What was the outcome of Tenancy Tribunal case 9053324?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9053324?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9053324?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9053324?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11034045-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9053324?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9053324?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9053324?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9053324?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11034045-UTA_Tribunal_Order.pdf.

Paihia, Paihia Tenancy Tribunal Case 9053324 — Unit Titles

Order

The application is dismissed.

Reasons

Both parties attended the hearing by video. The body corporate was represented by an employee of Classic Holidays, the body corporate manager. Mr Lee represented the owners.
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 owners in this case are registered as proprietors of an undivided share in the stratum estate in Unit 14 on Deposited Plan 117502 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.
The body corporate claims that it has determined the levies payable to the maintenance fund. However, it has not provided evidence of how the total levy struck has been apportioned between timeshare owners.
The applicant has the onus the of proving its claims to the civil standard, on the balance of probabilities. That means, the applicant must show that the amounts invoiced and claimed have been properly calculated in accordance with the UTA. It is not for the Tribunal to attempt a retrospective calculation.
At the hearing, the body corporate acknowledged that the levies have not been apportioned or calculated in accordance with the registered utility interest.
The body corporate sought an adjournment to obtain further advice and provide evidence or submissions in relation to the issue. Mr Lee opposed the adjournment request.
The body corporate has acknowledged that the levies were not calculated in proportion to the owner’s utility interest. The body corporate did not put forward evidence or outline of a submission to suggest that the levies may have been calculated in accordance with the UTA. As such, I have no option but to refuse an adjournment.
As an alternative to an adjournment, the body corporate said that it would accept an order for levies based on the owner’s utility interest but did not have that calculation available.
Even if the calculation had been available, I could have only considered an amendment to the current application if it had been supported by proper resolutions of the body corporate purporting to reapportion the levies. The body corporate would also be expected to provide evidence of due date for reapportioned levies and evidence to support any interest claimed.
The body corporate has not established that it is more likely than not that the levies invoiced and claimed in this application have been properly struck and apportioned under the UTA. This application is dismissed.
For completeness, I record that Mr Lee opposed the application for the unit owners. None of the points he raised were relevant to whether levies, if they had been properly struck, are payable.
Mr Lee complained that the body corporate had not contacted him about outstanding levies for four years. The evidence around that is disputed. Further, the owner of unit must notify the body corporate in writing of any changes to the information held in the register that relates to his or her unit. See s85(2) UTA.
Mr Lee also claimed that he had not used the unit for years. An owner’s obligation to pay levies is a statutory requirement and is not contingent on their use of the premises.

Order

The application is dismissed.

Reasons

Both parties attended the hearing by video. The body corporate was represented by an employee of Classic Holidays, the body corporate manager. Mr Lee represented the owners.
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 owners in this case are registered as proprietors of an undivided share in the stratum estate in Unit 14 on Deposited Plan 117502 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.
The body corporate claims that it has determined the levies payable to the maintenance fund. However, it has not provided evidence of how the total levy struck has been apportioned between timeshare owners.
The applicant has the onus the of proving its claims to the civil standard, on the balance of probabilities. That means, the applicant must show that the amounts invoiced and claimed have been properly calculated in accordance with the UTA. It is not for the Tribunal to attempt a retrospective calculation.
At the hearing, the body corporate acknowledged that the levies have not been apportioned or calculated in accordance with the registered utility interest.
The body corporate sought an adjournment to obtain further advice and provide evidence or submissions in relation to the issue. Mr Lee opposed the adjournment request.
The body corporate has acknowledged that the levies were not calculated in proportion to the owner’s utility interest. The body corporate did not put forward evidence or outline of a submission to suggest that the levies may have been calculated in accordance with the UTA. As such, I have no option but to refuse an adjournment.
As an alternative to an adjournment, the body corporate said that it would accept an order for levies based on the owner’s utility interest but did not have that calculation available.
Even if the calculation had been available, I could have only considered an amendment to the current application if it had been supported by proper resolutions of the body corporate purporting to reapportion the levies. The body corporate would also be expected to provide evidence of due date for reapportioned levies and evidence to support any interest claimed.
The body corporate has not established that it is more likely than not that the levies invoiced and claimed in this application have been properly struck and apportioned under the UTA. This application is dismissed.
For completeness, I record that Mr Lee opposed the application for the unit owners. None of the points he raised were relevant to whether levies, if they had been properly struck, are payable.
Mr Lee complained that the body corporate had not contacted him about outstanding levies for four years. The evidence around that is disputed. Further, the owner of unit must notify the body corporate in writing of any changes to the information held in the register that relates to his or her unit. See s85(2) UTA.
Mr Lee also claimed that he had not used the unit for years. An owner’s obligation to pay levies is a statutory requirement and is not contingent on their use of the premises.

Tenancy Tribunal case 9053324 — Unit Titles in Paihia, Paihia

At a glance

Tenancy Tribunal case 9053324 — Unit Titles in Paihia, Paihia

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