What was the outcome of Tenancy Tribunal case 9042304?

The tribunal order states: Body Corporate 389968 must pay Hyun Woo Jo $15,500.00 immediately,

How much money was awarded in case 9042304?

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 9042304?

The primary dispute was Mould & damp. Related themes: State of repair, Healthy homes, Exemplary damages, Leaks, Unit Titles, Costs.

Where can I read the official tribunal order for case 9042304?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9604305-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9042304?

The tribunal order states: Body Corporate 389968 must pay Hyun Woo Jo $15,500.00 immediately,

How much money was awarded in case 9042304?

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 9042304?

The primary dispute was Mould & damp. Related themes: State of repair, Healthy homes, Exemplary damages, Leaks, Unit Titles, Costs.

Where can I read the official tribunal order for case 9042304?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9604305-UTA_Tribunal_Order.pdf.

Pinehill, Auckland Tenancy Tribunal Case 9042304 — Mould & damp

Order

Body Corporate 389968 must pay Hyun Woo Jo $15,500.00 immediately, calculated as follows: DescriptionsApplicant Compensation for rent loss$15,000.00 Filing Fee$500.00 Total award$15,500.00

Reasons

Mr Jo attended the hearing in person.
Paul Ashton, the body corporate committee’s current chairperson, and John Banks, a body corporate committee member appeared for the body corporate.
Mr Jo claims the body corporate failed to repair a leak to his unit applies for compensation for lost rent due to its delay in repairing leak to his unit. For remedy, he asks for compensation for lost rent, emotional harm, and his time. Background
Mr Jo owns a two-bedroom unit in the Gulf View Estate development. The development was constructed in about 2000. It has 42 residential units and three main buildings. Mr Jo’s unit is located within a multi-storied apartment building. His unit is on a lower level.
Mr Jo rents the unit out. He needs the rental income to service his mortgage over the premises.
Because the unit is located on the lower floors of the apartment building, most of his unit does not have a roof over it. However, a small part of it projects about a metre out from the building and that part of the unit has a section of roof above it.
Unfortunately, on about 4 August 2022, Mr Jo’s tenants noticed that this bedroom was leaking beneath the protruding section of roof.
The tenants reported the leak to Mr Jo that same day and Mr Jo immediately reported it to the building manager. Importantly for this case, reporting the leak to the body corporate was all Mr Jo could do because only the body corporate could repair the leak.
The body corporate soon engaged a weather proofing repair contractor, Samurai, to quote for the leak. Sadly, the repair work was not done in time to save the tenancy. The tenants left the unit on 8 October 2022 despite the fact that they had contracted to rent the unit until 5 March 2023.
The tenants brought a claim in the Tribunal against Mr Jo for failing to maintain the premises in a reasonable state of repair and sought early release from the fixed-term tenancy and exemplary damages. In its decision of the claim, 1 the Tribunal found in favour of the tenants. It deemed the tenancy ended on 14 October 2022 due to the fact the leak had not been repaired fully or temporarily and ordered Mr Jo to pay $1,440.00 in exemplary damages for failing to repair.
On 25 October 2023, Samurai quoted $10,650 plus GST to repair the leak.
On about 28 October 2023, the body corporate instructed its building manager to instruct Samurai to proceed with repair work as quoted. 2 1 Harvey-Slater v Jo [2022] NZTT 4436882, 4453830 (delivered on 8 December 2022). Mr Jo was ordered to pay $1,440.00 in exemplary damages because he had not by 14 October 2022 done enough to press the body corporate to do more. At [66] the Tribunal commented, “The landlord could have demanded the body corporate undertake a temporary fix at the very least (ie silicone sealant or tape etc), and furthermore the landlord was able to bring an application to the Tenancy Tribunal, to obtain orders that the body corporate undertake the necessary work, in the timeframe set by the Tribunal.” 2 “Leak through the roof into the lounge. Remediation of the roof was approved. Samurai will be given the go-ahead to proceed”: Body Corporate Committee Meeting, 31 October 2022.
However, by 5 December 2022, the body corporate had changed its mind. 3 It told Samurai to hold off doing any repair work. At another weather proofing repair, Forme Reclad’s suggestion, it instructed a company, CS&R a building surveying company, to undertake to inspect the membrane system of the leaking roof area to “ascertain the nature, quality of construction and potential areas of concern in relation to Unit A103”. 4
One of the mains reasons for the delay appears to be that Samurai’s quote did not cover all eventualities. If Samurai found other problems when repairing the membrane there would be further charges to remediate the unforeseen problems. For instance, prior to quoting Samurai had mentioned water might be getting in through a control joint and, “If it’s control joint it’s a low cost fix, however membrane would cost a little more”.
On 21 December 2022, CS&R recommended fully stripping back the area to gain a more detailed insight and employ a contractor to review the necessary work. It found the membrane roof had been compromised due to poor installation and bonding between the membrane and scuppers. The affected membrane had to be removed from the joint detailing. CS&R would need to communicate with the membrane supplier to get the best solution.
The body corporate asked Forme Reclad to proceed with the repair, but by then Cyclone Gabrielle and the Anniversary weekend floods had caused devastating flood-related damage and Forme Reclad did not have the capacity to do the work.
Eventually on 4 May 2023, another company, Zanar, quoted $2,998.63 to investigate the leak and quote to fix it. It provided an updated quote $10,981.07 to repair the roof membrane, which included some of the earlier quote. The quote did not allow for other eventualities: “If we are required to do the cladding works then this will be treated as a variation as it will involve a lot more work.” The body corporate accepted the quote, and the repair work was completed on about 31 May 2023. The eventual cost appears to have been about $10,000.00. 5
The principal issue for determination is whether body corporate breached its duty to maintain the unit’s leaking roof. 3 Minutes of Owners’ Committee Meeting, 5 December 2022, “It was agreed that although this matter requires immediate attention, we shall advise Samurai to hold off on any work until were receive the report.” 4 CS&R report dated 21 December 2022, page 1. 5 The tax invoice dated 31 May 2023 which includes “Rubbish removal & site clean” was for $9,911.57.

Did the body corporate fail to maintain and repair the unit?

Legal principles

Under s 138 of the Unit Titles Act (UTA), the body corporate “must repair and maintain” certain structures, The section relevantly provides: Body corporate duties of repair and maintenance (1) The body corporate must repair and maintain— (a) the common property; and ... (d) any building elements and infrastructure that relate to or serve more than 1 unit. ... (3) The body corporate may access at all reasonable hours any unit to enable it to carry out repairs and maintenance under this section.
It is not disputed that the body corporate had to repair the unit’s leak. As the body corporate’s counsel advised: 6 Although the roof sits over Unit A103 alone, it forms part of the overall building envelope and is integral to the building’s integrity and weathertightness.” 7
Nor is it disputed that Mr Jo’s hands were tied. He could not organise the repair. Only the body corporate could. As the Tribunal observed in the related proceeding that Mr Jo’s tenants took against him:
As I noted at the hearing, I accept that there is a layer of complexity in this case, because the premises are a unit titled dwelling. The Unit Titles Act 2010 is relevant, and that legislation confirms that repairs to building elements, such as the outside of the building and windows, is the responsibility of the body corporate. So the fact of the landlord not undertaking the work himself, is not at all surprising, as it was necessarily referred to the body corporate.
Section 138 does not refer to a timeframe within which the body corporate “must repair”. It cannot be expected that repairs can be carried out instantly, but nor should they occur at the body corporate’s leisure. There is a test of reasonableness implied. What is a reasonable timeframe for repair will depend on the circumstances such as (in the case of a leak) whether the cause of the leak is readily ascertainable, the seriousness of leak on the unit, the impact on the unit owner, the impact on the building overall, the cost of repair, and an open set of other relevant factors. 6 Liza-Fry-Irvine’s letter of advice dated 23 February 2023. 7 As authority, counsel cited Wheeldon v Body Corporate 342525 [2015] NZHC 884.
The situation has parallels with s 45(1)(b) of the Residential Tenancies Act 1986 (RTA). Under s 45(1)(b), landlords must maintain their residential premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes... ... (bb) comply with the healthy homes standards; and
The Tribunal and courts have developed the principle that landlords must repair defects within a reasonable time. As the author of Residential Tenancy Law in New Zealand explains: 8 The landlord’s obligation of repair is not absolute...A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 9 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”
Although the relationship between a landlord and a tenant and a unit owner and a body corporate is different, the basic principle that repairs must be carried out within a reasonable period of time is applicable to the body corporate’s duty to repair under s 138 of the UTA.
What is a reasonable timeframe is an objective assessment based on the circumstances. The enquiry need not be focussed on finding fault. So, for example, if the repair is not done within a reasonable timeframe the body corporate is let down by its contractor and, the body corporate would be liable (albeit it may in some cases have a remedy against contractor for instance). Unprecedented weather events such as Cyclone Gabrielle and the Auckland Anniversary weekend floods will affect the assessment of what is a reasonable time. In such circumstances the reasonable time to carry out repairs will likely be adjusted out because it may be difficult to find available contractors for example. 8 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 9 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15].
In this case, the relevant circumstances include: a. The Tribunal is familiar with assessing a reasonable time for repairs to be done in the usual residential tenancy context where a body corporate is not involved. However, a body corporate’s decision making is more complicated than for an individual owner. It requires consensus of a majority of unit owners. The body corporate must consider the interests of all unit owners, not just the affected unit owner, and ensure that its funds are spend prudently. b. The body corporate’s duty to repair within a reasonable time displaces the unit owner’s liberty to repair the leak himself. The body corporate (and the Tribunal in reviewing the body corporate’s actions) should therefore be cognisant of the unit owner’s predicament including their legal duties to repair. In this case, the unit owner had to repair the leak within a reasonable time under s 45(1)(b) of the Residential Tenancies Act 1986. The situation would be less urgent if the unit were unoccupied or if the unit owner lived in the unit but did not have to use the leaky bedroom. c. Following on from the previous point, the body corporate’s actions meant the unit owner was found to have breached his duty to repair within a reasonable time. d. The building’s construction is more complex than a usual residential unit. The unit is one of many and the building is on several stories. The roof has several layers of membrane and its repair calls for specialist contractors. e. In a similar vein, finding the source of leaks and repairing them can be a difficult, expensive, and long process. In this case, none of the contractors could give an ironclad quote before undertaking the work. f.The unit is a residential unit (not a commercial unit). That means leaks may affect the health of the occupants the continuation of the residential tenancy in the unit. In such a case, timely repairs are more imperative. g. The anticipated costs of repair in this case of more than $10,000.00, while substantial, were not extremely high. They were of an order that a body corporate might reasonably expect to have to expend by way of emergency maintenance during any year. Discussion
In the Tribunal’s decision under the RTA, the Tribunal found that the unit owner’s failure to ensure that the premises adequately habitable by 14 October 2022 (71 days after the leak was reported) was in breach of his obligations to repair under the RTA: 10
However, that is not to say that the fact the body corporate is involved as a defence to the claim. I accept that the landlord has reported the matter to the body corporate, and tried to move things along, but I consider the landlord could have done more. The landlord could have demanded the body corporate undertake a temporary fix at the very least (ie silicone sealant or tape etc), and furthermore the landlord was able to bring an application to the Tenancy Tribunal, to obtain orders that the body corporate undertake the necessary work, in the timeframe set by the Tribunal.
That finding was under the RTA however, not the UTA. As mentioned above, other circumstances come into play in a UTA claim between the unit owner and the body corporate. Nonetheless, where the Tribunal has made a finding under the RTA that a repair was not done by a particular, there needs to be an explanation for a different finding under the UTA given the facts are the same and the duty to repair is analogous.
The original contractor, Samurai’s, quote was evidently delayed by several weeks due to the unit owner and his tenants pestering Samurai. That pushes the reasonable timeframe out. A new contractor was engaged, but the body corporate reverted to Samurai when the new contractor could not do the work because its insurance cover was insufficient. Samurai was meant to proceed in early November, but the body corporate retracted its instructions. If it had not retracted, the repair would probably have been completed prior to Christmas of 2022.
The body corporate relied on a Tribunal case, Flexlink v Body Corporate 474090. 11 That case involved a commercial unit. The unit owner lost their tenant due to a recurring leak. The unit owner’s contractor reported that a canopy roof and guttering needed to be replaced. However, the body corporate’s contractor found the gutters and flashings were in good order. It was until about eight months after leaking first occurred that the source of the leak was traced to a blocked downpipe. That case is different to the present one in that the unit owner’s lease with its tenant was a commercial one and not a residential one, the body corporate had a contractor clean and assess the canopy and guttering and reasonable thought the leak had been addressed. 10 See the Tribunal’s RTA decision, above n 1 at [66]. 11 [2021] NZTT 9029361.
It was not until further leaking was reported that the downpipes were suspected as being the cause of the leak. The body corporate then for a while reasonably believed that the unit owner had fixed the problem himself.
I concur with my colleague in the related RTA hearing that the unit owner was in breach of his obligations to the tenant when no repair had been done by 14 October 2022. That is the situation under the RTA. Having considered all of the circumstances in the context of the UTA, I find that a reasonable time within which the repair should have been done was, before Christmas 2022.
That period of time, from 4 August to 24 December 2022, is approaching five months. That is long enough to deal with the complexities of finding consensus within the body corporate and finding a suitable contractor for the technically demanding work. The source of the leak was not in doubt even if the exact extent of the remediation could not be ascertained until the membrane and other building elements were removed.
The body corporate’s desire to get a thorough understanding of the causes of the leak before the repair was undertaken is understandable. However, the unit was being used for residential purposes so there were health impacts on the tenants, and legal impacts on the unit owner arising from delay of the repairs.
It follows, I find the body corporate could and should have completed the repairs by 25 December 2022. Remedies
The body corporate should reimburse the unit owner for lost rental income. The rent loss was $600.00 per week. I set the loss period as being from 1 January 2023, by which time new tenants could have been expected to move in, until to 24 June 2023, the date when the repairs were finally completed.
Under s 49 of the RTA, Mr Jo was required to take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract. I do not consider that Mr Jo failed to mitigate his losses. The previous body corporate chairman criticised him for contacting the body corporate’s contractor. Mr Jo repeatedly contacted the body corporate about the long delays. There was not anything much more he could do.
It was not practical for Mr Jo for instance to seal off the damp bedroom and rent out the rest of the apartment. He would be exposing himself to future censure in the Tribunal if he got a new tenant in those circumstances.
I decline to consider emotional harm damages in this case. Mr Jo says the loss of rental income caused him tremendous loss of face and stress. He had to go to his family cap in hand for help and has suffered emotional harm. I accept that he has suffered emotional harm and such harm is not to be trivialised. However, the relationship in this case was based in contract and was commercial in nature. The Tribunal would not usually consider general damages in that situation. Nor was cogent evidence such as expert medical opinions confirming the harm and proving its relationship to the events provided. Filing fee
Because Mr Jo has succeeded with the claim, the Tribunal orders the body corporate to reimburse him for the filing fee. 12

Tenancy Tribunal case 9042304 — Mould & damp in Pinehill, Auckland

Tenancy Tribunal case 9042304 — Mould & damp in Pinehill, Auckland

Order

Reasons

Did the body corporate fail to maintain and repair the unit?

Order

Reasons

Did the body corporate fail to maintain and repair the unit?