What was the outcome of Tenancy Tribunal case 9054144?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9054144?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9054144?

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

Where can I read the official tribunal order for case 9054144?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10890208-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9054144?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9054144?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9054144?

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

Where can I read the official tribunal order for case 9054144?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10890208-UTA_Tribunal_Order.pdf.

Beach Haven, Auckland Tenancy Tribunal Case 9054144 — Leaks

Order

The application is dismissed.

Reasons

The Tribunal has received an application from Mr Russell, a unit owner, against the Body Corporate. The dispute centres around liability for a blocked drain, and works undertaken in relation to that blockage.

BACKGROUND

The background in this case is not particularly involved.
The Body Corporate comprises some 41 apartments. Mr Russell purchased his apartment in 2022, and as explained at the hearing, noticed issues with the drainage of wastewater from that time.
Mr Russell appointed ‘Drain Ninjas’ to attend and assess the issue. It is the case that Mr Russell was at work that day, but he requested the body corporate manager let the firm into his unit, and supervise the work. Mr Russell is concerned that the manager requested Drain Ninja’s unblock the shower, which is work he had not instructed to occur.
In any event, the work note from Drain Ninjas on 13 February 2024 records that the worker believed that the blockage had been removed and that the drains were flowing properly. However, there continued to be a blockage with the kitchen sink, which may well be a second area of blockage.
The Body Corporate requested clarification around the blockage that Drain Ninjas addressed, and they replied on 20 February 2024: The blockage was a large clump of hair caught in the waste drain for the shower, and the kitchen sink runs into that, which is why both were blocked.
Mr Russell then instructed a second company, Auckland Drain CCTV to undertake an inspection. A report has been provided from 11 May 2024, which records an inspection from the waste in the kitchen, and details the inspection of 3.69 metres of pipe leading to a blockage at that point. .
Mr Russell sought reimbursement of the works from the Body Corporate, which declined to agree to the payment.
Mr Russell then applied to the Tribunal for orders, and a hearing was convened in the North Shore District Courthouse on 30 September 2024. Mr Russell attended the hearing as did Mr Roucher the Chair of the Body Corporate. MR RUSSELL’S CASE
Mr Russell seeks an order to the sum of $1,192.55 for the inspection and unblocking works detailed above.
Mr Russell states that after moving in in 2022 he noticed there were some issues with the plumbing where it would block and back up. He undertook some work to try to unblock this with a chemical product, and also a cable to try to unblock the waste.
However, in Christmas 2023 Mr Russell found that water was backing up and coming out of an air admittance valve under the sink.
Mr Russell engaged the services of ‘Drain Ninjas’ to come and inspect the system. Mr Russell was at work that day, but the building manager was present. Mr Russell states that the manager asked without his consent that they unblock the shower drain, and confirmed that some material was removed from that drain.
There was subsequent communication with the Body Corporate about who should pay for that work.
Unfortunately the problems remained.
More recently Mr Russell engaged another firm who undertook a CCTV inspection, and a blockage was found at the junction of where the waste for his unit joined the common waste for the complex. However Mr Russell states that the firm was not requested to unblock the blockage, so this blockage remains.
Mr Russell considers that the Body Corporate have not acted in good faith, or come to the table to resolve the matters.
Mr Russell states that because this is common infrastructure that serves another unit it should be the Body Corporate that pay for the work, but when I asked if neighbours were also affected, Mr Russell confirmed that the blockage is only involving his unit.

BODY CORPORATES CASE

The Body Corporate was represented by Mr Roucher. Mr Roucher advised that he considers the Body Corporate has reasonably engaged with Mr Russell.
In relation to Drain Ninjas, Mr Roucher submitted that this was work engaged by Mr Russell. Mr Roucher referred to the a communication from Drain Ninjas (copied above) detailing the blockage they found.
Mr Roucher states that no other neighbours are affected by the particular blockage described by Mr Russell.
The Body Corporate’s position is that given the location of the blockage on the unit property, it is for the unit owner to fund the necessary works. The Body Corporate would only be liable for work in the common areas.

RELEVANT LEGAL CONSIDERATIONS

With any claim before the Tribunal, the usual civil law standards and expectations arise. That includes, that the onus to establish the claim sits with the person bringing it, that is Mr Russell. It is Mr Russell who must prove that the Body Corporate should pay the amounts claimed.
Because this is a unit titled complex, the Unit Titles Act 2010 (UTA) applies.
Section 138 of the UTA sets out the obligations on the Body Corporate around repair and maintenance. That confirms: 138 Body corporate duties of repair and maintenance (1) The body corporate must repair and maintain— (a) ... (d) any building elements and infrastructure that relate to or serve more than 1 unit. (2) ... (4) Any costs incurred by the body corporate that relate to repairs to or maintenance of building elements and infrastructure contained in a principal unit are recoverable by the body corporate from the owner of that unit as a debt due to the body corporate (less any amount already paid) by the person who was the unit owner at the time the expense was incurred or by the person who is the unit owner at the time the proceedings are instituted.
The term ‘Infrastructure’ is defined in the interpretation section as follows: infrastructure includes pipes, wires, ducts, conduits, gutters, watercourses, cables, channels, flues, conducting, or transmission equipment necessary for the provision of water, sewerage, drainage, stormwater removal, gas, electricity, oil, shelter, protection from fire, security, rubbish collection, air, telephone connection, Internet access, radio reception, television reception, or any other services or utilities to or from a unit or to or from the common property

ANALYSIS

The matter I must determine, is whether the Body Corporate is liable to fund the works undertaken in relation to the blocked drain. In order to find in favour of Mr Russell, there must be some legal obligation on the body corporate to be responsible for those works, but for the reasons I will explain, I am not persuaded that the body corporate is liable.
The general scheme of responsibility under UTA, is that the body corporate is responsible for maintaining the common property, but the body corporate is also responsible for undertaking maintenance to building elements and infrastructure, that relate to or serve more than one unit. Beyond that, the individual unit owners are responsible for maintaining their own units.
There is no dispute that there is a blockage in the wastewater system for Mr Russell’s unit. In terms of the UTA, this would be a blockage in ‘infrastructure’.
The problem for Mr Russell is that section 138(1)(d) is clear, that the obligation for the Body Corporate is for maintenance to infrastructure that relates to or serves more than one unit. On the evidence before me, the blockage is only relating to Mr Russell’s unit, so it is Mr Russell who is responsible to pay for that work.
For the avoidance of doubt, section 138(4) confirms that in the event the body corporate undertook work on infrastructure contained in a principal unit, then the body corporate could have recovered the cost from the unit owner. While there is no expense that the body corporate is seeking to recover in this case, that provision is further guidance that if work is necessary in a principal unit, then it is the principal unit owner who would normally be responsible for funding that work.
Finally, there is Mr Russell submission, that the Body Corporate should be responsible for the additional work undertaken by Drain Ninjas in blocking the shower drain. I disagree. It is my understanding that Mr Russell was not in attendance when Drain Ninjas attended the premises, and that Mr Russell had requested that the body corporate manager supervise the attendance. The manager was acting as Mr Russell’s agent, and it is normally the case in law, that the actions of an agent (the manager) are deemed the actions of the principal (Mr Russell). It seems to me that the Manager acted within his mandate, to supervise Drain Ninja’s to find and resolve a blocked pipe, and that is exactly what they did with addressing the blocked shower drain. It is unfortunate that did not also resolve the blockage to the kitchen drain, but it was reasonable to have done that work. I can see no basis to say the Body Corporate should pay or contribute to the work simply on the basis of the work on the shower drain.
I find Mr Russell’s claim against the Body Corporate has not been established so must be dismissed.

Tenancy Tribunal case 9054144 — Leaks in Beach Haven, Auckland

At a glance

Tenancy Tribunal case 9054144 — Leaks in Beach Haven, Auckland

At a glance

Claims & awards

Order

Reasons

BACKGROUND

BODY CORPORATES CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

BODY CORPORATES CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions