What was the outcome of Tenancy Tribunal case 9046264?

The tribunal order states: Avon BC 81284 must pay Derryn Murphy $7,959.85 immediately, calculated as

How much money was awarded in case 9046264?

Filing Fee: $500.00 awarded to landlord

What type of tenancy dispute was case 9046264?

The dispute type was not classified.

Where can I read the official tribunal order for case 9046264?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10291757-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9046264?

The tribunal order states: Avon BC 81284 must pay Derryn Murphy $7,959.85 immediately, calculated as

How much money was awarded in case 9046264?

Filing Fee: $500.00 awarded to landlord

What type of tenancy dispute was case 9046264?

The dispute type was not classified.

Where can I read the official tribunal order for case 9046264?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10291757-UTA_Tribunal_Order.pdf.

Wellington Central, Wellington Tenancy Tribunal Case 9046264 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 9046264 — net $7,959.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing Fee	$500.00	Filing Fee
Net award	$7,959.85
Total payable by Tenant to Landlord	$7,959.85

Claims and awards in Tenancy Tribunal application 9046264 — net $7,959.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing Fee	$500.00	Filing Fee
Net award	$7,959.85
Total payable by Tenant to Landlord	$7,959.85

Order

Avon BC 81284 must pay Derryn Murphy $7,959.85 immediately, calculated as follows: DescriptionsApplicant Remedial works$7,459.85 Filing Fee$500.00 Total payable by Respondent to Applicant $7,959.85

Reasons

Both parties attended the hearing.
The applicant seeks reimbursement of the costs of repairing water damage to the external wall of her apartment, uncovered during agreed work to the windows of the apartment.
The background to this issue is largely agreed.
The premises was previously a motel. The penthouse units were added later, but prior to the lodgement of the Unit plan in 1995.
Prior to the applicant purchasing the unit, repair work was undertaken throughout the building in 2018. This included replacing the “traffic guard” membrane on the upper walkways, and repairs to the windows in the applicant’s apartment. Work was also undertaken to repair leaks throughout the building.
The applicant’s tenants complained of leaks through the windows, and the applicant sought to repair these. The BC agreed to cover a portion of the costs, and the applicant was to cover the rest.
In the course of those repairs, it was discovered that the traffic guard was originally installed incorrectly, allowing water to penetrate the concrete walls, leading the re-bar to rust, expand, and crack the surrounding concrete. Additional repairs were required to correct this, and the applicant seeks to have the body corporate (“BC”) reimburse her for the cost of this additional work.
The BC accepts that the damage exists and that repairs were required. The BC also accepts that the work is structural, but argues that it benefits one unit only, and is therefore outside the ambit of its repair obligations. Further, the BC submits that when is agreed to contribute the cost of initial repairs, that was on the basis that its liability was capped at the 25% agreed on.
The BC relies on an email dated 7 October 2021 stating:
The applicant argues that s138 of the UTA requires the BC to fund repair work to structural elements. Analysis
Section 80(1)(g) sets out a unit owner’s obligations to repair, and states that a unit owner: must repair and maintain the unit and keep it in good order to ensure that no damage or harm, whether physical, economic, or otherwise, is, or has the potential to be, caused to the common property, any building element, any infrastructure, or any other unit in the building.
Section 138(1) states that the BC must: (1)The body corporate must repair and maintain— (a)the common property; and (b)any assets designed for use in connection with the common property; and (c)any other assets owned by the body corporate; and (d)any building elements and infrastructure that relate to or serve more than 1 unit.
Section 5 of the UTA defines building elements as: building elements includes the external and internal components of any part of a building or land on a unit plan that are necessary to the structural integrity of the building, the exterior aesthetics of the building, or the health and safety of persons who occupy or use the building and including, without limitation, the roof, balconies, decks, cladding systems, foundations systems (including all horizontal slab structures between adjoining units or underneath the lowest level of the building), retaining walls, and any other walls or other features for the support of the building
Infrastructure is defined as: infrastructure includes pipes, wires, ducts, conduits, gutters, watercourses, cables, channels, flues, conducting, or transmission equipment necessary for the provision of water, sewerage, drainage, stormwater removal, gas, electricity, oil, shelter, protection from fire, security, rubbish collection, air, telephone connection, Internet access, radio reception, television reception, or any other services or utilities to or from a unit or to or from the common property
Section 138(1)(d) creates an obligation on the BBC to repair building elements that relate to or serve more than one unit.
The Court of Appeal considered the phrase “relate to or serve” as it appears in s 138(1)(d) in Wheeldon v Body Corporate 342525, 1 saying: [53] The ordinary meaning of “relate to” is “have reference to; concern”. This ordinary meaning is reflected in Harrison J’s statement in Young v Body Corporate 120066 that “[s]omething is incidental if it naturally attaches or is causally relevant to something else. The phrase ‘relate to’ has a similar meaning of reference to or concern with.” [54] Although Young was decided under the different scheme of the UTA 1972, this statement is equally applicable in the present context. Muir J, correctly, drew on Harrison J’s statement to find that a building element or infrastructure relates to or serves more than one unit if it: (a) naturally attaches to another unit (as in physically adjoining units); or (b) is causally relevant to another unit whether physically or economically (as in non-adjoining units); or (c) is referable to another unit whether physically or economically (as in both adjoining and non-adjoining units); or 1 [2016] NZCA 247, (2016) 17 NZCPR 353 at [53] – [55]. (d) is concerned with another unit whether physically or economically. In addition, Muir J considered that the inclusion of aesthetics in the definition of building elements and the emphasis on integrity of the development in s 3 means that the economic relationship should include those factors. [55] We consider that Muir J’s approach and conclusion were right. The engagement of s 138(1)(d) does not turn on questions of remoteness or materiality. Building elements, by definition, are necessary to the structural integrity of the building, its exterior aesthetics and the health and safety of its occupants. But s 138(1)(d) is only engaged if the criteria set out there are met, namely that the building element or infrastructure relates to or serves more than one unit. There is no need for any gloss and no need to overlay s 138(1)(d) with new terminology. Whether a building element relates to or serves more than one unit is a question of fact.
I consider in it important to note, that section 138 requires consideration of whether a building element itself relates to or serves more than one unit, rather than the consideration of whether the repair work to that building element relates to or serves more than one unit.
In the present case, as accepted by the BC, the building element involved is an external structural wall. I find that wall in question is a building element which relates to or serves more than one unit. This is clear from the fact that the wall attaches to both the applicant’s unit and the neighbouring units and the upkeep and water tightness of that wall is physically and economically relevant to other units in the development.
For completeness, I also consider that the water tightness of the external walls, even only at the location of the windows in the applicant’s unit, has a potential benefit to the other units in the development, particularly those below the applicant’s unit. Part of the repair work in 2018 involved repairs of water leaks that resulted water running internally down walls of the development. Preventing the redevelopment of similar leaks through repairing this wall now is to the advantage of those units.
Accordingly, pursuant to section 138(1)(d), the BC has a mandatory duty to repair and maintain the wall in question, in the interests of all body corporate members.
In Wheeldon v Body Corporate 342525 2 the High Court addressed the interrelationship between the body corporate’s duty to repair and maintain under section 138 and the individual unit owner’s duty to repair and maintain under section 80(1)(g). The Court held that the duty of an individual unit owner to repair and maintain building elements that serve more than one unit, is subject to the body corporate’s section 138 duty to repair and maintain. Muir J said: [47] In a flow chart attached to [his NZLS Unit Titles Intensive 2012],6 Mr Gibbons identifies the first question that requires determination where a building element or 2 [2015] NZHC 884, (2015) 16 NZCPR 829 infrastructure may require repair as being whether the particular building element or infrastructure serves more than one unit. In the event that question is answered in the affirmative, Mr Gibbons identifies an obligation upon the Body Corporate to repair that building element or infrastructure. If in the negative, then the unit plan is to be checked to identify whether the building element or infrastructure is part of a unit or common property. If the former, then it is the unit owner’s responsibility to repair, and if the latter, the Body Corporate’s. [48] In my view this analysis best reconciles the provisions of ss 80(1)(g) and 138(1)(d) and is consistent with the Court of Appeal’s obiter observations in Berachan. It also best ensures attainment of the Act’s objective to protect the integrity of the development as a whole. “Integrity” in that sense is not simply structural but, by virtue of the expansive definition of “building elements”, aesthetic as well. Exterior components of the building, like decks and associated balustrading that relate in an aesthetic sense to other units (or indeed upon my analysis to common property) properly, in my view, fall within the provisions of s 138. That reinforces an active role (indeed duty) on the part of the Body Corporate to ensure works are carried out to a uniform standard and with uniform aesthetic outcomes. ....
Having given consideration and made reference to the decision of Wheeldon v Body Corporate 342525 the High Court in Bell v Body Corporate Number 203780 3 concluded at [61] that: [61] Accordingly, where a building element which relates to or serves more than one unit requires repair and maintenance, the responsibility for carrying out the required work is that of the body corporate itself. The duties and responsibilities of the body corporate cannot be delegated other than pursuant to ss 108 and 109 of the Act.
This means that the BC cannot contract out of its obligations under s138. Accordingly, I find that the email dated 7 October 2021 stating “unforeseen remedial work cost is not covered by the body corporate” is not enforceable in relation to this work.
The amounts ordered are proved.
Because the applicant has succeeded with the claim, I have ordered reimbursement of the filing fee.

Tenancy Tribunal case 9046264 — Tenancy dispute in Wellington Central, Wellington

At a glance

Tenancy Tribunal case 9046264 — Tenancy dispute in Wellington Central, Wellington

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions