What was the outcome of Tenancy Tribunal case 9064784?

The tribunal order states: Body Corporate 346799 must return accessory unit CP45 carpark to the applicant

How much money was awarded in case 9064784?

Filing Fee: $500.00 awarded to landlord; iately, calculated as follows: Descr…: $3,420.00 awarded to landlord

What type of tenancy dispute was case 9064784?

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

Where can I read the official tribunal order for case 9064784?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12007871-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9064784?

The tribunal order states: Body Corporate 346799 must return accessory unit CP45 carpark to the applicant

How much money was awarded in case 9064784?

Filing Fee: $500.00 awarded to landlord; iately, calculated as follows: Descr…: $3,420.00 awarded to landlord

What type of tenancy dispute was case 9064784?

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

Where can I read the official tribunal order for case 9064784?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12007871-UTA_Tribunal_Order.pdf.

Auckland Central, Auckland Tenancy Tribunal Case 9064784 — Unit Titles

Claims and awards in Tenancy Tribunal application 9064784. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
iately, calculated as follows: DescriptionsApplicantRespondent Mesne profit for loss of use of carpark from 14 June 2024	$3,420.00		iately, calculated as follows: DescriptionsApplicantRespondent Mesne profit for loss of use of carpark from 14 June 2024
Filing Fee	$500.00		Filing Fee

Claims and awards in Tenancy Tribunal application 9064784. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
iately, calculated as follows: DescriptionsApplicantRespondent Mesne profit for loss of use of carpark from 14 June 2024	$3,420.00		iately, calculated as follows: DescriptionsApplicantRespondent Mesne profit for loss of use of carpark from 14 June 2024
Filing Fee	$500.00		Filing Fee

Order

Body Corporate 346799 must return accessory unit CP45 carpark to the applicant forthwith.
Body Corporate 346799 must pay 369 Victopia Limited $3,920.00 immediately, calculated as follows: DescriptionsApplicantRespondent Mesne profit for loss of use of carpark from 14 June 2024 to 7 March 2025 $3,420.00 Filing Fee$500.00 Total award$3,920.00
Body Corporate 346799 is liable to pay 369 Victopia Limited $90.00 per week from 7 March 2025 until the return of the applicant’s carpark.
Legal costs, to be calculated and determined on the papers.

Reasons

Both parties attended the hearing on 2 April 2025. Both parties were represented by counsel.
The applicant 369 Victopia Limited are owners of principal unit 13H and accessory unit CP45 (which is a carpark) in the unit title building at 135 Victoria Street West, Auckland Central after they settled on the purchase of the principal unit and the carpark on 14 June 2024.
Extensive remediation works were being carried out at the building to which a section 74 scheme was in place pursuant to the Unit Titles Act 2010 (‘UTA’).
It was not disputed that the section 74 scheme in place affected the owners’ ability to have immediate possession of all or some of the units. The remediation works occurred in stages with unit owners been handed back their respective properties consisting of the principal units and/or accessory units (such as carparks) sequentially.
The applicant claim that when they took exclusive possession of their unit on 16 December 2024, they should have taken exclusive possession of the carpark.
The body corporate however advised that the applicant’s carpark was used by contractors undertaking remedial works pursuant to the section 74 scheme.
The body corporate’s advice was not accurate in that the body corporate had actually assigned the use of the applicant’s carpark to another unit owner of the building (unit 7H) because that owner “did not have a carpark and carparks will be moved around”.
The applicant seek the return of their carpark and mesne profit for the body corporate’s unlawful conversion of their carpark.
The issue is whether the body corporate was authorised under the section 74 scheme to deprive the applicant the right to exclusive possession and exclusive use of their carpark.
It is common ground that the section 74 scheme in place authorises the body corporate from acting as agents for the owners in respect of the carrying out of repairs to the building.
The body corporate says that in carrying out the repairs they were also authorised to do everything necessary to effectively progress the repairs, including the carrying out of ancillary matters to enable it to progress and properly finalise the building repairs.
The section 74 scheme specifically provides that unit owners are required to vacate their units (including any tenants) for as long as it is necessary for the repairs to be undertaken. The body corporate extended those expressions on the section 74 scheme to a right to require the owner to vacate their carparks.
The body corporate says that the 74 scheme provides broad powers to the body corporate which include a right to take all appropriate steps to manage the repairs; the body corporate says this foresaw their ability to restrict access on notice to the unit owners such as the applicant in this case.
The body corporate’s committee, project managers and owners resolved the reallocation of carparks for contractors’ use. As part of that reallocation decision, the body corporate also made a general reallocation of all owners’ use of their carparks in a staged manner, in an apparent effort to achieve fairness for all owners on a perceived “equitable distribution of resources” basis.
The minutes of the 26 September 2023 body corporate committee meeting updated “with regards to the carparks, Teak (repair contractors) would be starting with B2 for carparking.... Carparks will be moved around and at the end of the project, owners will be given their carparks as in their title.”
In correspondence with counsel for the applicant, counsel for the body corporate states that “other carparks would also be continuously reallocated as required in the best interest of all owners, as the building was completed in stages for the use of contractors and various owners during the construction.”
I accept that if the applicant’s carpark was allocated by the body corporate for the building contractor’s use, that use of the carpark would fall squarely within the section 74 scheme which permits the body corporate to take all appropriate and ancillary steps to manage the building repairs. Counsel for the applicant also accepts such use as being in line with the section 74 scheme.
However, I disagree with the body corporate’s position that those steps include a right to reallocate a unit owner’s carpark to other unit owners who is perceived to have not had a fair share of the use of their own carpark, in the manner that the body corporate has done to the applicant in this proceeding.
The reallocation of the applicant’s carpark does not fall under the carrying out of repairs to the building. It was not for the use of tradespeople or contractors engaged to carry out repairs. The body corporate has just taken over the applicant’s carpark and assigned it to another unit owner for that third party’s parking use!
I consider that the body corporate has acted ultra vires of their powers given under the 74 scheme because nothing in the scheme specifies a power to make general allocations of the unit owner’s property (such as the carpark) that is not directly connected to the carrying out of building repairs.
I find that the unit owner’s exclusive right to use of the carpark has been usurped by the body corporate in this instance beyond what is authorised by the section 74 scheme. I consider that the body corporate can only lawfully allocate the applicant’s carpark to contractors undertaking remedial works pursuant to the section 74 scheme, but not to other unit owners or third parties not connected to the carrying out of building repairs authorised by the section 74 scheme.
It is paramount that rights of a unit owner to possession and use of their unit, including to their accessory unit, ie., the carpark, cannot be taken away without due process or lawful justification.
I agree with the applicant that the section 74 scheme does not justify the body corporate’s manner of reallocation of carparks because they are not directly connected with the carrying out of building repairs.
All the relevant clauses under the section 74 scheme relied upon by the body corporate refers to the carrying out of repairs.
Clause 4(a) of the scheme requires the body corporate to apply due care and attention to the making of its decisions. It follows that decisions of the body corporate must be lawful and recognises the legal rights of unit owners subject only to deviation specifically authorised by the court-approved scheme.
I agree with counsel for the applicant that the owner’s obligation set out in the section 74 scheme predicates on repairs being carried out when it states: ‘if required by the body corporate, [the owner must] vacate their unit (including any tenants) for as long as is necessary for the repairs to be undertaken.”
All relevant provisions and considerations must therefore point to the court approved scheme for repairs and the carrying out of such repairs. The section 74 scheme is not carte blanche for the body corporate to deal with the applicant’s property as the body corporate considers fair and appropriate. It must be remembered that the body corporate is dealing with real property belonging to the applicant and their property rights must be respected.
For those reasons, I reject the body corporate’s justification for the deprivation of the applicant’s carpark on grounds that owners on upper levels had their use of carparks for longer than those on lower levels which is why at some point 7H was allocated the applicant’s carpark as a type of “progressive rearrangement” of carparks.
I do not consider the body corporate’s rationale based on “progressive rearrangement of carparks” justifiable on a legal standpoint as it is not authorised by the section 74 scheme and goes directly against the applicant’s right of possession and use of their own carpark.
As it stands, there is presently a sign above the applicant’s accessory unit CP45 carpark which reads: Private Car Park This car park is for residents and their visitors only Apartment 7H
In the reallocation exercise which resulted in the applicant’s carpark being handed over to the unit owner of apartment 7H, I find that the body corporate has unlawfully converted the applicant’s carpark in contravention of the scheme and the law.
The applicant’s claims against the body corporate are successful.
In determining the appropriate remedy for the body corporate’s conversion of the applicant’s carpark, section 171(3A) UTA provides: Without limiting the provisions of the Residential Tenancies Act 1986 (‘RTA’) that apply to a Tenancy Tribunal by virtue of section 176 of the UTA, a Tenancy Tribunal may, in relation to a unit title dispute within its jurisdiction under this section, do any of the following: (a) order any party to do anything necessary to remedy a breach by that party of an obligation arising under the UTA, the body corporate operational rules, or any agreement that is binding on the party and relevant to the unit title dispute: (b) order any party to refrain from doing anything that would constitute a breach of an obligation arising under the UTA, the body corporate operational rules, or any agreement that is binding on the party and relevant to the unit title dispute: and (c) make any supplementary orders of a consequential or ancillary nature necessary to exercise or perfect the exercise of any of its jurisdiction.
Pursuant to section 176 UTA, Part 3 of the RTA applies with all necessary modifications in respect of the hearing and determination of a unit title dispute by a Tenancy Tribunal, with the exception of sections 77, 78A, 106 and 109, and every reference in Part 3 of the RTA is to be read as a reference to the UTA.
Section 78(1)(e) of Part 3 of the RTA (with necessary modification in respect of the hearing and determination of a unit title dispute by a Tenancy Tribunal) provides that the Tribunal may make a work order.
In accordance with those provisions, I make an order in the nature of a declaration that the applicant is entitled to the return of and use of their carpark.
I also allow the applicant’s claim for loss of use of their carpark based on mesne profit calculated at the rate of $90.00 a week from 14 June 2024 to 7 March 2025.
I accept that lease of a unit with a carpark in central Auckland would attract a higher rental than a unit without one. I agree with counsel for the applicant that the applicant is entitled to the full and exclusive use and enjoyment of the property, including the use of their carpark, from the date of settlement without hindrance or appropriation by the body corporate and/or their agents. I accept that had the applicant not been deprived of the use and possession of their carpark, the carpark would have generated an additional $90.00 per week in rent.
The applicant continues to suffer loss of $90.00 on the carpark until the body corporate returns the carpark to the applicant.
Because the applicant has succeeded with the claim, I have reimbursed the filing fee. Section 176(1) Unit Titles Act 2010 and section 102(4) Residential Tenancies Act 1986.
The applicant wishes to be heard on costs.
I direct counsel for the applicant to file submissions on costs by 27 June 2025 and counsel for the body corporate may file reply submissions on costs by 4 July 2025.
I will determine costs on the papers thereafter.

Tenancy Tribunal case 9064784 — Unit Titles in Auckland Central, Auckland

At a glance

Tenancy Tribunal case 9064784 — Unit Titles in Auckland Central, Auckland

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions