“Unconsented” does not automatically mean unsafe, unusable or that the current owner is breaking the law. Where historic work was carried out by a previous owner, the real question for a purchaser is often what practical risk that work creates today.
Unconsented building work is one of those phrases that can immediately make purchasers nervous.
A bathroom added without consent. A garage altered years ago. Plumbing that does not appear on the council plans.
The natural reaction is often:
“The current owner will have to fix it or remove it.”
But that is not necessarily the case.
A High Court decision, subsequently applied by MBIE in several determinations, has clarified an important distinction between the person responsible for building work and a later owner who simply purchases the property with that work already in place.
That changes the question a purchaser should be asking.
Instead of simply asking:
“Is there unconsented work?”
it may be more useful to ask:
“Is the work safe, is there a Council enforcement issue, can the property be insured and financed, and what risk am I actually taking on?”
Section 40 of the Building Act 2004 prohibits a person from carrying out building work that requires building consent without first obtaining that consent.
But what happens when the person who carried out the work later sells the property?
The High Court considered the notice-to-fix provisions of the Building Act in Waikato Regional Council v District Court at Hamilton [2023] NZHC 1271. The Court found that the Act does not impose a general obligation on someone who later becomes the owner of non-compliant building work to bring that historic work up to standard simply because they now own it.
MBIE subsequently applied that reasoning specifically to unconsented work and section 40 in Determination 2023/025.
MBIE stated:
“The Act does not impose an obligation on a subsequent owner to remedy a previous owner’s failure to obtain a building consent.”
In other words, if a previous owner carried out building work without obtaining a consent that was required, a later purchaser does not automatically inherit that person’s section 40 contravention merely by buying the property.
Auckland Council’s current guidance reflects the same position. It states that, unless unauthorised work renders a building dangerous or insanitary, enforcement action cannot be taken against an owner who was not the owner when the unauthorised work was carried out.
This distinction is important.
The fact the current owner did not commit the original breach does not magically turn the work into consented building work.
There is still no building consent or Code Compliance Certificate for that work.
So there are really two different questions:
Who is responsible for the original Building Act contravention?
and
What is the present-day status and condition of the building work?
They are not the same thing.
Suppose a previous owner installed a bathroom in a garage without obtaining building consent when one was required.
Years later, the current owner sells the property.
Before the sale, the work is investigated by appropriately qualified professionals. The plumbing and drainage are inspected and found to be safe and functioning appropriately. Any other relevant work — such as waterproofing, electrical work or structural alterations — is assessed where necessary.
There is no current notice from Council, and the building is not considered dangerous or insanitary.
The purchaser tells their insurer about the bathroom and supplies the available information and professional reports. The insurer confirms in writing that satisfactory cover will be provided.
If the purchaser requires finance, their lender is also satisfied with the property and the insurance arrangements.
At that point, what is the actual problem for the purchaser?
There may still be some residual risk, but many of the practical concerns normally associated with unconsented work have been addressed.
The work remains historically unconsented, but that is different from saying it is unsafe, unusable, uninsurable or must be removed.
Not merely because the work was carried out without consent by someone else.
Sections 163 and 164 of the Building Act require a connection between the person receiving a notice to fix and the relevant contravention or failure to comply.
MBIE Determination 2024/030 reinforced this principle. MBIE said there needs to be a “causal link” between the specified person and the contravention — in other words, the contravention must have been done or caused by that person.
That does not mean Council can never act.
Different Building Act powers can apply where a building is dangerous or insanitary, and a current owner can obviously create a new contravention by carrying out further non-compliant or unconsented work themselves.
Separate planning or resource-consent issues can also exist independently of the Building Act.
But simply buying a property containing historic unconsented work does not make the purchaser the person who committed the original section 40 breach.
Potentially, a significant one.
The fact that work is unconsented tells you that the normal approval and inspection process was not followed. It does not, by itself, tell you whether the finished work is physically sound.
Professional reports can provide evidence about the actual condition of the work.
For example, a plumber may be able to assess sanitary plumbing and drainage. Other specialists may be needed where the work involves waterproofing, structure, electrical installations or other building elements.
Importantly, however, a private professional report does not retrospectively issue a building consent or formally certify the work under the Building Act.
It is evidence about the work — not a replacement building consent.
These are often the most important practical questions for a purchaser.
Rather than assuming that unconsented work means the property cannot be insured, the purchaser should establish what the insurer is actually prepared to cover.
The sensible approach is to give the insurer the relevant information and professional reports and obtain written confirmation of:
If satisfactory insurance is available and the lender accepts the property as security, two of the major commercial risks associated with unconsented work may effectively have been dealt with.
For example, most banks require borrowers to arrange house insurance before settlement and provide proof of cover where the bank is providing the mortgage.
Not necessarily.
For qualifying building work carried out without consent from 1 July 1992 onwards, an owner may apply to Council for a Certificate of Acceptance (CoA).
A CoA gives a degree of formal Council verification that, as far as Council can reasonably ascertain after the work has already been completed, the building work complies with the Building Code.
Because Council was not able to inspect the work while it was being constructed, a CoA may be limited to the parts of the work Council can actually verify.
Importantly, Auckland Council expressly confirms that a subsequent owner does not have to obtain a CoA simply because post-1992 unconsented work exists.
Where the owner did not own the property when the work was undertaken and the work is not dangerous or insanitary, Council says the owner may choose to accept the risks of ownership and take no further action. Council specifically identifies insurance and sale-and-purchase implications as matters the owner should consider.
A CoA may nevertheless be valuable because it gives future purchasers, insurers and lenders greater certainty.
A Certificate of Acceptance is not available for building work carried out before 1 July 1992.
For older unpermitted work, Auckland Council allows an owner to lodge an independent third-party report on the property file.
However, Council makes it clear that the report is placed on the file as a public record only. Council does not inspect, validate or accept responsibility for the conclusions in the report.
That is an important distinction between a third-party or Safe & Sanitary report and a Certificate of Acceptance.
If the historic work has been properly investigated, there is no present Building Act enforcement issue, professional assessments are satisfactory, insurance is confirmed and the lender is satisfied, the remaining risks may be relatively limited.
The main residual issue is usually future uncertainty.
When the purchaser eventually sells, refinances or renovates the property, another purchaser, insurer, lender or professional adviser may take a different view of the unconsented work.
The discrepancy between what physically exists and what appears on Council’s property file may also need to be explained again.
And importantly, resolving the Building Act issue does not necessarily resolve other regulatory issues. Depending on the nature of the work, separate planning, resource-consent, title, cross-lease or other requirements may still need to be considered.
Rather than treating all unconsented work alike, the purchaser should establish:
That gives a purchaser a much more meaningful assessment than simply knowing that the word “unconsented” appears somewhere in the property file.
Unconsented building work should not be ignored.
But neither should it automatically be treated as meaning that a property is unsafe, uninsurable, unmortgageable or that the work must be removed.
Where work was carried out by a previous owner, a subsequent owner does not automatically inherit that person’s section 40 contravention simply because ownership has changed.
If the work has been properly investigated, there is no current enforcement or safety issue, satisfactory insurance is available and the lender is prepared to lend, there may be relatively little immediate practical disadvantage to the purchaser.
The work will still remain historically unconsented unless it is formally addressed through an available statutory process, and that history may need to be explained again on a future sale.
The better question is therefore not simply:
“Is there unconsented work?”
It is:
“What actual legal, safety, insurance, finance or resale risk does this particular work create?”
Sometimes that risk may be significant.
But after proper investigation, sometimes it may be very limited.
This article provides general information only and should not be relied upon as legal, building, insurance or financial advice. Every property and item of building work is different. Purchasers should obtain appropriate professional advice and confirm insurance and lending requirements directly with their insurer and lender.
References:
Building Act 2004 — section 40
Waikato Regional Council v District Court at Hamilton [2023] NZHC 1271
MBIE — Certificate of Acceptance guidance
Auckland Council — How unauthorised building work is assessed, September 2025
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