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Seeking some advice here.
We have in all the units in our complex a study / dining room nook, essentially it’s an open area off the lounge room area that varies in size (depending on the layout). Owners use the area for a variety of purposes such as a study / WFH area, dining area, home gym area etc. In my unit as an example we have made a custom dining table that suits the space so we can sit 10 for dinner.
Some owners have put up curtains, or placed tall furniture where the area meets the lounge area to create more of a private area, which isn’t an issue as that’s not a permanent structure.
However some owners have added a gyprock wall, floor to ceiling with a door to create a habitable space, this is creating some issues from a compliance perspective;
a) the area could be used as a bedroom, as such would need a DA approval from council
b) due to the above there is a fire compliance issue potentially in regards to placement of smoke/fire detectorsWe have one new owner whos renovated their lot (without any approvals) and added such wall, the resident has been overheard describing the apartment as a 2 bedroom (it was a 1 bedroom with study nook). The owner works overseas (his mother occupies the lot) and is frequently not able to access the internet (some form of offshore shipping role), we have asked them to provide written advice from our local council that these alterations do not need a DA approval, they have asked for a time extension to July to address the issue.
What action would be considered reasonable in these circumstances?
Cheers,
Stuart
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Strictly speaking, it should have a DA as it is changing the layout of the apartment. That said, we had a real estate agent living next to us who took out the bedroom next to his lounge room so he could throw bigger parties (his words). That meant that instad of having our bedroom adjacent to his bedroom, it was no adjacent to a party room.
When we complained to council, we were told it had been signed off by the builder as a “compliant development” meaning it didn’t need a DA. The strata committee couldn’t refuse it and neither could the council. Our advice was to sue the builder. We sold, instead.
So my advice would be to notify council that there is a non-compliant renovation in your building and then let them do the heavy lifting.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
We had an owner in our strata who (without permission) created a 3rd bedroom in the roof space (which is common property), along with a drop-down staircase. The committee only found out about it when he went to sell it. They called the estate agent and assured them the townhouse was a 2br, and that the alteration of a 3rd BR would have to be rectified by any new owner.
The owner removed the townhouse from sale and restored the roof space.
Were it not for a vigilant committee, that owner would have made a $400,000 (the difference between a 2br and 3br) profit and any new owner would have been stuck with an illegal renovation.
Hey doozy,
had the owner sold with the third bedroom, I believe that a future owner would not have to pay to fix the illegal renovation. It is likely that the OC would have to pay to fix it. After all, the new owner did not undertake the illegal work.
I believe that a future owner would not have to pay to fix the illegal renovation. It is likely that the OC would have to pay to fix it.
I don’t think that’s true at all. The owner buys the property on the basis that the vendor has told him everything he needs to know. The new owner’s beef is with the vendor, not the OC. In fact, the OC can tell the pruchaser to reinstate the property.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Jimmy, I beg to differ.
If the plans approved by the OC did not mention the roof space, but modifications to the roof space were made, I can’t see why the present owner is liable for anything. He bought in good faith.
Are purchasers required to inspect any renovation approved by the OC to assure themselves that it complies with what was specifically approved?
Surely a good OC would have hired someone to inspect the works once completed to check if they were in line with what was approved.
If the completed works were signed off, presumably the OC had no issues with what was built.
If the OC failed to verify the completed works, surely it’s for the OC to rectify (if they want to).
That’s my view and my knowledge does not even rise to the level of bush lawyer.
The only alternative scenario I see, which I think is very messy, is for the OC to demand the current owner reinstate the roof space and in turn the current owner could sue the vendor (assuming he can be located). Messy.
The only alternative scenario I see, which I think is very messy, is for the OC to demand the current owner reinstate the roof space and in turn the current owner could sue the vendor (assuming he can be located). Messy.
To misquote the Monty Python cheese shop sketch, I don’t care how f—- messy it is. The previous owner has stolen common property (or the right to change it) and didn’t tell the new owner. So someone steals my car and then sells it to you. I say, hey, “That’s my car” and you say, the guy who sold it to me didn’t tell me it was stolen and I bought it in good faith. So I say, “Okay, you’d better keep it, then.” I don’t think so.
Have a look at this: Why Some Property Contracts Omit Renovation Details (& How It Impacts You) – SettledAnd this: Unapproved renovations – the vendor perspective – KLH & Associates
And this: Buying Properties with unapproved renovations – Alliance Lawyers
In the latter it says:
If there is a breach of s52A(2)(b) and a Vendor also fails to disclose unapproved works or structures on the property at the time of entering the contract, the Purchaser is entitled to rescission and the repayment of the deposit at any time before settlement date Regulation 16(1)(b) and 17 of the Conveyancing (Sale of Land) Regulation 2010, provided that conditions under Regulation 16(1)(3) are met.
In Huang v Ceylan [2018] NSWSC 306, the Vendor advertised for sale a three bedroom unit. In fact the development approval provided for the apartment to contain two bedrooms. A wall had been constructed along an open “media room” thereby enclosing it to create a third bedroom. The Purchaser discovered the unapproved work after exchange of contract. The Supreme Court in that found the Vendor had breached his disclosure obligations under s52A(2)(b) and ordered the return of the Purchaser’s deposit.
Then there’s this:
Don’t risk buying a property with illegal building work | The Real Estate Conversation
Does a seller need to disclose unapproved building work to a buyer?
Generally, there is no legal obligation for a seller to do so. The old adage of ‘Buyer Beware’ still very much applies with illegal building works – once the contract is signed the buyer inherits these problems.
As for buying “in good faith” – you inspect an apartment for sale, the vendor shows off the renovation and you don’t get your solicitor or conveyancer to check that it was approved. That’s not good faith – that’s blind optimism and the other owners in the scheme shouldn’t have to pay for it.
In the OP’s case above, the council could order the current owner to reinstate the apartment but there’s no way the OC can or should be held liable.
Hopefully these links will have elevated you closer to informed observer, if not quite bush lawyer status.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Jimmy, the links you shared and your elaboration on the issue are appreciated. I was wrong and my strata mgr, whose view seemed to make sense, in the context of wooden floors being secretly installed by a previous unit owner, which are responsible for noise transmission to others, means that if the OC or NCAT insists that the insulation needs to be replaced, it would be the current owner and not the OC who would have to pony up the dosh. Interesting indeed.
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