Illegal additions and unlawful conversions of unusable areas | Rob Balanda

With the trend to private building certification and self-assessed development applications I have seen a growing confidence of investors and developers to cut corners with the development process, based on the principle of “non-detection”. 

That is, because there is now no council inspector involved in the process and it is all handled by your professional, there is not much chance of getting caught out by taking a short cut.

In a way too this has led to a growing trend by owners of investment properties to simply convert carports into garages, garages into bedrooms and to “fill/in” areas, in circumstances where there was never any chance of getting formal approval to do so.

So now as a property investor you regularly come across houses containing these unlawful conversions. 

They are immediately detectable when, for example, you walk into what appears to be a media room, but the entry involves a step down into the area which was once a garage.

Likewise too, when you walk into the fourth “bedroom” and the roof seems a lot lower than the hallway that you just stepped in from. These are all tell-tale signs.

What does this mean for you as an investor?

Can you rent a property out like this and pick up the extra income from the fourth “bedroom”?

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What effect does this have on your insurance?

What if someone injures themselves by tripping and falling or by colliding with a ceiling fan in full flight? What liability do you have as a landlord or owner of such a property?

A quick call to your insurer will reveal that the unlawful conversion or addition will usually void your policy and result in them refusing to indemnify you for any such claims.

Confronted with such a situation an investor client of mine, let’s call her “Karen”, who bought such a property where all of the downstairs area in the house had been illegally converted into bedrooms.

It was not possible to obtain council approval to the conversion now as the rooms did not comply with the minimum height requirements.

Upstairs contained three bedrooms but the property was so much more attractive to a tenant with the two additional bedrooms downstairs.

My advice to Karen was that if she bought this property she must ensure that any lease of it contained a clause that was crystal clear about what the tenant was renting for habitable purposes so there could be no comeback against Karen as a landlord, and to preserve her insurance over the property.

A suitable clause would be something like the following:-

“The tenant acknowledges that only the upstairs part of the home is habitable and that this consists of three bedrooms, two bathrooms, a toilet and a kitchen.  tenancy_agreement_keys

The tenant acknowledges that the downstairs part of the property is not habitable and in particular acknowledges that the two areas that have been converted to bedrooms cannot lawfully be used as bedrooms. 

The tenant also accepts that the only rooms that can be used downstairs are the laundry, garage and bathroom. 

The tenant agrees that if they use or allow others to use any part of the downstairs area as bedrooms, this will constitute a fundamental breach of this lease by the tenant and will entitle the landlord to terminate the lease without compensation.

The tenant also indemnifies the landlord in respect of any claim, action, demand or proceedings taken against the landlord by the tenant or any other party including and without limitation any claim or action for personal injuries caused by the use of any of the downstairs areas for habitable purposes”.



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Rob is a partner in the Gold Coast based law firm MBA Lawyers. He is a highly regarded educator of property investors and estate agents and the author of the "Made Simple" series of books and CD's.

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