Granny Flats in Brisbane City Council Areas - Renting Separately

Discussion in 'Legal Issues' started by RPI, 6th May, 2016.

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  1. RPI

    RPI Property Lawyer, Town Planner Business Member

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    Hi All

    I have rattled on about this in various other threads but thought this update deserved its own thread because this applies to pretty much all granny flats/ secondary dwellings/dual income properties in BCC.

    BCC has flagged changes to the Rooming Accommodation Code and also some changes by the State Gov to the Qld Development Code that will remove Granny Flats ( Secondary Dwellings) from being a Class 1B building/ Rooming Accommodation.

    As it stands in BCC now, you can't rent out a granny flat, secondary dwelling etc separately to the main house, they both must be used by the same household group.

    The exception that became available in City Plan 2014 was that if less than 5 people occupied the entire property then you could get through under the Rooming Accommodation Code if you had a change of classification from 1A to 1B.

    I am told that December is when the changes are due to occur.

    If you have a 1B/ Rooming Accommodation approval in place then you will be an existing lawful use after the change, as long as you continue the use (ie don't rent the whole place out to one household group).

    If you don't have an approval then get ready for show cause notices or prosecutions. Sometimes they will issue a show cause or enforcement notice giving you a short period of time to regularise the use (eg 6 months). If you want to fight these then you can kiss $15k plus GST minimum in legal fees away. That will only delay the time you have to stop the use (after December this year anyway). It is possible we could go through court and win but that would be $50k and I won't have any idea until the new changes are in writing.

    For prosecutions it is a knock at the door of the property, complete with 2 police officers, 2 BCC officers and an electrician. A week or so later a request for an interview with BCC will arrive (don't go without a lawyer) and then a summons to appear at your local magistrates court.

    We have represented multiple people in prosecutions, the best we have achieved is ~$2,500 fine and no conviction recorded. That is with a top planning barrister appearing and a lot of effort put into minimising the hurt (eg legal spend of $10-$15k).

    I am also told that BCC will be going hard against these sorts of properties in the new year.

    Some properties won't be able to be converted, others will but to reiterate, if they are not done this year then it is very likely you would need to stop using them that way and rent it out to a single household group.
     
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  2. chindonly

    chindonly Well-Known Member

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    So Daryl, why is BCC going so hard at this, when many other councils allow it?
    Seems to not make a lot of sense.
     
  3. RPI

    RPI Property Lawyer, Town Planner Business Member

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    They seem to have a pathological hatred and obsession with them.
     
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  4. chindonly

    chindonly Well-Known Member

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    Maybe if they realized they could allow it, then charge more rates, it would make them a lot more money!
     
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  5. Scott No Mates

    Scott No Mates Well-Known Member

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    Just goes to show that the $ aren't always important.
     
  6. Whitecat

    Whitecat Well-Known Member

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    Why?
    Maybe BCC are being lobbied by developers who want to maintain demand for high rise accomodation?
     
  7. RPI

    RPI Property Lawyer, Town Planner Business Member

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    Just an update.

    BCC seems to have issued another round of show cause notices as we have had quite a few come in over the last couple of weeks.

    Some have progressed to enforcement notices requiring people to cease renting in short time frame (2 months ish).

    Also, the changes to the codes to close the loophole are out but still not implemented.

    As long as we can get an application lodged prior the change we can still get the approvals through. The implementation could come in at anytime, we were expecting them to be in prior to now but the wheels of government turn slowly. Could be this month, could be next, we don't have a fixed deadline just know that it is impending.

    In summary

    1. if you have not yet sought approval then you better get on to it;
    2. you don't need to go through my firms (but we do a fixed priced package because including certifier and electrical and fire as we do so many of them);
    3. once this change comes in then you won't be able to get an approval at all
    4. you could always risk that the rules will change again and you can do it but be aware that I have seen are now down to 2 months or so to rent to a single household rather than the 12 months they used to be.
     
    Last edited: 4th Oct, 2017
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  8. jaybean

    jaybean Well-Known Member

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    Did my application get put in on time?
     
  9. jaybean

    jaybean Well-Known Member

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    “you could always risk that the rules will change again and you can do it but be aware that I have seen are now down to 2 months or so to rent to a single household rather than the 12 months they used to be.”

    Can you clarify what you mean by this?
     
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  10. RPI

    RPI Property Lawyer, Town Planner Business Member

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    Rules still haven't changed.

    Also, although the certifier we use is swamped and that is dragging out the final stamped plans, they lodge with council straight away so that the application date is prior to the rule change.
     
  11. RPI

    RPI Property Lawyer, Town Planner Business Member

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    I mean that

    1. you can risk not getting approval now and hope you don't get court
    2. the rules may change again in coming years so that you could rent out
    3. BUT if you get caught the enforcement notices I have seen lately only allow you 2 months to kick out your tenants
     
  12. D.T.

    D.T. Specialist Property Manager Business Member

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    So they don't care for, or allow for, proper procedure here?
     
  13. Simon Hampel

    Simon Hampel Founder Staff Member

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    What rights do the tenants have?
     
  14. Anthony416

    Anthony416 Town Planner & Project Manager Business Member

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    Thanks RPI for giving everybody a "heads-up" on this, potentially folks can save a lot of time and money by knowing the situation.
     
  15. RPI

    RPI Property Lawyer, Town Planner Business Member

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    A lease is invalid for an unlawful use. The occupancy itself is unlawful. Legally it is the same as if you owned a service station and rented it out to someone to live in.

    We can appeal an enforcement notice (which stays it so it is as if never issued) but that is expensive - $8,250 plus GST to prepare and lodge, another $7,500 plus GST for mediation stage (inc of barrister and court fees).
     
  16. RPI

    RPI Property Lawyer, Town Planner Business Member

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    As per other reply - none.

    The occupancy of the building itself is unlawful and the lease is invalid.
     
  17. jaybean

    jaybean Well-Known Member

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    Awesome good to know!
     
  18. jaybean

    jaybean Well-Known Member

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    "Some properties won't be able to be converted, others will "

    What are the chances mine won't be able to be converted? Kind of worried after how much we spent. Still holding out for good news / confirmation from the team!
     
  19. wylie

    wylie Moderator Staff Member

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    Would the tenant be able to claim any costs against the owner (relocation costs)?
     
  20. Kassy

    Kassy Well-Known Member

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    When I was a teenager, my brother, my sister, her husband and kids all lived with my dad and step mum in Brisbane (large house with granny flat). Dad paid for a second council garbage bin. The council came around at least 3 times in the couple of years we did this as they thought we were tenants and not relatives (we look alike so each time they would look at us and leave basically). This was early 90's so it's not new for them to be checking.