Published tribunal order
Tenancy Tribunal case 9053065 — Tenancy dispute in Paihia, Paihia
Decided 6 Nov 2024 · Published 6 Nov 2024 · Application 9053065
Landlord favoured
- Costs
- Unit Titles
Order
- Frances Jane Berry must pay Body Corporate 103950 $8,878.65 immediately, calculated as follows: DescriptionsApplicant Levy$5,608.00 Costs$1,477.14 Filing Fee$500.00 Total award$7,585.14 Total interest$1,293.51 Total award with interest$8,878.65 Total payable by Respondent to Applicant $8,878.65
- A claim for a special levy in the sum of $268.00 is dismissed.
Reasons
- A representative attended the hearing by video link for the body corporate. The unit owner did not attend.
- The body corporate has applied for recovery of unpaid levies, interest, costs and the filing fee from the owner.
- The application relates to a timeshare share resort. Section 12 of the Unit Titles Act 2010 (UTA) states that the Act applies to timeshare resorts within the meaning of Schedule 2 of the Act and the provisions of the Act apply as if they have been amended in the manner indicated in that schedule and subject to all necessary modifications.
- Schedule 2 defines a timeshare resort as a unit title development comprising or including a time share unit or time share units and may include principal units that are not time share units. A timeshare unit is defined as a unit owned, either wholly or as to a share, by a time shareowner.
- A time share owner is defined as a person who is registered as a proprietor of an undivided share in the stratum estate in the unit, but whose entitlement to occupy the unit is limited to a specified period in every calendar year or every second calendar year.
- The time share owner in this case is registered as proprietor of a 1/51 share in the stratum estate in Unit 6D and AU56 ad 1/3 share in AU 103 and 1/6 share in AU 6 on Deposited Plan 103950 and their entitlement to occupy the unit is limited to one week a year.
- An owner must pay all body corporate levies and outgoings payable for the unit. See sections 80(1)(f) and 121(1) Unit Titles Act 2010.
- Section 121 UTA provides that a body corporate may determine the amounts to be raised for each of the funds referred to in ss115 to 120 UTA and impose levies on the owners of principal units to establish and maintain each fund.
- Section 121(2) provides that, in the case of the operating account, long-term maintenance fund and any contingency fund, the levies must be calculated in proportion to each unit owner’s utility interest. The utility interest for each unit is recorded on the Unit Plan.
Does the Unit Owner owe the levies claimed?
- A unit owner must pay all body corporate levies and outgoings payable for the unit. See sections 80(1)(f) and 121(1) Unit Titles Act 2010.
- The body corporate has determined the levies payable and unit owner's share has been calculated according to their utility interest.
- The body corporate has fixed the due date for the levies to be paid, and the unit owner has not paid the levies by that date. See section 124(1) Unit Titles Act 2010. The body corporate has provided records to prove the amount claimed for annual maintenance levies, as follows: a. 2019 Levy – due 15/12/2018 $803.00 b. 2020 Levy – due 15/12/2019$883.00 c. 2021 Levy – due 15/12/2020$910.00 d. 2022 Levy – due 15/12/2021$942.00 e. 2023 Levy – due 15/12/2022$990.00 f. 2024 Levy – due 15/12/2023$1,080.00
- The body corporate did not prove a claim for a special levy of $268.00. That claim is dismissed.
Is the Unit owner liable for interest?
- If a unit owner fails to pay levies by the due date, interest accrues on the unpaid balance. A body corporate may charge interest up to 10% per annum. See section 128 Unit Titles Act 2010.
- The body corporate has resolved to charge interest at 10% per annum on unpaid levies from 1 January 2022.
- The body corporate claimed interest of $1,468.48 to the date of hearing but did not provide a table showing the interest calculation on each outstanding invoice.
- I find that the interest payable on outstanding levies from 1 January 2022 to the date of hearing is $1,293.51.
Is the Unit owner liable for costs?
- Pursuant to section 124 UTA, and as resolved at meetings of the Body corporate, the Body corporate is entitled to recover any reasonable costs incurred by it in collecting unpaid levies as a debt due by the owner to the Body corporate. In accordance with the judgments (of the District Court and Court of Appeal respectively) in Body Corporate 162791 v Cheah DC Auckland, CIV2014-004- 0120, 24 June 2014 and Body Corporate 162791 v Gilbert [2015] NZCA 185, the Tribunal must order that the reasonable costs incurred by the Body corporate in recovering the levies, objectively assessed, be paid by a defaulting unit owner. I am satisfied that the costs ordered above are reasonable.
- Because the body corporate has succeeded with the claim I have reimbursed the filing fee. Section 176(1) Unit Titles Act 2010 and section 102(4) Residential Tenancies Act 1986.