What was the outcome of Tenancy Tribunal case 9046684?

The tribunal order states: The Tribunal declares that the notice of breach of body corporate rules and

How much money was awarded in case 9046684?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9046684?

The primary dispute was Leaks. Related themes: Cleanliness, Unit Titles, Costs.

Where can I read the official tribunal order for case 9046684?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9729332-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9046684?

The tribunal order states: The Tribunal declares that the notice of breach of body corporate rules and

How much money was awarded in case 9046684?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9046684?

The primary dispute was Leaks. Related themes: Cleanliness, Unit Titles, Costs.

Where can I read the official tribunal order for case 9046684?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9729332-UTA_Tribunal_Order.pdf.

Auckland Central, Auckland Tenancy Tribunal Case 9046684 — Leaks

Order

The Tribunal declares that the notice of breach of body corporate rules and administrative charges for breach of rule 4(m) of the Operational Rules dated 11 August 2023 is invalid and of no effect.
Boutique Body Corporates Limited must pay Lindsay James Cranshaw $500.00 immediately for the filing fee.

Reasons

Mr Cranshaw attended the hearing in person with a support person.
Sandy Wu, the body corporate manager, attended for Boutique Body Corporates Limited (BBCL).
Mr Cranshaw claims that BBCL’s breach notice to him for “insulting” the building manager is invalid. He asks for the notice to waived, compensation for stress and sleepless nights, and costs. Background
Mr Cranshaw owns his unit and has lived there for some years. He has been a long-serving body corporate committee member and chairperson. These events have led to him resigning his membership, however.
Mr Cranshaw has been dissatisfied with the new building manager’s efforts. He accepts that he told the building manager, “You’re very lazy”. Other committee members consider Mr Cranshaw’s criticisms are unwarranted and don’t want to lose the building manager.
Ms Wu says Mr Cranshaw’s communications with the building manager greatly upset him. BBCL wanted to protect the building manager from them. One of the body corporate committee members emailed Mr Cranshaw and other relevant people on 17 July 2023 suggesting that Mr Cranshaw might be treating the building manager in a tone that was “too commanding and unappreciative”.
Mr Cranshaw was asked not to communicate with the building manager “either by email or verbally”.
However, on 11 August 2023, Mr Cranshaw went to the building manager’s office to ask about white powder on the carpet outside his unit and whether the floors had been cleaned that day. The building manager was upset by the communication. Later that day, Ms Wu issued the disputed notice for BBCL, which states: It has come to our attention that you have insulted the Building Manager this morning (11 August 2023). This is a breach of rule 4(m) in the Operational Rules
Use of facilities, assets and improvements An Owner must not (m) Behave or permit behaviour or language which would interfere with the peaceful enjoyment of the Owner or Occupier of another unit or any person lawfully using common property and in particular whilst entering or leaving a unit.
The main issue for determination before me today is whether it is established that Mr Cranshaw breached the rule. If it is not established, the breach notice is not valid issued. Did Mr Cranshaw breach rule 4(m)? Legal principles
For there to be a proven breach of rule 4(m) there must be satisfactory evidence that the owner had interfered with the “peaceful enjoyment of the owner or occupier of another unit or any person lawfully using common property”.
I assume for current purposes that the building manager was an “occupier or another unit” or a “person lawfully using common property” or
Where the recipient of a breach notice challenges the substance of the breach alleged, I consider it is incumbent on the party that gave the notice to prove the breach on the balance of probabilities.
The phrase “peaceful enjoyment” bears some resemblance to the words used in default rules 1(c), and 1(e) set out at Schedule 1 of the Unit Titles Regulations 2011. Rule 1(e) for instance stipulates that an owner of a unit must not: interfere with the reasonable use or enjoyment of the common property by other owners or occupiers.
I note, (but do not explore) the potential issue that rule 4(m) may be ultra vires. The Unit Titles Regulations’ default rules do not impose obligations on unit owners in respect to any one other than “owners or occupiers”.
Moreover, the default rules are more specific. Under default rule 1(c) it is only creating noise that can be an interference. Under default rule 1(e), it is only use or enjoyment of the “common property by other owners or occupiers” that is protected. Rule 4(m) however purports to extend the obligation to “any person lawfully using the common property” . 1
Suffice to say, the rule is broader than the default rules and care should be taken to in its application to ensure that unit owners’ ordinary speech and behaviour is in their own units and their common areas is not unduly restricted. Discussion
The breach notice does not detail what Mr Cranshaw allegedly did to interfere with the building manager’s peaceful enjoyment, saying only “you have insulted the Building Manager”.
In my view the notice is vague and uncertain. It should have set out the alleged breach in more detail so that Mr Cranshaw could know what he had allegedly said or done that could amount to an interference. 1 See, Housley & others v Body Corporate 199318 [2023] NZTT Auckland 9018322 for an example of the Tribunal finding amended rules ultra vires.
Mr Cranshaw’s account of the incident was that his conduct was entirely innocuous. He observed that the building manager became agitated, but he believes he did nothing to reasonably cause that. He set out his version of the exchange in an email to BBCL later in the day of the incident and receipt of the breach notice: Where is the evidence to support whatever I have supposedly done? I need tangible evidence. You can't accuse me of something I haven't done on Adams say so surely? I can assure you I never said anything out of order. Nor did I swear, curse or call Adam names. I was composed and all I asked Adam was had he already swept the 9th floor. Reason being there was, and still is, a powder like substance below the air-conditioning inlets at both ends of the 9th floor. I thought Adam should be informed about this. I was not there in anger; I was there to pass on information. However, I couldn't get through to him...Telling me he was so busy with leaks in units, car crashes - he asked me what was more important cleaning or getting leaks fixed. I didn't go there to talk about cleaning I just wanted to know if he was aware of the substance on the carpet.
On 21 August 2023, Mr Cranshaw emailed Ms Wu again asking for evidence about the alleged breach, but BBCL did not respond.
Today, at hearing the only account of the events was given by Mr Cranshaw. BBCL has not provided a statement from the building manager or any notes or record of what happened. Ms Wu suggested she could get more information from the building manager if the Tribunal required it. However, I was not prepared to adjourn the matter for BBCL to obtain more evidence because it has sufficient opportunity to compile its evidence for hearing today and has not responded to Mr Cranshaw’s repeated requests for it.
The allegation against Mr Cranshaw remains unspecified. There is nothing before me to show that his conduct was improper such that it would reasonably have interfered with the building manager’s peaceful enjoyment. Conclusion
I am satisfied on the balance of probabilities that Mr Cranshaw’s behaviour towards the building manager did not amount to an interference with the peaceful enjoyment of a person lawfully using the common property in breach of rule 4(m). It follows, the giver of the notice has not proved the breach on the balance of probabilities.
I have reservations about the validity of rule 4(m). It may be ultra vires. It ought not to be used to suppress unit owner’s and occupier’s reasonable behaviour in any event.
That said, Mr Cranshaw should by now understand he has upset the building manager on more than one occasion. It is hoped he can be sensitive to that in future. Remedy
It is appropriate for the Tribunal to declare that the breach notice is invalid. Consequently, Mr Cranshaw is not liable for the charges mentioned in the breach notice.
Mr Cranshaw sought an order for $1,000.00 in emotional harm damages (i.e. general damages). I do not find it proven that he suffered significant emotional harm related to the notice sufficient to warrant general damages. I decline to make such an award. Filling fee
Because Mr Cranshaw has largely succeeded with the claim, The Tribunal orders BBCL to reimburse him for the filing fee. 2

Order

The Tribunal declares that the notice of breach of body corporate rules and administrative charges for breach of rule 4(m) of the Operational Rules dated 11 August 2023 is invalid and of no effect.
Boutique Body Corporates Limited must pay Lindsay James Cranshaw $500.00 immediately for the filing fee.

Reasons

Mr Cranshaw attended the hearing in person with a support person.
Sandy Wu, the body corporate manager, attended for Boutique Body Corporates Limited (BBCL).
Mr Cranshaw claims that BBCL’s breach notice to him for “insulting” the building manager is invalid. He asks for the notice to waived, compensation for stress and sleepless nights, and costs. Background
Mr Cranshaw owns his unit and has lived there for some years. He has been a long-serving body corporate committee member and chairperson. These events have led to him resigning his membership, however.
Mr Cranshaw has been dissatisfied with the new building manager’s efforts. He accepts that he told the building manager, “You’re very lazy”. Other committee members consider Mr Cranshaw’s criticisms are unwarranted and don’t want to lose the building manager.
Ms Wu says Mr Cranshaw’s communications with the building manager greatly upset him. BBCL wanted to protect the building manager from them. One of the body corporate committee members emailed Mr Cranshaw and other relevant people on 17 July 2023 suggesting that Mr Cranshaw might be treating the building manager in a tone that was “too commanding and unappreciative”.
Mr Cranshaw was asked not to communicate with the building manager “either by email or verbally”.
However, on 11 August 2023, Mr Cranshaw went to the building manager’s office to ask about white powder on the carpet outside his unit and whether the floors had been cleaned that day. The building manager was upset by the communication. Later that day, Ms Wu issued the disputed notice for BBCL, which states: It has come to our attention that you have insulted the Building Manager this morning (11 August 2023). This is a breach of rule 4(m) in the Operational Rules
Use of facilities, assets and improvements An Owner must not (m) Behave or permit behaviour or language which would interfere with the peaceful enjoyment of the Owner or Occupier of another unit or any person lawfully using common property and in particular whilst entering or leaving a unit.
The main issue for determination before me today is whether it is established that Mr Cranshaw breached the rule. If it is not established, the breach notice is not valid issued. Did Mr Cranshaw breach rule 4(m)? Legal principles
For there to be a proven breach of rule 4(m) there must be satisfactory evidence that the owner had interfered with the “peaceful enjoyment of the owner or occupier of another unit or any person lawfully using common property”.
I assume for current purposes that the building manager was an “occupier or another unit” or a “person lawfully using common property” or
Where the recipient of a breach notice challenges the substance of the breach alleged, I consider it is incumbent on the party that gave the notice to prove the breach on the balance of probabilities.
The phrase “peaceful enjoyment” bears some resemblance to the words used in default rules 1(c), and 1(e) set out at Schedule 1 of the Unit Titles Regulations 2011. Rule 1(e) for instance stipulates that an owner of a unit must not: interfere with the reasonable use or enjoyment of the common property by other owners or occupiers.
I note, (but do not explore) the potential issue that rule 4(m) may be ultra vires. The Unit Titles Regulations’ default rules do not impose obligations on unit owners in respect to any one other than “owners or occupiers”.
Moreover, the default rules are more specific. Under default rule 1(c) it is only creating noise that can be an interference. Under default rule 1(e), it is only use or enjoyment of the “common property by other owners or occupiers” that is protected. Rule 4(m) however purports to extend the obligation to “any person lawfully using the common property” . 1
Suffice to say, the rule is broader than the default rules and care should be taken to in its application to ensure that unit owners’ ordinary speech and behaviour is in their own units and their common areas is not unduly restricted. Discussion
The breach notice does not detail what Mr Cranshaw allegedly did to interfere with the building manager’s peaceful enjoyment, saying only “you have insulted the Building Manager”.
In my view the notice is vague and uncertain. It should have set out the alleged breach in more detail so that Mr Cranshaw could know what he had allegedly said or done that could amount to an interference. 1 See, Housley & others v Body Corporate 199318 [2023] NZTT Auckland 9018322 for an example of the Tribunal finding amended rules ultra vires.
Mr Cranshaw’s account of the incident was that his conduct was entirely innocuous. He observed that the building manager became agitated, but he believes he did nothing to reasonably cause that. He set out his version of the exchange in an email to BBCL later in the day of the incident and receipt of the breach notice: Where is the evidence to support whatever I have supposedly done? I need tangible evidence. You can't accuse me of something I haven't done on Adams say so surely? I can assure you I never said anything out of order. Nor did I swear, curse or call Adam names. I was composed and all I asked Adam was had he already swept the 9th floor. Reason being there was, and still is, a powder like substance below the air-conditioning inlets at both ends of the 9th floor. I thought Adam should be informed about this. I was not there in anger; I was there to pass on information. However, I couldn't get through to him...Telling me he was so busy with leaks in units, car crashes - he asked me what was more important cleaning or getting leaks fixed. I didn't go there to talk about cleaning I just wanted to know if he was aware of the substance on the carpet.
On 21 August 2023, Mr Cranshaw emailed Ms Wu again asking for evidence about the alleged breach, but BBCL did not respond.
Today, at hearing the only account of the events was given by Mr Cranshaw. BBCL has not provided a statement from the building manager or any notes or record of what happened. Ms Wu suggested she could get more information from the building manager if the Tribunal required it. However, I was not prepared to adjourn the matter for BBCL to obtain more evidence because it has sufficient opportunity to compile its evidence for hearing today and has not responded to Mr Cranshaw’s repeated requests for it.
The allegation against Mr Cranshaw remains unspecified. There is nothing before me to show that his conduct was improper such that it would reasonably have interfered with the building manager’s peaceful enjoyment. Conclusion
I am satisfied on the balance of probabilities that Mr Cranshaw’s behaviour towards the building manager did not amount to an interference with the peaceful enjoyment of a person lawfully using the common property in breach of rule 4(m). It follows, the giver of the notice has not proved the breach on the balance of probabilities.
I have reservations about the validity of rule 4(m). It may be ultra vires. It ought not to be used to suppress unit owner’s and occupier’s reasonable behaviour in any event.
That said, Mr Cranshaw should by now understand he has upset the building manager on more than one occasion. It is hoped he can be sensitive to that in future. Remedy
It is appropriate for the Tribunal to declare that the breach notice is invalid. Consequently, Mr Cranshaw is not liable for the charges mentioned in the breach notice.
Mr Cranshaw sought an order for $1,000.00 in emotional harm damages (i.e. general damages). I do not find it proven that he suffered significant emotional harm related to the notice sufficient to warrant general damages. I decline to make such an award. Filling fee
Because Mr Cranshaw has largely succeeded with the claim, The Tribunal orders BBCL to reimburse him for the filing fee. 2

Tenancy Tribunal case 9046684 — Leaks in Auckland Central, Auckland

At a glance

Tenancy Tribunal case 9046684 — Leaks in Auckland Central, Auckland

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions