What was Tenancy Tribunal case 9059464 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9059464?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9059464?

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

Where can I read the official tribunal order for case 9059464?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11671852-Tribunal_Order.pdf.

What was Tenancy Tribunal case 9059464 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9059464?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9059464?

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

Where can I read the official tribunal order for case 9059464?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11671852-Tribunal_Order.pdf.

Hataitai, Wellington Tenancy Tribunal Case 9059464 — Mould & damp

Order

The application is dismissed.

Reasons

The Tribunal must consider an application filed by a unit owner against the Body Corporate. The claim relates to various issues around maintenance and the operation of the complex.

BACKGROUND

The complex comprises 12 townhouses. The units are attached with a common wall between the neighbouring unit(s).
The Applicant’s unit is an end unit (unit 1). There is no dispute that there was a leak to an internal wall in Ms Davies’ unit, and it was suspected to be coming from the neighbouring deck for unit 2.
It is the case that Ms Davies and the Body Corporate could not agree on a way forward with the assessment and necessary work, and that is the genesis for this claim in the Tribunal. In summary, the Body Corporate proposed cutting a small hole to an interior wall of unit 1, and then spraying the deck with water under pressure to try to confirm the source of the leak. Ms Davies did not consent to that process, and has taken issue with who was to do the work. But that also had the effect of stalling any work on the deck, because the Body Corporate wanted to isolate the source of the leak first.
Ms Davies filed this application with the Tribunal, and I convened a case conference in January 2024. A hearing was convened today in Wellington. In attendance was Ms Davies and representing the Body Corporate was Messrs Hall and Knight.

UNIT OWNERS POSITION

The Unit Owner states that there are two primary issues for her, that is a leak to her property, and secondly that the Body Corporate is not complying with its obligations under the UTA.
The Unit Owner states that her concern is that the Body Corporate is getting a maintenance man to undertake the repair of the neighbour’s leaking deck, Mr Tarply, and that he is not a Licenced Building Practitioner (LBP).
Ms Davies states that the Body Corporate had indicated that Mr Cambourne who is a LBP was endorsing the work, however when Mr Camborne was contacted by Ms Davies, he disputed that he was endorsing this work. Ms Davies considers that the products used are not adequate.

BODY CORPORATES POSITION

The Body Corporate opposes the claims, and consider that it is complying with its legal obligations at the premises.
The Body Corporate’s position is that Mr Camborne was employed for one hour of work around the inspection inside the unit 1 wall. In this case the work to the premises was undertaken by Mr Tarpley who is an experienced engineer, and experience with projects in his professional work with addressing leaking buildings.
The Body Corporate states that Mr Tarpley had wanted to cut a hole in the interior wall of Unit 1 and then to apply water to the deck to see if a leak could be found. Mr Tarpley then engaged Mr Camborne to assist with that investigation, but ultimately Ms Davies refused to allow that investigation to proceed so it did not.
The Body Corporate confirm that while Mr Tarpley would do the exploratory work and be the project manager, any repairs needed would be LBP’s.
The reference to materials was only those used for a temporary repair until the proper repair could be completed.

ANALYSIS

It is necessary to summarise the legal obligations that arise in relation to the works that are the subject of this dispute. 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 terms ‘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”. The parties agree that is the case here with the unit 2 deck.
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.
I note as an example, the High Court decision of Body Corporate 198245 v Wong [2012] NZHC, the Court needed to consider a case where there were water leaks effecting 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.
In any event, the law is clear that when there is a leak to a building element, it is the body corporate that is responsible for addressing the leak.
As I explained to the parties at the hearing today, my impression is that what the Body Corporate is doing, complies with its legal obligations, and is entirely conventional. I say conventional on the basis that what the Body Corporate is wanting to do is first to investigate to find the source of the leak, and then to get the leak remedied. There is nothing unusual in that, it is the process that any reasonable building owner would take.
There is no legal obligation that I am aware of, restricting who must undertake that assessment. In this case the Body Corporate has appointed one of the unit owners to undertake, or oversee that work, that is Mr Tapley who has qualifications and experience in engineering. I cannot see any issue with it, particularly given the Body Corporate has also offered to have an LBP, Mr Camborne, attend to undertake the penetration to unit 1 wall and the assessment.
In my view, that all seems appropriate, and entirely consistent with the Body Corporate’s obligations under the UTA.
Once the investigation had been completed, if work was needed on the deck (which seems likely), the Body Corporate has informed me today that work would be completed or overseen by an LBP. While I am not sure one way or the other weather an LBP would be needed for the work (and express no view on that), Ms Davies has not convinced me that what the Body Corporate has proposed, is inconsistent with any legal obligation it holds to her.
For those reasons, I find that no breach arises on the part of the Body Corporate. Other concerns
Ms Davies has raised a range of other concerns that we also discussed today, and that were set out in my January 2024 case conference minute. I will address those as follows:
Ms Davies sought an order that the Body Corporate to go to the market to obtain a long-term maintenance plan. As we discussed, certainly there is a requirement for the Body Corporate to have a long-term maintenance plan, but there is no obligation for the Body Corporate to go to market for that. The UTA does require there to be consultation with relevant professionals when the maintenance plan is determined, and in this case the Body Corporate considers that they have complied with that requirement. The UTA does not define what the relevant professionals could be, but it does seem they have complied with that requirement.
But even if that were not the case, there is no obligation under the UTA that the plan that be developed externally, most long-term maintenance plans are developed by the Body Corporate themselves, and there is no reason that cannot occur. However if Ms Davies considers that an external provider should be engaged to develop the report, then she could raise that as an agenda item for the next AGM, and it would be for the Body Corporate to decide if that was the direction to be taken.
Similarly Ms Davies sought an order that the other decks in the complex have membranes replaced and that a number of quotes be obtained for that or weather tightness issues addressed. As I noted today, the UTA is premised on effectively democratic decision-making within the complex. That is, if a unit owner considers that something should be done, they can request that of the committee, or alternatively put it forward as a motion for an AGM, and for it to be voted on. There is no shortcut to that process via the Tenancy Tribunal.
Ms Davies also considers that there should be a Health and Safety plan and asbestos register introduced. I express no view on whether those should be implemented because again I consider that Ms Davies should be taking these concerns in the first instance to the body corporate committee, or the Body Corporate as a whole (via the AGM) if she is not happy with what the Committee decide. I note here that the Body Corporate consider it is complying with its obligations.
For the above reasons, I decline to make orders in relation to these claims. Ms Davies concerns are I accept genuinely held, and I would encourage her to engage in the Body Corporate processes to have her concerns addressed.
As far as costs for this application is concerned, they should lay where they fall.

Tenancy Tribunal case 9059464 — Mould & damp in Hataitai, Wellington

At a glance

Tenancy Tribunal case 9059464 — Mould & damp in Hataitai, Wellington

At a glance

Claims & awards

Order

Reasons

BACKGROUND

UNIT OWNERS POSITION

BODY CORPORATES POSITION

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.

Claims & awards

Order

Reasons

BACKGROUND

UNIT OWNERS POSITION

BODY CORPORATES POSITION

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.