Transportable home

[John the builder]

There's an intention test, in the building act. It's in a subsection, clause? I think. It's super clear. If it's intended to be lived in, it must meet the building act, so consent, construction test, etc.

no there isnt..........................
but s8 defines what a building is and when a vehicle is a building ( immovable and permanently occupied

a caravan is understood to be the exception and a TH can be a caravan............

condemning people to thin walled cold buses and caravans is harsh when there is healthy option.................

[Property Developer]

no there isnt..........................
but s8 defines what a building is and when a vehicle is a building ( immovable and permanently occupied

a caravan is understood to be the exception and a TH can be a caravan............

condemning people to thin walled cold buses and caravans is harsh when there is healthy option.................

I'm not actually sure a caravan is an exception, I'm only saying they are presently ignored. I'm not saying I agree with the status quo. I don't.

I actually think there is a huge fight coming between councils and 'tiny home' like builders in the near future. There really isn't any other possible outcome in this crazy housing market. They will lose that fight, under the present legislation. Actually, they already have. I'm also continually surprised that tin shed towns haven't started showing up in the national parks. .... it's not a terrible idea.

But per above ....Yes there is. see para(s) 46, and 68 of the judgement, or s8(1)(b)(iii). Quoting DALL, at 36. you cannot circumvent the act in this manner, it is intended to apply.

The judgment is hosted here, it's a DC judgment so not normally public, but it's neat to be able to share it around. I just uploaded it, it is legal to share it, no idea how long the host keeps files though.
https://www.docdroid.net/Q6Lrm1P/res...dge-zohrab-pdf

it's also here too
https://www.building.govt.nz/assets/...006-000137.pdf

Marlborough District Council vs Bilsborough, Eco Cottages, and others CIV-2019-006-000137. [2020) NZDC 9962. Judge A A ZOHRAB, Reserved, IN THE MATTER OF. An appeal against a determination of the. Chief Executive of the MBIE

[John the builder]

Thanks for the considered reply. I am familiar with both decisions
Dall affirmed that a vehicle cannot be a building

MDC decsion repeated this but found the opposite that says more about the MDC decision in my view. It is clear however that a tiny house may not be a building which is contrary to what you say. The jury is still out on where the line in the sand is.
The more it looks like a caravan then the less a building it is at present.

BTW the fight is already here. I am aware of several live determinations under MBIE that will likely be appeals if they dont apply the law correctly.(and at least 3 manufacturers being screwed)

[Perry]

But per above ....Yes there is. see para(s) 46, and 68 of the judgement, or s8(1)(b)(iii). Quoting DALL, at 36. you cannot circumvent the act in this manner, it is intended to apply.

Can you use the same option you have to bring the Dall decision to the forum, please?

There's no doubt that [67] and [68] are thought-provoking.

OCR software can often get some words wrong, but with that caveat, here are those sections for PT forumites to read.

[67] In my view, the irresistible conclusion on the facts of this case is that the characteristics of this structure quite clearly distinguish it from the unit in Dall for the following reasons:

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(a) The units have no suspension, shocks, springs, brakes, brake lights, turn signals, or number plates.

(b) The units are not designed or intended to be towed any distance on a public road, and the units are required to be transported to the property by way of Hiab truck and trailer, rather than being towed.

(c) It seems clear that the axles, wheels and tow bars were more likely provided for the purposes of repositioning the structures on site, than for the relocation of the units.

(d) The units have no warrant of fitness, or certificate of fitness.

(e) The drawbars have been removed, and would need to be reinstated if the units are to be towed.

(f) The units require a degree of stabilisation on timber blocks, albeit the degree of stabilisation is arguably unclear, unlike the structure in Dall which was resting on wheels alone.

(g) The units have been joined via a walkway which is bolted to one unit and riveted to the other, and would need to be deconstructed if the units were to be moved.

(h) The units' superstructures are comparable to that of a building, and are not designed to transport goods or people.

(i) The units are not self-contained in terms of the services, with the kitchen and bathroom plumbing fittings needing to be connected to the council's drainage and sewage system.

(j) The units are being used as an abode intended to be occupied on a permanent or long-term basis, with one containing sleeping facilities, and the other containing bathroom and kitchen facilities.

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[68] Accordingly, the structure is an immovable vehicle for the purposes of s 8(l)(b)(iii) of the LTA, which is intended to be occupied on a permanent or long- term basis, and the structure is therefore a building for the purposes of the Act.

I've also scanned the earlier parts you referenced as they seem to be every bit as pertinent as you aver.

[45] The Court in Dall confirmed the two-limb approach set out in Te Puru and held the LTA definition to be the applicable definition of a vehicle, i.e. "a contrivance fitted with wheels ... on what it moves or is moved ,.."

[46] At para [35] of Dall, Judge Callaghan noted the definition is "very broad and could allow owners to avoid the application of the Building Act by simply adding wheels, or runners to any structure and claiming it can be moved". He went on to say:

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[36] However, the exceptions in s 8(1)(b)(iii) protect against such deliberate circumvention of the Act. A vehicle will still be considered a building for the purposes of the Act if it is "immovable" and "occupied by people on a permanent long-term basis."

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[47] Judge Callaghan noted that "immovable" cannot be strictly interpreted and even large buildings could be moved and, accordingly, he noted that each case will turn on its facts.

In your view, does the expression "immovable" and "occupied by people on a permanent long-term basis" mean that both conditions must met, rather than either?

[Property Developer]

Can you use the same option you have to bring the Dall decision to the forum, please?


In your view, does the expression "immovable" and "occupied by people on a permanent long-term basis" mean that both conditions must met, rather than either?

Re DALL, I don't have a copy, but it is obtainable. Honestly, there's no need, unless DALL is from a higher court (I haven't look at it's reference), it's also prior case law now, not wanting to get into the rules of case precedents, assume it's merely supporting and forming the decision at hand rather than directing it from above. I took it that way as I skim read the case today, but I'm often wrong when I do that.

Re: parameters of immovable and perm occupied, that's a decision for the individual case situation. But 'and' is a conjunctive operator so yes, it must be both

I can see a situation where owner is building actual house, lives on site in TH, .. no consent required. But clear breach.

Or
Family lose house, TH installed on 2nd property, temp, turns to semi permanent, council object, owner of land locked in, situation is impasse. Clear breach. Enforcement action.

Or

Owner buys land, unserviceable or un serviced. TH installed, partly for insurance reasons, land coverable, council objects, owner says temp accom for build or use of land block, likely breach though. Enforcement action.

Or

Housing crisis worsening, THs only viable option for many. Land owners permiting 'gypsy encampment', councils taking action, as semi permanent, enforcement action, owners convicted, THs become persona non grata in regional districts. Each council and district varying responses, according to location, TH owners find viable locations increasingly hard to find. Ultimately law change required to permit variation of th locations. Which does not occur anytime soon issue of future financial stability of tiny home owners (as less tradable asset) and housing availability becomes a national political matter to which tiny homes is not considered at answer due to the variable quality of them.

[Perry]

Re: parameters of immovable and perm occupied, that's a decision for the individual case situation. But 'and' is a conjunctive operator so yes, it must be both.

I agree, but, as I see it, therein lies the nub. I.e. That interpretation would lead to . . .

If it's moveable, irrespective that it's permanently lived in, it's a vehicle.

End of the matter?

I'll wager not.

[Property Developer]

I agree, but, as I see it, therein lies the nub. I.e. That interpretation would lead to . . .

If it's moveable, irrespective that it's permanently lived in, it's a vehicle.

End of the matter?

I'll wager not.

Well, that's the argument run but the intention test comes in. Indicating 'permanent', thus 'and' comes into effect. Ultimately, outcome is everything, the above case is clear indicator or future prosecuting outcomes

[Perry]

It's fun stretching it, isn't it? Intention and after-the-fact outcome sound like legal quicksand, to me. What's 'permanent' when assessing an outcome? A month? Year? Decade? Century?

I also thought this was a bit of a stretch, too:

The units have no suspension, shocks, springs, brakes, brake lights, turn signals, or number plates.

A road roller has no suspension, shocks, WoF, CoF or springs. Depending on its age, may not have lights and signals, either. But t'would never be anything other than a vehicle. A totally-only-used-on-farm ATV would not be registered, nor have a WoF (or CoF). But again, t'would never be anything other than a vehicle.

Also . . .

(i) The units are not self-contained in terms of the services, with the kitchen and bathroom plumbing fittings needing to be connected to the council's drainage and sewage system.

. . . what if they had a well or rainwater tank and a cassette toilet or septic tank? No council connection required. As for services, what of electricity? A phone / Internet connection?

These all seem like symptoms to me. (I get the notion you may have the same inclination.) If we keep delving deeper, what / where do you suppose might be the foundational problem[s]?

The RMA? Local Gov't Act? Building Act? Something else?

[John the builder]

good discussion and contribution PD and P

Dall decision here.
https://districtcourts.govt.nz/all-j...nd-employment/

it should be simple under s8 is this a building? Under s8 a vehicle is only so if immovable AND permanently occupied.

the courts and council lawyers struggle with this simple definition and obfuscate it to their own purposes which is control and policing.

a vehicle is a contrivance on wheels and has nothing to do with road worthiness (or similarities to a caravan registered/warranted to run at 90kms on our roads). But I accept such a vehicle is more self evidently 'immovable'. So the argument is won if it is like a caravan but the jury is still out on ' immovable'

They dont mind people living in cars but give them a better option that they can afford (and retain ownership of) and the bureaucrats have a fit.

We are also missing out on utilizing spare land to place these TH to allow for cheaper rents (and ability to continue to save)sd v without tying up land forever and allowing 1st home owners a entry level the possibility of a step up to a house (with land later)

we have only discussed the building act ? The RMA has its own pitfalls.

[Property Developer]

I opted for a new comment rather than using quotes stuck sitting in a car right now using a phone.

My guess is the issue largely lies inside the building act. And the fact that councils are obligated to enforce various regulations and enactments. They just don't have a choice they have too, they are bound too.

It's pretty easy to see the conflict if you have an open mind. Tiny home builders and buyers are looking for a practical solution to escalating house prices. And councils and mbie are enforcing the law the crown has set down. The present framework appears to have a loophole which is not actually a loophole. The three parties as a whole have already litigated the matter and the legislative framework was trump's. That's hardly surprising.

I suspect this is not the end of the matter. Cheaper or lower cost housing must inevitably occur. So where to from here?

My research into tiny homes was entirely self-serving. It seems like a good way to make money. But I don't do anything with out researching it. And I don't join fan clubs. So I spoke to duty planners, lawyers, prosecuting counsel, council inspection offices, and I also rang some friends, a supervisory council inspection officer, a friend who works at the local council who passed me on to someone else at the council, and I called somebody I know who works for vtnz.

The upshot was sure you can make them, sure you can get them roadworthy, but eventually some months down the track the local council will decide it's a permanent residence and that is the nub of the problem.

Yes I could make money selling them building them I would probably enjoy it. But the math or profit isn't really there. A lot of work, a lot of materials and effort and hassle for a fairly low profit. Tiny homes are for believers which I'm just not. Which is I think is the ultimate point really tiny homes are intended to be a cheap alternative, so someone making them for money kind of defeats the purpose. They really need to be a self-build thing. Trailer manufacturing companies can make 30k building the rolling base. Which is somewhat of an outrageous price but the going rate apparently.

I can't help escape the feeling that there is probably some sort of a future in them. It certainly makes a great deal of sense but I suppose that's the attraction. I think the legal framework as it is will have to change. But in my head I can't escape the idea it one day I'm going to be stuck behind a caravan of tiny homes moving slowly from one location to another like some giant long gypsy caravan. Perhaps they should circle parliament for a week or two to make a point.

[John the builder]

TH shouldn't be seen as a loophole but rather something outside the building act. The understanding of this sits in old property law that recognized that chattels were not part of the land.

As a lawyer PD do you appreciate this aspect?

If not a building then a TH owner can park on someone else land (with permission) and if that land owner was subject to mortgage sale the TH was protected from the bank. If they are now deemed fixed to the land then they become vulnerable to seizure.

[Property Developer]

TH shouldn't be seen as a loophole but rather something outside the building act. The understanding of this sits in old property law that recognized that chattels were not part of the land.

As a lawyer PD do you appreciate this aspect?

If not a building then a TH owner can park on someone else land (with permission) and if that land owner was subject to mortgage sale the TH was protected from the bank. If they are now deemed fixed to the land then they become vulnerable to seizure.

I appreciate the argument you're attempting to make. But it's also fairly clear that the law has a different view. The building act was clearly written to encapsulate temporary buildings as being permanent at a certain point which is to be determined upon the fact pattern.

And that makes sense. At some point everybody has to play by the same rules. So you can't just buy some land put a house on it, and never get consent. Makes sense to me.

Tiny homes and some transportable homes are intended to try and circumvent the rules and that has failed. I'm not usually sympathetic to be honest. Ultimately government will have to face this issue. But a 10 square metre house is hardly good living conditions.

Not sure if I'm particularly concerned about mortgagee sales and Banks taking chattels. Seems like a left field argument for tiny homes not requiring consent. Not that you're wrong you aren't.

That's the crux of the issue though. Should a liveable space on land be required to pass through the council consent process. Honestly I struggle to see why it shouldn't. It's not even an expensive process. Least not from my point of view and experience. But I have heard that councils in other areas sometimes charge extremely large amounts for consent. So I can understand the attraction of avoiding that expense, that would make sense to anyone.

[John the builder]

your argument has merit except that schedule 1 exemption 43 now allows for just such a building living space to be erected and without consent. So the building act also allows for unconsented buildings

I understand that manufacturers are trying to get recognition that manufactured units are building products that dont need consent until thay are brought to site and then fixed to foundations. This streamlines manufacture and cost efficiency and still allows for council control. But councils are saying the manufacture off site needs consent.

[Property Developer]

Interesting news article. Regarding this tis topic of tiny homes

https://i.stuff.co.nz/business/12635...g-rental-costs

[Perry]

. . . as an alternative to soaring costs of a newly built home, unaffordable rents, and precarious tenancies.

Now I wonder who or what is behind those problems?

Couldn't possibly be the 10,000 affordable houses a year false predictor-prophets, now, could it?