When a house carries work the file cannot show
This is the line with the gap in it: a house whose work has no approval, or no certificate to show for it. Four jurisdictions in this guide answer some part of the buyer's question, and each answer is different. The comparison below is made from their own consumer and legislation pages, and every rule is printed for the state whose law makes it.
This is general information published by Dotto, not legal advice. The rules here are drawn from the official pages linked in the sources list at the foot of this page: the ACT's civil law regulation and buyers' guide, Consumer Affairs Victoria, the Queensland Government's seller disclosure form, and South Australia's consumer and business pages.
A missing certificate is a paper problem with a property underneath it, and the official pages treat it differently depending on where the house is. Some put a duty on the seller to disclose, some give the buyer a right to ask, some answer with a form, and one gives the buyer a way out of the contract. There is no national rule, so this guide does not state one.
The ACT: the required documents, and a right to cancel
The ACT writes the certificate into the documents a buyer is entitled to see. The Civil Law (Sale of Residential Property) Regulation 2004 defines the building conveyancing inquiry documents for a residence, and the first of them is a list of documents held by the territory planning authority: a certificate of occupancy for the residence, a survey plan for the residence, signed by a registered surveyor, and the approved plans for the residence. 1
Alongside those documents, the ACT's buyers' guide describes what a buyer can rely on: a building and compliance inspection report must be attached to the contract for the sale of residential property and be available on request by a buyer, and a buyer may use the information in that report in their purchase negotiations. 2
The ACT is also the one jurisdiction in this guide whose pages give the buyer a right after exchange. If you become aware of any unapproved structure after the exchange of contracts, you can ask the seller to arrange for the structure to be approved, and if the structure is not approved before completion of the sale, you may cancel the contract without paying any costs. 2 That is the sharpest remedy the pages in this guide carry: not a warning, a right.
Victoria: what the section 32 statement must carry
Victoria's approach is disclosure inside a fixed window. Where the land has a residence on it, a section 32 statement has to carry the particulars of any building permit given under the Building Act 1993 in the last 7 years for a building on the land. 3 The window is the law's own, which means a permit older than 7 years can be absent from the statement without the statement being wrong.
Consumer Affairs Victoria adds the buyer's side of the same coin, in a sentence about inspections: any illegal alterations may become your responsibility once you sign the contract of sale. 4 Read with the look-back, the Victorian position is a documentation duty on the seller and a live risk for the buyer: what is not disclosed in the statement can still be inherited with the land.
Queensland: what the seller does not warrant
Queensland states the limit of the seller's promises in the disclosure form itself. The seller does not warrant the structural soundness of the buildings or improvements on the property, or that the buildings on the property have the required approval, or that there is no pest infestation affecting the property. 5 A seller who signs that form has not promised the buyer that every structure on the land is approved, and the form is where that is said.
What the same form tells the buyer to do about it is the second half of the rule: you should engage a licensed building inspector or an appropriately qualified engineer, builder or pest inspector to inspect the property and provide a report, and also undertake searches to determine whether buildings and improvements on the property have the required approvals. 5 The sentence names the searches as well as the inspection, which is the part a buyer who only books an inspector can miss.
South Australia: the questions the notice asks
South Australia answers through the Form 3 buyer's information notice, which puts the question to the seller. The notice asks whether there are any illegal or unapproved additions, extensions or alterations to the buildings on the property. 6
The SA Government's own inspection page adds a route for the case the answer is yes or not known: contact the local council if the property was recently renovated to check the correct planning permission given, and any illegal alterations could become your responsibility. 7 That last clause is the same warning Victoria's page gives: the work can travel with the land, and with the new owner.
The four positions, one line each
- ACT
- The certificate of occupancy is one of the building conveyancing inquiry documents held by the territory planning authority; 1 the inspection report must be attached to the contract and available on request; 2 and an unapproved structure discovered after exchange can be put to the seller to fix, with a right to cancel without paying costs if it is not approved before completion. 2
- VIC
- A section 32 statement has to carry the particulars of any building permit given under the Building Act 1993 in the last 7 years, 3 and illegal alterations may become the buyer's responsibility once the contract of sale is signed. 4
- QLD
- The disclosure form states that the seller does not warrant that the buildings on the property have the required approval, and tells the buyer to engage a licensed building inspector or another appropriately qualified professional, and to undertake searches on the approvals. 5
- SA
- The buyer's information notice asks about illegal or unapproved additions, extensions or alterations, 6 and the government's inspection page says to contact the local council after a recent renovation, because illegal alterations could become the buyer's responsibility. 7
What this guide does not do
It does not tell a buyer what to do, and that is deliberate: no step on this page is written in this site's own words. Each sentence above is the official page's rule, stated for its own state, and the pages themselves are linked at the foot of this page for a reader who wants them whole. The state a property sits in decides which of the four positions applies, and a property in a state this guide does not draw, New South Wales, Tasmania, Western Australia and the Northern Territory, will be covered by rules this guide does not carry.
For a reader working out how a missing certificate fits the rest of the picture, the two guides either side of this one are the place to start: the names the document goes by, and what a pre-purchase report is not.