Published tribunal order
Tenancy Tribunal case 9049704 — Mould & damp in Miramar, Wellington
Decided 8 Oct 2025 · Published 8 Oct 2025 · Application 9049704
- Mould & damp
- Smoke alarms
- Unit Titles
Order
- [The party] must pay Body Corporate 58670 the sum of $6,515.74 immediately, being a levy for roof works.
Reasons
- The background in this case has been set out fulsomely in the Tribunal’s order from 1 August 2024.
- However, as far as the unit titled premises are concerned, the premises comprise 5 units. One unit is a standalone dwelling (unit 5), and the other four units (units 1, 2, 3 and 4) are found in a single building. The single building appears to have been a large wooden building, built around the 1920’s, but at some stage separated into 4 separate dwellings, and divided into 4 separately titled units. The principal units also have accessory units (AU’s).
- On the deposited plan, the roof is recorded, somewhat unusually, as common property.
- This matter first came to the Tribunal as an application from the Body Corporate, seeking to settle a dispute with one of the unit owners, Mr Thompson, around who should pay for work to the premises. In the order of 1 August 2024, I set out the legal expectations around funding of work for the complex.
- The hearing was adjourned in the event that the parties could not agree directly on the apportionment of costs. It is on that basis the matter returns in part.
- We had a follow-up hearing on 6 November 2024, to provide further clarification, and again that the hearing was adjourned to allow the parties to work together to resolve matters.
- Matter returns for a final hearing today, there are three matters that are before the Tribunal, which I will address them turn.
LIABILITY FOR TREE WORK
- Next to the main building, is an accessory unit, AU 7, and running parallel with the building on the far side of AU 7, is AU 4. That is shown in the diagram below provided to me this morning.:
- There is no dispute that along the boundary line between AU 7, and AU 4, are a group of trees which are represented in the green line in the above diagram, and I am advised that at least one of those trees is of a large size.
- The question put to the Tribunal, is, who is liable to pay for the trimming or removal of the trees, and how should the cost be divided?
- It is the case, that the respective owners of AU 7 and AU 4 are an agreement that by and large, the trees are located in the middle of the boundary line. At the hearing today I indicated, if that was the case, then both unit owners would be responsible for funding any works needed for those trees.
- We discussed that it would be open to have a surveyor confirm the situation, but the parties very sensibly agreed that given the quoted cost for the tree removal, proceeding to have a survey undertaken simply to determine where in the line the tree sits, would be disproportionate.
- The indication is that the cost for removal of the trees is around the $1,600 mark, which if split, would mean both unit owners would have to pay half that, around $800.00.
- At the hearing today, the parties agreed that the works should proceed, and they would both contribute equally to the cost. That was a very sensible and pragmatic approach, and no further orders are needed on that.
INSURANCE
- The Body Corporate advised that they want to change insurers, and in order to do that, they need information about the inside of the dwellings, and that includes information around rewiring, alterations and smoke alarms etc. The Body Corporate say they have been unable to obtain this information from Mr Thompson.
- Following discussion, Mr Thompson confirmed he was happy to provide the information, and therefore the body corporate will provide him with the forms for Mr Thompson to complete, and then provide them via the manager, to the insurance broker. On the basis of that agreement, there are no further orders necessary.
ROOF LEVY
- The Body Corporate’s position is that Mr Thompson should pay a levy raised of $6,515.74 for roofing works.
- The Body Corporate states in written submissions: We are seeking payment from [The party], unit 4, for his share of the cost to replace the communal roof above units 1 and 2. Replacement was essential due to issues with weathertightness and cracked failing asbestos and concrete tiles. The last patch was temporary, and the roofing contractor advised they would not be able to replace it once it failed and the roof was at end-of-life stage. The ridge cap was also rusting out and could not be replaced onto concrete asbestos tiles. The replacement happened in May 2024, the month before our first appearance at the Tenancy Tribunal. It also included costs for the safe removal of asbestos. Body Corporate issued a letter of advice to owners of unit s 1-4 which contained each unit’s contribution amount. We initially apportioned the cost at 25% each for the owners of units 1,2, 3 and 4. Following our attendance at the Tenancy Tribunal in 2024 with an improved understanding of applying unit entitlements, the Body Corporate revised the contribution level for unit 4 down to 13.4% (unit entitlement), which in ourviewis the lowest level possible e.g. excludes covering any repayment to unit 5, which is a separate building, had costs been initially apportioned on unit entitlement basis. No contribution has been received from [The party] and Crockers have issued a new levy invoice on behalf of the Body Corporate. The cost was covered by Body Corporate savings which included the owners of units 1,2 and 3 needing to top this up out of their own pockets atthe time. The owners have been repaid, and the debt is now to the Body Corporate.
- Mr Thompson’s position is that he would not pay this levy, given that he is in fact owed money by the Body Corporate. Mr Thompson is not sure how much the Body Corporate owes him, but he considers this to be a matter of principle. Mr Thompson considers that all he can do is ask for an audit, then he will know how much money was taken. Mr Thompson considers that he is owed thousands of dollars that he believes is legally and morally owed to him.
- The Body Corporate disputes that Mr Thompson is owed any money, noting that at the earlier hearing, the parties had agreed to draw a line under the matter. But in terms of the roof works, those works have been completed, but the three owners in the main building have paid for that, given Mr Thompson has not contributed to the cost as he should have.
- Mr Thompson says he is willing to pay his share of the roof expense when the money he is owed, is paid to him.
- In terms of this claim, Mr Thompson has not disputed that the levy was correctly raised, or that the works were not needed, or not undertaken. He simply disputes paying the levy, on the basis that he claims the Body Corporate owes him money.
- Unfortunately, for Mr Thomson, the law is not on his side in this dispute. When a levy is correctly raised, and there is no submission or evidence before me that it was not, then the unit owner must pay the levy.
- If when a resolution is passed, a unit who voted against the resolution disagrees with that resolution, they can apply under the Unit Titles Act 2010 for minority relief, but that would not be now open to Mr Thomson, because section 210 of the UTA requires an application for minority relief, to be filed within 28 days of the disputed resolution. Mr Thomson would now be out of time.
- However, Mr Thompson’s primary argument is that the Body Corporate in fact owes him money, although Mr Thompson was not sure what that amount would be.
- If Mr Thompson wishes to obtain an order from the Tribunal that the Body Corporate to pay him money, then he would need to file his own application and submit the evidence and submissions supporting his claim. That is what the Body Corporate has done in relation to the applications made against Mr Thompson, the expectations would be no different. But I do not have any application from Mr Thompson upon which I could consider any claim for money to be paid to him, and that is where that argument must end. It remains open to Mr Thompson to file his own application, but that would be a matter for another day.
- Mr Thompson is liable to pay the levied amount for the roof works, which are works to both a building element and common property.