Notice to Fix (NTF)
Received a Notice to Fix or have questions about what this means?
(this article was first published in NZ Lawyer Magazine in 2013. It deals with issues relating to refusal of a CCC by council. S95A of the Building Act requires the council to issue a letter under s95A stating their reasons for refusal. Councils had developed a NTF response partly at behest of previous determinations which overlooked s2005 introduced to the building Act in 2005.A NTF can be issued if serious contraventions are identified but normally councils are dealing with a failure to be satisfied rather than a clear failure of a code clause which may be arguably a contravention)
When is a ‘Notice to Fix’ really a notice to fix?
A far reaching determination regarding the certification of New Zealand homes under the Building Act has been made by the Ministry of Business, Innovation and Employment (mbie). and homeowners all over New Zealand should be celebrating.
First, let’s imagine you are the proud homeowner of a four-bedroom house in Auckland’s Browns Bay where It’s been your home for the last 15 years. But you and your partner are getting older. The kids have moved out. It’s too large for just the two of you. You decide its time to sell up and move on. Like any Kiwi would do, you go to put your home on the market.
But there’s one small issue. You discover that a Code of Compliance Certificate (CCC) had not been issued on the house. A CCC is code compliance certificate that councils issue to verify that dwelling complies with the building code, and you think you need this in order to sell.
The house isn’t leaking. It’s not rotten or broken in any way but perhaps showing its age, it certainly doesn’t meet today’s modern building standards. So you do the right thing by going to the Auckland Council and asking them to issue the CCC.
Council inspectors turn up. You offer them a cup of tea, talk to them about the property, and reckon they’ll probably spend half an hour inspecting it and that this will be all over before lunch. You could have the house on the market tomorrow.
You are absolutely wrong.
Instead of issuing a certificate, the Council presents you with a hefty Notice to Fix (NTF) for alleged contraventions of the Building Act and the Building Code. You face a $200,000 fine and a further $20,000 per day as a continuing offence. Which is scary enough but when you inquire how to satisfy this NTF you are told that an expensive reclad of the property is required to convince the council of code compliance now (at a similar cost to the maximum fine) which puts you between a rock and a hard place!
You’ve played this with a straight bat. You’ve done everything you need to do, but the Council overreacts and lumps you with the prospect of daunting costs and delays.
It’s like going in to get your WOF and having your car impounded.
You’re now in a predicament whereby you own a house that you cannot sell.
You could have sold it without a CCC (like many people have done and are entitled to do), but the Council has plastered a NTF on the house and a requisition on the property file – effectively blocking any sale of the property.
It’s no longer about the condition of your home, but whether you can afford to pay.
This is exactly the scenario our Auckland couple found themselves in.
What’s even more frightening is that their predicament is not an uncommon situation. It’s just another example of where a single (and relatively small) issue prevents the sale of a property. In this case, the couple involved took the fight to the behemoth that is the Auckland Council. And they won.
The recent determination from the Ministry of Building Innovation and Employment (previously the Department of Building and Housing) effectively says that the Auckland Council overreacted and used the wrong processes.
This is great news for all those homeowners in a similar situation. But it remains unfortunate for all those who have been misled in the past.
In this recent determination (2013-015 issued 8 April) our owners made an application to MBIE under s178 for a determination. This decision supported the council decision to refuse to issue the CCC (which wasn’t a matter the owners disagreed with) but reversed the decision to issue a NTF.
Under the Building Act 2004 when a council refuses to issue a CCC under s95A it is required to issue a written notice (a letter) advising of the refusal and stating the reasons for the refusal. In this case, a NTF was issued under s164 instead.
In 4.2.1 of the determination stated that: “the process under s95A and s164 are distinct and should be treated as such by the authority (the council).”
The decision noted that the s95A letter was sufficient notification to a prospective buyer and would be disclosed on a LIM. The determination went on to describe the circumstances when a NTF would be appropriate.
It stated that while a council had to be satisfied on reasonable grounds in order to issue a CCC, the reasons for refusal are simply that, the reasons to refuse. These may not meet the threshold for issuing a NTF (unless it’s of a serious nature), because issuing a NTF should be considered a last resort and not necessarily “an expected sequential step” to a CCC.
This determination may allay concerns that a dwelling built under different code regimes, while standing the test of time but displays general wear and tear, is still able to be accepted in its present condition, and the lack of a CCC does not incur statutory penalty or mandatory building work.
The determination has served to clarify the circumstances in which a council can act to make an owner do work on their building. It will go far in assisting advisers helping owners negotiate the minefield that the building regime has become, and bring a bit of relief to home owners everywhere.
Received a NTF and unsure what to do? Get in touch and we'll talk you through it.
(this article was first published in NZ Lawyer Magazine in 2013. It deals with issues relating to refusal of a CCC by council. S95A of the Building Act requires the council to issue a letter under s95A stating their reasons for refusal. Councils had developed a NTF response partly at behest of previous determinations which overlooked s2005 introduced to the building Act in 2005.A NTF can be issued if serious contraventions are identified but normally councils are dealing with a failure to be satisfied rather than a clear failure of a code clause which may be arguably a contravention)
When is a ‘Notice to Fix’ really a notice to fix?
A far reaching determination regarding the certification of New Zealand homes under the Building Act has been made by the Ministry of Business, Innovation and Employment (mbie). and homeowners all over New Zealand should be celebrating.
First, let’s imagine you are the proud homeowner of a four-bedroom house in Auckland’s Browns Bay where It’s been your home for the last 15 years. But you and your partner are getting older. The kids have moved out. It’s too large for just the two of you. You decide its time to sell up and move on. Like any Kiwi would do, you go to put your home on the market.
But there’s one small issue. You discover that a Code of Compliance Certificate (CCC) had not been issued on the house. A CCC is code compliance certificate that councils issue to verify that dwelling complies with the building code, and you think you need this in order to sell.
The house isn’t leaking. It’s not rotten or broken in any way but perhaps showing its age, it certainly doesn’t meet today’s modern building standards. So you do the right thing by going to the Auckland Council and asking them to issue the CCC.
Council inspectors turn up. You offer them a cup of tea, talk to them about the property, and reckon they’ll probably spend half an hour inspecting it and that this will be all over before lunch. You could have the house on the market tomorrow.
You are absolutely wrong.
Instead of issuing a certificate, the Council presents you with a hefty Notice to Fix (NTF) for alleged contraventions of the Building Act and the Building Code. You face a $200,000 fine and a further $20,000 per day as a continuing offence. Which is scary enough but when you inquire how to satisfy this NTF you are told that an expensive reclad of the property is required to convince the council of code compliance now (at a similar cost to the maximum fine) which puts you between a rock and a hard place!
You’ve played this with a straight bat. You’ve done everything you need to do, but the Council overreacts and lumps you with the prospect of daunting costs and delays.
It’s like going in to get your WOF and having your car impounded.
You’re now in a predicament whereby you own a house that you cannot sell.
You could have sold it without a CCC (like many people have done and are entitled to do), but the Council has plastered a NTF on the house and a requisition on the property file – effectively blocking any sale of the property.
It’s no longer about the condition of your home, but whether you can afford to pay.
This is exactly the scenario our Auckland couple found themselves in.
What’s even more frightening is that their predicament is not an uncommon situation. It’s just another example of where a single (and relatively small) issue prevents the sale of a property. In this case, the couple involved took the fight to the behemoth that is the Auckland Council. And they won.
The recent determination from the Ministry of Building Innovation and Employment (previously the Department of Building and Housing) effectively says that the Auckland Council overreacted and used the wrong processes.
This is great news for all those homeowners in a similar situation. But it remains unfortunate for all those who have been misled in the past.
In this recent determination (2013-015 issued 8 April) our owners made an application to MBIE under s178 for a determination. This decision supported the council decision to refuse to issue the CCC (which wasn’t a matter the owners disagreed with) but reversed the decision to issue a NTF.
Under the Building Act 2004 when a council refuses to issue a CCC under s95A it is required to issue a written notice (a letter) advising of the refusal and stating the reasons for the refusal. In this case, a NTF was issued under s164 instead.
In 4.2.1 of the determination stated that: “the process under s95A and s164 are distinct and should be treated as such by the authority (the council).”
The decision noted that the s95A letter was sufficient notification to a prospective buyer and would be disclosed on a LIM. The determination went on to describe the circumstances when a NTF would be appropriate.
It stated that while a council had to be satisfied on reasonable grounds in order to issue a CCC, the reasons for refusal are simply that, the reasons to refuse. These may not meet the threshold for issuing a NTF (unless it’s of a serious nature), because issuing a NTF should be considered a last resort and not necessarily “an expected sequential step” to a CCC.
This determination may allay concerns that a dwelling built under different code regimes, while standing the test of time but displays general wear and tear, is still able to be accepted in its present condition, and the lack of a CCC does not incur statutory penalty or mandatory building work.
The determination has served to clarify the circumstances in which a council can act to make an owner do work on their building. It will go far in assisting advisers helping owners negotiate the minefield that the building regime has become, and bring a bit of relief to home owners everywhere.
Received a NTF and unsure what to do? Get in touch and we'll talk you through it.
