the end of the mandatory warranty period.

THE WARRANTY

Currently, the warranty provided by builders is subject to the warranty program provided by the particular home warranty program the builder subscribes to.  These warranty programs vary as to what is covered and for how long.  For example, the Alberta New Home Warranty Program (“ANHWP”) provides for a one year warranty on “deficiencies” and a five year warranty on structural components of the new home.

The Act provides that any new home builder, whether a home building company or an owner builder, must provide the following mandatory warranty coverage from the date that coverage begins:

• one year for defects in materials and labour;
•  two years for defects in materials and labour for defects relating to “delivery and distribution systems”;
•  five years for defects in materials and labour for defects relating to the “building envelope”; and
•  ten years defects in materials and labour for defects relating to structural defects.

The Act also requires that the various warranty providers must also provide an option for the home buyer to purchase extended warranty protection for building envelope for a further two year period.

Some definitions are in order.  Coverage begins on the earlier date on which the municipality grants occupancy of the home, or the date that the transfer of title to the property is registered.  This may not necessarily be the same date, especially if the buyer is purchasing a “spec” home from a builder’s inventory.  That spec house may have been completed some time ago, and the warranty period is already running as occupancy has been granted.  This can be a significant issue if the buyer is purchasing a former show home.

•   “Defects” means any design, construction or material used in the construction of the house that are contrary to the Alberta Building Code; or which require repair or replacement due to the builder’s negligence; or constitutes an unreasonable health or safety risk; or has resulted in material damage to the new house;
•   “Delivery and distribution systems” – refers to the electrical, gas, plumbing, heating, ventilation and air-conditioning systems, or any other similar system (may also include centralized speaker systems or possibly computer networks installed by the builder);
• “Building envelope” – the collection of components that separate conditioned space from unconditioned space, the exterior air or the ground, and is generally referred to the shell of the home, including the roof and walls; and
•  Structural defects are not defined under the Act, but the insurance policy provides this means any defect in materials, design or construction that results in the failure of a load-bearing part of the house and which causes structural damage that materially and adversely affects the use of the home for residential occupancy.

The warranty automatically transfers to any new owners of the home, if it is sold to a new buyer before the expiry of the mandatory 10 year period, or any extensions.  The new owner does not have to apply for the transfer of the warranty.

WARRANTY PROVIDERS

Currently, the following are recognized warranty providers under the Act:

• Aviva Insurance Company, through the National Home Warranty Program;
• Blanket Home Warranty Ltd.;
• Progressive Home Warranty Solutions Inc.;
• The Alberta New Home Warranty Program; and
• Travellers Insurance Company of Canada

COST

The estimated insurance premium paid by builders is between $1,700 and $2,000, and will vary depending on the warranty provider, the builder and the home.  These costs, in addition to any costs for extended warranties or Pre-possession insurance, will most likely be passed on to the purchaser of the property, as part of the final purchase price.

WARRANTY LIMITS

As with any insurance policy, there are limits as to what coverage will be provided.  Under the Act, the coverage limits for a single family home is the lesser of the purchase price paid to the builder and $265,000.00 (excluding the price of the land).

DEPOSIT PROTECTION

Many people are familiar with the Deposit Protection provisions offered by the ANHWP, and other warranty programs in the past.  The Act does not require the warranty providers to include mandatory deposit protection under their particular programs, but does require them to offer optional “Pre-Possession insurance” which the purchaser can obtain for a further fee.

The Pre-Possession insurance offered by the ANHWP is divided into two components:

Deposit Protection Insurance which begins upon payment of the initial deposit under the construction / purchase agreement and terminates on the start of construction, and insures against the loss of a deposit paid to a builder; and

Home Completion Insurance which begins when construction is commenced and ends when the occupancy certificate is issued or when the title transfers to the purchaser, and is insurance against the default of a builder to complete construction of the new home.

Pre-possession Insurance provides coverage for up to 20% of the total price of the home (excluding land costs) to a maximum of $100,000.00.  Other insurers may have other restrictions, fees and coverage limits.

THE INSURANCE POLICY

The insurance policy provides that the insurer will determine the reasonable costs of repair or replacement of Defects or Structural Defects and may either cause the work to be done directly (either by the builder or a third-party contractor) OR may pay financial compensation to the owner of the house in lieu of making repairs.  If financial compensation is paid, the insurer will have no further liability for the Defect or any consequential damages.

The policy has numerous exclusions, which are very similar to the exclusions included in the prior forms of warranty provided before the Act came into force.  Exclusions include items such as:

Coverage exclusions

• Non-residential use;
• Site grading and surface drainage (not including subsidence under footings or driveways/walkways);
• Utility services;
• Septic tanks and fields;
• Home appliances;
• Water wells, or the quality and quantity of municipal water supply; and
• Designs, materials or labour supplied by anyone other than the builder or its sub-trades;

Loss or Damage exclusions

• Weathering, normal wear and tear;
• Normal shrinkage caused by drying after construction;
• Substantial use of the property for non-residential purposes;
• Negligent or improper maintenance of the home by anyone other than the builder;
• Alterations to the home by anyone other than the builder;
• Insect, rodent or vermin damage, unless due to non-compliance with the Building Code;
• Acts of nature;
• Damage to personal property;
• Fire, explosion, smoke, flooding or sewer back-up;
• Inconvenience or distress to the owner;
• And a number of other exclusions.

An owner cannot undertake any unilateral action or remedy regarding the repair or replacement of defects without the consent of the insurer (except to mitigate losses) or the policy may be voided.  An owner must also allow the insurer’s representative access to the property to assess, repair or replace any defect, and must also allow the builder access to the property for the same reasons.

The policy provides that additional living expenses will be paid to the owner if the defects or remedy make the house uninhabitable during the repair period.  The Regulations under the Act currently provide that the owner will be paid $150 per day, to a maximum of $15,000.00

DISPUTE RESOLUTION

If an owner considers that a Defect exists, they must file a written Request for Claim Assessment to the insurer, before the end of the relevant warranty period.  This is different from the former warranties provided, where the limitation date was 60 days after the end of the relevant warranty period.

A deductible must be paid (between $50 and $500, depending on the nature of the claim) and the insurer will then send an inspector out within 60 days of the request.  The inspector will provide a written report within 60 days of the inspection.

If it is determined that repairs are to be completed, they will be done by the insurer, or its representatives, which can include the builder.

If the owner is not satisfied with the inspector’s decision, they may apply for dispute resolution under section 519 of the Insurance Act, which is used to appoint an “umpire” whose written decision will determine the issue.

This may, or may not be, an arbitration, such as under the older versions of the warranty coverage, and an umpire’s decision is subject to judicial review.

An umpire does not need to have any specific credentials, but generally must have some expertise and knowledge in the matter under dispute.  The umpire is chosen by both the builder and the owner, or their representatives, acting together.

For further information and frequently asked questions, please see:

http://municipalaffairs.alberta.ca/home_warranties_faqs.cfm