What was Tenancy Tribunal case 9065804 about?

The tribunal order states: The Tribunal declines to make any declaration in respect to the parties’

How much money was awarded in case 9065804?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9065804?

The primary dispute was Cleanliness. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9065804?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12298286-UTA_Tribunal_Order.pdf.

What was Tenancy Tribunal case 9065804 about?

The tribunal order states: The Tribunal declines to make any declaration in respect to the parties’

How much money was awarded in case 9065804?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9065804?

The primary dispute was Cleanliness. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9065804?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12298286-UTA_Tribunal_Order.pdf.

Tahawai, Katikati Tenancy Tribunal Case 9065804 — Cleanliness

Order

The Tribunal declines to make any declaration in respect to the parties’ rights or obligations.
The application is dismissed.

Reasons

The hearing was conducted remotely on Microsoft Teams by video.
Rod Hansen, Derek Hughes, and Heather Scott attended the hearing for the applicants.
Melva Howard, the Body Corporate Chairperson, and Wayne Paul, a member of the Body Corporate Committee attended for the respondent. Introduction
The development buildings are six duplexes. The buildings are built in Tudor style and appear to be one-storey. The surroundings have mature trees and a natural landscape. ____90658042
The body corporate has resolved to carry out annual building. The washing includes gutter cleaning, “spray and leave” treatment of the rooves and walls, window rinsing, and insect control spraying. The washing is a form of preventative maintenance and also has the benefit of improving the amenity for all unit owners by ensuring the development is uniformly clean and free of spiders and mosquitoes.
The applicants want to be able to opt out of the washing of their units. They say they carry out the washing (including the gutter cleaning and so on) themselves. They do not want to have to pay for something they do not need.
Originally, the applicants had intended to apply for Minority Relief under s 2010 of the Unit Titles Act 2010, which relevantly provides: 210 General relief for minority where resolution required (1) In any case where this Act requires a resolution and the resolution is passed, any person who voted against the resolution may apply to the appropriate decision-maker for relief on the grounds that the effect of the resolution would be unjust or inequitable for the minority. ... (2) An application for relief under subsection (1) must be made within 28 days of the passing of the resolution.
However, the application was made within 28 days of the relevant resolution, so s 210 does not apply.
Rather, the applicants seek a declaration clarifying the parties’ rights and obligations. Under s 78 of the Residential Tenancies Act 1986: 78 Orders of Tribunal (1) ... the Tribunal may make in the exercise of its jurisdiction make...: (a) an order in the nature of a declaration...as to the rights or obligations of any party, or otherwise:
The source of the applicants’ request is the Tribunal’s earlier decision in 2021 in which Adjudicator J Smith found: 1
Ms Scott has requested specific orders relating to clearing gutters and cleaning and painting the exterior of units where required. The term ‘maintain’ is not defined in the UTA but generally covers proactive or reactive steps taken to preserve property and prevent deterioration. Painting obviously comes within this definition. Up to a point, washing the exterior cladding and clearing the gutters will come within the definition of cleaning. However, if it is necessary to prevent deterioration, it will become an issue of maintenance. There is insufficient supporting evidence to determine whether this stage has been reached, so no specific orders are made. 1 Scott v Body Corporate S.87493 [2021] NZTT Tauranga 9030181 at 40. ____90658043
The issues for determination are: a. Should the Tribunal make a declaration? b. If so, what declaration should it make?

Should the Tribunal make a declaration?

The body corporate regards the washing as preventative maintenance. That makes sense. Arguably, the insect spray treatment is not maintenance of “building elements and infrastructure that relate to or serve more than 1 unit”, 2 but that is unobjectionable if the majority of unit owners have voted for the insect treatment as an add-on. 3
The applicants submitted a letter of advice from Joanna Pidgeon, a lawyer of Pidgeon Judd Lawyers who is an expert in Unit Titles law. She advised the applicants: S138(l)(d) of the Unit Titles Act 2010 gives the Body Corporate a duty to repair and maintain any building elements and infrastructure that relate to or serve more than one unit. While there is a unit owner's obligation under s80(1)(g) to repair and maintain their unit, in the cases of cladding, waterproof membranes and so on the body corporate obligation is seen to override the unit owner's obligation.
I agree with Ms Pidgeon’s advice.
That the Body Corporate wants to carry out annual washing including insect treatment is “business as usual”. Similarly, it is “fair enough” in this small development of 12 single-storey units that the applicant unit owners want to wash their own units and be exempted from the Chemwash charge. The Body Corporate is not currently minded to exempting any unit owners from the bulk washing or its cost. It would probably have exempted Harbourside Ventures, which would have used Chemwash also but by funding from Veteran’s Support, but Harbourside Ventures has since sold its unit.
The applicants may consider requesting an agenda item for the next AGM for a proposed resolution that unit owners may be exempted from the general washing regime in certain circumstances (perhaps including a term that Chemwash inspect the standard of cleanliness of any exempted units each year when it cleans the other units). If the applicants were dissatisfied with the AGM vote on their proposed resolution, they could consider their options including the option of applying for minority relief, which as Ms Pidgeon mentioned as a possibility to Harbourside Ventures’ director.
My discussion of the legal principles is no different to Ms Pidgeon’s advice, Adjudicator John Smith’s reasons, or Clinton Baker’s (another specialist lawyer) advice to the Body Corporate. The applicants did not dispute that the washing was a body corporate obligation. Nor on the facts is there anything to suggest that the body corporate has an obligation to allow a minority of unit owners to wash their 2 See Unit Titles Act 2010 s 138(1)(d). 3 At the cost of $91.04 per unit. ____90658044 own units and be exempted from contributing to the cost of a wash of the entire development.
It is not necessary to make a declaration of rights or obligations when there is no dispute about them. The applicants want the Body Corporate to resolve differently to what it has currently resolved, but that is not a matter that calls for a declaration. Conclusion
Therefore, I decline to make a declaration.
It follows, the second issue does not need to be decided.

Order

The Tribunal declines to make any declaration in respect to the parties’ rights or obligations.
The application is dismissed.

Reasons

The hearing was conducted remotely on Microsoft Teams by video.
Rod Hansen, Derek Hughes, and Heather Scott attended the hearing for the applicants.
Melva Howard, the Body Corporate Chairperson, and Wayne Paul, a member of the Body Corporate Committee attended for the respondent. Introduction
The development buildings are six duplexes. The buildings are built in Tudor style and appear to be one-storey. The surroundings have mature trees and a natural landscape. ____90658042
The body corporate has resolved to carry out annual building. The washing includes gutter cleaning, “spray and leave” treatment of the rooves and walls, window rinsing, and insect control spraying. The washing is a form of preventative maintenance and also has the benefit of improving the amenity for all unit owners by ensuring the development is uniformly clean and free of spiders and mosquitoes.
The applicants want to be able to opt out of the washing of their units. They say they carry out the washing (including the gutter cleaning and so on) themselves. They do not want to have to pay for something they do not need.
Originally, the applicants had intended to apply for Minority Relief under s 2010 of the Unit Titles Act 2010, which relevantly provides: 210 General relief for minority where resolution required (1) In any case where this Act requires a resolution and the resolution is passed, any person who voted against the resolution may apply to the appropriate decision-maker for relief on the grounds that the effect of the resolution would be unjust or inequitable for the minority. ... (2) An application for relief under subsection (1) must be made within 28 days of the passing of the resolution.
However, the application was made within 28 days of the relevant resolution, so s 210 does not apply.
Rather, the applicants seek a declaration clarifying the parties’ rights and obligations. Under s 78 of the Residential Tenancies Act 1986: 78 Orders of Tribunal (1) ... the Tribunal may make in the exercise of its jurisdiction make...: (a) an order in the nature of a declaration...as to the rights or obligations of any party, or otherwise:
The source of the applicants’ request is the Tribunal’s earlier decision in 2021 in which Adjudicator J Smith found: 1
Ms Scott has requested specific orders relating to clearing gutters and cleaning and painting the exterior of units where required. The term ‘maintain’ is not defined in the UTA but generally covers proactive or reactive steps taken to preserve property and prevent deterioration. Painting obviously comes within this definition. Up to a point, washing the exterior cladding and clearing the gutters will come within the definition of cleaning. However, if it is necessary to prevent deterioration, it will become an issue of maintenance. There is insufficient supporting evidence to determine whether this stage has been reached, so no specific orders are made. 1 Scott v Body Corporate S.87493 [2021] NZTT Tauranga 9030181 at 40. ____90658043
The issues for determination are: a. Should the Tribunal make a declaration? b. If so, what declaration should it make?

Should the Tribunal make a declaration?

The body corporate regards the washing as preventative maintenance. That makes sense. Arguably, the insect spray treatment is not maintenance of “building elements and infrastructure that relate to or serve more than 1 unit”, 2 but that is unobjectionable if the majority of unit owners have voted for the insect treatment as an add-on. 3
The applicants submitted a letter of advice from Joanna Pidgeon, a lawyer of Pidgeon Judd Lawyers who is an expert in Unit Titles law. She advised the applicants: S138(l)(d) of the Unit Titles Act 2010 gives the Body Corporate a duty to repair and maintain any building elements and infrastructure that relate to or serve more than one unit. While there is a unit owner's obligation under s80(1)(g) to repair and maintain their unit, in the cases of cladding, waterproof membranes and so on the body corporate obligation is seen to override the unit owner's obligation.
I agree with Ms Pidgeon’s advice.
That the Body Corporate wants to carry out annual washing including insect treatment is “business as usual”. Similarly, it is “fair enough” in this small development of 12 single-storey units that the applicant unit owners want to wash their own units and be exempted from the Chemwash charge. The Body Corporate is not currently minded to exempting any unit owners from the bulk washing or its cost. It would probably have exempted Harbourside Ventures, which would have used Chemwash also but by funding from Veteran’s Support, but Harbourside Ventures has since sold its unit.
The applicants may consider requesting an agenda item for the next AGM for a proposed resolution that unit owners may be exempted from the general washing regime in certain circumstances (perhaps including a term that Chemwash inspect the standard of cleanliness of any exempted units each year when it cleans the other units). If the applicants were dissatisfied with the AGM vote on their proposed resolution, they could consider their options including the option of applying for minority relief, which as Ms Pidgeon mentioned as a possibility to Harbourside Ventures’ director.
My discussion of the legal principles is no different to Ms Pidgeon’s advice, Adjudicator John Smith’s reasons, or Clinton Baker’s (another specialist lawyer) advice to the Body Corporate. The applicants did not dispute that the washing was a body corporate obligation. Nor on the facts is there anything to suggest that the body corporate has an obligation to allow a minority of unit owners to wash their 2 See Unit Titles Act 2010 s 138(1)(d). 3 At the cost of $91.04 per unit. ____90658044 own units and be exempted from contributing to the cost of a wash of the entire development.
It is not necessary to make a declaration of rights or obligations when there is no dispute about them. The applicants want the Body Corporate to resolve differently to what it has currently resolved, but that is not a matter that calls for a declaration. Conclusion
Therefore, I decline to make a declaration.
It follows, the second issue does not need to be decided.

Tenancy Tribunal case 9065804 — Cleanliness in Tahawai, Katikati

At a glance

Claims & awards

Tenancy Tribunal case 9065804 — Cleanliness in Tahawai, Katikati

At a glance

Claims & awards

Order

Reasons

Should the Tribunal make a declaration?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.

Order

Reasons

Should the Tribunal make a declaration?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.