What was the outcome of Tenancy Tribunal case 9059924?

The tribunal order states: The Tribunal declares that the responsibility for undertaking maintenance to

How much money was awarded in case 9059924?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9059924?

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

Where can I read the official tribunal order for case 9059924?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12259672-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9059924?

The tribunal order states: The Tribunal declares that the responsibility for undertaking maintenance to

How much money was awarded in case 9059924?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9059924?

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

Where can I read the official tribunal order for case 9059924?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12259672-UTA_Tribunal_Order.pdf.

Mount Victoria, Wellington Tenancy Tribunal Case 9059924 — Mould & damp

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Mount Victoria, Wellington Tenancy Tribunal Case 9059924 — Mould & damp | TenantCheck

Order

The Tribunal declares that the responsibility for undertaking maintenance to the building elements, like the roof, sits with the Body Corporate, not the individual unit owners.
Orders on all other claims are declined.

Reasons

The Tribunal must consider an application filed by a Unit Owner against the Body Corporate. Both parties appeared at the hearing today.

BACKGROUND

The unit titled complex comprises some ten units, which are townhouses in Wellington city. Ms Davies is a unit owner. Based on the photographs provided, the units are situated effectively in a square shape, with all units having at least one common wall with its neighbour, and each roof also abutting its neighbour. To put that another way, no units are free-standing.
It is the case that various disputes have arisen over the course of time between Ms Davies and the Body Corporate, which has resulted in this application being filed with the Tribunal.

UNIT OWNERS CLAIMS

At the hearing, the Unit Owner confirmed her claims are as follows: a. Orders in relation to the release of an insurance payment. b. Repairs to the utility shed on common property. c. Replacement of letter boxes. d. Declaration of responsibility for roof repairs (including colours). e. Removal of agapanthus. f. Order that the Body Corporate follow the Body Corporate Rules. g. Directions that the owners notify the body corporate of leaks. h. That the Body Corporate comply with the maintenance plan. i. And, if the Body Corporate damage property it must repair it and treat all units the same.

ANALYSIS

I will proceed to consider the 9 claims above in turn. Claim 1 - Orders in relation to release of insurance payment
The Unit Owner says there was flood some years ago, and an insurance payment has been made to the Body Corporate. The Unit Owner says that there still needs to be repairs to the premises, and the Body Corporate has not done that work, so the Unit Owner now seeks to have any payment paid to her.
In response, The Body Corporate confirm that a cash settlement was received from the insurer. The Body Corporate stated it was an oversight not to have paid that to Ms Davies at the time, but when it was realised, they made an effort to pay this to Ms Davies, but she would not provide her bank account for the payment, so it was credited to her unit’s ledger in the Body Corporate accounts. Analysis
It is apparent that the Body Corporate have paid the insurance settlement to Ms Davies, so this claim is now moot. I accept that the Body Corporate have attempted to make the payment to Ms Davies (Ms Davies did not dispute this), but when she would not provide her account, it was credited to her unit ledger. Crediting Ms Davie’s ledger seems appropriate in the circumstances. Accordingly, there is nothing further for the Tribunal to order in relation to the insurance payment.
Beyond that, Ms Davies is concerned about the delay in making the payment, and seeks interest. I am not certain what legal basis there would be to make an order for interest to be paid, but beside that, even if there was, I could not make such an order. The Unit Titles Act 2010 allows the Tribunal to make an order that interest be paid on money owed by a unit owner to a body corporate (normally in relation to levies), but not the other way around, I cannot make an order that a body corporate pay interest to a unit owner.
I could however make an order to pay interest if there had been a resolution by the Body Corporate to pay interest in those circumstances, but no such resolution has been identified.
I note that there is legislation that governs orders for the payment of interest, and that is the Interest on Money Claims Act 2016. Even if an order for interest could be made under that legislation, the legislation expressly states it does not apply to Tribunals, so interest could not be ordered based on that authority.
Accordingly, I find there could be no further dispute in relation to the payment of the settlement to the unit owner, but beyond that, no interest or other penalty could be ordered by this Tribunal. Claim 2 – Repairs to the utility shed
The Unit Owner states that there was water ingress into a shed on common property, caused by one of the owners putting in a concrete lip on their unit, therefore diverting the water flow causing the shed flooding. The Unit Owner considers the lip should be removed and the shed wall rebuild. The Unit Owner says there was a resolution passed at the AGM that the work be done, but it has not been done.
The Body Corporate’s position is that they have worked with the unit owner who is responsible for problem, and are still doing so. Analysis
This is a difficult matter to adjudicate, because while I can understand that Unit Owners concern, given there may be continuing damage to common property, strictly that common property is owned by the Body Corporate, so if there is to be any action taken then it is the Body Corporate who would have standing to pursue that with the other owner. To put that another way, I cannot see how Ms Davies can at this time bring a claim against the Body Corporate, requiring the Body Corporate take action against another unit owner.
In theory Ms Davies could bring a claim in the Tenancy Tribunal against another unit owner, but I am not convinced that would be effective here. To succeed with that claim, Ms Davies would need to prove that the other unit owner had breached some obligation toward Ms Davies. Ms Davies will not have standing to bring the claim against another unit owner if she considers that the other unit owner had breached an obligation to the Body Corporate.
I note that while Ms Davies is a member of the Body Corporate, that would not change the outcome. Just because Ms Davies is a member of the body corporate, she would not have standing to bring a claim for a breach against another unit owner, in relation to a breach against the Body Corporate.
If Ms Davies considered that the Body Corporate was not acting responsibly, or adequately in relation to the described flooding, her remedy is to raise that formally in a body corporate meeting, an AGM or an EGM, as a resolution, when the body corporate as a whole would need to vote on whether to pass that proposed resolution.
However, the Body Corporate have advised that the hearing that they are continuing to work with the other unit owner to remedy the situation, so a solution may not be too far away. But as far as I can see, there are no orders I can make in relation to this matter. Claim 3 – Replacement of letter boxes
The Unit Owner states that the letterboxes bang depending on the wind. The Unit Owner considers that work should be undertaken to the letter boxes to replace them of otherwise altered them to stop them banging. The Unit Owner says that the Committee advised they would look at this when they had time.
The Body Corporate say this was raised as general business at the AGM, but it was not a resolution. However, since then foam was installed on the boxes, hoping it would have resolved the problem, but it seems that has not worked according to Ms Davies, but it will continue to look for a solution. Otherwise the boxes are in good order, and the Body Corporate does not wish to have them replaced. Analysis
I did not confirm the situation at the hearing, but I presume the letterboxes are found on common property, and will proceed on that basis.
Section 138 of the UTA applies, and confirms that the Body Corporate is responsible for any repairs and maintenance in relation to the common property and “any assets designed for use in connection with the common property”. It is likely that the letterboxes would fall within that category.
At the hearing today, from what I have seen and heard, I am not persuaded that this is an issue where repairs or maintenance are required, in the sense that those terms normally denote that something is broken or worn, and requires fixing. What Ms Davies described is what happens when it is windy, the letterboxes will flap, I presume that would have been the situation since the letterboxes were built, and therefore it would not be a repair or maintenance requirement per se.
But even if it was a repair and maintenance issue, the process that needs to apply, would be exactly the same if the request was to replace the letterboxes.
The starting point must be that the Body Corporate would not be obligated to repair or maintain, or replace the letterbox, simply because a unit owner requested it. Rather, what would normally happen is that a request would be made to the Body Corporate, or the Committee if there is one (which there is in this case), for the item to be repaired, maintained, or replaced. Alternatively, if the request is made to the committee, normally the committee is delegated with the authority to make those sorts of decisions by majority decision of the committee, which is a simpler and more straightforward process.
If however a request was made to the committee, and the unit owner did not agree with the result, then a request could be made for a formal vote by the body corporate as a whole, and that result would take precedence over any decision-making from the committee.
I understand matters, the Body Corporate has received a request from Ms Davies, and has made some changes to the letterbox, hoping to have resolved the issues for her, but the change has not resolved the problem. I presume the Body Corporate will continue to try and find a suitable solution, but if that does not sort the problem out, then the next step for Ms Davies would be to put this forward as a resolution at a meeting.
Unfortunately, there is no shortcut to that process, and certainly the Tribunal does not have any jurisdiction to make orders outside of that usual process. Potentially, the Tribunal could make work orders, but it would only do so if the Body Corporate was failing to act on past resolutions in a timely way.
It would be premature to make any orders in relation to the letterbox, without the full process discussed above having been concluded. Claim 4 - Declaration of responsibility for roof project (including colours)
The Unit Owner states that the complex allows owners to opt in or out of roof projects, and as a result, owners are putting on different coloured roof tiles on their units. The Unit Owner considers that the Body Corporate should control this, and that includes limiting colours.
The Body Corporate say that regarding the roof tiles, this is the individual owner’s responsibility. Five owners elected to undertake roof work, but those works were all done at the same time. The Body Corporate say that the only colour available for the replacement tiles is dark grey, so if there are dark tiles those are new tiles, whereas any other colour will be the old or existing tiles.
The Unit Owner considers that when maintenance is needed, then it should be a complex wide exercise. Analysis
This situation is, in fact, a reasonably common dispute in unit-titled premises in New Zealand. In particular, where the responsibilities sits with maintenance for building elements.
The starting point for determining the respective obligations of a unit owner and body corporate is the Unit Titles Act 2010 (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 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 1 , the High Court confirmed: 1 The High Court decision confirmed in the Court of Appeal judgment of Wheeldon v Body Corporate 342525 [2018] NZCA 20. [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 (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 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 2 and Court of Appeal. 3 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 2 Body Corporate s73368 v Otway [2017] NZHC 3265. 3 Body Corporate S73368 v Otway [2018] NZCA 612. 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 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.
Returning now to the premises that are before me. My understanding of the complex, is that the units are adjoined to one or two neighbours. That being the case, the responsibility for maintaining the building elements would fall to the Body Corporate, not the individual unit owners. But I cannot take things any further than that, because ultimately it is the Body Corporate that will need to decide what maintenance is needed and when. Claim 5 - Removal of agapanthus
The Unit Owner states that there had been issues with agapanthus causing damage to pipes and paving. The Unit Owner is not sure if these are located on common property or the principal units. The Unit Owner considers that these plants should be removed. The Unit Owner states this was raised at the AGM, and the Body Corporate said that they would look at it.
The Body Corporate say that this was raised at the last AGM under general business, and again it was agreed that the gardener would be requested to attend and deal with the agapanthus, and the Body Corporate understands these have already been removed. Analysis
It is possible that this claim is also moot. The Body Corporate’s understanding is that the plants have already been removed, and if that is the case there would be nothing further to be adjudicated. However, the Unit Owner believes that some agapanthus are still present, which would mean that the claim was not moved in the sense that the offending plants remain.
Assuming that the agapanthus have not been removed (as Ms Davie’s says) it is not clear whether they are on a principal unit, or common property.
If the plants were on a principal unit, then the relevant unit owner would have a responsibility to ensure that they do not damage property or other units. But I do not have any claim before me against any other unit, but even then, the evidence of any such damage is absent.
If the plants were on common property, then the Body Corporate would have an obligation to ensure that the plants do not damage any principal unit property.
However, having sent out the relevant legal positions, again, the Unit Owner has the ability to raise requests with the Committee, and if necessary, to raise a formal agenda item seeking a resolution be passed by the whole of the Body Corporate, but beyond that the Tribunal would have no ability to intervene at this time. Claim 6 – Body Corporate not following the Body Corporate Rules
The Unit Owner considers that the Body Corporate Committee do not follow the Body Corporate Rules, and gives the example of Committee members allowing tradespeople to park in areas they are not supposed to. Other examples were given such as using padlocks or having cats.
The unit owners at the hearing, who were representing the Body Corporate, consider they do follow the Rules. It is agreed that contractors are given permission to park on the common property, but if they are blocking driveways, they are requested to move their vehicles. The Body Corporate say that they have sent reminders around parking, but that given the community nature of the premises, there needs to be some give and take. Note was made of a time when Ms Davies was having building work at her property and permission was given to park in front of someone else’s driveway.
Ms Davies says that the Committee all have off-street parking, so they should allow contractors to park in those car parks, not in front of her driveway. Analysis
This claim can be addressed simply. Section 105 of the UTA applies, that confirms that the body corporate must at all times have operational rules, and: (4) The body corporate operational rules are binding on— (a) the body corporate; and (b) the owners of principal units; and (c) any person who occupies a principal unit; and (d) any mortgagee who is in possession of a principal unit.
Accordingly, not only must the Body Corporate have rules, but those rules are binding on the Body Corporate, as they are for all other unit owners.
In this case I have not been provided with a copy of the body corporate operational rules, but do not dispute that they cover off things like parking, padlocks, and cats. Those will be fairly ordinary things often covered in body corporate operational rules. So the Body Corporate and the body corporate members must comply with what those rules say.
Beyond stating that to be the case, which is simply the law that applies in the UTA, I cannot see that there is any other order I can make. What Ms Davies has described is intermittent breaches as it relates to parking, but potentially ongoing breaches in relation to padlocks and cats. If Ms Davies considers that the ongoing breaches need to be remedied, then she has two options. a. Either Ms Davies can raise the breach with the Body Corporate / Committee, which would need to decide what to do in relation to any potential breach; or b. Ms Davies could enforce the Rule herself. She can do that because section 79 of the UTA which sets out the rights of owners of principal units, confirms that a unit owner “has the right to enforce the body corporate operational rules”. Claim 7 – Confirmation to notify the Body Corporate of leaks
The Unit Owner says that the premises is a leaky complex, and when there is any water ingress, the Unit Owner consider that the other unit owners should be required to notify the Body Corporate when there are leaks so the Body Corporate can address this. At this time the unit owners do their own repairs, often cheaply.
The Body Corporate representatives disagree that there are widespread leaks, but they agree that there should be information disseminated. Analysis
In my view, a unit owner would have an obligation to notify the Body Corporate if there were leaks occurring on their premises. As I have noted above, the obligation to maintain building elements (like the roof, windows and exterior walls) is on the Body Corporate. Section 80 sets out the responsibilities of unit owners, and that includes complying with all laws and legal requirements, which could extend to ensure they do nothing that causes damage to another’s property, which would include the body corporate.
Beyond noting that, I cannot see any other order I can make here. Claim 8 – Body Corporate’s obligation to comply with the maintenance plan.
The Unit Owner considers that the Body Corporate has not been complying with the maintenance plan, and the example was given about regular property washes.
The Body Corporate confirm that they agree there is a need to have a long term maintenance plan, but that the Body Corporate does have the ability to review the plan and amend it where necessary. The plan is there to assist but it is not determinative. The LTMP is presented at each AGM. Further, the Body Corporate meets regularly with Lloyd Richardson Property Management around work at the premises, and note there is nothing outstanding on the plan.
In conclusion, Ms Davies states that now that she has filed the application, a 30-year plan has been introduced, and it is a good thing that her application has achieved this. Analysis
Again, I am not convinced there is anything for me to adjudicate here. It looks to me as if there is a long-term maintenance plan in place. While the parties disagree with when that was first introduced, what is not in dispute is that there is a plan in place at this time.
Beyond that, the Body Corporate is correct that it is able to amend the plan as time goes on, in fact it would be unusual if a plan was not reviewed and amended from time to time. But again if Ms Davies considers that work under the plan is required, her first port of call will be the Body Corporate Committee or Body Corporate to raise that there.
I cannot see any order that could be made under this claim. Claim 9 - If the Body Corporate damage property they must repair it and treat all units the same.
The Unit Owner says that when her unit was water blasted by the Body Corporate, there were patches missed (the job was not done properly), and she continued to have mould. The water blaster person came back, it sounds like they did do some remedial work to address the missed patch, but that was not ideal. Ms Davies also raised concerns about the water blaster removing the paint in one area of the wall. The Unit Owner considers that the area should be repainted. The Unit Owner accepts that the area of paint that had been removed had not been painted to a good standard.
The Body Corporate agrees that some areas on unit 6 were missed when the water blasting occurred. The Body Corporate states they did not realise there was an area of paint loss, they had only been advised of areas of missed water blasting. Analysis
While the UTA is silent on this matter, in my view it would be implicit that the body corporate should treat all units the same.
As it relates to the missed area with the water blasting, I cannot imagine that that would have occurred in any way other than by an error on the part of the person doing the water blasting. In short, there was a section missed. There was no evidence before me that the Body Corporate caused that, or facilitated the area to be missed. But it does seem that when it was raised, the Body Corporate got the water blaster back, and the area was treated again. That is probably as far as that matter can be taken.
However, in relation to the area where paint has been removed, that is a different matter. Based on what Ms Davies said at the hearing, it seems that the area of paint loss would be on an area deemed a building element, so the obligation is on the Body Corporate to repair that area. The Body Corporate advised me at the hearing today that they did not realise that there was an area of paint damage, but no doubt, given the Body Corporate is now aware of the situation, they would want to have the area repaired in line with the statutory duty for repair and maintenance to building elements.

COSTS

I make no award of costs. The costs should lay where they fall, meaning each party will be responsible for their own costs in the proceeding.

Order

The Tribunal declares that the responsibility for undertaking maintenance to the building elements, like the roof, sits with the Body Corporate, not the individual unit owners.
Orders on all other claims are declined.

Reasons

The Tribunal must consider an application filed by a Unit Owner against the Body Corporate. Both parties appeared at the hearing today.

BACKGROUND

The unit titled complex comprises some ten units, which are townhouses in Wellington city. Ms Davies is a unit owner. Based on the photographs provided, the units are situated effectively in a square shape, with all units having at least one common wall with its neighbour, and each roof also abutting its neighbour. To put that another way, no units are free-standing.
It is the case that various disputes have arisen over the course of time between Ms Davies and the Body Corporate, which has resulted in this application being filed with the Tribunal.

UNIT OWNERS CLAIMS

At the hearing, the Unit Owner confirmed her claims are as follows: a. Orders in relation to the release of an insurance payment. b. Repairs to the utility shed on common property. c. Replacement of letter boxes. d. Declaration of responsibility for roof repairs (including colours). e. Removal of agapanthus. f. Order that the Body Corporate follow the Body Corporate Rules. g. Directions that the owners notify the body corporate of leaks. h. That the Body Corporate comply with the maintenance plan. i. And, if the Body Corporate damage property it must repair it and treat all units the same.

ANALYSIS

I will proceed to consider the 9 claims above in turn. Claim 1 - Orders in relation to release of insurance payment
The Unit Owner says there was flood some years ago, and an insurance payment has been made to the Body Corporate. The Unit Owner says that there still needs to be repairs to the premises, and the Body Corporate has not done that work, so the Unit Owner now seeks to have any payment paid to her.
In response, The Body Corporate confirm that a cash settlement was received from the insurer. The Body Corporate stated it was an oversight not to have paid that to Ms Davies at the time, but when it was realised, they made an effort to pay this to Ms Davies, but she would not provide her bank account for the payment, so it was credited to her unit’s ledger in the Body Corporate accounts. Analysis
It is apparent that the Body Corporate have paid the insurance settlement to Ms Davies, so this claim is now moot. I accept that the Body Corporate have attempted to make the payment to Ms Davies (Ms Davies did not dispute this), but when she would not provide her account, it was credited to her unit ledger. Crediting Ms Davie’s ledger seems appropriate in the circumstances. Accordingly, there is nothing further for the Tribunal to order in relation to the insurance payment.
Beyond that, Ms Davies is concerned about the delay in making the payment, and seeks interest. I am not certain what legal basis there would be to make an order for interest to be paid, but beside that, even if there was, I could not make such an order. The Unit Titles Act 2010 allows the Tribunal to make an order that interest be paid on money owed by a unit owner to a body corporate (normally in relation to levies), but not the other way around, I cannot make an order that a body corporate pay interest to a unit owner.
I could however make an order to pay interest if there had been a resolution by the Body Corporate to pay interest in those circumstances, but no such resolution has been identified.
I note that there is legislation that governs orders for the payment of interest, and that is the Interest on Money Claims Act 2016. Even if an order for interest could be made under that legislation, the legislation expressly states it does not apply to Tribunals, so interest could not be ordered based on that authority.
Accordingly, I find there could be no further dispute in relation to the payment of the settlement to the unit owner, but beyond that, no interest or other penalty could be ordered by this Tribunal. Claim 2 – Repairs to the utility shed
The Unit Owner states that there was water ingress into a shed on common property, caused by one of the owners putting in a concrete lip on their unit, therefore diverting the water flow causing the shed flooding. The Unit Owner considers the lip should be removed and the shed wall rebuild. The Unit Owner says there was a resolution passed at the AGM that the work be done, but it has not been done.
The Body Corporate’s position is that they have worked with the unit owner who is responsible for problem, and are still doing so. Analysis
This is a difficult matter to adjudicate, because while I can understand that Unit Owners concern, given there may be continuing damage to common property, strictly that common property is owned by the Body Corporate, so if there is to be any action taken then it is the Body Corporate who would have standing to pursue that with the other owner. To put that another way, I cannot see how Ms Davies can at this time bring a claim against the Body Corporate, requiring the Body Corporate take action against another unit owner.
In theory Ms Davies could bring a claim in the Tenancy Tribunal against another unit owner, but I am not convinced that would be effective here. To succeed with that claim, Ms Davies would need to prove that the other unit owner had breached some obligation toward Ms Davies. Ms Davies will not have standing to bring the claim against another unit owner if she considers that the other unit owner had breached an obligation to the Body Corporate.
I note that while Ms Davies is a member of the Body Corporate, that would not change the outcome. Just because Ms Davies is a member of the body corporate, she would not have standing to bring a claim for a breach against another unit owner, in relation to a breach against the Body Corporate.
If Ms Davies considered that the Body Corporate was not acting responsibly, or adequately in relation to the described flooding, her remedy is to raise that formally in a body corporate meeting, an AGM or an EGM, as a resolution, when the body corporate as a whole would need to vote on whether to pass that proposed resolution.
However, the Body Corporate have advised that the hearing that they are continuing to work with the other unit owner to remedy the situation, so a solution may not be too far away. But as far as I can see, there are no orders I can make in relation to this matter. Claim 3 – Replacement of letter boxes
The Unit Owner states that the letterboxes bang depending on the wind. The Unit Owner considers that work should be undertaken to the letter boxes to replace them of otherwise altered them to stop them banging. The Unit Owner says that the Committee advised they would look at this when they had time.
The Body Corporate say this was raised as general business at the AGM, but it was not a resolution. However, since then foam was installed on the boxes, hoping it would have resolved the problem, but it seems that has not worked according to Ms Davies, but it will continue to look for a solution. Otherwise the boxes are in good order, and the Body Corporate does not wish to have them replaced. Analysis
I did not confirm the situation at the hearing, but I presume the letterboxes are found on common property, and will proceed on that basis.
Section 138 of the UTA applies, and confirms that the Body Corporate is responsible for any repairs and maintenance in relation to the common property and “any assets designed for use in connection with the common property”. It is likely that the letterboxes would fall within that category.
At the hearing today, from what I have seen and heard, I am not persuaded that this is an issue where repairs or maintenance are required, in the sense that those terms normally denote that something is broken or worn, and requires fixing. What Ms Davies described is what happens when it is windy, the letterboxes will flap, I presume that would have been the situation since the letterboxes were built, and therefore it would not be a repair or maintenance requirement per se.
But even if it was a repair and maintenance issue, the process that needs to apply, would be exactly the same if the request was to replace the letterboxes.
The starting point must be that the Body Corporate would not be obligated to repair or maintain, or replace the letterbox, simply because a unit owner requested it. Rather, what would normally happen is that a request would be made to the Body Corporate, or the Committee if there is one (which there is in this case), for the item to be repaired, maintained, or replaced. Alternatively, if the request is made to the committee, normally the committee is delegated with the authority to make those sorts of decisions by majority decision of the committee, which is a simpler and more straightforward process.
If however a request was made to the committee, and the unit owner did not agree with the result, then a request could be made for a formal vote by the body corporate as a whole, and that result would take precedence over any decision-making from the committee.
I understand matters, the Body Corporate has received a request from Ms Davies, and has made some changes to the letterbox, hoping to have resolved the issues for her, but the change has not resolved the problem. I presume the Body Corporate will continue to try and find a suitable solution, but if that does not sort the problem out, then the next step for Ms Davies would be to put this forward as a resolution at a meeting.
Unfortunately, there is no shortcut to that process, and certainly the Tribunal does not have any jurisdiction to make orders outside of that usual process. Potentially, the Tribunal could make work orders, but it would only do so if the Body Corporate was failing to act on past resolutions in a timely way.
It would be premature to make any orders in relation to the letterbox, without the full process discussed above having been concluded. Claim 4 - Declaration of responsibility for roof project (including colours)
The Unit Owner states that the complex allows owners to opt in or out of roof projects, and as a result, owners are putting on different coloured roof tiles on their units. The Unit Owner considers that the Body Corporate should control this, and that includes limiting colours.
The Body Corporate say that regarding the roof tiles, this is the individual owner’s responsibility. Five owners elected to undertake roof work, but those works were all done at the same time. The Body Corporate say that the only colour available for the replacement tiles is dark grey, so if there are dark tiles those are new tiles, whereas any other colour will be the old or existing tiles.
The Unit Owner considers that when maintenance is needed, then it should be a complex wide exercise. Analysis
This situation is, in fact, a reasonably common dispute in unit-titled premises in New Zealand. In particular, where the responsibilities sits with maintenance for building elements.
The starting point for determining the respective obligations of a unit owner and body corporate is the Unit Titles Act 2010 (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 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 1 , the High Court confirmed: 1 The High Court decision confirmed in the Court of Appeal judgment of Wheeldon v Body Corporate 342525 [2018] NZCA 20. [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 (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 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 2 and Court of Appeal. 3 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 2 Body Corporate s73368 v Otway [2017] NZHC 3265. 3 Body Corporate S73368 v Otway [2018] NZCA 612. 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 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.
Returning now to the premises that are before me. My understanding of the complex, is that the units are adjoined to one or two neighbours. That being the case, the responsibility for maintaining the building elements would fall to the Body Corporate, not the individual unit owners. But I cannot take things any further than that, because ultimately it is the Body Corporate that will need to decide what maintenance is needed and when. Claim 5 - Removal of agapanthus
The Unit Owner states that there had been issues with agapanthus causing damage to pipes and paving. The Unit Owner is not sure if these are located on common property or the principal units. The Unit Owner considers that these plants should be removed. The Unit Owner states this was raised at the AGM, and the Body Corporate said that they would look at it.
The Body Corporate say that this was raised at the last AGM under general business, and again it was agreed that the gardener would be requested to attend and deal with the agapanthus, and the Body Corporate understands these have already been removed. Analysis
It is possible that this claim is also moot. The Body Corporate’s understanding is that the plants have already been removed, and if that is the case there would be nothing further to be adjudicated. However, the Unit Owner believes that some agapanthus are still present, which would mean that the claim was not moved in the sense that the offending plants remain.
Assuming that the agapanthus have not been removed (as Ms Davie’s says) it is not clear whether they are on a principal unit, or common property.
If the plants were on a principal unit, then the relevant unit owner would have a responsibility to ensure that they do not damage property or other units. But I do not have any claim before me against any other unit, but even then, the evidence of any such damage is absent.
If the plants were on common property, then the Body Corporate would have an obligation to ensure that the plants do not damage any principal unit property.
However, having sent out the relevant legal positions, again, the Unit Owner has the ability to raise requests with the Committee, and if necessary, to raise a formal agenda item seeking a resolution be passed by the whole of the Body Corporate, but beyond that the Tribunal would have no ability to intervene at this time. Claim 6 – Body Corporate not following the Body Corporate Rules
The Unit Owner considers that the Body Corporate Committee do not follow the Body Corporate Rules, and gives the example of Committee members allowing tradespeople to park in areas they are not supposed to. Other examples were given such as using padlocks or having cats.
The unit owners at the hearing, who were representing the Body Corporate, consider they do follow the Rules. It is agreed that contractors are given permission to park on the common property, but if they are blocking driveways, they are requested to move their vehicles. The Body Corporate say that they have sent reminders around parking, but that given the community nature of the premises, there needs to be some give and take. Note was made of a time when Ms Davies was having building work at her property and permission was given to park in front of someone else’s driveway.
Ms Davies says that the Committee all have off-street parking, so they should allow contractors to park in those car parks, not in front of her driveway. Analysis
This claim can be addressed simply. Section 105 of the UTA applies, that confirms that the body corporate must at all times have operational rules, and: (4) The body corporate operational rules are binding on— (a) the body corporate; and (b) the owners of principal units; and (c) any person who occupies a principal unit; and (d) any mortgagee who is in possession of a principal unit.
Accordingly, not only must the Body Corporate have rules, but those rules are binding on the Body Corporate, as they are for all other unit owners.
In this case I have not been provided with a copy of the body corporate operational rules, but do not dispute that they cover off things like parking, padlocks, and cats. Those will be fairly ordinary things often covered in body corporate operational rules. So the Body Corporate and the body corporate members must comply with what those rules say.
Beyond stating that to be the case, which is simply the law that applies in the UTA, I cannot see that there is any other order I can make. What Ms Davies has described is intermittent breaches as it relates to parking, but potentially ongoing breaches in relation to padlocks and cats. If Ms Davies considers that the ongoing breaches need to be remedied, then she has two options. a. Either Ms Davies can raise the breach with the Body Corporate / Committee, which would need to decide what to do in relation to any potential breach; or b. Ms Davies could enforce the Rule herself. She can do that because section 79 of the UTA which sets out the rights of owners of principal units, confirms that a unit owner “has the right to enforce the body corporate operational rules”. Claim 7 – Confirmation to notify the Body Corporate of leaks
The Unit Owner says that the premises is a leaky complex, and when there is any water ingress, the Unit Owner consider that the other unit owners should be required to notify the Body Corporate when there are leaks so the Body Corporate can address this. At this time the unit owners do their own repairs, often cheaply.
The Body Corporate representatives disagree that there are widespread leaks, but they agree that there should be information disseminated. Analysis
In my view, a unit owner would have an obligation to notify the Body Corporate if there were leaks occurring on their premises. As I have noted above, the obligation to maintain building elements (like the roof, windows and exterior walls) is on the Body Corporate. Section 80 sets out the responsibilities of unit owners, and that includes complying with all laws and legal requirements, which could extend to ensure they do nothing that causes damage to another’s property, which would include the body corporate.
Beyond noting that, I cannot see any other order I can make here. Claim 8 – Body Corporate’s obligation to comply with the maintenance plan.
The Unit Owner considers that the Body Corporate has not been complying with the maintenance plan, and the example was given about regular property washes.
The Body Corporate confirm that they agree there is a need to have a long term maintenance plan, but that the Body Corporate does have the ability to review the plan and amend it where necessary. The plan is there to assist but it is not determinative. The LTMP is presented at each AGM. Further, the Body Corporate meets regularly with Lloyd Richardson Property Management around work at the premises, and note there is nothing outstanding on the plan.
In conclusion, Ms Davies states that now that she has filed the application, a 30-year plan has been introduced, and it is a good thing that her application has achieved this. Analysis
Again, I am not convinced there is anything for me to adjudicate here. It looks to me as if there is a long-term maintenance plan in place. While the parties disagree with when that was first introduced, what is not in dispute is that there is a plan in place at this time.
Beyond that, the Body Corporate is correct that it is able to amend the plan as time goes on, in fact it would be unusual if a plan was not reviewed and amended from time to time. But again if Ms Davies considers that work under the plan is required, her first port of call will be the Body Corporate Committee or Body Corporate to raise that there.
I cannot see any order that could be made under this claim. Claim 9 - If the Body Corporate damage property they must repair it and treat all units the same.
The Unit Owner says that when her unit was water blasted by the Body Corporate, there were patches missed (the job was not done properly), and she continued to have mould. The water blaster person came back, it sounds like they did do some remedial work to address the missed patch, but that was not ideal. Ms Davies also raised concerns about the water blaster removing the paint in one area of the wall. The Unit Owner considers that the area should be repainted. The Unit Owner accepts that the area of paint that had been removed had not been painted to a good standard.
The Body Corporate agrees that some areas on unit 6 were missed when the water blasting occurred. The Body Corporate states they did not realise there was an area of paint loss, they had only been advised of areas of missed water blasting. Analysis
While the UTA is silent on this matter, in my view it would be implicit that the body corporate should treat all units the same.
As it relates to the missed area with the water blasting, I cannot imagine that that would have occurred in any way other than by an error on the part of the person doing the water blasting. In short, there was a section missed. There was no evidence before me that the Body Corporate caused that, or facilitated the area to be missed. But it does seem that when it was raised, the Body Corporate got the water blaster back, and the area was treated again. That is probably as far as that matter can be taken.
However, in relation to the area where paint has been removed, that is a different matter. Based on what Ms Davies said at the hearing, it seems that the area of paint loss would be on an area deemed a building element, so the obligation is on the Body Corporate to repair that area. The Body Corporate advised me at the hearing today that they did not realise that there was an area of paint damage, but no doubt, given the Body Corporate is now aware of the situation, they would want to have the area repaired in line with the statutory duty for repair and maintenance to building elements.

COSTS

I make no award of costs. The costs should lay where they fall, meaning each party will be responsible for their own costs in the proceeding.

Tenancy Tribunal case 9059924 — Mould & damp in Mount Victoria, Wellington

At a glance

Tenancy Tribunal case 9059924 — Mould & damp in Mount Victoria, Wellington

At a glance

Claims & awards

Order

Reasons

BACKGROUND

UNIT OWNERS CLAIMS

ANALYSIS

COSTS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

UNIT OWNERS CLAIMS

ANALYSIS

COSTS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions