With faults and cracks discovered over the weekend in Sydney’s Mascot Towers apartment complex – and similar cracks in Opal Tower six months ago – the spotlight is back on the quality of New South Wales apartment buildings.

Research from the University of NSW in 2015 found that 85% of new apartment buildings had defects at completion – mostly with waterproofing and fire detection systems – and the certification system had “broken down”.

With renewed debate around certification and building quality, Guardian Australia looked at the current consumer protections available in the state for those who recently bought an apartment, or are about to.

What warranties do I have if I buy a new apartment in NSW?

Six years for major defects, two years for other issues.

If you buy an apartment, you have a a statutory warranty under NSW law – but it starts from when the building is finished, not when the apartment was purchased.

And it only applies between the buyer and the builder – not the developer or architect. If the builder goes bankrupt, dies or disappears, your warranty could become impossible to enforce.

Philip Gall, the chairman of the Owners Corporation Network, says the current warranty is too short and too imprecise.

“What often happens is the builder or developer, to avoid their warranty obligations, wind up the companies,” he says. “Then there is nobody for the owners to pursue for defects.

“And there is always an argument as to what a ‘defect’ is.

“You’d be able to do that with a fridge but you can’t do that with an apartment. That is just appalling.”

For the residents of Mascot Towers, built 10 years ago, they are no longer covered by warranty.

What about insurance?

This has changed a lot over the years, and gone through various names and reforms.

If your warranty is over, some buildings can access an insurance scheme that will pay for repairs, known as home building compensation (HBC).

But a 2002 change to NSW legislation means you are only covered if your apartment building is shorter than three storeys.

Previously, it was known as compulsory homeowner warranty insurance, and applied to all buildings, regardless of height.

“Many years ago, I had this experience myself [where the builder disappeared],” Gall says. “In the days when the homeowner warranty insurance was still around, we were able to get a large proportion of the cost of the defect paid for. You can’t do that any more.”

To fill that gap, in January 2018, the NSW government created a version of insurance for taller buildings, known as the strata building bond.

Under these rules, the developer pays 2% of the building contract price into a fund, held by the government, to repair any defects that are discovered within two years. After two years, the money is given back to the developer.

But Gall also criticised this as too little. “The problem is that two years is too short for these defects to become apparent, and 2% is way too small.”

If I’m buying an apartment now, what can I do to protect myself?

Gall is blunt. “Don’t buy a new apartment over three storeys. Don’t do it.”

His advice is to aim for buildings that are older than 10 years, to inspect the strata minutes, and, if you have the money, get an independent certifier to check the building.

Buyers are entitled to look at the minutes of strata meetings to get a glimpse of the condition of the building.

“See whether they have had to deal with issues in those buildings,” Gall says. “You can get a pretty good idea in a 10-year-old building whether there are problems.”

If you have thousands of dollars spare, you can also pay for someone to inspect the building but it’s not a guarantee.

“You can get an independent certifier,” Gall says. “There are quite an industry of building consultants who will go and have a really good look at the building.

“But it is expensive. And almost all of these folk won’t do what is called destructive inspection – it’s just visual. If a crack has been filled in and painted over, they won’t know.”

For example, Gall says he doubts the fault in Mascot Tower could be picked up with an independent inspection.

“Once a building is built, to get a 100% reassurance from an independent expert is impossible,” he says.

“There are good developers and good builders out there but you don’t know who they are anymore. Some of the good ones are now producing worse quality. You simply don’t know if the builder you are dealing with is going to close down tomorrow, whether they are on the edge and cutting corners.

“My advice to people in the market for a new apartment is don’t. Don’t buy until it is six, seven, 10 years old.

“My advice to my kids is stick to the three-level walk-ups. If they are new, don’t go over three storeys. If they are old, check the strata records with someone who knows what they are looking at. And never buy off the plan.”

Are stronger protections possible?

There are two options for reform that would make consumer rights stronger, Gall says.

The first would be to create a statutory duty of care for apartment buyers.

This means buyers could more easily sue builders, developers and architects for negligent work. Currently, under NSW tort law, negligence requires a person prove there was a duty of care between themselves and the negligent party.

“The problem with building is that it is not always clear who owes a duty of care to who,” Gall says. “The people who buy, buy from the developer, the developer has a contract with the builder, they have a contract with the architect. Who is it who owes a duty of care to the end purchaser?”

A statutory duty of care would make it clearer which parties could sue, and in the words of Gall, “put them all on the hook”.

“If an architect for example puts in a design inconsistent with the building code, and something fails, the architect can be on the hook.”

Gall and the Owners Corporation Network are also pushing for the creation of a special commission of inquiry, or a royal commission, into the issue of consumer protection for housing – looking at the changes to insurance, the three-storey rule and other issues.