What was Tenancy Tribunal case 9054424 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9054424?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9054424?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9054424?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12558743-UTA_Tribunal_Order.pdf.

What was Tenancy Tribunal case 9054424 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9054424?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9054424?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9054424?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12558743-UTA_Tribunal_Order.pdf.

Hamilton Central, Hamilton Tenancy Tribunal Case 9054424 — Unit Titles

Order

The application is dismissed.

Reasons

The Tribunal must consider an application filed within its unit title jurisdiction. The Applicant, Mr de Leeuw, seeks an order in relation to a neighbour enclosing its principal unit, which was previously an open area, in effect creating a garage 1 . The issue for Mr de Leeuw is that by enclosing that space, it has restricted his ability to use a pedestrian door to access his garage over the neighbour’s property.

BACKGROUND

This dispute relates to a unit titled complex. 1 I will refer to these units as being garages, as that is what they appear to be, but I realise that is not determanative of their use.
I am not entirely certain what all buildings in this complex are used for, but there is an indication that there are apartments on the ground floor level. Below those premises is a basement, which could generally be described as a car park or storage areas.
The Applicant, Mr de Leeuw, owns principal unit 6 (PU 6), and is a part-owner of accessory units 15, 16, and 17.
The Respondent unit owner is CS Trustees Limited, which owns principal unit 5 (PU 5).
The Applicant’s principal unit (PU 6) was enclosed in or around 1984. On one end of that unit is a standard roller door, and on one side of the unit is a standard pedestrian door. Of relevance, that pedestrian door opens entirely on the neighbouring PU 5, which was, prior to this dispute arising, simply an open area. The following photograph shows the Applicant’s unit on the left, with the pedestrian door behind the scaffolding, which is on PU 5 (this photograph was taken during the building works to enclose PU 5):
The evidence is that the Respondent unit owner, engaged with the Body Corporate prior to the work commencing. I have been provided an email from the Respondent to the then body corporate manager, dated 9 January 2024, where the manager has responded: This looks fantastic. I appreciate your prompt email response with the new quote. Considering it in the industrial style and if you ensure it is a very exact grey / blue colour with the same dark grey surrounding, go ahead and make the deposit. You are fine to go ahead with this process as we have been involved in its planning to make sure it matches the body corporate rules and aesthetics. We now leave this in your capable hands!
Around May 2024, CS Trustees Limited commenced building work to construct an enclosed garage on PU 5. The end result was to enclose that principal unit, so externally it had a similar appearance to the Applicant’s unit. In the photograph below, the applicants PU 6 is on the left, and the Respondents PU 5 on the right:
In diagrammatic form, the relevant units are as follows:
On 3 June 2024, the Applicant filed this application with the Tribunal, seeking a declaration of a breach on the part of the Respondent, and to have the garage enclosure reversed.
A hearing was convened in Hamilton on 14 October 2025. 2
I note that while the application was filed against both the Body Corporate and CS Trustees Limited, for brevity in this decision I will refer to CS Trustees Limited as the ‘Respondent’ and the Body Corporate as the ‘Body Corporate’.

APPLICANTS CASE

Mr de Leeuw states that he was surprised by the construction, which he considered to be a breach of the incidental rights on his own unit.
Mr de Leeuw submits that his garage was constructed with consent from the council around 1984, which included approval of a pedestrian door to the side of the unit, opening into the neighbouring principal unit 5.
Mr de Leeuw considers that the only safe egress from the lower unit is from the existing pedestrian door, unless his roller door is open, which limits how he uses his unit. 2 Tenancy Services have advised that a system fault resulted in the delay with progressing the application.
Mr de Leeuw states that the basement area is otherwise an open area, save for his enclosed garage.
Similarly, Mr de Leeuw states there is an incidental right to access the rear of his unit, which is now only accessible via AU 18.
In concluding submissions, Mr de Leeuw advised it should have been evident to the Respondent that there was a pedestrian door to his unit when they purchased the premises.
The Applicant maintains there are breaches of building requirements and that the garage has caused safety issues. Mr de Leeuw states that he is an architect and states that the building fails to meet the necessary fire separation requirements.
It is disputed that there is anything in the email from the council (discussed below) that provides approval for this work to be completed.
The Applicant is not convinced that there is no impact on the Body Corporate, as there are unconsented works that do not comply with the Building Code.

BODY CORPORATES CASE

The Body Corporate is represented by Ms Kelly from the body corporate management firm.
Ms Kelly states that she cannot find any evidence that written permission was given by the Body Corporate for these works.
When issues were raised around fire concerns, this was assessed by the Body Corporate, and it was found that a manual call point was needed in PU 5, and that was installed. The new garage now meets the fire requirements.
The Body Corporate has also confirmed that there has been no effect on the insurance.
Ms Kelly does not believe that anyone else has issues with the garage now to PU 5, other than Mr de Leeuw. It has been raised at Body Corporate meetings, but otherwise, the response from the Body Corporate has been neutral.
The Body Corporate is not aware of any building obligations that have been breached with the garage construction.

RESPONDENTS CASE

The Respondent is represented by Ms Huang, who was assisted at the hearing by a Mandarin interpreter.
The Respondents’ position is that the Body Corporate has approved the garage works, and further, the City Council has also approved it. Documentation was produced, which is referred to in this order.
The respondent further submits that the original plans held by the Council do not support that there has been approval for Mr de Leeuw’s pedestrian door.
The Respondent’s position is that there continues to be access to Mr de Leeuw’s garage, that is via his roller door.

RELEVANT LEGAL CONSIDERATIONS

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

ANALYSIS

Having considered the position of the parties at the hearing, I consider that there are the following questions I must determine: a. Was CS Trustees Limited able to undertake the works that it did? b. Has CS Trustee breached any legal obligation to the Applicant or Body

Corporate?

Was CS Trustees Limited able to undertake the works that it did?

The starting point must be to consider what the requirements were for the Respondent under the Unit Titles Act 2010 (UTA).
Section 79 sets out the ‘Rights of owners of principal units’ and confirms that not only is there a right to quiet enjoyment of their unit, but there is also a right to make alterations or additions, that right is found in section 79(e): subject to section 80(1)(h) and (i), may make any alterations, additions, or improvements to his or her unit so long as these are within the unit boundary and do not materially affect the use, enjoyment, or ownership interest of any other unit or common property:
The Court of Appeal summarised the relevant provisions in the case of Body Corporate 203780 v Bell [2020] NZCA 665, as follows: [16] Under s 79(e), the owner of a unit is able to make alterations to their unit provided that the alterations are within the unit boundary and do not materially affect any other unit or common property. Notice of proposed additions or structural alterations must be given to the body corporate (s 80(1)(h)). If an alteration within the unit boundary would materially affect other units or common property, the unit owner can only carry out the alteration after obtaining written approval from the body corporate (s 80(1)(i)). [17] These provisions are designed to strike a balance between the goals of protecting the integrity of the development as a whole and establishing a flexible and responsive regime for governance of unit title developments. The Act permits changes to be made to individual units subject to certain safeguards, including the safeguards set out in s 80(1)(h) and (i).
Section 80(1)(h) requires that the unit owner notify the body corporate in advance of commencing any additions or structural alterations, and based on the communications on file, I am satisfied Respondent Unit Owner has done that. This is reflected in the email above, from 9 January 2024, to the then body corporate manager.
Section 80(1)(i) confirms that a unit owner must not undertake any alterations that materially affect other unit owners or the common property, without written consent: must not make any additions or structural alterations to the unit that materially affect the use, enjoyment, or ownership interest of any other unit or the common property without the written consent of the body corporate
I am not persuaded that the Respondent has breached this requirement. The argument made by the Applicant is that he has an incidental right to access his garage via the pedestrian door that opens onto PU 5. I disagree that he has such a right. The short point is that PU 5 is property owned by the Respondent; the neighbours do not have an automatic right of access to that property. PU 5 is not common property, and otherwise the Applicant has not pointed to any legal authority that would see him having a right to access PU
I will discuss this further below.
It was submitted that there are incidental rights existing in relation to PU 5. That is correct, but those rights do not extend to Mr de Leeuw having a right to access his neighbour’s unit.
The term ‘incidental rights’ is defined in section 73 as follows: 73 Incidental rights (1) The common property and each unit on a unit plan has appurtenant to it the following rights over the land to the extent necessary for the reasonable use and enjoyment of the common property or unit: (a) rights of support, shelter, and protection; and (b) rights for the passage or provision of water, sewerage, drainage, gas, electricity, oil, garbage, air, all telecommunications and electronic services, and all other services of any nature. (2) The common property and each unit on a unit plan has appurtenant to it the following rights over the land: (a) a right to the full, free, and uninterrupted access and use of light to or for any windows, doors, or other apertures existing at the date of deposit of the plan and enjoyed at that date; and (b) a right to maintain overhanging eaves existing at the date of deposit of the plan. (3) The rights created by this section carry with them all ancillary rights and responsibilities necessary to make them effective as if they were easements. (4) Nothing in this section affects any land other than the land to which the unit plan relates.
The incidental rights that would apply to PU 5 include a right to provide support and shelter, a right for services to pass, a right to provide existing light that existed at the time the plan was created. What section 73 does not provide is a right for a neighbour to access their unit via a neighbour’s unit.
Returning to section 79, the Respondent was able to make the alterations or additions, providing they are within the unit boundary and did not materially affect the use, enjoyment or ownership interest of another unit or common property. Taking those matters into consideration, I find: a. There is no evidence before the Tribunal that the PU 5 works are not within its boundary. While that is Mr de Leeuw’s opinion, no evidence from an independent person qualified to provide such an opinion, like a surveyor, has been presented showing the work was outside the boundary. I am minded that there is no evidence the Body Corporate has taken issue with the works (including boundary requirements), nor is there evidence from the owners of AU 18 or 19 that they have issues with the boundary. b. While I accept that Mr de Leeuw would be unable to access his pedestrian door, which might be said to impact his use or enjoyment of his unit, for the reasons set out in this decision, Mr de Leeuw does not have any lawful right to use PU 5 to access his PU 6. c. There is no evidence that there would be a material impact on the ownership interest of any other unit or common property.
The result is that I find the Respondent had a right under section 79 to undertake the alteration or addition it did. Has CS Trustee breached any legal obligation to the Applicant or Body

Corporate?

The question then becomes, has the Respondent breached any other legal obligation to either Mr de Leeuw or the Body Corporate, and I find it has not, or at least Mr de Leeuw has not proven there has been such a breach.
Each principal unit is individually owned, and its boundaries are defined by the unit plan, which defines what spaces belong to each unit owner. Generally, a door opening onto a neighbour’s property does not confer any legal right of entry unless there is an easement or other registered instrument which would permit/require a right of access, and in this case, none have been identified.
There is no implied right of access, even when there is a shared wall, door or structure. Entry would generally constitute trespass, unless consent was given or a right of entry otherwise exists. This reflects a fundamental principle of New Zealand property law, that the occupier of land (or a principal unit) has the right to exclusive possession, and a right to exclude all others.
Even without warning, civil trespass (under common law) occurs the moment someone enters another’s property without authority or consent, so if Mr de Leeuw was to enter PU 5 without consent or authority of its owners or occupiers, then a civil trespass would result.
Under the Unit Titles Act 2010, each principal unit is a separate estate in land. The Act provides no implied right for one owner to enter another’s principal unit merely because of proximity or physical connection (for example, a shared wall or door). Thus, the right to exclude others — central to trespass law — applies equally within unit title developments. The fact that there is a door between units does not create any legal right of access unless an easement, licence, or consent exists.
Certainly, the Respondent had a requirement under the UTA, not to do anything that would undermine the insurance held for the premises (s80(1)(k)). At the hearing, Ms Kelly advised that there has been no breach of the insurance policy.
The Respondent must also comply with all laws and legal requirements as it relate to the unit (s80(1)(d)).
In terms of fire protection, it appears there was an issue initially around call points, but that has been resolved, so that PU 5 now complies with its fire protection obligations.
Mr de Leeuw submits that the Respondent has not complied with its obligations under the Building Code. Mr de Leeuw states in email communications: as noted in my email below, the works are required to have a Building Consent as they do not fall within Schedule 1 of the Building Act. Even if they didn't require a Building Consent, they are required to comply with the NZBC - means of compliance is not obvious in the work undertaken to date, and indeed several aspects are outside of Acceptable Solutions. The works also affect Specified Systems and therefore have implications for the BWoF.
Mr de Leeuw confirmed that he is an architect, so it could be accepted that he knows about building obligations. But I am also minded that Mr de Leeuw is the applicant, so I must take that into consideration when deciding how much weight can be placed on his opinion of the matter.
The Applicant has not presented any independent evidence that suggests the garage would not comply with the relevant building obligations. But the Respondent has directed me to email communications from the Hamilton City Council which do indicate that there is no need for a building consent: For the installation of a garage door into an existing opening in an existing 2 storey building not a fire escape pathway it would appear to me to fit the criteria of Exemption 8 on page 76 [of the MBIE guide]. If the building owner wishes to complete the work as exempt work the Building Unit at HCC keeps no record of the work and the responsibility rests with the building owner to have the work carried out by the appropriate tradespeople and in accordance with the NZ Building Code. The exemption document should be retained as evidence of the legal right to complete the work.
In terms of the submission that the Building Code has not been complied with, again, no independent evidence has been presented convincing me of that.
I am also minded that the Body Corporate has not taken issue with the works as completed.
The Applicant submits that when his garage was constructed, it was following consent from the council, and that included the pedestrian door. While that is disputed by the Respondent, even if Mr de Leeuw was right on this point, that does not translate into him having access or any property rights over PU 5.
Similarly, even if the Respondent was aware of the pedestrian door opening onto their unit when they purchased the unit, that would still not create an access right over that principal unit for the Applicant.
It was submitted that there is a portion of PU 6 that can only be accessed via AU 18. While it is correct that there is a portion of PU 6 that could only be accessed at this time via AU 18, that has nothing to do with the works to enclose PU 5. Further, the reason that portion of PU 6 cannot be accessed strictly is because the boundary wall of PU 5 has cut that area off, it has nothing to do with the Respondents’ unit or works. In theory, at least, it would be within the Applicant’s ability to seek to access that area via a door or alteration to the wall of his unit.
Mr de Leeuw submits that there is no longer safe egress from his unit. I do not accept that. Mr de Leeuw has a roller door, he can enter and exit his unit that way. I have not been pointed to any legal obligation for a garage or similar to this, needing a separate pedestrian door.
Overall, I find there is insufficient evidence to establish to the balance of probabilities, that the work as completed breaches any legal obligation held by the Respondent.
I find this application has not been established, so it must be dismissed.

Tenancy Tribunal case 9054424 — Unit Titles in Hamilton Central, Hamilton

At a glance

Claims & awards

Tenancy Tribunal case 9054424 — Unit Titles in Hamilton Central, Hamilton

At a glance

Claims & awards

Order

Reasons

BACKGROUND

APPLICANTS CASE

BODY CORPORATES CASE

RESPONDENTS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Corporate?

Was CS Trustees Limited able to undertake the works that it did?

Corporate?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Order

Reasons

BACKGROUND

APPLICANTS CASE

BODY CORPORATES CASE

RESPONDENTS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Corporate?

Was CS Trustees Limited able to undertake the works that it did?

Corporate?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions