Self contained spaces- when does a single household become a multi-dwelling
(see also associated article on unlawful premises under ...more in the menu bar)
There are many situations where owners have intended to create separate and exclusive second residential units in the same building. Multi unit apartments are a case, as is minor dwelling intended to be occupied by separate households. These separate households need to be provided with amenities and protection from other property that thy may have no other relationship with except they share a common wall. These separate arrangements may even have legal boundaries and be under separate title and ownership.
Traditionally because definitions of residential dwellings were associated with a sink and dish-washing facility the kitchen was seen as the trigger for a second unit being established. and this created something of a knee jerk reaction that every kitchen is a second unit.
It is more and more common for dwellings to have more than one kitchen to reflect diversity in household make ups with different dietary and religious requirements.Recent changes to the Building Act has recognized that a dwelling can have self contained spaces within it. This is typically recognized in a granny flat situation where a family member is clearly using that other self contained space. The Change of Use regulations uses a granny flat as an example but does not limit the self contained space to only such arrangements. The challenge is to understand how similar arrangements may apply to household units..
When a single household becomes a mutli-dwelling( because self contained spaces are being provided), has become the great conundrum for the courts and councils to deal with.
The issues are complicated by duplication in the Building Act which controls construction and Change of Use and the RMA where district plans have rules that are designed to control use. of the property.
The Building Act;
a recent determination 2012-074 from MBIE made it clear that providing a second kitchen to a property did not in itself trigger a multi-dwelling which begs the question as to what does?
The situation is a bit clearer when a new dwelling is being consented that may have self contained spaces that can be identified and assessed but in an exsiting building sanitarry facilities can be substituted without building cosent and this can allow a change that may not be a Change of use.
The definition of whether a change of use occurs is determined by reference to the Change of Use Regulations 2005.These Change of Use regulation contain Schedule2 that defines the uses of a building.
This change is demonstrated when the use moves from one use to another category as described by Schedule2. If the changes still occur within the same use then there is no Change of Use triggered. S5 of the regulation states also that the Change of Use must result in the requirements for compliance with the building code in relation to the new use are additional or more onerous that the requirements in the old use.
Schedule 2 defines a SH (Sleeping Single Home) as ;
SH(Sleeping Single Home)
detached dwellings where people live as a single household or family, including attached self-contained spaces such as granny flats when occupied by a member of the same family, and garages (whether detached or part of the same building) if primarily for storage of the occupants' vehicles, tools, and garden implements.” (emphasis added)
The next highest use that would trigger a Change of Use is ;
“SR (Sleeping Residential)
attached and multiunit residential dwellings, including household units attached to spaces or dwellings with the same or
other uses, such as caretakers’ flats, and residential accommodation above a shop
Example multiunit dwellings, flats, or apartments “
(emphasis added)
Household unit is a defined term in A2 interpretations of the Building Code;
“household unit--
(a) means a building or group of buildings, or part of a building or group of buildings, that is--
(i) used, or intended to be used, only or mainly for residential purposes; and
(ii) occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household; but
(b) does not include a hostel, boardinghouse, or other specialised accommodation” (emphasis added)
Intended use is also defined;
“Intended use of a building is also defined as including a) any reasonably foreseeable occasional other use that is not incompatible with the intended use….” (emphasis added)
S114 requires a council be notified should a change be intended or occur and “if the owner proposes to change the use”. This is the offense that can be alleged. The Building Act and regulations also state when and how the change of use of a building occurs and what provisions of the code clauses are triggered for upgrade if there is a Change of Use (as defined by regulations). The provision turns in the first instance on whether a Change of Use is deemed to have occurred as defined by the Change of Use regulations 2005 The owner may therefore not be obliged to notify the council of any Change of Use. The second test is whether more onerous requirements of the code clauses are triggered by the change
is the intention to create a second household unit?
A separate and exclusive household unit needs fire and sound separation which reflects the protection of other property and protection from nuisance that a neighbor is entitled to, especially when under different ownership and different management.The confusion comes when the same ownership is being retained and the spaces are under the same self management. Do the requirements get triggered in that case?)
If the owner’s only intention is to create a self contained space, a granny flat situation within the same detached dwelling for the use of members of the same family or household then this may not be multi-dwelling. This is true if it is not the intention to create a separate and exclusive household arrangement and the tenant is under the control (and therefore the under same self management) of the family household and share common concerns and look after each others well being. This would not be the case if the arrangement was separate and exclusive.
This understanding is consistent with the definition of Household unit in the A2 clause of the regulations and clause A1 2.0.2 detached dwellings which allows also for up to 6 boarders. The occupants intend to live under a single management arrangement and the owner determines those arrangements for the whole detached dwelling.
The arrangement is best considered as a ‘granny flat’ for part of the same household. This being the case there remains a single household with self contained spaces but there is no change of use and this is not intended to be a multi dwelling.
If there is a perception that there is a different separate household being established then council are requested to demonstrate a framework acceptable to them. Council should state what would be a satisfactory set up within their different interpretation of the law that would allow the present use arrangement.
In other words; how may the owner continue to utilise self contained spaces in this same single household unit?
This should be the question but usually the response from council is a NTF from them alleging the separate tenancy situation This is itself creates the problem for the owner as getting council to resile from their position is difficulty and they seem reluctant to modify their stance unless they see the NTF complied with in total.
The Resource Management Act issues;
The issues under the RMA are dictated by local district plan rules and definitions. Usually these fall on "separate and exclusive" tests of the second unit. Often the way the property is managed is used to demonstrate the separate or exclusive arrangement if exsiting.
Confused?
Give us a call to discuss how we might assist you in the complexities of this situation as it might apply to you.
There are many situations where owners have intended to create separate and exclusive second residential units in the same building. Multi unit apartments are a case, as is minor dwelling intended to be occupied by separate households. These separate households need to be provided with amenities and protection from other property that thy may have no other relationship with except they share a common wall. These separate arrangements may even have legal boundaries and be under separate title and ownership.
Traditionally because definitions of residential dwellings were associated with a sink and dish-washing facility the kitchen was seen as the trigger for a second unit being established. and this created something of a knee jerk reaction that every kitchen is a second unit.
It is more and more common for dwellings to have more than one kitchen to reflect diversity in household make ups with different dietary and religious requirements.Recent changes to the Building Act has recognized that a dwelling can have self contained spaces within it. This is typically recognized in a granny flat situation where a family member is clearly using that other self contained space. The Change of Use regulations uses a granny flat as an example but does not limit the self contained space to only such arrangements. The challenge is to understand how similar arrangements may apply to household units..
When a single household becomes a mutli-dwelling( because self contained spaces are being provided), has become the great conundrum for the courts and councils to deal with.
The issues are complicated by duplication in the Building Act which controls construction and Change of Use and the RMA where district plans have rules that are designed to control use. of the property.
The Building Act;
a recent determination 2012-074 from MBIE made it clear that providing a second kitchen to a property did not in itself trigger a multi-dwelling which begs the question as to what does?
The situation is a bit clearer when a new dwelling is being consented that may have self contained spaces that can be identified and assessed but in an exsiting building sanitarry facilities can be substituted without building cosent and this can allow a change that may not be a Change of use.
The definition of whether a change of use occurs is determined by reference to the Change of Use Regulations 2005.These Change of Use regulation contain Schedule2 that defines the uses of a building.
This change is demonstrated when the use moves from one use to another category as described by Schedule2. If the changes still occur within the same use then there is no Change of Use triggered. S5 of the regulation states also that the Change of Use must result in the requirements for compliance with the building code in relation to the new use are additional or more onerous that the requirements in the old use.
Schedule 2 defines a SH (Sleeping Single Home) as ;
SH(Sleeping Single Home)
detached dwellings where people live as a single household or family, including attached self-contained spaces such as granny flats when occupied by a member of the same family, and garages (whether detached or part of the same building) if primarily for storage of the occupants' vehicles, tools, and garden implements.” (emphasis added)
The next highest use that would trigger a Change of Use is ;
“SR (Sleeping Residential)
attached and multiunit residential dwellings, including household units attached to spaces or dwellings with the same or
other uses, such as caretakers’ flats, and residential accommodation above a shop
Example multiunit dwellings, flats, or apartments “
(emphasis added)
Household unit is a defined term in A2 interpretations of the Building Code;
“household unit--
(a) means a building or group of buildings, or part of a building or group of buildings, that is--
(i) used, or intended to be used, only or mainly for residential purposes; and
(ii) occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household; but
(b) does not include a hostel, boardinghouse, or other specialised accommodation” (emphasis added)
Intended use is also defined;
“Intended use of a building is also defined as including a) any reasonably foreseeable occasional other use that is not incompatible with the intended use….” (emphasis added)
S114 requires a council be notified should a change be intended or occur and “if the owner proposes to change the use”. This is the offense that can be alleged. The Building Act and regulations also state when and how the change of use of a building occurs and what provisions of the code clauses are triggered for upgrade if there is a Change of Use (as defined by regulations). The provision turns in the first instance on whether a Change of Use is deemed to have occurred as defined by the Change of Use regulations 2005 The owner may therefore not be obliged to notify the council of any Change of Use. The second test is whether more onerous requirements of the code clauses are triggered by the change
is the intention to create a second household unit?
A separate and exclusive household unit needs fire and sound separation which reflects the protection of other property and protection from nuisance that a neighbor is entitled to, especially when under different ownership and different management.The confusion comes when the same ownership is being retained and the spaces are under the same self management. Do the requirements get triggered in that case?)
If the owner’s only intention is to create a self contained space, a granny flat situation within the same detached dwelling for the use of members of the same family or household then this may not be multi-dwelling. This is true if it is not the intention to create a separate and exclusive household arrangement and the tenant is under the control (and therefore the under same self management) of the family household and share common concerns and look after each others well being. This would not be the case if the arrangement was separate and exclusive.
This understanding is consistent with the definition of Household unit in the A2 clause of the regulations and clause A1 2.0.2 detached dwellings which allows also for up to 6 boarders. The occupants intend to live under a single management arrangement and the owner determines those arrangements for the whole detached dwelling.
The arrangement is best considered as a ‘granny flat’ for part of the same household. This being the case there remains a single household with self contained spaces but there is no change of use and this is not intended to be a multi dwelling.
If there is a perception that there is a different separate household being established then council are requested to demonstrate a framework acceptable to them. Council should state what would be a satisfactory set up within their different interpretation of the law that would allow the present use arrangement.
In other words; how may the owner continue to utilise self contained spaces in this same single household unit?
This should be the question but usually the response from council is a NTF from them alleging the separate tenancy situation This is itself creates the problem for the owner as getting council to resile from their position is difficulty and they seem reluctant to modify their stance unless they see the NTF complied with in total.
The Resource Management Act issues;
The issues under the RMA are dictated by local district plan rules and definitions. Usually these fall on "separate and exclusive" tests of the second unit. Often the way the property is managed is used to demonstrate the separate or exclusive arrangement if exsiting.
Confused?
Give us a call to discuss how we might assist you in the complexities of this situation as it might apply to you.
