What was the outcome of Tenancy Tribunal case 9055485?

The tribunal order states: Body Corporate 84810 must pay Jennifer Anne Leith $946.77 immediately,

How much money was awarded in case 9055485?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 9055485?

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

Where can I read the official tribunal order for case 9055485?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12139280-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9055485?

The tribunal order states: Body Corporate 84810 must pay Jennifer Anne Leith $946.77 immediately,

How much money was awarded in case 9055485?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 9055485?

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

Where can I read the official tribunal order for case 9055485?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12139280-Tribunal_Order.pdf.

Khandallah, Wellington Tenancy Tribunal Case 9055485 — Mould & damp

Order

Body Corporate 84810 must pay Jennifer Anne Leith $946.77 immediately, calculated as follows: DescriptionsApplicant Glass reimbursement$696.77 Costs$250.00 Total award$946.77
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by a unit owner, Jennifer Leith, against Body Corporate 85305. The body corporate comprises two principal unit owners and relates to two residential units. Ms Leith seeks various orders, but primarily in relation to governance matters at the complex.
Both parties appeared at the hearing on 16 July 2025. ________90554852

BACKGROUND

This dispute relates to residential premises located in Khandallah, which are unit-titled premises. Ms Leith (the applicant) owns unit 1, which is a downstairs unit, and Mr McCree owns the unit directly above that, being unit
The utility interest for unit 1 is 46%, and for unit 2, 54%. 1
My impression is that both unit owners have done their best at navigating the requirements around operation of the premises as a unit titled property, but it is my strong impression that there are some matters where the owners take sharply different views, which has stymied various resolutions being passed at EGM’s and AGM’s. Of course as there are only two units, that means when there is any resolution, for it to pass, it must have both unit owners agree to the resolution. That is a problem for premises with two units, because if there are more than two units, then any vote can pass with one of the unit owners dissenting, as long as there is at least a 50% vote in favour of the resolution.
Adding to the complexity of the situation, is that reasonably significant works are required at the premises to address likely water ingress from an old deck membrane. While both owners are generally in agreement about what work is needed, they both take different views around how it should be funded.
Ultimately, Ms Leith filed an application with the Tribunal about one year ago on 11 July 2024.
The parties have undergone mediation, but the dispute was not resolved there, or at least not all of the issues.

APPLICANTS CLAIMS

At the hearing, Ms Leith confirmed her claims are as follows: a. Funding of maintenance. b. Long term maintenance plan. c. Glass replacement. d. Operational rules. e. Approval of the financial statement. f. Removal of unapproved building. 1 That is relevant for the split of costs between the unit owners, or if there was to be a Poll. ________90554853

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Unit Titles Act 2010, and the associated regulations.
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
Otherwise, I will discuss the relevant legal considerations that apply for the specific claims more fully below.

CLAIMS

There are five claims advanced, and I will consider each in turn. Claim 1- Funding of maintenance
Both parties are in agreement that significant works are needed to the premises, and they have agreed on the scope of those works. The lion’s share of the work is to be done by MHR Builders, and includes asbestos removal, carpentry, door replacement, waterproofing, installing new balustrades and associated works. The quote from MHR is for $116,283. There will be some smaller charges on top of that, but by any measure, the agreed works are a significant amount, particularly in the context that there are only two unit owners to cover the costs. ________90554854
While the owners agree that the works are needed, they cannot agree on the raising of funds for those works. Ms Leith submits that the money should be paid in full into the Body Corporate’s accounts before the works start, whereas Mr McCree considers that the money should be paid to the Body Corporate when the invoices come in, and split according to the utility interest. Ms Leith disagrees with that approach, because in her view the principle of joint and several liability would be relevant, and if Mr McCree did not pay his share of any invoices, then she may be liable for them.
There is also a dispute around whether existing body corporate funds should be used to go toward the cost of the works, or the extent to which those funds should be used.
The owners attended an EGM on 23 June 2024 where the funding of the works was discussed. However it is not clear what was resolved from that. The resolution (what was being voted on) is not particularly clear, and there is no clear record of what was voted on specifically. In fact, both owners have presented their own minutes setting out the decision and they are quite different. Ms Leith records that the decision was to accept the quote from MHR Builders, whereas Mr McCree’s version of the minutes include that: As we receive invoices for progress payments each Unit Owner will deposit funds into the Body Corporate account based on the agreed levy split. The available funds in the Body Corporate Account will be put towards these progress payments.
As it happens, this meeting was via Zoom, so I have available a transcript of what precisely was discussed. Unfortunately that does not assist me, because the transcript could be read consistently with both unit owners interpretations. The transcript records:
Unit 1 Owner a. OK, right. So the first $14,000 comes from the bank account and the rest is split, whatever it may be.
Unit 2 Owner a. Yes. As he requires that money to pay his subcontractors. b. He gives us a schedule of payments.
What is not expressly stated is whether the money would be paid in one instalment, then split, or paid when accounts are received based on the respective split. Analysis ________90554855
It is important to recognise that the scheme of unit title governance found in the UTA looks to decisions being made by the Body Corporate (the unit owners) as a community. The purpose of the UTA is set out in section 3, and that includes: The purpose of this Act is to provide a legal framework for the ownership and management of land and associated buildings and facilities on a socially and economically sustainable basis by communities of individual owners and, in particular,— (a) to allow for the subdivision of land and buildings into unit title developments comprising units that are owned in stratum estate in freehold or stratum estate in leasehold or licence by unit owners, and common property that is owned by the body corporate on behalf of the unit owners; and (b) to create bodies corporate, which comprise all unit owners in a development, to operate and manage unit title developments; and (c) to establish a flexible and responsive regime for the governance of unit title developments; and (d) to protect the integrity of the development as a whole.
The focus in that purpose statement is putting the decision-making in the hands of the unit owners. While the Tribunal and Courts have a role to play in resolving disputes, there is only limited scope for the Tribunal to interfere with that process, and to replace a decision from the Body Corporate with one from the Tribunal. The closest provision in the UTA that would allow that in this case, would be section 210 of the UTA, 2 which relates to applications for minority relief. That provision holds: 210 General relief for minority where resolution required (1) In any case where this Act requires a resolution and the resolution is passed, any person who voted against the resolution may apply to the appropriate decision-maker for relief on the grounds that the effect of the resolution would be unjust or inequitable for the minority. (1A)... (2) An application for relief under subsection (1) must be made within 28 days of the passing of the resolution.
The Court of Appeal confirmed in Tremont Holdings Limited v Body Corporate 401803 [2015] NZCA 314, that the threshold for establishing that any resolution is unjust or inequitable for the minority is a high threshold. The courts have consistently emphasised the weight that should be given to 2 Minority relief could be accessed only if there was a poll. Otherwise if a vote is counted on the basis of one vote per unit, then the resolution could never pass without both unit owners agreeing to the resolution. ________90554856 decisions made by Body Corporates and confirmed that it is only in limited circumstances will that majority decision will be interfered with.
However, in this case, I could not apply section 210 and consider an application for minority relief, because I am not convinced this resolution has, in the first instance, been passed – any claim for minority relief is only available for a resolution that has first passed.
As set out above, both unit owners have very different views as to what was agreed, and the transcript does not settle the matter. In short, because the resolution has not passed, I have no power to make an order under section 210, and I do not know of any other power that would be available under the UTA for me to make orders here.
Both owners agree the work is needed, I would encourage them to continue working to agree on the funding decisions. In order to assist the parties with that conversation, I make the following observations. a. As I will discuss below, this work cannot be funded by the LTMP (but in this case there is no such plan in place). b. There is no strict requirement for payments to be made by unit owners in advance of the invoices being received, particularly given the scope of works in this case are agreed. c. While not discussed at the hearing, there is also the ability of the Body Corporate to fund the works by borrowing (see section 130). d. Ms Leith is concerned that she would be liable for any accounts if Mr McCree did not pay his contribution toward them. Strictly that is not the case, because the contract for the works would be with the Body Corporate, so it is the Body Corporate that would be liable for any debt. e. The Body Corporate is required by the UTA to insure the building. There is a risk for that insurance cover if the premises are not reasonably maintained, so again, that argues for the owners setting their dispute here.
I conclude by noting that it is strongly in the interest of the unit owners to reach an agreement on funding. If agreement cannot be reached, there are alternate options available, including: a. An application to the High Court to appoint an administrator. The administrator would then make the decisions for the unit owners, but this would also come at significant cost to the unit owners both in costs involved in the High Court application, and funding the administrator; or ________90554857 b. Applying to the High Court for approval of a Scheme under section 74, which relates to work to necessary to remediate buildings that are damaged (which could include damage from water ingress). But again, that would be an expensive option.
While those are two final options available, again I would strongly encourage the owners to work together to resolve the funding impasse.
Otherwise, at this time there are no further orders I can make in relation to the funding situation. Claim 2 - Long term maintenance plan
These premises do not have a long term maintenance plan.
In 2023 both unit owners agreed to each prepare a draft LTMP, and it was intended that both parties would then reach consensus on what the plan would look like. Ms Leith states that she had provided a draft plan, but then Mr McCree emailed to say that he was happy with the existing LTMP.
However, at the hearing Mr McCree states that there is no LTMP. Mr McCree agrees that both parties have submitted draft plans, but they cannot agree on the plan. Mr McCree considers that the plan needs to take account of the deck work discussed above. Further there are things that could be deferred. Analysis
Section 116 of the UTA applies and confirms that: A body corporate must establish and regularly maintain a long-term maintenance plan.
Section 116 goes on to require that plan cover a period of at least 10 years, and sets out what the purpose of the plan is. In short, to identify future maintenance needs and their costs, and then provide a basis for establishing the account and levying of owners, and then providing guidance to assist the unit owners with annual maintenance decisions.
The Body Corporate does not have a plan, it is in breach of its obligations under the UTA.
At the hearing, the parties acknowledged that there was some common ground around what should go in the LTMP, so that would seem a sensible place to start, for the owners to develop a plan using what is agreed. ________90554858
The UTA requires that the LTMP be reviewed regularly, so there is no reason an uncontested plan not be introduced now, and the owners can then consider changes to that within those regular reviews.
I raised that probably all I can do is make a declaration that the BC is not complying with its obligations under the UTA.
I note for completeness, that at the hearing the question was raised as to whether the current remediation works (that is the works with MHR Builders), could fall within the LTMP, and the answer is that they could not.
I note the District Court decision in Body Corporate 81340 v Newland [2016] NZDC 1963 and the subsequent High Court decision, Newland v Body Corporate 81340 [2016] NZHC 1190, those decisions are to the effect that the long-term maintenance fund could not be used (and a long-term maintenance levy could not be struck) to pay for remediation works.
Broadly expressed, that is the effect of those decisions, although some further expansion is needed. In that case the body corporate was raising funds to pay for already identified defects in the building in question. It applied funds held in the LTMF. The view of the District Court was that funds in the LTMF are raised for future maintenance requirements and cannot be used for present repair requirements. Specifically, s.117(2) of the UTA 2010 provides that the LTMF may only be applied toward spending relating to the long-term maintenance plan.
Those decisions were subsequently reinforced by the High Court in Yee Good Fortune Investments Limited v Body Corporate 392619 [2017] NZHC 723 where there is an extensive analysis of sections 115 – 119 of the UTA 2010. This describes the purpose of the LTMF as being to meet ordinary, expected expenses of maintaining a unit title development in a functional state. At paragraph [79] it distinguishes expenditure which is associated with large-scale remediation which is not only unexpected but is usually very significant and would, in most cases, far outstrip the ordinary costs of maintaining and repairing a unit title development. The Court concluded that such remediation should be carried out through the establishment of a contingency fund under s 118. Clearly, again, that has not occurred in this case.
Use of the operating account for these purposes was also rejected, agreeing with the District Court in Newland. The operating account was said to be for regular, day-to-day type expenditure that would normally be incurred in the operation of a unit title development but not significant one-off expenses associated with a large-scale remediation project. ________90554859 Claim 3 - Glass replacement
Ms Leith states that the glass is 60 odd years old, and her door glass was cracked. Ms Leith states that she assumed it would fall within the insurance for the Body Corporate. However Mr McCree disputed that this should be covered by the Body Corporate. Ms Leith states that she ended up paying $696.77 for the door glass to be repaired which she seeks to be repaid. Ms Leith seeks an order that the other glass in the premises be replaced given its age. Analysis
As I advised at the hearing, I consider that the Body Corporate would be responsible for funding the glass repair or (if agreed) replacement because the glass would be a building element that relates to or serves more than one unit.
The starting point for determining the respective obligations of a unit owner and body corporate is the UTA. Section 84 of the UTA sets out the “Powers and duties of Body Corporate[s]” which refers to specific sections in the Act, including section 138. Section 138 relates to the body corporate’s duties for repair and maintenance, and confirms that: The Body Corporate must repair and maintain— (a) the common property; and (b) any assets designed for use in connection with the common property; and (c) any other assets owned by the Body Corporate; and (d) any building elements and infrastructure that relate to or serve more than 1 unit. [Adjudicators emphasis]
The term ‘building elements’ is defined in the interpretation section (section 5) as follows building elements includes the external and internal components of any part of a building or land on a unit plan that are necessary to the structural integrity of the building, the exterior aesthetics of the building, or the health and safety of persons who occupy or use the ________905548510 building and including, without limitation, the roof, balconies, decks, cladding systems, foundations systems (including all horizontal slab structures between adjoining units or underneath the lowest level of the building), retaining walls, and any other walls or other features for the support of the building
Accordingly then, section 138 would apply to confirm that the responsibility for maintaining any building element would fall to the Body Corporate, providing that the building element “relate[s] to or serve[s] more than 1 unit”.
To put this another way, if the building element relates to or serves more than 1 unit then the Body Corporate will be responsible for its maintenance, otherwise the responsibility for any maintenance will fall to the individual Unit Owner. Determining whether a building element relates to or serves more than one Unit Owner, will always be a question of fact.
The courts have considered various appeals over the years, where it has needed to consider the extent of body corporate obligations around maintenance or remediation of building elements. In the High Court judgment of Wheeldon v Body Corporate 342525 [2015] NZHC 884 3 , the High Court confirmed: [84] I accept that, typically, it may be more natural to talk of building elements within private property “relating to” other units or common property than of them “serving” such property and that the word “serve” typically is more naturally associated with infrastructure in the nature of pipes, wires, ducts etc. However, there may be building elements best described as serving more than one unit and infrastructure best described as relating to more than one unit and I would not preclude such a construction. [85] Having regard to the purposes in s 3, I accept Mr Allan’s submission that Harrison J’s approach means that s 138(1)(d) will be satisfied if the relevant building element or infrastructure: (a) naturally attaches to another unit (as in physically adjoining units); or (b) is causally relevant to another unit whether physically or economically (as in non-adjoining units) ; or 3 The High Court decision confirmed in the Court of Appeal judgment of Wheeldon v Body Corporate 342525 [2018] NZCA 20. ________905548511 (c) is referable to another unit whether physically or economically (as in both adjoining and non-adjoining units); or (d) is concerned with another unit whether physically or economically. [86] I would add to this that the inclusion of aesthetics in the definition of “building elements” and the emphasis on “integrity of the development” in s 3 means, in my view, that the economic relationship to which Mr Allan refers should include those factors, which inevitably reflect in value. [87] As indicated, the present case engages both issues of building elements and infrastructure.
In the High Court decision of Body Corporate 198245 v Wong [2012] NZHC, the Court needed to consider a case where there were water leaks affecting both common property and individual units. The body corporate in that case sought orders that the levies raised for the repairs be paid by particular body corporate members. Those unit owners opposed the claim, on the basis that given they did not receive any direct benefit from the works, and on that basis should not need to contribute to the costs. The respondent’s position was that the works should be charged to the relevant unit owners who would receive a benefit, under section 33 of the legislation that applied at that time, which is the equivalent of the current section 126. The High Court did not accept that argument, confirming that for the purpose of funding the works, that weathertightness issues are interrelated for the entire building. Justice Ellis confirmed at paragraph 70 that: (a) the weathertightness of the entire building is interlinked and indivisible; (b) the proprietors all have a mutual interest in ensuring that the building as a whole is weathertight and kept in good repair. In the absence of expert evidence on the point,14 it can reasonably be assumed that if part of the building is not weathertight then that would adversely affect the saleability and value of all units, regardless of whether they themselves are in fact leaky; (c) each of the owners bought into the building as a whole, not just their individual unit; (d) each owner must be taken to have bought into the building knowing, and on the basis, of the division between common and ________905548512 private property in the unit plan and knowing of their responsibility to contribute to the maintenance and repair of the common property as so defined; (e) the sharing of common property repair costs on a unit entitlement basis necessarily contemplates that there may be an element of disproportionality and that prospect must also be taken to have been accepted when each owner bought into the Ridge.
More recently, and applying the current statutory scheme, are the line of cases in the Otway dispute, particularly the decision from the High Court 4 and Court of Appeal. 5 Justice Woolford in the High Court accepted that: a. Like the finding in Body Corporate 198245 v Wong, weathertightness of the building is interlinked and indivisible. b. If part of the building is leaking, it affects the whole of the complex as it relates to saleability and value.
I also note the High Court decision of Body Corporate 199380 v Cook & Anor [2018] NZHC 1244. In that case the Court discussed the impact of Otway, and confirmed that the Court did not support recovery against particular unit owners under section 126, when the issue was weathertightness that would potentially impact the wider complex: [87] Some important lessons can be drawn from the approach followed in Otway. First, Woodford J considered the scope of recovery of repair costs under both sections 126 and 138(4) – as well as under s 127 which was held not to apply. While that may have been the consequence of the way the body corporate put its case, the decision shows that by considering recovery under the various tools under the Act, rather than just on the basis of title, fuller account can be taken of the causes of the damage and, therefore, of the bases on which costs can be allocated. For example, a number of the reasons identified by Woolford J for deciding the major costs should remain with the body corporate rather than borne by individual unit owners – such as the role of the deck and underlying membrane in ensuring the overall weathertightness of the building and the interest of all unit owners in 4 Body Corporate s73368 v Otway [2017] NZHC 3265. 5 Body Corporate S73368 v Otway [2018] NZCA 612. ________905548513 maintaining that weathertightness – might well have been applicable in the present case.
As noted in the commentary to section 126 by Westlaw (on-line), in relation to the Cook decision: The first principle was that the owner of the unit should bear the cost of repair to the unit. However where the issue dealt with weathertightness, it was reasonable and “fair” to conclude that other unit owners should reasonably bear a cost in so far as the other units in the development were protected. Further, where the repair benefited the building generally (and not some unit owners more than others), then all unit owners should contribute on the basis of payment of their apportioned utility interest.
In my assessment, the replacement of broken glass would fall within the category of a building element relating to or serving more than one unit, taking into account that it provides weather-tightness protection, and would impact the value and aesthetics of the unit, as well as being part of the overall structure and connected to the neighbouring unit.
Because I find that the Body Corporate would be responsible for the glass repair, and in the absence of a resolution to recover the cost of the work from Ms Leith (see sections 126 and 127), then Ms Leith must be reimbursed the cost of the replacement.
Beyond that, if Ms Leith seeks to have other windows replaced, that is a matter that must be the subject of voting in the usual way. Claim 4 - Operational rules
Ms Leith states that the current Body Corporate Operational Rule (Rules) are the default operational rules, and no longer fit for purpose. Ms Leith refers to a meeting held on 10 November, and states that the Rules need updating to take account of: a. Absence of clarity over use of a tap. b. Absence of clarity over the use of the toby. c. Confirmation as to the use of a garden on Accessory Unit 2; and d. Requiring tenants to address window condensation.
Mr McCree states that he voted against the resolution because he disagreed with it. In relation to the water supply, Mr McCree confirmed that ________905548514 he has an agreement that where possible he will turn off the water on the valve for his premises, but that there may be circumstances with a water leak or works where the water needs to be turned off at the toby, and it would not be sensible to get written permission to first do that. Analysis
I note that the file does include a set of Rules that have been signed by both unit owners, and they are certainly not the default Rules, the signed Rules are extensive. I note for completeness, I am not aware of whether those Rules have been registered, but I proceed assuming that they have. If I am wrong, and the Rules have not been notified to the Registrar, then they would be of no effect.
For the same reason as explained for funding the remediation works, this application must fail. In order for me to make any orders, I would need authority under the UTA to make an order, and again the closest authority would be as minority relief under section 210. But again the resolution first needs to pass in order for me to have an ability to make any such orders as Ms Leith seeks.
But that aside, it seems that there would be limited utility in considering a rule change for the four points Ms Leith notes. a. In terms of the tap, it sounds as if that tap is on Ms Leith’s principal or accessory unit, so in reality, it is up to Ms Leith to decide what access to that tap should be. b. In terms of use of the toby, I am not convinced such a rule is necessary. Mr McCree agrees that for the most part the isolating valve which turns off water to each premises should be used (which would not turn off the water to the other unit), but conceivably, there may be circumstances where a leak or maintenance is needed, so the mains supply would need to be turned off. Assuming that only occurred in limited circumstances, it may be that a rule to cover this is not needed. c. The evidence is that the unit 1 tenants use part of the unit 2 accessory unit for a garden. Mr McCree is not concerned about that, so in effect, he has provided a licence for his property to be used. This is something that would be better addressed by way of a licence (permission) rather than by way of a Rule, particularly given that this relates to property rights. d. Finally, Ms Leith submits there should be a rule that requires tenants to keep windows dry and free of condensation. I am not convinced ________905548515 that such a requirement could be put on tenants, because the extent of any requirements for tenants is found in the Residential Tenancies Act 1986 (RTA), and there is no obligation on tenants to keep windows dry in the RTA, so such a rule may be unenforceable. Claim 5 - Approval of the financial statement
Ms Leith states that the financial statements for the last financial year have not been approved. Ms Leith states that she is an accountant and believes the accounts are correct on an accounting basis.
Mr McCree states that he has not approved the statements because he wanted to proceed with this hearing as some concerns around the accounts are the subject of this dispute. Analysis
Section 132 relates to financial statements, and requires that financial statements are kept, and subsection 3 requires: The financial statements must be in the prescribed form and contain the matters prescribed by regulations.
The Regulations that apply are the Unit Titles Regulations 2011. Clause 32 relates to financial statements. That provision holds in full: 32 Financial statements (1) The following matters are prescribed for the purposes of section 132(3) of the Act (which requires financial statements to be in the prescribed form and to contain the matters prescribed by regulations): (a) a statement of financial position of the body corporate; and (b) a statement of the body corporate’s income and expenditure during the financial year to which the financial statement applies; and (c) any other matters that the body corporate decides by ordinary resolution should be included in the financial statement; and (d) any explanatory material that the body corporate considers necessary for the purpose of understanding the financial statement. ________905548516 (2) In this regulation, statement of financial position means a statement of the assets and liabilities of the body corporate at the date the statement is made.
Again I cannot make the order Ms Leith seeks, because I have no ability to make such an order in the absence of a vote first passing following a resolution.
But I have set out above what the financial statements should comprise, and no doubt Ms Leith and Mr McCree will be able to cross-check the statements against those requirements, and if they comply, get on and get the statements approved. Claim 6 - Removal of unapproved building
Ms Leith states that in 20217 the previous owner of unit 2 built a shed on one of its accessory units without approval of the Body Corporate, as required by the Body Corporate. Ms Leith considers it to be unsightly and seeks to have it removed.
Mr McCree agrees the shed was built in 2017 on unit 2 land, but it is standalone, and where it is located does not affect light. Mr McCree states that the last owner had obtained confirmation from the Council that the shed was acceptable. Mr McCree notes that Ms Leith also installed a water tank on her property without consent of the Body Corporate. Analysis
In this case there is a Rules that would be relevant (again assuming they have been registered), and that is Rule 6, which requires that the unit owner will:
Notify the body corporate of any intention to carry out additions or erect structures. Any alterations or structures that will materially affect any other unit or common property must have the written consent of the body corporate.
However, this case turns on the respective rights of the unit owners found in the UTA, which takes precedence over the Rules.
Sections 79 and 80 of the UTA, set out, prescriptively, the rights and responsibilities of owners of principal units. Under section 79(e), each unit owner is expressly granted a statutory right to make “any” alterations or additions to the unit “so long as these are within the unit ________905548517 boundary and do not materially affect any other unit or common property”.
The Court of Appeal summarised the relevant provisions in the case of Body Corporate 203780 v Bell [2020] NZCA 665, as follows: [16] Under s 79(e), the owner of a unit is able to make alterations to their unit provided that the alterations are within the unit boundary and do not materially affect any other unit or common property. Notice of proposed additions or structural alterations must be given to the body corporate (s 80(1)(h)). If an alteration within the unit boundary would materially affect other units or common property, the unit owner can only carry out the alteration after obtaining written approval from the body corporate (s 80(1)(i)). [17] These provisions are designed to strike a balance between the goals of protecting the integrity of the development as a whole and establishing a flexible and responsive regime for governance of unit title developments. The Act permits changes to be made to individual units subject to certain safeguards, including the safeguards set out in s 80(1)(h) and (i).
Section 79 relates to the rights of principal unit owners like Mr McCree (or the owner before him), and confirms that: An owner of a principal unit- ... (e) subject to section 80(1)(h) and (i), may make any alterations, additions, or improvements to his or her unit so long as these are within the unit boundary and do not materially affect the use, enjoyment, or ownership interest of any other unit or common property:
Section 80(1)(h) and (i) relate to the responsibilities of principal unit owners, and hold: An owner of a principal unit – ... (h) must notify the body corporate of his or her intention to carry out any additions or structural alterations before the commencement of any work: (i) must not make any additions or structural alterations to the unit that materially affect the use, enjoyment, or ownership interest of any other unit or the common property without the written consent of the body corporate: ________905548518
I note the commentary to section 80, in the legal reference Land Law, Lexis Nexus (online), indicate a view of the authors that where the proposed works were of a free-standing nature (as is the case with the shed before me), there would be no requirement for consent to be obtained: In terms of s 79(e), each proprietor is expressly granted a statutory right to make “any” alterations or additions to the unit “so long as these are within the unit boundary and do not materially affect any other unit or common property”. The obligation not to “materially affect any other unit or common property” without consent is reiterated in s 80(1)(i), which s 79(e) is expressly subject to. However, under s 80(1)(g) there is also a responsibility on owners of principal units to: “... repair and maintain the unit and keep it in good order to ensure that no damage or harm, whether physical, economic, or otherwise, is, or has the potential to be, caused to the common property, any building element, any infrastructure, or any other unit in the building.” This is an advance on the position commonly found concerning body corporate rules under the Unit Titles Act 1972, which invariably required the consent of the body corporate before any alteration was made to a unit. Where buildings within the three-dimensional title space are freestanding and not attached to other units, good argument can be made that alterations and improvements can be undertaken without the involvement of the body corporate.
The authors refer to the Court of Appeal decision of Wheeldon v Body Corporate 342525 [2016] NZCA 247, in which the Court observed. [37] The right under s 79(e) to make alterations or additions is also limited; it is subject to s 80(1)(h) (notification required to the body corporate) and s 80(1)(i) (prohibits additions or alteration to the unit “that materially affect any other unit or the common property without the written consent of the body corporate”). Taking the decks as an example, Mr Brill submitted that if unit owners were entitled (as he contended) to add, alter or improve a deck, it would seem strange if they were not also entitled to maintain and repair it. This submission is flawed because it assumes an unqualified right to undertake additions, alterations and improvements. If a building element relates to more than one unit it will, inevitably, materially affect those other units. It follows that the unqualified right to improve or alter components only exists in relation to those that do not fall within s ________905548519 138(1)(d). In all other circumstances, s 79(e) effectively excludes any right for a unit owner to alter, add to or improve building elements other than those authorized by the body corporate. 6
Based on those references, because the shed is an entirely free-standing structure, then the unit 2 owner would not have required the consent of the Body Corporate in order to build it.
I find that the unit 2 owner did not need to obtain the consent of the Body Corporate in order to build the shed, and for that reason I decline to make an order that it be removed.

FILING FEE

Because the applicant has been partly successful, I order that the filing fee paid to commence this proceeding be reimbursed by the Body Corporate. I record that I consider as far as the Body Corporate accounting is concerned, the filing fee should be shared between both unit owners.

Tenancy Tribunal case 9055485 — Mould & damp in Khandallah, Wellington

Tenancy Tribunal case 9055485 — Mould & damp in Khandallah, Wellington

Order

Reasons

BACKGROUND

APPLICANTS CLAIMS

RELEVANT LEGAL CONSIDERATIONS

CLAIMS

FILING FEE

Order

Reasons

BACKGROUND

APPLICANTS CLAIMS

RELEVANT LEGAL CONSIDERATIONS

CLAIMS

FILING FEE