What was the outcome of Tenancy Tribunal case 9048364?

The tribunal order states: By way of declaration, that the amended operational rule adopted by Body

How much money was awarded in case 9048364?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9048364?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9048364?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10240537-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9048364?

The tribunal order states: By way of declaration, that the amended operational rule adopted by Body

How much money was awarded in case 9048364?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9048364?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9048364?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10240537-UTA_Tribunal_Order.pdf.

Takapuna, Auckland Tenancy Tribunal Case 9048364 — Unit Titles

Order

By way of declaration, that the amended operational rule adopted by Body Corporate 182881 at the November 2017 AGM which provides that “an owner or occupier of a unit must not bring or keep any animal or pet in any unit or on the common property” (‘the amended rules’) is invalid and of no effect.
Body Corporate 182881 is to notify the Registrar of Land of Order 1 setting aside the amended rule and register revised operational rules in the prescribed form that removes the amended rule.

Reasons

Both parties attended the hearing on 29 February 2024.
The applicants are owners of principal unit GD in the body corporate of the Mon Desir Apartments at Takapuna, Auckland.
The applicants challenged the validity of an amended body corporate operational rule adopted by the body corporate which restricts the ability of unit owners to bring or keep pets or animals in any unit or on the common property.
While the applicants’ challenge on the operational rule is specifically centered on their ability to train and keep disability assist dogs on the property as an “animal” rather than as pets, I consider that the relevant issues in dispute are wider and not limited to a determination on animals which are not pets, as argued by the applicants.
At its annual general meeting held in November 2017, the body corporate adopted the following amendment to the body corporate operational rules: 20 Pets a) An owner or occupier of a unit must not bring or keep any animal or pet in any unit or on common property. b) Notwithstanding role (rule) 20(a) any owner of a unit who relies on a guide, hearing or assistance dog may bring or keep such a dog in a unit, and may bring such a dog onto the common property. c) An owner or occupier of any dog permitted under rule 20(b) must ensure that any part of a unit or the common property soiled or damaged by the dog must be promptly cleaned or repaired at the cost of the owner. (‘the amended rule’)
It is apparent from the amended rule that the body corporate was intending to perpetuate a living environment in the unit title development at Mon Desir Apartments that is free of animals, whether as a pet or otherwise, without running afoul of the law. The exception enunciated under rule 20(b) is directed specifically to owners (and possibly occupiers) who are blind, sight impaired and/or a person who otherwise rely on disability assistance dogs; this safeguards the body corporate and the amended rule against being outright discriminatory under the Human Rights Act 1993.
At the onset, the applicants/owners of unit GD of Mon Desir Apartments acknowledge that they do not suffer from disabilities associated with the need to keep a disability assistance dog at any one time in their unit and while having the dog traverse common property as a thoroughfare to their unit. Their desire to bring and keep animals onto Mon Desir Apartments is only in furtherance of their vocation as disability assistance dog trainers. To that extent, because the applicants do not rely on disability assistance dogs under the definition of the Human Rights Act 1993, the amended rule cannot be said to be discriminatory against the applicants per se.
The applicants also confirm that they have no desire in keeping dogs as pets in their unit or bring any pet on the common property of Mon Desir Apartments.
Against that backdrop, I consider the material issue is whether the amended rule is inconsistent with the Unit Titles Act 2010 (‘UTA’).
While the amended rule is not discriminatory under the Human Rights Act 1993, I ultimately find that it is inconsistent with the UTA and therefore invalid for these reasons. The amended rule is inconsistent with the provisions of the UTA
Section 79(d) UTA provides: Rights of owners of principal units An owner of a principal unit... (d) is entitled to have quiet enjoyment of his or her unit without interruption by other unit owners or occupiers, or the body corporate or its agents, except as authorised by this Act or the regulations.
Section 79(d) UTA only permits interruption to a unit owner’s right to quiet enjoyment to the extent that it is authorised by the UTA or the regulations.
I do not consider the body corporate’s adoption of the amended rule to fall under such permitted authorisation which must be referenced to the UTA or the regulations.
Section 106(4) UTA provides that any amendment to body corporate operational rules that is inconsistent with any provision of the UTA or any other enactment or rule of law is invalid.
The amended rule infringes on the unit owners’ right to quiet enjoyment of their unit by the keeping of a disability assistance dog without interference by the body corporate and other unit owners/occupiers.
After the Tribunal hearing on 29 February 2024, the body corporate agreed for the applicants to bring in a disability puppy ‘to be trained’ for a trial period of three weeks.
Body corporate chairperson Mr Ian McKenzie wrote on 25 March 2024 that a full size black Labrador dog was introduced and at the age of 14 months old seemed “perfectly quiet and very friendly”. No issue with barking has been reported.
I am satisfied on the evidence that the applicants can quietly enjoy their unit by keeping and training a disability assistance dog in their own unit which right to do so is guaranteed by section 79(d) UTA.
I accept the evidence from the applicants that disability assistance dogs are by nature quiet otherwise they would not qualify as disability assistance dogs in the first place; any tendency in such an animal to bark or otherwise breach other unit owners or occupiers’ quiet enjoyment are therefore most unlikely. I consider this fear from other unit owners that “any future younger puppies that have had no training at all will not be of the same level of acceptable behaviour” unreasonable and unfounded.
The body corporate records their appreciation that the Dixons’ wish to do this permanently as volunteer charity trainers to be a worthwhile gesture, but the residents (especially many older people) are not happy with “their privacy being affected with the presence of a dog in close proximity of their home”.
Mr Mckenzie also submits that there is a genuine safety concern if they should be suddenly confronted with a dog eg., in the lift or garage.
The informal feedback the body corporate has been given is that most unit owners would “prefer not to have potential disability dogs trained in their complex”.
I do not consider those concerns valid nor reasonable. As it is, the amended rule allows for an owner of a unit who relies on a guide, hearing or assistance dog to bring or keep such a dog in a unit, and may bring such a dog onto the common property provided that the owner or occupier of any dog permitted under rule 20(b) ensure that any part of a unit or the common property soiled or damaged by the dog must be promptly cleaned or repaired at the cost of the owner.
Objectively and materially, I see no or only very minute difference between an owner of a unit who relies on a guide, hearing or assistance dog bringing or keeping such a dog in a unit, and volunteer charity trainers like the Dixons who train such a dog by keeping it in their unit in terms of their impact on other residents at the Mon Desir Apartments.
It is unreasonable for the body corporate to conclude that an owner of a unit who relies on a guide, hearing or assistance dog may peacefully bring and keep such a dog in a unit, but not volunteer charity trainers like the Dixons who train such a dog. The nature of the dogs in question is indistinguishable. The applicants have assured the Tribunal and members of the body corporate that at any one time, only one disability assistance dog is kept by the Dixons which is the nature and extent of their training of disability assistance dogs.
As it is, there is already an existing amended rule 20(c) which requires those bringing disability assistance dogs onto the common property to ensure that any part of a unit or the common property soiled or damaged by the dog must be promptly cleaned or repaired at the cost of the owner. I consider this condition to be appropriate and applicable to both an owner of a unit who relies on a guide, hearing or assistance dog and those like the applicants who train guide, hearing or assistance dogs to minimise adverse effects on common property and other unit owners.
As for the prohibition against bringing disability assistance dogs on common property unless the unit owner relies on the dog, a unit owner has a corresponding right to use common property as a thoroughfare for access to the owner’s unit which is “a right so basic and fundamental that it goes without saying”. See the Supreme Court decision in Wu v Body Corporate 366611 [2015] 1 NZLR 215
In the upshot, the amended rule that totally prohibits an owner or occupier of a unit from bringing or keeping any animal or pet in any unit or on common property therefore offends both section 79(d) UTA and the unit owners’ right to use common property as a thoroughfare.
There is an equilibrium which is attainable in this case. The default body corporate operational rules prescribed under section 21 of the Unit Titles Regulations 2011 (‘the Regulations’) and set out at Schedule 1 of the Regulations prohibits an owner or occupier of a unit from creating noise likely to interfere with the use and enjoyment of the unit title development by other owners or occupiers. This prohibition against an owner or occupier from making noise does not infringe on the unit owner’s right to quiet enjoyment under s79(d) UTA; it only infringes the unit owner’s right to enjoyment, and fairly so, of their unit insofar as it interferes with the use and enjoyment of the unit title development by other owners or occupiers.
Here I cannot see how the amended rule which clearly infringes upon a unit owner’s right to quiet enjoyment of their unit by training and keeping a disability assistance dog quietly can be justified by authority referenced to the UTA or the Regulations.
There has only been an inference but no cogent evidence adduced by the body corporate that the applicant’s training and keeping of a disability assistance dog is more likely to make more noise or cause more inconvenience or interference with the use and enjoyment of the unit title development by other owners or occupiers than a unit owner’s reliance on (and therefore keeping of) a disability assistance dog at the unit and while on common property.
I therefore cannot accept the concerns raised by the body corporate in their submissions made at the hearing and in their written submissions dated 25 March 2024. I consider their inferences and concerns that underpin the body corporate’s rationale for the adoption of the amended rule to be hypothetical only.
I find that it would require more than mere concerns around potential but otherwise unsubstantiated claims of actual damage and increased noise by volunteer charity trainers’ keeping of a disability assistance dog to justify interference by the body corporate on the unit owners’ right to quiet enjoyment of their unit and use of common property as thoroughfare for the unit owner and the disability assistance dog.
This right to quiet enjoyment should not be trumped by the majority’s view of what utopia is for all residents of the Mon Desir Apartments, ie., not having to put up with dogs of any kind not being relied upon by a person with disability, which view I find to be simplistic and incapable of encroaching with a unit owner’s right to quiet enjoyment of their unit under s79(d) UTA.
Any issue with increased noise or actual damage to common property by the unit owner, occupier or its tenants, whether in reliance or in training of disability assistance dogs, should be dealt with by addressing the impugned conduct complained of or sought to be prohibited rather than by way of a blanket ban. I consider the body corporate’s rationales both artificial and arbitrary.
It is my finding that the amended rule creates an outright ban on animals and pets which is untethered from any interference with other unit owners’ rights to enjoy the use of their own units and the common property.
Consequently, I determine that the amended rule is invalid pursuant to section 106(4) UTA because it unfairly infringes on the unit owners’ right to quiet enjoyment of their unit without interference by the body corporate.
Having found that the amended rule is inconsistent with the provisions of the UTA, I now address the Tribunal’s jurisdiction to make orders sought by the applicants. The Tribunal’s jurisdiction under the UTA and the RTA
Mr McKenzie noted that in any event, in order to allow Mr and Mrs Dixon to keep the dog, the current Body Corporate rules would need to be changed.
The body corporate’s position is that the current amended rule is enforceable and that it is up to Mr and Mrs Dixon to get sufficient support for the rule to be changed. If they cannot then the situation will be as it was when they purchased the unit, knowing full well that this rule was in place, ie., no dogs are permitted, unless they are owned by persons who rely on them.
With respect, those submissions are misconceived in light of the remedies that the Tenancy Tribunal can provide.
Section 171(3A) UTA provides: Without limiting the provisions of the Residential Tenancies Act 1986 (RTA) that apply to a Tenancy Tribunal by virtue of section 176 of the UTA, a Tenancy Tribunal may, in relation to a unit title dispute within its jurisdiction under this section, do any of the following: (a) order any party to do anything necessary to remedy a breach by that party of an obligation arising under the UTA, the body corporate operational rules, or any agreement that is binding on the party and relevant to the unit title dispute: (b) order any party to refrain from doing anything that would constitute a breach of an obligation arising under the UTA, the body corporate operational rules, or any agreement that is binding on the party and relevant to the unit title dispute: and (c) make any supplementary orders of a consequential or ancillary nature necessary to exercise or perfect the exercise of any of its jurisdiction.
Pursuant to section 176 UTA, Part 3 of the RTA applies with all necessary modifications in respect of the hearing and determination of a unit title dispute by a Tenancy Tribunal, with the exception of sections 77, 78A, 106 and 109, and every reference in Part 3 of the RTA is to be read as a reference to the UTA.
Section 78(1)(a) of Part 3 of the RTA (with necessary modification in respect of the hearing and determination of a unit title dispute by a Tenancy Tribunal) provides that the Tribunal may make an order in the nature of a declaration, whether as to the status for the purposes of the UTA of any unit title development, or as to the rights or obligations of any party, or otherwise.
Having found that find the amended rule has infringed on the Dixons’ right to quiet enjoyment of their unit, I hereby make an order in the nature of a declaration that the amended rule is invalid and of no effect.
Further, in exercise of the Tribunal’s jurisdiction to make supplementary orders of a consequential or ancillary nature necessary to exercise or perfect the exercise of any of its jurisdiction pursuant to section 171(3A)(c) UTA, I direct the body corporate to notify the Registrar of Land of my order setting aside the amended rule which has the effect of restricting the applicants’ right to keep and train a disability assistance dog and register revised operational rules in the prescribed form that removes the amended rule.
For the sake of completeness, I also find that the blanket ban on all pets and animals by the body corporate is likely unenforceable if it is intended to cover innocuous creatures such as docile (and quiet) caged birds, turtles and aquarium fish in their own unit based on the unit owner’s right to quiet enjoyment at their own unit title property.
Consequently, it is for the body corporate to vote and adopt a new amended rule that does not prohibit Mr and Mrs Dixon from keeping a disability assistance dog rather than for Mr and Mrs Dixon to get sufficient support for a new rule to be changed.
While the Dixons knew full well that this amended rule prohibiting the keeping of animals unless they are owned by persons who rely on them was in place when they purchased the unit, the amended rule is invalid and unenforceable for the reasons set out above.
In the upshot, the applicants may train and keep a disability assistance dog in their unit at Mon Desir Apartments, as they wish, and it is for the body corporate to adopt new rules (if they see fit) which new amendments are subject to the legal principles set out in this order, and then hopefully, the new rule is not unenforceable.

Tenancy Tribunal case 9048364 — Unit Titles in Takapuna, Auckland

At a glance

Tenancy Tribunal case 9048364 — Unit Titles in Takapuna, Auckland

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions