What was the outcome of Tenancy Tribunal case 9049844?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9049844?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9049844?

The primary dispute was Mould & damp. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9049844?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10339067-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9049844?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9049844?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9049844?

The primary dispute was Mould & damp. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9049844?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10339067-UTA_Tribunal_Order.pdf.

Akaroa, Akaroa Tenancy Tribunal Case 9049844 — Mould & damp

Order

The application is dismissed.

Reasons

Both parties attended the hearing. Mr Mullen and Mr Knight attended for the respondent. Mr Mullen is a unit owner and also the Body Corporate manager. Mr Knight is the Body Corporate chairman.
Mr and Mrs Skerrett are the registered owners of Unit 1B (otherwise known as Unit 27) and the related accessory unit carpark (AU1B). They purchased their unit in March 2022. The respondent is the body corporate for the unit title development.
Mr and Mrs Skerrett applied for various declarations and orders against the Body Corporate and Mr Mullen. Their claims can be broadly categorised under three heads: Carpark issues; breaches of the code of conduct, privacy, and voting procedures; and the exterior painting contract.
Mr and Mrs Skerrett confirmed that their concerns regarding the painting contract have been satisfied by the terms of the contact with the painter and they therefore did not pursue this claim further at the hearing. Car park issues
Mr and Mrs Skerrett’s car park is situated at the end of a row of parks next to the right of way. Their carpark is at the same level as the right of way which has been formed to be higher than the carparks that surround it. When Mr and Mrs Skerrett purchased their unit in March 2022, the carpark was not marked out and therefore for all intents and purposes it appeared to be part of the right of way and it seems that it was used as such over the years. Mr and Mrs Skerrett expressed their concerns to the Body Corporate and, at the AGM in June 2022, the Body Corporate resolved to markup Mr and Mrs Skerrett’s carpark and they agreed to Mr and Mrs Skerrett’s request to install a planter box at the head of their carpark. This was to be at Mr and Mrs Skerrett’s cost.
The carpark has subsequently been marked out by white painted lines and Mr and Mrs Skerrett placed the planter box at the head of their carpark. Mr and Mrs Skerrett also placed a sign on their carpark secured by a chain to the planter box. The sign stated that the carpark was for use by occupiers of unit 27 only (or words to that effect) and was placed in o about the middle of the park when the park was not in use.
It seems that the Body Corporate received complaints about the planter box being a “dangerous obstacle” and the sign being a health and safety hazard with guests tripping over the chain. It also became apparent that the placing of the planter box and sign are potentially in breach of the Body Corporate Rules. The sign went missing from the car park on or about 22 January 2023 and has not been replaced. Mr Mullins said that the concerns raised regarding the planter box will likely be on the agenda for the 2024 AGM.
While the carpark is now clearly marked as a carpark, Mr and Mrs Skerrett remain unhappy that vehicles drive over it (when there is no vehicle parked there) either when using the right of way or when reversing from other parks. They claim that this is a breach of their right to quiet enjoyment of their carpark. They accept that the planter box is a temporary measure only to discourage other vehicles from driving over the carpark and they want the Body Corporate to provide a more permanent solution. Mr and Mrs Skerrett also want a declaration that they have the right to exclusive use of their carpark and compensation for the costs of the planter box.
There is no need to make a declaration that Mr and Mrs Skerrett have right to the exclusive use of their carpark because they obtain that right simply by being the legal owners of it. This means that they can use it as they please as a carpark provided they are not in breach of the Unit Titles Act 2010 (the Act), Regulations made under that Act, or the Body Corporate Rules.
Of particular relevance here are Rules 6.1, 7.2, 17 and 18 of the Body Corporate Rules. Rule 7.2(a) provides that an accessory unit must only be used for carparking. Rule 6.1 provides that an owner or occupier of a unit must not do anything that causes an obstruction, restriction or hindrance to the entrances, exits or common property. Rule 17 provides that an owner must not bring onto, use, or store anything on any unit (defined to include an accessory unit) that causes a hazard. Rule 18 provides that an owner must not store or leave anything on the common property or in any accessory unit “except in areas that may, from time to time, be designated for that purpose by the Body Corporate”.
As mentioned, the Body Corporate has received complaints from other users of the car parking area that the planter box and sign are a hazard and it seems the planter box has been hit by vehicles using the carpark and right of way. Thus, it seems likely that the placing of the planter box and the sign is in breach of Rule
The placing of the sign is also probably in breach of Rule 18. Rule 18 allows the Body Corporate to designate areas that allow a unit owner to store or leave anything on common property or an accessory unit and it did so in relation to the planter box (but not the sign) at the 2022 AGM. However, the Rule allows the Body Corporate to allow the leaving or storing of an item on an accessory unit from “time to time” and it seems likely that the resolution will be revisited at the next AGM. Moreover it is, in my view, likely that the planter box is in breach of Rule 17 and the Body Corporate does not have a discretion under that Rule to allow an owner to place any obstacle on the carpark or common areas that may create a hazard. The Body Corporate Rules are binding on the Body Corporate (and unit owners) and therefore any resolution on a matter that conflicts with the Rules would be void.
The remedy that Mr and Mrs Skerrett seek for their concerns with their carpark is an order that the Body Corporate, at its cost, reform their carpark to be at the same level as the carparks adjacent to theirs and install a barrier at the head of their carpark or extend the gardens on the common property to prevent vehicles driving over their car park. They also want the Body Corporate to make alterations to carparks belonging to other unit owners which they believe have not been formed in accordance with the title plan. In particular, they want the orientation of carpark AU1C and AUGA1, which sit adjacent to Mr and Mrs Skerrett’s carpark on the other side of the right of way, turned 180 degrees to accord with the orientation on the title plan. They believe that this would prevent vehicles using these parks from having to use their carpark when reversing from the parks.
In order to be successful in a claim for an order requiring a party to do something, the applicant (here Mr and Mrs Skerrett) must first establish that the respondent (the Body Corporate) is in breach of a duty or obligation owed to them.
As mentioned, Mr and Mrs Skerrett claim that the driving of vehicles over their carpark when using the right of way or when manoeuvring out of other parks is a breach of their right to quiet enjoyment. That right is found in section 79(d) of the Act and provides that a unit owner 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”.
I do not consider that Mr and Mrs Skerrett’s use and enjoyment of their park is interfered with by other vehicles driving over it. If other users of the carpark are using the empty park in the way claimed by Mr and Mrs Skerrett it is only a very minor incursion and it is difficult to see how it impacts on Mr and Mrs Skerrett’s use and enjoyment of their park or what loss they have suffered as a result.
Mr and Mrs Skerrett also claim that the Body Corporate owed a duty to them, as prospective purchasers of the unit, to disclose the issues with the carparking. They claim that had they known that their carpark was in the position it is or that other parks are not strictly marked out in accordance with the title plan, they would not have purchased their unit. They claim that because of the position of their carpark the value of their unit has been affected.
Section 146 of the Act deals with pre contract and pre settlement disclosure to a buyer. The details of what is required to be disclosed are set out in regs 33 and 34 of the Unit Titles Regulations 2011. They focus on financial matters, details of any maintenance the body corporate proposes to carry out, any weathertightness issues or earthquake prone issues, or other significant defects in the land. There is no requirement in the Regulations to disclose the issues regarding the carpark raised by Mr and Mrs Skerrett. However, Mr and Mrs Skerrett claim that the words “on the buildings” in the statement “[t]here are no deferred maintenance issues on the buildings that the Body Corporate is currently aware of” in the Body Corporate pre contract disclosure statement provided to them by the seller are “deceptive and crafted to avoid disclosure of the carpark maintenance issues”.
The issues with the carpark complained of by Mr and Mrs Skerrett are not maintenance issues and there is no evidence to support a finding that the Body Corporate intended to mislead or deceive a prospective purchaser in its disclosure statement. It is more likely than not that the statement referred to was intended to simply address the requirement in reg 33(1) to disclose any maintenance work the Body Corporate proposes to carry out in the next one to three years after the statement is made.
Moreover, even if there was a requirement on the Body Corporate to disclose the issues with the carpark the duty of disclosure is owed to the purchaser by the seller, it is not owed by the Body Corporate.
Mr and Mrs Skerrett’s car park is in the correct position according to the plan. They have therefore got what they were entitled to when they purchased the unit and there is therefore no reduction in the value of their property because of the position of the carpark. The car park was always in the position it is and with the same profile that it has. While it may not have been obvious where the car park was at the time they purchased the unit, it could have been determined by Mr and Mrs Skerrett by making appropriate enquiries. Mr and Mrs Skerrett simply did not ascertain its position or profile before they agreed to purchase the unit and it seems that they are now disappointed with its position and profile and want the Body Corporate to put it right. There is no legal obligation on the Body Corporate to do so. The Body Corporate can of course decide to carry out the work requested by Mr and Mrs Skerrett but that is entirely a matter for the Body Corporate to decide in a general meeting (unless that decision-making power has been delegated).
The carparks that are said to be marked out in a different orientation to the orientation marked on the plan do not belong to the Skerretts. They therefore have no rights to require the Body Corporate to remedy the matter. This would be an issue for the owners of those parks to raise if they wished to do so. Similarly, it is for the Body Corporate to decide whether it wants to notify other users of the right of way or carparks that they are not to use the right of way or the parks when not doing so for the purpose of servicing the units (as requested by Mr and Mrs Skerrett). The Tribunal cannot and will not interfere with the legitimate right of the Body Corporate to make these decisions.
The claim to have the body corporate reform the carpark, install a barrier or otherwise make modifications to the car park, common property, or carparks AU1C and AUGA1 is dismissed.
There is no basis for Mr and Mrs Skerrett’s claim for the cost of the planter box. They agreed with the Body Corporate to install it at their costs and there is no other breach by the Body Corporate or Mr Mullin that supports the order sought. This claim is therefore also dismissed. Breaches of the code of conduct/privacy, matters of honesty/integrity, and voting procedures
Mr and Mrs Skerrett claim that Mr Mullin: • voted at committee meetings when he was not a committee member and therefore not entitled to vote; • did not provide the minutes for the 2022 AM within the time frame provided for in the regulations or provide minutes of any meetings held regarding the painting contract; and • lied to unit owners about his qualifications;
They also claim that the committee breached the Code of Conduct by providing to the AVI manager (Mr Darren Angus) an email Mr and Mrs Skerrett wrote regarding the issue with the sign, and by supplying the email address of all unit owners to Mr Angus. They also claim that the intention of the Body Corporate to appoint to the committee Ms Shirley Herridge, who holds power of attorney for an overseas unit owner, is unlawful.
They seek a statement from the Tribunal “sanctioning the conduct” of Mr Mullin regarding voting, minutes, and statements about his qualifications; compensation for the sign which they believe was stolen because of the release of their email to Mr Angus; and a statement clarifying whether Ms Herridge can be on the committee. Claims against Mr Mullin Voting
Mr Mullin said that he is aware that he cannot vote at committee meetings, and he has never done so.
That only evidence that Mr and Mrs Skerrett provided to support their claim is an email to Mr Knight dated 11 November 2022 in which Mr Mullin states that “my vote” is to have the planter box removed. Mr Mullin said that this was simply a turn of phrase. Moreover, it is clearly not a vote at a meeting of either the committee or the Body Corporate.
The claim is therefore dismissed. Copies of meeting minutes
Mr Mullin is apparently responsible for distributing copies of the minutes of Body Corporate meetings to unit owners. Mr and Mrs Skerrett claim that they did not receive a copy of the minutes of the 2022 AGM until five months after it was held and only after they asked for them to be sent. They refer to the requirement in the Regulations that minutes of a meeting be provided to all unit owners urgently but no later than 28 days after the date of the meeting (reg 27A). However, this refers to meetings of the Body Corporate committee – not meetings of the Body Corporate. In any event, I accept Mr Mullins evidence that the minutes of the AGM were provided promptly and within 28 days. Mr Mullin said that a further copy was provided to Mr and Mrs Skerrett five months later on their request.
However, even if the date the minutes were provided was in breach of some requirement as to time, the breach is minor and there was no loss suffered by Mr and Mrs Skerrett as a result.
Mr and Mrs Skerrett did not provide evidence of any particular meeting of either the Body Corporate or the committee whereby the painting contract was discussed for which they did not receive a copy of the minutes. This claim is therefore also dismissed. Matters of integrity and honesty
Mr and Mrs Skerrett made accusations regarding Mr Mullin’s integrity and honesty, including that he lied about his qualifications. They also claim that the minutes of the AGM were “dishonestly” amended or recorded. These are serious allegations with little or no evidence to support them. They are dismissed. Claims against the Committee Code of conduct
Mr and Mrs Skerrett claim that the committee breached the Code of Conduct (found in Schedule 1A of the Unit Titles (Strengthening Body Corporate Governance and other Matters) Amendment Act 2022) by releasing to Mr Angus in January 2023 an email they had written which was critical of Mr Angus. Mr and Mrs Skerrett base their belief on a comment by Mr Mullin’s partner to them that Mr Angus was upset by the email. They believe that this disclosure resulted in the sign going missing and they claim the cost of the sign. They base their belief on the fact that the sign went missing soon after the email was sent.
Mr Mullin and Mr Knight deny that the committee or any of its members gave the email to Mr Angus and Mr Mullin said that his partner was not aware of the existence of the email.
Clause 2 of the Code provides that a committee member must not unfairly or unreasonably disclose information held by the body corporate including information about a unit owner, unless authorised or required to do so by law. However, the Code of Conduct cannot apply to the alleged release of the email because it occurred before the Code came into effect (on 9 May 2023).
In any event, I am not satisfied that Mr and Mrs Skerrett provided sufficient evidence to support their belief that the email was given to Mr Angus either by Mr Mullin or the committee, or that the sign going missing had anything to do with the sending of the email.
Mr Mullin accepts that other unit owners and Mr Angus have the email addresses of all owners (Mr Angus apparently manages two of the units for unit owners) and the disclosure of many of them occurred several years ago, before the committee was formed and long before the Code came into effect. It is not clear when Mr and Mrs Skerrett’s email address was first disclosed to other unit owners and/or Mr Angus but it seems likely that it was also before 9 May 2023. Moreover, while Mr and Mrs Skerrett may not have specifically given their consent to the disclosure of their email address, they have themselves disclosed this to other unit owners in emails they have sent. They can therefore be seen to have impliedly consented to the disclosure and they have not suffered any loss as a result.
There is a further reason why Mr and Mrs Skerrett’s claim for breach of the Code must fail. Mr and Mr and Mrs Skerrett have brought their claim against the Body Corporate and Mr Mullin (as body corporate manager), not the committee or individual members of the committee.
The claims against the committee are therefore dismissed. Proposed appointment of Ms Herridge
Ms Herridge has an enduring power of attorney for an overseas unit owner. She has, in the past, been a member of the Body Corporate committee but is not a member at present. However, Mr Mullin and Mr Knight said that it is intended that she be put forward as a committee member for voting at the next AGM. Mr and Mrs Skerrett object, claiming that only unit owners can be members of the committee.
I agree.
I was not provided with a copy of the enduring power of attorney but s 97(2) of the Protection of Personal and Property Rights Act 1988 provides that “[w]here a donor of an enduring power of attorney authorises the attorney to act generally in relation to the whole or a specified part of the donor’s affairs in relation to the donor’s property, the attorney shall have authority to do anything on behalf of the donor that the donor can lawfully do by an attorney ...” (my emphasis).
Section 112(3) of the Act provides that a Body Corporate Committee “must be formed in accordance with this Act and the regulations”. Regulation 24(3) of the Unit Titles Regulations 2011 provides that a candidate for election as a committee member must be the owner of a principal unit, or if the owner is not a natural person, a director or employee of the owner. There is no ability in the regulations (or the Act) for another person to represent or ‘stand in the shoes of’ a natural unit owner. Thus, this is not something that an attorney can “lawfully do” on behalf of the donor.
However, while I have found that Ms Herridge (as holder of an enduring power of attorney) is not eligible to be a member of the Committee, there is no need for me to make any order because at present there is no breach. As mentioned, Ms Herridge is not presently a member of the committee there is simply an expression of an intention to have her considered as a member at the next AGM. There is therefore presently no breach of the Act or regulations for which an order can be made. To put it in other words, the Tribunal does not make pre-emptive orders, it is reactive not proactive. Tribunal application fee
Mr and Mrs Skerrett have been unsuccessful in their claims. They are therefore not entitled to an order for payment of the Tribunal application fee.

Tenancy Tribunal case 9049844 — Mould & damp in Akaroa, Akaroa

At a glance

Tenancy Tribunal case 9049844 — Mould & damp in Akaroa, Akaroa

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