Unlawful Residential Premises Flat or house?
Unlawful residential premises; This article is a work in progress please feel free to comment and provide feedback It is in arw draft form. It is written as a building pracititioner not as a lawyer (so please excuse any error in the interpretation of law)
Recently there has been changes to the residential tenancy act and a definition of unlawful Residential Premises introduced. This
was intended to address the anomaly that if a residential premises was not lawfully a residence it wasn't covered by the RTA. (Residential Tenaancy Act).
Parliament has introduced unlawful residential premises as something that can be considered now anmd dealt with by Tenancy Tribunal (TT)
The unfortunate consequence of this is that allegations of unconsented building work or lack of permits for parts of buildings is being used to underpin claims of unlawful premises.
There are genuine situations where buildings are being used as residences and it is unlawful to occupy. These generally relate perhaps to RMA issues that relate to resource consents or planning rules that allow and limit the approved use of the building.
I am concerned primarily with the building act and its correct interpretation in this discussion and what I perceive to be misunderstanding and misapplication of the building act by others and the Tenancy Tribunal in particular.
NZ has a tradition of establishing flats in houses and creating self contained spaces that may be rented in the future. This discussion is limited to simple 1 and 2 storey structures with independent external access and escape routes assumed. Households that rely on safe exit through or past other households are not included in this discussion
Purchasers may also buy property with alterations already made with uncertain history. Recent determinations such as 2013-035 have asserted that a present owner is not responsible for the offences of a previous owner and cannot be called to account for previous breaches. Code clauses change and anyway did not apply before 1992 when the building code was given effect.This in itself creates issues for the hnundres of thousands of houses that were built and still exist from before 1992 as well as any with alterations since
My understanding of unlawful in respect to the building act is that it relates only to offences under the act. For something to be unlawful it needs to attract an offence that associated with it. Under the building act unlawful to occupy means that there is something that prohibits the occupation. It follows that there must be a continuing offence for it to be unlawful to occupy. Only offences related to the building per se that are effectively continuing offences can meet this threshold.
For example s40 creates an offence for the person carrying out building work except in accordance with a building consent. But the offence is to the person and not the work so stopping work stops the offence. This was clarified in Andrews Housing decision 1996 that dealt with wording under the building act 1991 that was similar wording to the current act.
S116B creates an offence and therefore unlawful to occupy a building that is dangerous or insanitary.This is defined term in s121 to 124 of the building act.
What the RTA says;
Based on a simple reading of the residential tenancy act;
S 78A the definition of unlawful residential premises states;
- (2) For the purposes of this Act, unlawful residential premises means residential premises that are used for occupation for a person as a place of residence but--
(b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
we note that the definition states " cannot lawfully be occupied" not that the building or building work is unconsented or unpermitted. We are of the view this means occupation must be an offence to be "unlawful".
There are several hurdles that have to be surmounted before a ruling of “Unlawful Residential Premises” can be made. The definition is in s78A which contains two limbs in a) and b) both of which must be satisfied to establish “unlawful residential premises”
- Requires; that the tenancy cannot be lawfully occupied for residential purposes. This is not a test of approval for the building but simply whether it is lawful to occupy.
- The landlord has failed to comply with landlord obligations under s36 or 45.
S45 Requires landlords responsibilities to be met of which a) to ca) may be considered unlawful acts. Of these c) may be relevant to this discussion as it states "comply with all requirement of buildings, health and safety under any enactment so far as they apply to the premises". (in this case this is understood to include the building act and RMA to the extent an existing building must comply.
iii.Having established there is an unlawful residential premises then s78A (3) to (5) apply. These require the TT to the have regard to special circumstances including the nature of the premises (and whether it is just or fair to make order)
What the Building act says;
There is no offence for the building per se as long as it is safe and sanitary and some other instances
A recent determination from MBIE under s178 of the building act found at 6.0;
6.4 I note that it is my view that once a code compliance certificate has been issued for building work, an authority is unable to take any action in respect of that work unless
: • the building is dangerous, is earthquake-prone, or is insanitary, or
• the owner decides to alter the building, change its use, or change its intended life.
6.5 While the condition of the building may mean that it is not currently code-compliant, this of itself does not oblige a building owner to bring the existing building into compliance with the Building Code. A building owner is only obliged to undertake building work in respect of an existing building for the reasons given in paragraph 6.4.
In our view this applies to all buildings all the time.If a building is dangerous or insanitary it cannot be occupied as it is contrary to s116B which creates an offence for this occupation.Eartquake prone does generally not apply to stand alone dwellingand small multidwellings.
Change of use?
Does the renting out of part of the dwelling constitute a change of use and when does a dwelling change to multi dwelling?
Change of use is covered in s114 of the building act and is subject to the definition of Change of use as defined in the Change of use regulations 2005. Before the regulations change of use had an ordinary meaning that could have meant change of use if say a rumpus room changed into a bedroom for example .. The regulations now require the assessment of the building and allows changes within the use as long as it doesn't move the use to a different new use and with more onerous building code requirements as a result.
If in the future a household was to be exclusively established in a detached dwelling this would be a change of use under the building act as it would make the building a multi-dwelling.
In order to determine when a change if use occurs we need to reference the Change of Use regulations 2005. These regulations provide a two step assessment of whether a change of use occurs. That is 1. The movement of use in a building from one part of a table (as described in schedule 2 of the regulations and 2 more onerous code requirements as a result of the new use.
The relevant wording from schedule 2 inserted here for reference
SR (Sleeping Residential)
attached and multi-unit 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; multi-unit dwellings, flats, or apartments
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
example dwellings or houses separated from each other by distance
The example given in SH is a granny flat that implies a familial connection but we also apply the same meaning to household. While the example is helpful the wording could also say" including attached self-contained spaces such as granny flats when occupied by a member of the same household",
Therefore a dwelling that is intended to be SH ( single sleeping home) is able to have self contained spaces as long as members are part of the same household. This is because they are still satisfying the classified use criteria stated in A1 building code,
This defines a detached dwelling as apples to a building or use where a group of people live as a single household or family and includes a boardinghouse accommodating fewer than 6 people.
2.0.1 Applies to buildings or use where there is self care and service
(internal management). There are three types:
2.0.2 Detached Dwellings
Applies to a building or use where a group of people live as a single
household or family. Examples: a holiday cottage, boarding house
accommodating fewer than 6 people, dwelling or hut.
2.0.3 Multi-unit Dwelling
Applies to a building or use which contains more than one
separate household or family. Examples: an attached dwelling, flat or
2.0.4 Group Dwelling
Applies to a building or use where groups of people live as one
large extended family. Examples: within a commune or marae
We note that 2,0.3 doesn't say more than one family or household but they must be "separate"
The current configuration may not be a change of use for the building as long as the occupants intend to live as a single household. This is demonstrated by a flat/house sharing but recent cases have indicated that the TT may overturn a house sharing agreement which is outside the jurisdiction of the TT by basically deciding that in their view there are in fact separate tenancy.
This creates a conundrum;
If the LL and tenant cannot rely on a house sharing agreement how can they demonstrate not a separate tenancy and not a separate household? In the normal course of events a separate tenancy agreement for the space would indicate an intention to be a separate and exclusive arrangement because s38 requires the tenant to have quiet and uninterrupted enjoyment. The question is can a seperate basement flat for example be let by the owner occupier and still be considered the same household for the purposes of the buildin act. This should be possible as the flat is under the same management and ownership.
This freedom to enter (under a shared tenacy would be contrary to a tenancy agreement under the RTA which requires under s38 quiet uninterrupted enjoyment as a right under a tenancy agreement. In trying to shoe horn this house sharing arrangement into the RTA the tribunal is causing an unlawful act to be created where there wasn’t one before. This is untenable.
You can not have a shared tenancy arrangement which would be unlawful in my view. An owner occupier should be exempt under s5(n) of the RTA as the TT jurisdiction should be excluded but there is a narrow definition of premises that is allowing the TT to decide that a premise within a dwelling is subject to their jurisdiction.
Perhaps the definition of premises is being misapplied. This states
includes (other than in relation to a boarding house tenancy, in which case the definition in section 66B applies)--
a, any part of any premises; and
b. any land and appurtenances, other than facilities; and
c. any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation in that land.
The definition includes a -c and doesn’t change the meaning of premises or create a premise because part of the premises is involved. The written arrangement entered into defines the premises and in this case it could be a flat/house sharing agreement that defines the premises as that house. This is now being overturned by TT making their own assessment of what is a flat/house and what constitutes sharing.
In at least one TT decision there was an order in respect to s5(n) that has created new premises where they are not intended to be because it perceived a self contained space was a separate premise. That is; despite the written agreement and behaviour to the contrary a separate premises has been created where it didn’t exist as separate premises before.
It is true that premises can exist within premises under the definition above but this is not the same as creating separate premises as the order implies. The premises are informed by the rental agreement and mutual arrangement which in the case in question was a shared house agreement. In this case the respondent maintains that she only intends that a single household exists at the building in question.
Can a separate tenancy be established without fire and sound separation?
The question is first does a change of use occur?
With reference to the change of use regulation (as attached above) this might occur when multi dwellings are created
S4 building act sets out principles tp be followed and (i) states
(2) In achieving the purpose of this Act, a person to whom this section applies must take into account the following principles that are relevant to the performance of functions or duties imposed, or the exercise of powers conferred, on that person by
(i) the need to provide protection to limit the extent and effects of the spread of fire, particularly with regard to--
(i) household units (whether on the same land or on other property); and
(ii) other property:
Other property is defined as
(a) means any land or buildings, or part of any land or buildings, that are--
(i) not held under the same allotment; or
(ii) not held under the same ownership; and
(b) includes a road
on this basis two household units in the same house and under the same ownership do not constitute "other property"
This leaves under s4 the issue to protect household units on the same land.
Household unit is defined in the act;
(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 specialized accommodation
It is hard to see how two separate households could coexist without being exclusive and I am unsure what specialized accommodation could be construed as?
Is Fire and sound separation required where there is not other property?
Without doing a specific fire design of a particular design we can still look to the CAS1 acceptable solution for a way to satisfy the code requirements. Households require 30 minutes FRR separation which is not onerous and may even be present to a degree if there are wall linings present. The problem may be quantifying what is present and as it is unlikely to be Fire tested system unless consented an assessment of code compliance is difficult. CAS! 4.1 provides for a comment that recommends granny flats also have fire seperation but as a comment this is not mandatory. My view is that is a new build fire seperation is prudent if only to furture proof the building and allow for future subdivision.
To be code compliant we can asume households need fire seperation for protection of the occupants (but not other property because it is not present under the same ownership)
Does a granny flat need fie separation?
CAS1 and the change of use regulations atre contradictory in this.
CAS1 states in 4-1 1 that it does and treats the unit as a multi dwelling but the uses in change of use regulations states that a multi dwelling change has not occurred. The change of use regulations are mandatory statutory authority that has precedence over an optional acceptable solution so change of use regulations must have greater standing.
s it unlawful to have a household without fire separation provided? The answer is no based on the fact that a change of use has not occurred (a change of use being an offence)but also arguably because such an arrangement doesn't require separation. This may depend on the management that is in place.
Unlawful under the building act is generally dangerous or insanitay and dangerous for fire is defined as in the event of fire death or injury is likely. Likely is not the same as possble and assumes the fire is there already. We assume we are discussing simple 1 or 2 level properties with more than one escape route (thus we are not considering means of escape past other household units or the possibility of this. The risk of fire is always present but this isnt the same as dangerous in the event of one.
Is a granny flat and a same household the same thing?
The classified use treats family and household as the same thing as does the definition of household uni (which doesnt make the distiction) Household is not defined but ordinary meaning is" a house and its occupants".
The change of use regulations actually states that self contained spaces are included and then adds such as granny flats used by same family so it is still open to include a household if it is the same household as the main dwelling.
We must therefore make a distinction between a household connected to another household (that is not exclusive) and the different situation of two seperate and exclusive.
An example of this might be a owner occupoier who invites another to be part of their household by was of a shared household agreement or even a teanancy agreement that provides privacy to that part of the house and could comply with RTA.
If this is recognised then the problem of overturning flat/house sharing agreements is addressed
WORK IN PROGRESS TO BE CONTINUED.................................................................................................................
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