What was the outcome of Tenancy Tribunal case 9042664?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9042664?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9042664?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9042664?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10107299-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9042664?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9042664?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9042664?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9042664?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10107299-UTA_Tribunal_Order.pdf.

Island Bay, Wellington Tenancy Tribunal Case 9042664 — Unit Titles

Order

The application is dismissed.

Reasons

The Tribunal must consider an application filed by the Jemima Bullock a unit owner, against the other unit owner in a two unit development, Christopher Haughey.
Both parties appeared at the hearing today.

BACKGROUND

The premises are unit titled premises situated at 441 and 441A The Esplanade, Island Bay, Wellington. 441 is also known as Unit 2 on the deposited plan and is owned by Mr Haughey. 441A is Unit 1 on the plan and owned by Ms Bullock.
It is the case that Mr Haughey was the original developer of the development, and he also owns the house on the west side, but that is not part of this unit titled development. That means that Ms Bullock’s unit is between two units owned by Mr Haughey, but only one of those units is part of this unit titled development. As I noted the Tenancy Tribunal can consider the dispute in relation to the unit titled development, but not the other separate neighbour.
It is also plain from my above summary that there are only two members of this body corporate, that is Ms Bullock and Mr Haughey.
It is also relevant to note that the deposited plan for this complex shows the two units (1 and 2) which would be principle units, but there is no common property.
In terms of the units themselves, my understanding is that they are adjoining units which are separated by a joint concrete block wall.
It is plain that the relationship between Ms Bullock and Mr Haughey has not gone well over the years, certainly in more recent times anyway. It does not seem as if there is very much the parties have been in agreement on as far as the management of this development is concerned.
The last AGM for the body corporate was on 31 May 2021. The minutes have been provided, and record that Mr Haughey was elected as the chair of the body corporate then (but the chair must be elected at each AGM).
Since then the parties have been in significant conflict, and it appears that they have proceeded with various works to their own units including work to the roof and recladding, but that was other than work approved by the body corporate.
Ms Bullock has applied to the Tribunal for orders against Mr Haughey. The Tenancy Mediation Service have assisted with a mediation. From that mediation various things were agreed, which included considering the cancellation of the unit title plan, and registering a ‘standard’ fee simple title. I was advised at the hearing today that the parties agreed to progress down the fee simple route, and that the work on that has almost been completed.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is the Unit Titles Act 2010 (the UTA) and the Unit Titles Regulations 2011 (the Regulations).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (Ms Bullock the applicant), establish her claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.

DISCUSSION

At the hearing today, Ms Bullock advised that the orders she was seeking from the Tribunal included an acknowledgement that Mr Haughey has not complied with his responsibilities, that he has used his position of power to cause her financial loss and distress, and to order that Mr Haughey pay her compensation and costs.
The immediate problem Ms Bullock faces with this claim, is that she can only bring a claim in the Tribunal in relation to the UTA, against limited parties (section 171), that would include another unit owner or a body corporate. Section 171(2) sets out the parties who can bring applications, and be a respondent of those applications as follows: (2) The persons mentioned in subsection (1) are— (a) the owner of a principal unit or a former owner of a principal unit: (b) a future development unit owner: (c) an occupier of a future development unit: (d) a body corporate: (e) an administrator: (f) a registered valuer: (g) an occupier of a principal unit: (h) a service contractor: (i) a prospective buyer of a principal unit: (j) an original owner: (k) a lessor of base land: (l) the chief executive.
It is noteworthy that this list does not include a chair. But that does not mean Ms Bullock could not challenge decision making from the chair, certainly she could, but that would need to be as a challenge to the Body Corporate, not the individual unit owner. Ultimately when a chair make decisions, they do so on the basis that those decisions are on behalf of the body corporate. If they make decisions outside their authority, then it is the body corporate the chair will be answerable to.
Ms Bullock could have applied for orders against the body corporate but she has not done so.
Ms Bullock was not able to identify any legal obligation that Mr Haughey has breached against her, in his capacity as being a unit owner. For that reason Ms Bullock’s application cannot succeed. Certainly Ms Bullock has identified wide ranging relationship issues between the parties, but there is no obligation in law that I know of, which required the parties to have a good relationship. There are legal obligations set out in the UTA that the body corporate and individual unit owners must comply with, but of course that is both Ms Bullock and Mr Haughey.
Nevertheless, we took the opportunity at the hearing to consider what has occurred at this body corporate, and to identify what needs to happen to get matters back on track. While I recognise that the parties are working to convert the development to being on a fee simple title, strictly at the time of the hearing today the premises are still unit titled premises. Even if the parties agree to cancel the unit title plan, the UTA sets out processes the parties will need to apply, including passing a special resolution to cancel the plan.
In my assessment, where this body corporate has gone off track is that it has not following the required governance processes in the UTA and particularly the Regulations. In summary those processes required: a. An AGM to be convened every year, no later than 15 months following the prior AGM (UTA s89). The obligation to call an AGM sits with the Chair. b. The Chair must send a notice of intention to call the meeting, which includes an invitation to identify matters needing discussion at the AGM (Regulation 5). c. The Chair must send the notice of the AGM, which includes the agenda. d. The Body Corporate must convene the AGM, at which voting takes place on the agenda items, which the Body Corporate then gets on and actions.
In my view, if the Body Corporate had followed these required processes, then much of the conflict could have been avoided.
For the above reasons, while the Tribunal accepts that the Body Corporate has not followed the necessary processes under the UTA and regulations, as far as this application against the individual unit owner (Mr Haughey) is concerned, the application must be dismissed.

Order

The application is dismissed.

Reasons

The Tribunal must consider an application filed by the Jemima Bullock a unit owner, against the other unit owner in a two unit development, Christopher Haughey.
Both parties appeared at the hearing today.

BACKGROUND

The premises are unit titled premises situated at 441 and 441A The Esplanade, Island Bay, Wellington. 441 is also known as Unit 2 on the deposited plan and is owned by Mr Haughey. 441A is Unit 1 on the plan and owned by Ms Bullock.
It is the case that Mr Haughey was the original developer of the development, and he also owns the house on the west side, but that is not part of this unit titled development. That means that Ms Bullock’s unit is between two units owned by Mr Haughey, but only one of those units is part of this unit titled development. As I noted the Tenancy Tribunal can consider the dispute in relation to the unit titled development, but not the other separate neighbour.
It is also plain from my above summary that there are only two members of this body corporate, that is Ms Bullock and Mr Haughey.
It is also relevant to note that the deposited plan for this complex shows the two units (1 and 2) which would be principle units, but there is no common property.
In terms of the units themselves, my understanding is that they are adjoining units which are separated by a joint concrete block wall.
It is plain that the relationship between Ms Bullock and Mr Haughey has not gone well over the years, certainly in more recent times anyway. It does not seem as if there is very much the parties have been in agreement on as far as the management of this development is concerned.
The last AGM for the body corporate was on 31 May 2021. The minutes have been provided, and record that Mr Haughey was elected as the chair of the body corporate then (but the chair must be elected at each AGM).
Since then the parties have been in significant conflict, and it appears that they have proceeded with various works to their own units including work to the roof and recladding, but that was other than work approved by the body corporate.
Ms Bullock has applied to the Tribunal for orders against Mr Haughey. The Tenancy Mediation Service have assisted with a mediation. From that mediation various things were agreed, which included considering the cancellation of the unit title plan, and registering a ‘standard’ fee simple title. I was advised at the hearing today that the parties agreed to progress down the fee simple route, and that the work on that has almost been completed.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is the Unit Titles Act 2010 (the UTA) and the Unit Titles Regulations 2011 (the Regulations).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (Ms Bullock the applicant), establish her claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.

DISCUSSION

At the hearing today, Ms Bullock advised that the orders she was seeking from the Tribunal included an acknowledgement that Mr Haughey has not complied with his responsibilities, that he has used his position of power to cause her financial loss and distress, and to order that Mr Haughey pay her compensation and costs.
The immediate problem Ms Bullock faces with this claim, is that she can only bring a claim in the Tribunal in relation to the UTA, against limited parties (section 171), that would include another unit owner or a body corporate. Section 171(2) sets out the parties who can bring applications, and be a respondent of those applications as follows: (2) The persons mentioned in subsection (1) are— (a) the owner of a principal unit or a former owner of a principal unit: (b) a future development unit owner: (c) an occupier of a future development unit: (d) a body corporate: (e) an administrator: (f) a registered valuer: (g) an occupier of a principal unit: (h) a service contractor: (i) a prospective buyer of a principal unit: (j) an original owner: (k) a lessor of base land: (l) the chief executive.
It is noteworthy that this list does not include a chair. But that does not mean Ms Bullock could not challenge decision making from the chair, certainly she could, but that would need to be as a challenge to the Body Corporate, not the individual unit owner. Ultimately when a chair make decisions, they do so on the basis that those decisions are on behalf of the body corporate. If they make decisions outside their authority, then it is the body corporate the chair will be answerable to.
Ms Bullock could have applied for orders against the body corporate but she has not done so.
Ms Bullock was not able to identify any legal obligation that Mr Haughey has breached against her, in his capacity as being a unit owner. For that reason Ms Bullock’s application cannot succeed. Certainly Ms Bullock has identified wide ranging relationship issues between the parties, but there is no obligation in law that I know of, which required the parties to have a good relationship. There are legal obligations set out in the UTA that the body corporate and individual unit owners must comply with, but of course that is both Ms Bullock and Mr Haughey.
Nevertheless, we took the opportunity at the hearing to consider what has occurred at this body corporate, and to identify what needs to happen to get matters back on track. While I recognise that the parties are working to convert the development to being on a fee simple title, strictly at the time of the hearing today the premises are still unit titled premises. Even if the parties agree to cancel the unit title plan, the UTA sets out processes the parties will need to apply, including passing a special resolution to cancel the plan.
In my assessment, where this body corporate has gone off track is that it has not following the required governance processes in the UTA and particularly the Regulations. In summary those processes required: a. An AGM to be convened every year, no later than 15 months following the prior AGM (UTA s89). The obligation to call an AGM sits with the Chair. b. The Chair must send a notice of intention to call the meeting, which includes an invitation to identify matters needing discussion at the AGM (Regulation 5). c. The Chair must send the notice of the AGM, which includes the agenda. d. The Body Corporate must convene the AGM, at which voting takes place on the agenda items, which the Body Corporate then gets on and actions.
In my view, if the Body Corporate had followed these required processes, then much of the conflict could have been avoided.
For the above reasons, while the Tribunal accepts that the Body Corporate has not followed the necessary processes under the UTA and regulations, as far as this application against the individual unit owner (Mr Haughey) is concerned, the application must be dismissed.

Tenancy Tribunal case 9042664 — Unit Titles in Island Bay, Wellington

At a glance

Tenancy Tribunal case 9042664 — Unit Titles in Island Bay, Wellington

At a glance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

DISCUSSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

DISCUSSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions