rental property with kitchenette and bathroom built before 1992

[Winny]

Hi All

I have a rental property with 2 stories. Upstairs is with everything permitted. I presume the rumpus downstairs with kitchenette and bathroom is built before 1 July 1992. I need the suggestion: Is it legal to rent the whole house out as one although it has the no permit kitchenette and bathroom, or only rent the upstairs out to avoid the future trouble?

[roughy]

If you wanted to have two tenancies it’s more with the district planning requirements of the council that govern that. With building if it’s a separate tenancy then everything has to be separate eg power, phone, plumbing, drainage, fire rating etc. I should mention if there is any reference to it being an existing separate flat on your property file then you can use that in your argument as it then meets the requirements at the time it had its permit.

Sounds like you mean if you are renting it out with no permit it happens all the time and is worth checking with insurance. As you say though it was permit only before the 1991 Building Act, therefore no CCC/signoff requirement. Building consents came in after 1991 where you needed a code compliance certificate at the end of the works.

[Winny]

Thank you for your reply, Roughy. One more question: 1. If I will rent it out as one tenancy, do I need to disclose the no permit bathroom and kitchenette to the prospective tenant? I have a bit worry the disclosure will cause the tenant asking for the rental back after a few years staying because of the unauthorised building work. Actually, the works appears meeting the habitable living conditions. They are modern and tidy.

[roughy]

Hard to know without knowing all of the details and how substantial the work is but if the work was completed before 1991 and is not dangerous or insanitary then most cases it's fine to rent out. If you wanted to hedge your bets you could have a plumber/builder do a review to see if it's fit for purpose and nothing dodgy is going, keep it for your own records then move on.

It even mentions you can't even apply for a retrospective building consent even if you wanted to if the work was completed before 1 July 1992, more here:

https://www.building.govt.nz/building-officials/guides-for-building-officials/issuing-certificates-of-acceptance/

[John the builder]

Hard to know without knowing all of the details and how substantial the work is but if the work was completed before 1991 and is not dangerous or insanitary then most cases it's fine to rent out. If you wanted to hedge your bets you could have a plumber/builder do a review to see if it's fit for purpose and nothing dodgy is going, keep it for your own records then move on.

It even mentions you can't even apply for a retrospective building consent even if you wanted to if the work was completed before 1 July 1992, more here:
https://www.building.govt.nz/buildin...of-acceptance/

if the work was prior to 1992 you can provide a safe and sanitary report to council who keep it on file to disclose to public.

if it doesn't have fire separation then you shouldn't operate as separate tenancy but there could be self-contained space used by members of the same house hold (up and down). This should be under flatmates agreement (To avoid RTA challenge to TT)

[Winny]

Thank you Roughy and John the builder. Very appreciate it. I also looked into the similar threads. John the builder has lots of suggestions in them. Very helpful.

[mrsaneperson]

As for paying the rent back its my understanding that due to the gross unfairness of a couple of cases that ended up like that in a TT decision, the new legislation did away with that.
There was one very publicised case around 2 years ago, of a Mr Inglis of Dunedin, a landlord who had a grossly unfair decision reversed to pay back rent he'd received in relation to some unpermitted fixtures.

[John the builder]

the RTA stops unlawful tenancies. I say there is a distinction between not being approved and something contrary or an offence under some act. Resource consent approvals fall into this because they disallow some activity, but the building act doesn't make unapproved work unlawful (the offence was with the person who carried out the work) as long as it is not dangaerous or insanitary then it can remain, This was the principle demonstrated in a safe and sanitary report.The Inglis decision partly recognised this but the problem is in rogue TT decisions.