Certificate of Occupancy – Implications for Landlords and Tenants

A Certificate of Occupancy (formerly known as a Certificate of Classification) is a certificate over a building or structure that shows its classification under the Building Code of Australia (the National Construction Code) and can include restrictions or requirements on the use or occupancy of the building.[1] When entering into commercial leases, both Landlords and Tenants should consider their obligations with respect to CoO’s.

Certificates of Occupancy

A Certificate of Occupancy (“CoO”) will remain in force unless it is replaced.[2] The Building Code of Australia defines a number of building classes from 1 to 10. Multiple classifications can occur for the one building in which case parts of the building can be classed differently.

Tenant’s to be wary of restrictions on use of Building

Under most Leases, a tenant will occupy the premises at its own risk and will not be able to terminate the Lease if the permitted use is not allowed under the CoO. As such, we advise tenants to obtain a Certificate of Occupancy search as part of their due diligence prior to entering into Leases.

In addition to describing the type of building or use for which the building was designed, built or adapted, a CoO may contain additional restrictions or requirements about the use or occupation of the building.[3] These may include for example limits on the capacity of occupants, limits on height of storage or storage of certain materials. Further examples can be found in the legislation. These restrictions or requirements can drastically impact a business that a tenant may seek to run under a Lease.

Change of Use

In the event that appropriate due diligence has not occurred prior to entering into a Lease, and a tenant finds themselves occupying a building with a permitted use that is not allowed under the CoO, an approval may need to be obtained for a BCA classification or use change.[4] This can be granted by either the local government or a private certifier (class A).[5] It is important to note that costly work may be required to be undertaken on the building/s to ensure that the building complies with any relevant building assessment provisions that may apply to the proper use. Further, a development application may be required under the Planning Act 2016 (Qld) for a material change of use. [6]

Landlord’s Obligation to Display

In most cases, where a building is not a single dwelling detached house, or one or more attached building dwellings separated by a fire-resisting wall (class 1a) or a non-habitable structure (class 10)[7], an owner has an obligation to display the Certificate of Occupancy on the Scheme Land at the building’s main entrance.[8] For a Landlord, this means it has a duty to display the CoO where it is visible by all tenants. Exceptions apply if the CoO was given before 1 July 1997 or if the building is not occupied.[9]

For shopping centres, there may be multiple CoO’s including a CoO for the overall building and CoO’s for individual tenancies.

The Queensland Government has published a guide in respect of CoO’s which includes support on where a CoO should be displayed for different building types.[10]

There may also be town planning and zoning issues that restrict the use of a premise.

If you require advice or assistance with your Lease, contact the experienced team at Miller Sockhill Lawyers on 07 5444 4750 and one of our friendly team members can answer any questions you might have.

The content of this article is current at the date of publishing and is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


 [1] Building Act 1975 (Qld) Schedule 2.

[2] Building Act 1975 (Qld) s 106.

[3] Building Act 1975 (Qld) s103

[4] Building Act 1975 (Qld) s110.

[5] Building Act 1975 (Qld) s111(3)-(4).

[6] Planning Act (Qld) s 51(2)(b)(i).

[7] Building Act 1975 (Qld) s100.

[8] Building Act 1975 (Qld) s108A(2).

[9] Building Act 1975 (Qld) s108A(1).

[10] Department of Housing and Public Works, ‘A Guide to Assist with Issues Relating to Certificates of Occupancy’, Certificate of Occupancy (Web Page, 30 November 2020) < https://www.hpw.qld.gov.au/__data/assets/pdf_file/0012/13224/certificates-of-occupancy-1-Oct-2020.pdf>