Dual occupancy in a double storey house

If OFT steps in and declares them Illegal tenancies you will need to terminate both leases & may also be required to return all rent collected. You can't collect rent on an illegal premises.

Hope that you've got it sitting in your offset account.

 

thank you all, inspection happening this Friday, hope it is not gonna be as nasty as i thought it might be. great advice from you guys. cheers.
Ron

 

@roninvest hey mate, the advice I would give you is this:

- be forth coming with information with Council (don't be dodgy)

- tell them you were not aware such works required development consent

- tell them you were not aware that leasing out as two separate tenancies was not allowed

- tell them that after talking with Council, you now know it is an issue and will take whatever necessary steps to make the place compliant/regularised.

Assuming you are in NSW, you will most likely be served with 1 of 2 orders (if not both):

Under s121b of the Environmental Planning and Assessment Act:

1. If the works you did were substantial and not classified as "exempt development", you will be issued with an order 2(a) (Demolition order) to demolish unauthorised works.
2. Order 1(b) to cease use of the premises for the purpose of dual occupancy or whatever use they define it to be.

Depending on what enforcement action Council takes, you may have solutions to regularise/legitimise the issues:

1. Obtain development consent for the dual occ use
2. Obtain a building certificate for the unauthorised works.

Whether the above is possible will depend on compliance with BCA and development controls.

After Notice of Intention to serve an order is issued, you will be given a couple of weeks to make representations before the actual order is served. This will be an opportunity to negotiate with council and tell them how you intend on complying with the order or resolving the issues.

If you need any further info feel free to PM. Good luck.

 

It would be interesting to know who complained about the properties in the first place - nosey neighbour or a council inspector seeing the advertised separate tenancies ?

 

Councils are not proactive with such compliance matters, they are purely reactive to complaints. Put in a GIPA (Government Information (Public Access) Act 2009) request, you'll be able to see the details of the complaint and if the complainant was not anonymous, you can see who it was.

 

thank you mate! Will look into who had complained.

 

Most people don’t bother to complain without reason.

But in a quiet neighbourhood, a property with three tenancies (posts mention dual main house plus granny flat) it is not hard to see how attention would have been drawn to what was going on. Possibly car parking was an issue.
Marg

 

Does it matter?
Marg

 

there are only three cars in total. one in garage, one on drive way and one on street... maybe some other issue, i will see if the inspector will tell me why...

 

Again, it doesn’t matter why. Or the reason for the complaint.

Now the issue has been brought to council’s attention they will proceed. It’s not as if you can get someone to withdraw a complaint and the matter goes away.

If it was a neighbour, the council won’t give you the name anyway.
Marg

 

I was hoping to know why so that i can avoid such issues down the track. anyway, hoping it is not gonna be an expensive one.

 

Well, you won’t face these issues again if you abide by council regulations, get correct approvals for any building alterations, abide by council zoning, don’t dual lease unless approved and make sure any rental lease you sign is legal.

If in any doubt, check with the relevant authority. Had you done so in this case, you would soon have discovered that what you proposed was illegal.

Do the right thing and there will be no grounds for complaint.
Marg

 

NSW Law doesnt presently allow such a dwelling. It cannot be approved. Council would order rectification works for the unauthorised work or demolition of the structure. A DA is required to refit internals in NSW. They may also find the GF is unauthorised. Council will likely cancel the occupancy certificate (which you have never complied with) for the site as a start.

I cant believe it got that far without you knowing its illegal. The real estate agent should have known immediately. Plans ? Building work - All licensed builders know this. Lucky a fire didnt occur. The Building Code of Australia is designed to save lives by limiting spread of fire in dual occupant property. Thats what a fire wall between dwellings does. Horizontal separation can only occur with a concrete slab and then many other design issues look at flues, cabling, ducts and similar issues. Your property would never meet code. You are likely uninsured too. No insurer would meet a claim.

Get a town planner to advise you. Then see a solicitor.

 

Probably one of the occupants. The noise issues would be highly evident. Let alone sharing a garbage bin and garage / driveway letterbox etc. !! If you put up three letterboxes you just advertised the property issue to the street.

It doesnt matter who advised council really. What does that change ? Illegal works are illegal works. If I saw a neighbour doing this type of works (I live in Hills Council too.) I would call them too. It erodes my property value to have such neighbours.

 

It wont be cheap.

Demolition of the structure is worst case. Rectification back to original plans possible. They MAY allow mods to those plans. Council can also impose fines and fees. They can take the matter to court too.

 

Likely tax implications too...I would think some of your costs are now non-deductible and maybe loan is even tainted. Capital costs galore here. Loss of income producing purpose etc

 

It's ultimately going to come down to what works have been done and whether any of it was exempt development and whether the current arrangement complies with the provisions of the LEP/DCP.

There are not many common orders used by councils under s121 that require rectification works (except for a fire order which is an order 6 but that relates to a use which is lawful).

Right now there are two issues: 1. Use 2. Works

DA consent can be granted retrospectively for use but cannot be granted for works (works can only be regularised via a building certificate).

As part of the negotiations with council and representations to the Notice, I would suggest something along the lines of giving a written undertaking that a DA be submitted for use and rectification works (if the BCA and Da assessment prior to lodgement tells you everything is compliant, no need to propose rectification works, building certificate will suffice)

If a BCA assessment is done with a report submitted and it is deemed to be compliant in respect to fire separation, you may even try to request that Council hold off on enforcing the order until such time the DA is determined as there is no risk to health and safety as deemed by the BCA assessment. There are many ways these things can be resolved, it isn’t clean as you're essentially working backwards but it can be done.

 

@roninvest What was the verdict?

 

Hi,

I'm in the same situation. what's the verdict?