Water Ingress:  The Latent Defect Draining the Emotion and Finances out of Building-Owners

“Ships do not sink because of water around them; ships sink because of water that gets in them” – Unknown

Are you one of the thousands of Western Australians experiencing water ingress in their home? You may have legal rights under the Home Building Contracts Act 1991 (WA) or, a claim in negligence for latent defects.

What is Water Ingress?

Water Ingress occurs when water enters a building because of defective building work, often due to improper weather-proofing of windows and doors or water-proofing of walls and floors. While some cases are minor, many lead to serious structural issues and can even render a home uninhabitable.

At Vogt Legal, we commonly assist clients in expertly determining the cause of water ingress, the potential claims for compensation against builders and architects and the critical time-frame in which a legal claim must be commenced before it is time-barred.

In this article, we explore the common causes of water ingress and then explain your legal rights and remedies.

Common causes of water ingress

1. Window Flashing Defects

Flashings are not decorative; they are engineered barriers designed to redirect water away from vulnerable junctions where materials meet – particularly around windows and doors. Without properly installed flashings, water can infiltrate sills and cavities, leading to timber rot, corrosion of steel framing, mould growth, and damage to internal finishes. In WA’s climate, where homes experience extreme temperature swings and wind driven rain, even a small defect in flashing detailing can cause long-term structural damage.

Look for:

• incorrect sequencing: flashings installed after cladding or render, breaking the intended drainage path;

• over-reliance on sealant: using silicone as a substitute for proper mechanical flashing is a short-term fix that inevitably fails;

• incomplete or missing flashing: ensure that the flashing is covering the full perimeter of the window so that water cannot enter the wall;

• poor integration with the building envelope: flashing should be properly connected with wall wrap, cladding, and sealant.

2. Roofing Defects

Leaking roofs are a common complaint during winter, in particular in new homes that are being tested by the rain for the first time. Leaks typically result from improper design, installation, or maintenance of roof coverings.

According to Australian Standards – AS 1562. 1 – 2018 – Design and Installation of Sheet Roof and Wall Cladding, roofs must be installed with the correct slope, overlaps, and fixings to ensure effective water drainage and prevent leaks.

The National Construction Code (2019), P 2.2.2, requires that a builder must ensure that roofs and external walls prevent water penetration that could be dangerous or reduce amenity for occupants.

Look for:

• insufficient angle on guttering to drain water;

• on metal deck roofs, incorrect or insufficient "damming" of the ridges which, with extreme wind will cause water ingress under the roof;

• valley flashings not wide enough;

• cracked tiles on a tiled roof.

Builders will respond to a call-out by homeowners to inspect a roof and attempt to discover the cause of the leak. This is often difficult as invariably the roof is not leaking when the builder arrives. An experienced building inspector should investigate the real cause of the water ingress.

3. Waterproofing Defects – Tiled Balconies

Tiled balconies, especially in multi-unit dwellings, can look fine but often hide water ingress. Incorrect or no fall (slope), poorly installed or absent waterproof membranes, cracked tiles or worn grout can allow water to penetrate the structure beneath. Over time, this can damage concrete slabs, timber, or the building frame, and may cause mould or corrosion – all without obvious signs on the surface. Even small leaks can escalate if not detected early.

Look for:

• fixtures (eg, air-cons and balustrades) that allow water to enter through improperly sealed penetrations.

• direct sun-light exposed grout and adhesive breakdown;

• failed or penetrated waterproof membranes beneath the tiled surface.

4. Plumbing Defects

Leaks from pipes, fittings, or old plumbing can let water infiltrate walls, floors, and ceilings. Even small, slow leaks can cause damp, mould growth or structural weakening if not addressed promptly. Because the damage often develops out of sight, early detection and repair are essential to prevent more serious problems.

Your Rights as a Building Owner – Water-tight Legal advice

Your legal rights arising from defective building work leading to water ingress are protected under:

• statutory warranties provided under the Home Building Contracts Act 1991 (WA) and the Building Services (Complaint Resolution and Administration) Act 2011 (WA);

• common law for negligence generally; and

• common law of negligence resulting in latent defect.

What remedy is available?

The remedies available under the HBC Act and the BSCRA Act is a Home Building Work Contract remedy order issued by the Building Commissioner to compel the builder to:

• rectify the cause and the consequential effect of the water ingress; or

• pay you a monetary amount reflecting the reasonable cost for an alternate contractor to carry out the rectification work.

Importantly:

• the statutory warranties apply to structural and workmanship defects for up to 6 years from the date the builder lodges with the Shire a notice of completion where a building permit is in place for the works, otherwise 6 years from the date of completion of the works, and 15 years for Typlex Pipe issues;

• the statutory warranties are automatically transferred – you do not need to be the original building owner to make a statutory based claim;

• a claim in common law for negligence generally must be commenced within 6 years from the date on which the loss begins to accrue, that is, when the work was defectively carried out, even if the claimant is not aware of it;

• a claim in common law for latent defects in a building which causes economic loss, must be commenced within 6 years from when the defects become manifest or are otherwise discovered: See article: Building Defects and Limitations Periods, the time-looming Sword of Damocles.

Are you adequately covered?

Standard home building insurance policies do not cover defects caused by builder negligence, faulty workmanship, or poor design.  Instead, these issues are typically handled by mandatory domestic building insurance (in WA known as Home Indemnity Insurance).  Typically, a builder must fail to comply with a building remedy order because of its insolvency before a claim may be made against the builder’s Home Indemnity Insurance policy.

Proof – How do you prove a failed weather-proof or water-proofing system?

• Evidence is your best ally: take photos, record videos, and write a detailed timeline as soon as you notice any signs of water ingress. The sooner you document the issue, the stronger your case.

• Seek legal professional help: if you suspect the problem may worsen, contact an experienced construction lawyer and request legal advice regarding the steps you should take to fully and finally abate the cause of the water ingress.  This will include the lawyer engaging one of their tried and tested, independent building inspectors to inspect the cause of the water ingress and provide a court compliant expert report.

How Vogt Legal can help?

Dealing with water ingress is stressful, draining both emotionally and financially. Determining whether you have a statutory claim under the HBC Act and the BSCRA Act or a claim in common law for latent defects can be overwhelming.

At Vogt Legal, we make the grey skies, clear. Our team can provide water-tight legal advice based on your situation, helping you understand your rights and options and guiding you through the claims process so you can focus on restoring an enjoyable home.