Escape from council letter

[evan1875]

A letter from the council recently came to me pointing out a property I own has an 'unauthorised strata development'. It states that as the owner I need to return the property back to its 'original use'. There is nothing more specific about it and there is no indiction of the time frame with which they expect the change.

A bit of background on this property:

Perth Metropolitan
836sqm
R20 but in the proposed rezoning area to R30, I am hoping this will happen in 2 years
Originally constructed as a large dwelling in the 1970s and I believe at one stage it has been a Vet clinic. But it was converted to 2x 3bed1bath1kitchen residence at some point and this continued to the time of settlement (3 months ago). I continued to rent these out since the purchase.
The dividing wall is not fireproof, there are two letter boxes a) and b) but there is no strata titling, it is a single title.
Purchased by a buyers agent and my understanding is that the council do not chase after this kind of things actively but there is always a small risk of someone informing on me. Now it is on their 'radar' officially, much too soon for my liking.

What might have trigger this:
1. a neighbour didn't like my new tenants or the small clean up job making noise after settlement
2. a tenant (current or ex) - one of the previous tenant was evicted before settlement and one of the current tenant recently enquired about breaking the lease. but didn't put it in writing after being informed by PM about the fees involved. they continue to live there.
3. council knew it all along and something in the system triggered the letter (the sale, bond under 2 tenancies, LL insurance under 2 policies).

What I have done so far

1. have NOT spoken to council, yet.
2. spoken to two town planners
3. spoken to my PM
4. spoken to my buyer's agent

The options after much thinking and discussion

1. do not speak to council, do nothing and see what happens. If anything it buys some time and good rental income.
2. do not speak to council, change the letter box to a single one (make it look like it is converted back to a single dwelling from the street), ask the tenants to share the letter box, do nothing else and see what happens, consider head and sub-lease with the upcoming lease renewal
3. speak to council and see what they want
4. rent it out as a single residence (accept up to 50% reduction in rent) and wait for R30 rezoning to come into effect. Followed by a letter to council to inform them that it has been reverted back to original use.
5. connect the two sides up with an internal door but continue to rent out to 2 tenants by dead lock this door on both sides. Followed by a letter to council to inform them that it has been reverted back to original use.
6. If all else fails, apply for a DA for a R20 group dwelling (500sqm required) and a R20 single bedroom dwelling (250-333sqm with the 'discount' on land required). It would involve re-dividing the big house internally to make sure the single bedroom grouped dwelling side is no more than 70sqm. Probably will end up with less combined rent and the total cost of such a conversion after DA would be close to 20K (townplanner, council and work) I estimate. Then spend something similar converting it back after rezoning to achieve current rent.

I am leaning towards option 1 until it is no longer viable then going to option 3.

Anyone has any good ideas how I should proceed from this point? I am particularly interested in any other innovative options or the reason I should choose one of the above options over the others.



Thank you

 

[NBS]

At this point in time I would be rather concerned about my insurance. NO fire wall between indivdual tenants smacks of illegal works hence why you have been asked to revert to the former. Consider what happens in the event of fire or if someone get hurt at the premises.

I would have assumed your DD would have ID the place was not strata titled prior to purchase or were you aware it was not.

50% reduction in rent is a cheap option as this point even for peace of mind.

Brian

 

[Scott No Mates]

Work through your option - price up a 120/120/120 fire separating wall from subfloor to roof (or whatever complies) & work out payback period. vs loss of rent &conversion to single dwelling.

Council can enforce an order to restore to a single dwelling.

 

[handyandy]

Been there done that.

I am surprised that they haven't given you a deadline.

When I received one of those letters it was 'show cause' then a revert back by this date. The date is irrespective of whether you have tenants on leases - they don't care.

I had to do the full fire rating and build a double carport to provide undercover parking.

During the process they also tried to fine me $1500 odd dollars for being to slow but that was more of the left hand not knowing what the right hand was doing within council. I was going through a mini DA with one department but enforcement just kept on their merry way.

Previous post

http://somersoft.com/forums/showthread.php?t=60734

Cheers

 

[chrispy]

I also received one of these when we put an automatic roller door on the carport of a townhouse in Cairns. One of the other Owners reported us to the Council. There were 6 townhouses.

I contacted the Council Officer and negotiated with him. Outcome was I had to get private surveyor followed by getting plan drawn up and approved. I sent the plan and surveyor report to Council and obtained permit, retrospectively. From memory I received a fine of $66 or thereabouts.

Chris

 

[pennyk]

do you know how long it is been used as 2 flats? sometimes it was done prior to specific rules being in place,and you may be able to negotiate not having to do the upgrade because it has been that way for so long

 

[willair]

I would start with your insurance company first and ask the question,but that may also open a can of worms that are hard to face,all then they may send you a bills for extra rates,plus if this set-up is not legal in fire safety
you could end up on a manslaughter charge if the place is ever in a fire..
imho..

 

[handyandy]

I also received one of these when we put an automatic roller door on the carport of a townhouse in Cairns. One of the other Owners reported us to the Council. There were 6 townhouses.

I contacted the Council Officer and negotiated with him. Outcome was I had to get private surveyor followed by getting plan drawn up and approved. I sent the plan and surveyor report to Council and obtained permit, retrospectively. From memory I received a fine of $66 or thereabouts.

Chris

I can't believe that they picked on you for changing the garage door! How ridiculous.

Cheers

 

[DaveM]

I can't believe that they picked on you for changing the garage door! How ridiculous.

Cheers

It wouldnt be a strata plan without at least old old biddy strata nazi to poke their nose into everyones business.

Usually the first to complain about noise or someone having a cat, but have 3 white yappy fluffy toy dogs.

 

[evan1875]

Thank you for your replies.

I believe it is more an issue of the zoning rather than fire rating. As I didn't go into the details too much in the OP to mention that the letter actually stated "the city's records indicate that xxxx in xxxx suburb has approval for a single house in accordance with the city's DPS No. 2. The current density of this site is R20 and in order for an application for a grouped dwelling to be considered, a minimum lot area of 900sqm is required. It is noted that xxxx has a lot size of 836sqm and does there not meet the minimum site requirements and is unable to seek approval for two dwellings." But the request of "return the property to its proper registered usage in accordance..." has no time line on it.

I know there are unit blocks that are not fire rated on one title. Fire rating is essential when strata-titling but not all old constructions are fire rated. There are 'flats' in QLD that are converted old queenslanders used for multiple tenancies. There are brick unitblocks that are brick walled but not fire rated in the roof space. How does the owners deal with the spread of fire in those senarios? Are all the landlord owning these properties at risk of being sued for manslaughter in case of a fire causing death?

Prior to insuring the duplex I made it clear to Alianz that the wall is not fire proof. They didn't seem to have a problem at the time. Now with this council letter I guess if it was a firewall issue after I clarify with the council I will definitely contact them.

That garage door example made me feel better... Very unlucky and neighbours are bad news for landlords in general. And councils are even worse because I don't think any letter from the council ever comes as good news.

My preliminary with the town planners reveals that the land of 836 sqm at current zoning (R20) does not support 2 dwellings but at R30 will. Alternatively at current zoning it will support a group dwelling and a single bedroom (<70sqm) group dwelling with an discounted land requirement. That is what the council is picking on. But I will need to confirm with them if they are persistent chasing me.

Penny, I am not sure how long it has been used as 2 flats. I guess there is no sure way of finding out. The vendor self managed and allowed the property to be run down (then became bankrupt). Are you saying that if it has been used as 2 dwellings there is something in terms of of a valid argument in my favour?

HBS, I am fully aware that it is not a strata. But I thought a non strata duplex was 'accepted', especially in Perth. I have no intention strata titling it and if I wanted to strata title this I would be fireproofing the walls and split the lot down the middle. I relied on the fact that these type of dwelling arrangements do exist and councils are not proactive towards these until someone complains. The rezoning will definitely get me out of jail but that is at least 2 years away. Didn't expect a council letter within 3 months of owning it. BTW, even if it was converted back to a single dwelling it was still bought very cheaply (pretty much land value). I would not lose too much from an equity point of view as I plan to hold for the long term. Actually I am trying to get a reval on it before the rent reduction (god forbid) eventuates to lock in any gains.

The most costly thing would be structural work forced upon me. I am willing to leave one side vacant or do a head lease and let the tenant do what they like. Basically to avoid structural work. I will probably get a quote for fire proofing the common walls prior to renting them out as separate tenancies again if council gives the green light, given the overwhelming response so far on the fire separation issue.

Should I contact the council? or Should I try to buy time by ignoring this first letter, while receiving two incomes?

 

[units4me]

On your council rates notice, is it shown as a single dwelling? Or as flat 1 + flat 2?

 

[evan1875]

Single rate notice

 

[Doovalacky]

The short term quick fix is to let the tenant who asked to break lease find a new place. That way your back to one dwelling in use and hopefully will keep them happy.
There might not be a date mentioned but sooner than latter I would expect them to start issuing you fines for not complying.

Getting things changed to match R codes could take a while for the approvals etc.

 

[Perp]

I believe it is more an issue of the zoning rather than fire rating.

I'm sure that's true with regard to the Council; they're not your insurer.

Our point is that before receiving this letter, possibly - probably not, but possibly - if you had an insurance claim disputed, it might have been some defence that you thought you had legitimate occupancy.

Now, there are records that the Council has notified you, and you no longer have even that meager defence if your insurer decides - after a claim - that you're not covered due to a significant non-disclosure. And they can decide that after you make a claim; many people seem to think that because they've given you a policy number and taken your money that they've accepted your property as compliant with their policies. They've accepted your property, provided there has been no significant non-disclosure. I know you've told them you don't have a fire wall, but did you tell them you had two leases on a single title in contravention of planning law?

And then there's the criminal law. As stated, in the extreme, you could be up on manslaughter charges if somebody dies in a fire and you knew there wasn't a fire wall. Neither the Council nor your insurer care about that; that's entirely your responsibility to protect yourself against.

I'm not sure, because I don't know WA law well enough, but you need to find out what your legal position is, pronto. In QLD, I don't think that there are exceptions made depending on how long the situation has existed. It may be different in WA.

I know there are unit blocks that are not fire rated on one title. Fire rating is essential when strata-titling but not all old constructions are fire rated. There are 'flats' in QLD that are converted old queenslanders used for multiple tenancies. There are brick unitblocks that are brick walled but not fire rated in the roof space. How does the owners deal with the spread of fire in those senarios? Are all the landlord owning these properties at risk of being sued for manslaughter in case of a fire causing death?

To your last question: possibly, I don't know. I have learned that the fact a practise is widespread and/or long-standing doesn't mean it's not a stupid practise, or illegal/risky/insane. And as a rule, "but everybody else was doing it" works about as well on a judge/insurer as it did with our parents when we were kids.

 

[evan1875]

Thank you Perp and doov.

Something to consider definitely.

 

[evan1875]

An update on this thread...

After the ancillary dwelling rule came into effect in Perth. I decided to contract a private town planner to make an application to change the converted rear 3 bed house into an ancillary dwelling to the main residence. This would allow me to legally rent both units out to separate tenants. Only problem at the time was that the ancillary dwelling was supposedly 70sqm or less. Mine was 85sqm.

Three town planners took the plans and quoted for the job. The lowest quote was low three figures and the highest quote was high four figures. I went with the company that does not have a big name but having spoken to the town planner himself I found him down to earth and very genuine. He happens to have quoted the lowest too!

With some good town planning report and arguments for, the Joondalup City Council approved the application.

 

[RetireRich101]

I had a property in Sydney that went through same exercise. I did basically 1-6 in your Op except for the deadlock of door between.

In Sydney we called them secondary dwelling aka granny flats. Allowable was 60m2 but my 2nd dwelling was 75m2 so I have give 15m2 to front dwelling.

Fire rating wall, council contribution fee, drawing and private certifier fee add up. I think about 15-20k total.

If one side of proposed FW is a wet area such as kitchen, consider if allowable to put FW next to existing wall. You may lose few M2 but might be cheaper so you need to retile when you take down and put the wall back up. And it might be easier to convert (?) when to grouped dwelling when it allowable in your zoning.

 

[RPI]

I can't believe that they picked on you for changing the garage door! How ridiculous.

Cheers

Putting a garage door on a carport changes the structure to a garage. Many councils allow carports forward of the building line, built to front boundary etc but don't allow garages.

We deal with this in Brisbane constantly.