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  1. #1

    Default Is my attached unit unlawful and RTA void?

    In light of the MBIE regulatory impact stmt May 2017 (sorry newbie so can't provide link) by MBIE I feel it might be time to sell my house and attached granny flat. I live in the main house and attached is a studio flat. The whole house did not recieve CCC due to very minor issues in the scheme of the Building Act, not relative to the flat. Council notes say that they will allow the flat or house to be rented but not both the house and flat. The insurance company is happy with the building report and the rental situation. The flat has 2 exits (3 if you include garage door), smoke alarms, insulation, heat pump and spec'd above the normal rental with separate everything apart from water and power meter (has a reader meter though for power). I am feeling I fail on the "rental premises are not lawful" given there is no firewall between the unit and the house. The flat also has a door into the hallway that dissects the house and flat which is locked and sound proofed. So no firewall between hall and unit, no wall between unit back wall and main house garage, and is one required between the units garage and main house garage? What would be the cost to remedy this? I dont want to remove the hall door access because it allows options. I wanted a tenancy agreement because it is a fair way for both myself and tenant. Do I just end the tenancy and have a 'flatmate' instead and an agreement? Is that lawful? Help!! I cannot afford to not have the income from the flat unfortunately.

  2. #2
    Join Date
    May 2004
    Posts
    2,195

  3. #3
    Join Date
    May 2004
    Posts
    2,195

    Default

    Since you have a fall back position (flattie agreement) could you write to the MBIE Tenancy Compliance and Investigations Team and ask for a ruling?

    Sounds like you have very good information about your situation.

  4. #4
    Join Date
    Mar 2013
    Location
    Auckland
    Posts
    1,494

    Default

    Quote Originally Posted by Oopsiedaisies View Post
    The whole house did not recieve CCC due to very minor issues in the scheme of the Building Act, not relative to the flat.
    Can you rectify and get a certificate of acceptance?
    My blog. From personal experience.
    http://statehousinginnz.wordpress.com/

  5. #5

    Default

    I would be careful if you contact MBIE as they might contact your current tenant. Also be careful ending the tenancy agreement as a large number of the Anderson cases start when the landlord decides to end the tenancy and the tenant is annoyed. Be patient and establish the true nature of your current position before doing anything drastic and definitely don't discuss this problem with your tenant.

    Adjudicators will look at the nature of any flatting arrangement to determine whether an unwritten tenancy agreement is in place. If you have a locked door between you and your flatmate then effectively you are not flatmates and you would be in a similar position to this https://forms.justice.govt.nz/search.../121622091.pdf. Obviously, you can't convert your current tenant into a flatmate.

    If you go down the flatmate route in the future you will need to ensure that you have sufficient evidence to show that you are really a flatmate should things turn nasty between you and the flatmate.

    You state that "Council notes say that they will allow the flat or house to be rented but not both the house and flat". what notes are these?



    Last edited by Lighthouse; 04-09-2017 at 11:22 PM.

  6. #6

    Default

    It seems the main problem you face is the firewall . There are thousands of tenancies that have a situation similar to yours but were built before the firewall provision came in, these are legally fine . If memory serves well, anything built prior to around the 80's where 2 separate living situations in the same house were being created did not have the requirement for a firewall .

    Building a retrospective firewall may be a possible solution. Not sure if this is at all possible without a lot of headache.

    These new rulings will affect substantially many situations similar to yours .I think this could create a flood of opportunistic tenants claiming back the entire rent from a landlords pocket. The tenants may have been very happy living in their accommodation but may take advantage of an unfair law.

    There are quite a few new large houses being built in the new subdivisions in Auckland that have 2 kitchens , 2 bathrooms. I was told by one real estate agent , all a prospective buyer had to do was lock one door and create another door which in effect would then create 2 separate living spaces. Presumably these may now be illegal if firewalls were not part of the original design concept plan.

    In your case the council have presumably written on the LIM that the house which includes the studio flat can only be rented out as ""one"". Renting out the whole building to one ""tenant"" is somehow deemed safer than renting out as 2 ""separate tenancies" in the event of a fire - flawed thinking since any notion of increased fire safety remains indeterminate.
    Last edited by mrsaneperson; 05-09-2017 at 01:42 AM.

  7. #7

    Default

    Quote Originally Posted by mrsaneperson View Post
    It seems the main problem you face is the firewall . There are thousands of tenancies that have a situation similar to yours but were built before the firewall provision came in, these are legally fine . If memory serves well, anything built prior to around the 80's where 2 separate living situations in the same house were being created did not have the requirement for a firewall .

    Building a retrospective firewall may be a possible solution. Not sure if this is at all possible without a lot of headache.

    These new rulings will affect substantially many situations similar to yours .I think this could create a flood of opportunistic tenants claiming back the entire rent from a landlords pocket. The tenants may have been very happy living in their accommodation but may take advantage of an unfair law.

    There are quite a few new large houses being built in the new subdivisions in Auckland that have 2 kitchens , 2 bathrooms. I was told by one real estate agent , all a prospective buyer had to do was lock one door and create another door which in effect would then create 2 separate living spaces. Presumably these may now be illegal if firewalls were not part of the original design concept plan.

    In your case the council have presumably written on the LIM that the house which includes the studio flat can only be rented out as ""one"". Renting out the whole building to one ""tenant"" is somehow deemed safer than renting out as 2 ""separate tenancies" in the event of a fire - flawed thinking since any notion of increased fire safety remains indeterminate.
    the issue is respect to fire walls is whether there are separate households. The building act requires neighbors and other property to be protected. This is obvious when legal boundaries and subdivision occur but there is confusion as to where the line in the sand is.

    Council confuse the situation by approving minor dwellings that are designed to be separate households and therefore have fire seperation.

    Planners confuse us as well by saying that a separate kitchen /cooking is the evidence of establishing a second residence when all the owner wants is a self contained space for the same household.

    The council approved the granny flat in this case? so the flat is legal (the consent is the critical approval as a CCC does not have to be issued and as you find council simply refuse to issue older ones sometimes.

    The council have no right to say you cant tenant the house or flat but what they were saying (probably) was it isn't approved for separate households. If even they had a proper understanding in the first place?

    If you rent both areas then you need to be sure that tenants know they are shared tenancy (the house) not a separate tenancy and they need to relate to their housemates even if that means in practice they simply get on in their part of the house. The safest arrangement is rent the room not a flat (They happen to have the use of their own facilities) and have a boarding tenancy agreement (if there are less then 5 tenants then you don't inadvertently create a boarding house which can be a disaster as it means each boarding room need fire separation.

    A granny flat doesn't need fire separation because they are by definition intended for the same 'family' but the same reasoning can apply to a household if the people in the granny flat know they are part of the same single household and are sharing the same house. This needs a tenancy agreement that demonstrate the relationship. Some owners make the mistake of presenting the flat as separate and exclusive space. You have to be careful not to misrepresent the space and best to make it a room rent (boarder) that happens to have self-contained facilities for convenience. The trick is to advertise correctly as this is what council see so don't oversell the adverts?

    The Anderson decisions have not been properly argued and seem to always involve vulnerable unrepresented owners unsure of their rights and not properly informed (and dodgy council witnesses/statements). If the TT was truly impartial they would appoint experts to clarify the situation for the LL rather than prosecute for uncertain understanding.

    There is no approval required to rent a space so how can a rental be unlawful? Everyone likely has some unapproved work in their house so are all houses occupations unlawful? It could be unapproved because it didnt need approval in the first place?

    Anderson involved a retirement village where people were approved for over 65(?) and the caretaker was younger.....This particular circumstances were different from normal residential building. The idiots in TT have misunderstood the distinctions and relied on comments that judge didn't intend to create new law but was seeking to guide the parties to a solution.

    The real danger now is that a series of precedents creates new law and then parliament decide to entrench that new law and this is what the select committee are going to be considering when we get a new govt (RTA amendment Bill #2). Get organized people!

    This issue needs a concerted challenge from industry and this must be funded by joint effort and not left to a poor mum and dad investor to spend the legal $$$ Is any one helping the poor turkey in Dunedin (Vic Inglis?)

    Clear as mud???

  8. #8

    Default

    The house was built in 2003. The BC was issued 04/02/2003 but no CCC. I've found that statement by Council.....The LIM said "please note that the dwelling on this site comprises of one household unit only. The separate living areas cannot be rented as two tenancies". By the Council saying 'two tenancies" I am presuming that one tenancy is then allowable? I live in the house and only ever intend to rent out the granny flat. The Building report says "accordingly I have completed a report confirming I consider the building to be safe and sanitary in terms of the relevant sections of the Building Act 2004, and have lodged that with the Tauranga City Council. I will provide you with the reciepted version". I dont have that reciepted version. The building report person was an ex building officer for the council. The company is still in operation. The real estate agent confirmed that TCC have that reciepted version, but then do i trust a real estate agent?

  9. #9
    Join Date
    Sep 2007
    Location
    Auckland
    Posts
    7,419

    Default

    Man.... either get the receipted version from the council or the guy who did the report. Why is that difficult?

  10. #10
    Join Date
    Jun 2004
    Posts
    9,592

    Default

    Quote Originally Posted by Oopsiedaisies View Post
    "please note that the dwelling on this site comprises of one household unit only. The separate living areas cannot be rented as two tenancies". By the Council saying 'two tenancies" I am presuming that one tenancy is then allowable?
    I wouldn't presume that.
    If you rent out the flat seperately you are creating 2 households - yours and the flat.
    If you rent the flat as being part of your household, as JTB suggests, then you still only have 1 unit so would be OK.
    This does mean that the flat has access to your space and v.v.


 

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