What was the outcome of Tenancy Tribunal case 9050524?

The tribunal order states: The resolution of the Body Corporate dated 11 January 2024 that, “by ordinary

How much money was awarded in case 9050524?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9050524?

The primary dispute was Leaks. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9050524?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10608053-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9050524?

The tribunal order states: The resolution of the Body Corporate dated 11 January 2024 that, “by ordinary

How much money was awarded in case 9050524?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9050524?

The primary dispute was Leaks. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9050524?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10608053-UTA_Tribunal_Order.pdf.

Auckland, Auckland Tenancy Tribunal Case 9050524 — Leaks

Order

The resolution of the Body Corporate dated 11 January 2024 that, “by ordinary resolution... the Body Corporate adopt the on charge legal advice of Court One for Units 2E. 2F and 1E” and the resolution of the Body Corporate on 6 October 2023 that, “by ordinary resolution... the Body Corporate manager be authorised to recover debts from expenditure for the benefit of a unit or units in accordance with Section 126 of the Act where it determines on behalf of the Body Corporate that one or more of the units has benefited from such expenditure substantially more than the other units”, are set aside.
Within 7 days of the date of this Order, the Body Corporate will raise a levy pursuant to s.121 UTA against all unit owners on a utility interest basis, to meet the costs of the remediation work at issue in these proceedings, in terms of the Q Construction tender, or any variation of it agreed by the Body Corporate committee.
The levy raised under Order 2 will be due for payment within 1 month of the date it is raised.
Within 1 week of the date on which payment of the levy is due, the committee will consider whether it can proceed with the construction contract and will take all reasonable steps toward ensuring that the work can begin as soon as the contractor is available.

Reasons

All parties attended the hearing.
The applicant unit owners are the owners of Units 2E and 2F in this complex. Those two units have decks. Water leaking from the decks has impacted Unit 1E, situated beneath them.
After taking advice, the Body Corporate formed the view that work required to remediate the leaking would benefit the owners of those three directly affected units, substantially more than it would the owners of other units. The resolutions noted in Order 1 were passed intending to give effect to that view.
The Body Corporate sought recovery of the projected remediation costs from the owners of those 3 units as to 2E 48%, 2F 46% and 1E 6%, in advance of any work being carried out.
The applicants brought these applications seeking: a. minority relief from the disproportionate levy against their units for the remediation costs; b. a declaration that the above resolutions of the Body Corporate be declared ultra vires and invalid; c. that the Body Corporate be ordered to carry out the remediation work and that the work be funded by a levy on all unit owners under s.121 UTA; d. an order for costs.
The Body Corporate has acknowledged that it was not proper to seek recovery of the s.126 levy from the unit owners in advance of the remediation work being carried out.
At the hearing today, counsel for the Body Corporate proposed that the hearing be adjourned on the basis that the Body Corporate now intended to have the remediation work completed, funded by a s.121 levy on all unit owners and that the question of whether cost recovery would be sought from individual unit owners under s.126 UTA would be revisited once the remediation work had been done, with costs quantified and further information about the causes and effects of the leaking then being available.
A timeframe of 2-3 months for completion of the work is expected.
Counsel for the Unit Owners opposed an adjournment on the basis that there is sufficient evidence for the Tribunal to determine, for the purposes of s.126 UTA, that the remediation work will would be of benefit to the unit owners as a whole, not substantially for the benefit of the applicants.
I understand the applicants’ desire for certainty in terms of what their contribution to the remediation costs will be. Their view that the work will be of general benefit was strongly put. I have however decided not to determine that issue today.
It is not now disputed that the necessary remediation work, is work that the Body Corporate has a statutory responsibility to undertake under s.138 UTA. It is not now disputed that it is proper that the work be funded by a levy raised on all unit owners in proportion to their utility interest and that any consideration of recovery of those expenses from some of the unit owners under s.126 UTA, should follow completion of the work.
I am reluctant, in advance of the work being completed, to make a determination in principle about whether the work will or will not be, substantially for the benefit of some of the units only and if so whether any of the repair costs represent a benefit to any unit by a distinct and ascertainable amount.
The unit owners suggest that this case is indistinguishable from earlier precedents, but I will not be in a position to gauge that without hearing all of the evidence, in circumstances where, as the matter now stands, there may or may not be a need to determine the issue.
I am also conscious that the owner of unit 1E has a particular interest in these proceedings. I am told they may themselves be looking to bring an application to the Tribunal, but I am not aware of any such application having been filed and that unit owner is not here today.
Finally, it does seem to me a distinct possibility that the Tribunal’s assessment of the relevant issues, might be influenced by evidence that would become apparent during the course of the remediation work.
I am also of the view that the matter need not be adjourned. A proper process for completing and funding the necessary remediation work has been agreed. If the Body Corporate then takes a view, which the Unit Owners remain opposed to, that it is entitled to recover the costs of the remediation work from individual unit owners under s.126 UTA, it is for the Body Corporate to prove that entitlement and an application for recovery can then be brought.
If a recovery from the applicants is sought under s.126 UTA, relevant considerations would include: a. the cause of the leaking; b. the effect of the leaking; c. the extent to which the leaking impacts the building as a whole and the other unit owners, including considerations such as insurance costs, integrity of the building envelope, impacts on unit values and aesthetic impacts; d. the influence on these remediation costs of previous decisions of the Body Corporate about remediation of the leaks, including the timeliness and effectiveness of previous remediation steps taken.
The Body Corporate accepts that if cost recovery is sought from the applicants, its’ consultant will be asked to provide his expert assessment of as many of those matters as he is competent to comment on, for the information of the applicants.
If an application is bought by the Body Corporate, it should be allocated an initial telephone case conference before me.
If any issues arise with implementation of the above orders before then, either party may request that a case conference be convened.
Costs are sought. The applicant’s memorandum should be filed within 7 days of the date of this Order. The respondent’s memorandum in reply should be filed within seven days thereafter. A separate costs determination will then be made.

Order

The resolution of the Body Corporate dated 11 January 2024 that, “by ordinary resolution... the Body Corporate adopt the on charge legal advice of Court One for Units 2E. 2F and 1E” and the resolution of the Body Corporate on 6 October 2023 that, “by ordinary resolution... the Body Corporate manager be authorised to recover debts from expenditure for the benefit of a unit or units in accordance with Section 126 of the Act where it determines on behalf of the Body Corporate that one or more of the units has benefited from such expenditure substantially more than the other units”, are set aside.
Within 7 days of the date of this Order, the Body Corporate will raise a levy pursuant to s.121 UTA against all unit owners on a utility interest basis, to meet the costs of the remediation work at issue in these proceedings, in terms of the Q Construction tender, or any variation of it agreed by the Body Corporate committee.
The levy raised under Order 2 will be due for payment within 1 month of the date it is raised.
Within 1 week of the date on which payment of the levy is due, the committee will consider whether it can proceed with the construction contract and will take all reasonable steps toward ensuring that the work can begin as soon as the contractor is available.

Reasons

All parties attended the hearing.
The applicant unit owners are the owners of Units 2E and 2F in this complex. Those two units have decks. Water leaking from the decks has impacted Unit 1E, situated beneath them.
After taking advice, the Body Corporate formed the view that work required to remediate the leaking would benefit the owners of those three directly affected units, substantially more than it would the owners of other units. The resolutions noted in Order 1 were passed intending to give effect to that view.
The Body Corporate sought recovery of the projected remediation costs from the owners of those 3 units as to 2E 48%, 2F 46% and 1E 6%, in advance of any work being carried out.
The applicants brought these applications seeking: a. minority relief from the disproportionate levy against their units for the remediation costs; b. a declaration that the above resolutions of the Body Corporate be declared ultra vires and invalid; c. that the Body Corporate be ordered to carry out the remediation work and that the work be funded by a levy on all unit owners under s.121 UTA; d. an order for costs.
The Body Corporate has acknowledged that it was not proper to seek recovery of the s.126 levy from the unit owners in advance of the remediation work being carried out.
At the hearing today, counsel for the Body Corporate proposed that the hearing be adjourned on the basis that the Body Corporate now intended to have the remediation work completed, funded by a s.121 levy on all unit owners and that the question of whether cost recovery would be sought from individual unit owners under s.126 UTA would be revisited once the remediation work had been done, with costs quantified and further information about the causes and effects of the leaking then being available.
A timeframe of 2-3 months for completion of the work is expected.
Counsel for the Unit Owners opposed an adjournment on the basis that there is sufficient evidence for the Tribunal to determine, for the purposes of s.126 UTA, that the remediation work will would be of benefit to the unit owners as a whole, not substantially for the benefit of the applicants.
I understand the applicants’ desire for certainty in terms of what their contribution to the remediation costs will be. Their view that the work will be of general benefit was strongly put. I have however decided not to determine that issue today.
It is not now disputed that the necessary remediation work, is work that the Body Corporate has a statutory responsibility to undertake under s.138 UTA. It is not now disputed that it is proper that the work be funded by a levy raised on all unit owners in proportion to their utility interest and that any consideration of recovery of those expenses from some of the unit owners under s.126 UTA, should follow completion of the work.
I am reluctant, in advance of the work being completed, to make a determination in principle about whether the work will or will not be, substantially for the benefit of some of the units only and if so whether any of the repair costs represent a benefit to any unit by a distinct and ascertainable amount.
The unit owners suggest that this case is indistinguishable from earlier precedents, but I will not be in a position to gauge that without hearing all of the evidence, in circumstances where, as the matter now stands, there may or may not be a need to determine the issue.
I am also conscious that the owner of unit 1E has a particular interest in these proceedings. I am told they may themselves be looking to bring an application to the Tribunal, but I am not aware of any such application having been filed and that unit owner is not here today.
Finally, it does seem to me a distinct possibility that the Tribunal’s assessment of the relevant issues, might be influenced by evidence that would become apparent during the course of the remediation work.
I am also of the view that the matter need not be adjourned. A proper process for completing and funding the necessary remediation work has been agreed. If the Body Corporate then takes a view, which the Unit Owners remain opposed to, that it is entitled to recover the costs of the remediation work from individual unit owners under s.126 UTA, it is for the Body Corporate to prove that entitlement and an application for recovery can then be brought.
If a recovery from the applicants is sought under s.126 UTA, relevant considerations would include: a. the cause of the leaking; b. the effect of the leaking; c. the extent to which the leaking impacts the building as a whole and the other unit owners, including considerations such as insurance costs, integrity of the building envelope, impacts on unit values and aesthetic impacts; d. the influence on these remediation costs of previous decisions of the Body Corporate about remediation of the leaks, including the timeliness and effectiveness of previous remediation steps taken.
The Body Corporate accepts that if cost recovery is sought from the applicants, its’ consultant will be asked to provide his expert assessment of as many of those matters as he is competent to comment on, for the information of the applicants.
If an application is bought by the Body Corporate, it should be allocated an initial telephone case conference before me.
If any issues arise with implementation of the above orders before then, either party may request that a case conference be convened.
Costs are sought. The applicant’s memorandum should be filed within 7 days of the date of this Order. The respondent’s memorandum in reply should be filed within seven days thereafter. A separate costs determination will then be made.

Tenancy Tribunal case 9050524 — Leaks in Auckland, Auckland

At a glance

Tenancy Tribunal case 9050524 — Leaks in Auckland, 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