Published tribunal order
Tenancy Tribunal case 9060164 — Tenancy dispute in Newmarket, Auckland
Decided 25 Mar 2025 · Published 25 Mar 2025 · Application 9060164
Landlord favoured
- Cleanliness
- Unit Titles
Order
- It is Ordered by way of declaration, that by habitually feeding birds within the Courtyard of her unit, being Unit/Flat 1, 373 Khyber Pass Road, Newmarket, Auckland 1023, Jill Veronica Watt is in breach of: a. Rules 1(e) and 3(c) of the Body Corporate Rules (“Rules”); and b. Section 80(1)(g) and (j) Unit Titles Act 2010 (“UTA”).
- Pursuant to s.171(3A)(b) UTA, Jill Veronica Watt is ordered to refrain from feeding birds within the courtyard of Flat 1, 373 Khyber Pass Road, Newmarket, Auckland 1023.
- Jill Veronica Watt must pay Body Corporate 184031 $7,031.86 immediately, calculated as follows: DescriptionsApplicantRespondent Legal cost to TT hearing$5,956.86 Costs TT hearing$575.00 Filing Fee$500.00 Total award$7,031.86 Total payable by Respondent to Applicant $7,031.86
Reasons
- Both parties attended the hearing.
- The Body Corporate has applied for orders declaring the Unit Owner to be in breach of the Rules and the UTA by feeding birds at her unit. An order that she refrain from doing so is also sought.
- The Body Corporate has applied for recovery of legal costs incurred in seeking to have the Unit Owner stop feeding birds at her unit and in bringing this application.
- Today the Body Corporate sought to add an application for recovery of the cost of painting work on the building. That application was withdrawn during the hearing.
Is the Unit Owner in breach of her responsibilities?
- The Unit Owner acknowledges having a habit of feeding birds in the courtyard of her unit.
- Photographs taken between June and August 2024 show the numbers of birds frequenting the unit and the extent of their droppings on the pergola over the Unit Owner’s courtyard, balcony railings and nearby units.
- A neighbouring unit owner gave evidence of the effect on his use and enjoyment of his unit, of the presence of the birds and their droppings. Rental appraisals were provided from mid-August 2024, showing a reduced prospective rental return from his unit, without the bird droppings being cleaned away. His evidence is that the property manager providing the appraisals would not rent the premises with access to the balcony because of the droppings. The evidence suggests similar concerns being expressed by other unit owners.
- The Body Corporate arranged extensive cleaning in April 2024, which improved the condition/ presentation of the building somewhat. The neighbour says that the bird feeding has continued and the problem with accumulated bird droppings increased again. The neighbour was unable to comment on the cleaning work the Unit Owner recently had done, which she says shows the bird droppings could be removed quite quickly and easily.
- Notices were sent to the Unit Owner by the Body Corporate on 16 May 2024 and 12 June 2024 letting her know that she was considered to be in breach of the Rules by feeding birds at her unit, leading to “...an unsightly and unhygienic condition on the northeastern corner of your building and causing damage to common property paintwork.”
- The Body Corporate then engaged its lawyers who sent letters to the unit owner on 12 August 2024 and 16 September 2024, again letting the Unit Owner that her feeding of birds at the unit was considered a breach of the Rules and that an application to the Tribunal would made if it continued.
- The Unit Owner’s evidence is that because she is not conversant with e-mail, she received only one of those notices which she believes was in September 2024. She was unable to recall whether that was a notice from the Body Corporate or its lawyers.
- She says that after receiving that notice she did modify her habit for several months by only feeding the birds outside the property on the berm, which she was told on good authority was not a breach of the Rules. She acknowledges though that after becoming concerned for the birds’ wellbeing, she resumed her practice of feeding them in her courtyard. Findings
- The Unit Owner does no oppose the making of an Order that she must not feed birds in the courtyard of her unit.
- Having considered the evidence provided, I am satisfied, on balance, that by continuing to feed the birds at her unit, she has breached her obligation under the Rules: (a) not to, “Interfere with the reasonable use or enjoyment of the common property by other owners or occupiers” (Rule 1(e)); and (b) to, “.....maintain any deck, balcony or courtyard forming part of the unit in a neat and tidy condition.....” (Rule 3(c)).
- That constitutes a breach of her responsibility under s.80(1)(j) UTA to, “...comply with the body corporate operational rules.”
- I also find the Unit Owner to be in breach of s.80(1)(g) UTA, due to the physical and economic harm caused to other units and common property.
- I find that it would be appropriate for the Tribunal to exercise its jurisdiction under s.171(3A)(b) to make an order that the Unit Owner refrain from feeding birds at her unit.
Is the Unit owner liable for costs?
- Section 127 UTA allows a body corporate to recover from a unit owner any expense it incurs in taking actions that it is authorised to take and that are necessary due to a unit owner’s breach of the UTA or body corporate operational rules.
- The Body Corporate has provided evidence, through its lawyer’s fee invoices, supported by time records, of the legal expenses it has incurred in trying to have the Unit Owner refrain from feeding birds at her unit and in bringing this application for an Order that she must not do so.
- The steps taken by the Body Corporate are steps it was properly able to take and that were necessary due to the Unit Owner’s continuing breach.
- The Unit Owner’s position is that she should not be required to pay for costs incurred by the Body Corporate before September 2024 when she first actually received a breach notice in hard copy. The Unit Owner’s son says that he made the Body Corporate manager aware of his mother’s difficulty managing e-mail.
- I have no reason to doubt the Unit Owner’s evidence that she was not aware of the breach notices until September 2024.
- However, the earlier notices were properly served by the Body Corporate. There is no corroborative evidence of the Body Corporate having agreed or undertaken to communicate with Mrs Watt differently.
- When the Unit Owner did receive a hard copy breach notice in September, though she did initially change her approach to feeding the birds, she was unable to sustain that change. The Tribunal cannot infer that if she had received prior notices, the outcome, or the extent of the expenses incurred by the Body Corporate would have been different.
- That being so, I find that the Body Corporate is entitled to recover all the legal expenses it incurred in addressing the Unit Owner’s breach.
- Because the Body Corporate 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.