What was the outcome of Tenancy Tribunal case 9049604?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9049604?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9049604?

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

Where can I read the official tribunal order for case 9049604?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10075800-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9049604?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9049604?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9049604?

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

Where can I read the official tribunal order for case 9049604?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10075800-UTA_Tribunal_Order.pdf.

Auckland Central, Auckland Tenancy Tribunal Case 9049604 — Mould & damp

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Reasons

Both parties attended the hearing. Ms Connor represented the unit owner, Mr Leishman and Ms Wu represented Boutique Body Corporate and Community Managers (BBCCM) for the Body Corporate. Background

Ms Lee owns Unit 7J at 508 Queen Street in Auckland. The development has been the subject of litigation as the building is a leaky building. A settlement has been reached and considerable funds are held, pending agreement as to how the repairs will be managed.

On 28 November 2022 Ms Lee notified the Body Corporate of her concerns regarding water ingress into her unit. The moisture affected a wall and resulted in mould under an area of carpet.

The Body Corporate had the issue assessed. It then instructed a contractor to undertake (relatively minor) repairs. The affected area of gib internally was replaced and repainted. Some exterior work was also done; all cracks, gaps, seams, and joints at the balcony area were sealed with waterproof sealant.

The work undertaken has resolved the problem.

The Body Corporate initiated an insurance claim because Ms Lee wanted it to fund the replacement cost of her carpet. The Auckland anniversary day rain in January 2023 which caused widespread flooding in Auckland and other places worsened the problem.

Before a decision was made by the insurer of the Body Corporate, Ms Lee replaced her damaged carpet, on 25 January 2023. The cost was $2,700.00.

The email correspondence from the Body Corporate’s insurer shows there was a difference of opinion between the claims manager and loss adjuster as to whether Mr Lee’s claim could be accepted. The insurer eventually declined cover.

The Body Corporate decided to pay Ms Lee $405.00, 15% of the cost of the replacement carpet.

Ms Lee does not accept that. She seeks the full amount of the cost of her carpet replacement. She submits that the Body Corporate failed over time to maintain the exterior of the premises, and its failure has resulted in her loss. Law

Section 138 of the Unit Titles Act 2010 (UTA) provides: 138 Body corporate duties of repair and maintenance (1) 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. (3) The body corporate may access at all reasonable hours any unit to enable it to carry out repairs and maintenance under this section. (4) Any costs incurred by the body corporate that relate to repairs to or maintenance of building elements and infrastructure contained in a principal unit are recoverable by the body corporate from the owner of that unit as a debt due to the body corporate (less any amount already paid) by the person who was the unit owner at the time the expense was incurred or by the person who is the unit owner at the time the proceedings are instituted.

Can the claim succeed?

The unit owner’s claim cannot succeed for several reasons. First, the leaking event that occurred was an event that could happen any time, even in a building that is a leaky building, where the faulty building work has been the subject of litigation, since settled. The funds resulting from the settlement are for the specific purpose of recladding the building once agreement has been reached. The evidence does not show that the leak in Ms Lee’s unit was part and parcel of the much wider leaky building problem. Rather, some minor work was required to fix the specific problem.

Second, the Body Corporate did not cause the problem. The evidence does not establish that what Ms Lee considers to be a failure to maintain the building over time was the cause of the specific leak that resulted in the damage to her carpet.

Third, the carpet that was damaged was about 20 years old. As with cases in its Residential Tenancies Act jurisdiction, it is appropriate for the Tribunal to apply depreciation to the claim and to take betterment into account. Ms Lee cannot reasonably expect to have brand new carpet funded by the Body Corporate to replace 20-year-old carpet which would be considered almost fully depreciated.

Mr Leishman produced evidence of carpet replacement in another similar sized unit not funded by the Body Corporate. The cost was $664.70. Ms Connor said the carpet Ms Lee purchased was good quality because the premises were used as a home, not a rental. There is little logic in that submission.

Fourth, that the Body Corporate contributed anything is generous in the Tribunal’s view considering section 138(4) UTA.

Fifth, when unit owners say ‘the Body Corporate should pay’ they are really saying that all the unit owners should pay, since the Body Corporate is the sum of the owners. Why should all the unit owners be expected to pay proportionally for Ms Lee’s carpet replacement?

Sixth, even if there had been Body Corporate liability (which there was not), it/BBCCM was prevented from properly assessing the damage and considering the best repair/replacement options. Ms Lee notified the damage on 28 November 2022. Given the necessity to notify the Body Corporate’s insurers and await their decision on the claim and the intervention of the Christmas holiday period, the replacement of the carpet on 25 January 2023 was precipitous.

Seventh, there is no legal basis on which the Tribunal could make an order directing the Body Corporate to reimburse Ms Lee in full for the cost of her carpet replacement. Its decision to offer a 15% contribution does not bind it in any way to fund full carpet replacement.

For these reasons I dismiss the application.

Reasons

Both parties attended the hearing. Ms Connor represented the unit owner, Mr Leishman and Ms Wu represented Boutique Body Corporate and Community Managers (BBCCM) for the Body Corporate. Background

On 28 November 2022 Ms Lee notified the Body Corporate of her concerns regarding water ingress into her unit. The moisture affected a wall and resulted in mould under an area of carpet.

The work undertaken has resolved the problem.

Before a decision was made by the insurer of the Body Corporate, Ms Lee replaced her damaged carpet, on 25 January 2023. The cost was $2,700.00.

The Body Corporate decided to pay Ms Lee $405.00, 15% of the cost of the replacement carpet.

Can the claim succeed?

Fourth, that the Body Corporate contributed anything is generous in the Tribunal’s view considering section 138(4) UTA.

For these reasons I dismiss the application.

Tenancy Tribunal case 9049604 — Mould & damp in Auckland Central, Auckland

At a glance

Tenancy Tribunal case 9049604 — Mould & damp in Auckland Central, Auckland

At a glance

Claims & awards

Order

Reasons

Can the claim succeed?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Can the claim succeed?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions