What was the outcome of Tenancy Tribunal case 9069804?

The tribunal order states: Edward Ware, David Ware must pay Body Corporate 52791 $3,354.00

How much money was awarded in case 9069804?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 9069804?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9069804?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13212460-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9069804?

The tribunal order states: Edward Ware, David Ware must pay Body Corporate 52791 $3,354.00

How much money was awarded in case 9069804?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 9069804?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9069804?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13212460-UTA_Tribunal_Order.pdf.

Thorndon, Wellington Tenancy Tribunal Case 9069804 — Unit Titles

Order

Edward Ware, David Ware must pay Body Corporate 52791 $3,354.00 immediately, calculated as follows: DescriptionsApplicantRespondent Compensation- water tank$2,854.00 Filing Fee$500.00 Total award$3,354.00

Reasons

Background

This is a small (7 unit) residential Body Corporate. The units are arranged in 2 blocks, over 2 stories, that form a L shape with a courtyard in the middle. The Body Corporate has been run by the owners for several years. They held annual general meetings, and the owners would correspond with each other about other matters. From the correspondence I have been provided with, it appears that the owners got on well until this dispute arose. Most of the owners are investment owners with tenants in their units. Only one owner currently is an owner occupier.

What is this dispute about?

The Body Corporate claims that the respondent breached their obligations to the Body Corporate by removing an emergency water tank that had been erected on common property in March 2024. The Body Corporate says that the respondent agreed to reimburse the Body Corporate for the tank they removed and has not done so.
The Body Corporate seeks reimbursement of the cost of the tank and the equipment of $2885 together with the filing fee.
The respondent says that they had no other choice but the remove the water tank which was blocking access and light to their unit. . They say that they have installed at their own cost, an alternative water storage facility in the same place (the common area) that still meets the requirements for the provision of water in emergency situations and have disposed of the old tank that had been installed by the Body Corporate. They say that they should not pay the claimed amount as: a. They have reinstalled an alternative water source, and that they did so after guidance from an expert. b. That the Body Corporate’s water tank was placed on the common property without the proper consultation and resolutions being made. c. That they bore the costs of removal and disposing of the Body Corporate’s tank, and the cost of the alternative water installation and if they are liable for to the body corporate for the removal of the water tank, that these costs should be taken into account. They also say that they should not have to repay their 1/7 share, and that depreciation should be taken into account. d. That they only agreed to remove the is tank from the property and reimbursement the Body Corporate under duress. The issues for determination.
The questions that the Tribunal has to determine are: a) Can Ms Pohlen act as the Body Corporate’s representative in this matter? b) Was the Body Corporate entitled to install the water tank in the common area? c) Were the Respondents entitled to remove the water tank? d) What is the remedy? Can Ms Pohlen act as the Body Corporate’s representative in this matter?
The respondents raised this question in their written submissions, they say that Ms Pohlen is not the registered owner of the unit 5, and therefore cannot bring an action to the Tribunal on behalf of the Body Corporate.
Under s171(3) Unit Titles Act 2010 the Body Corporate may appoint an agent to act for the Body Corporate in any Tribunal proceedings. I am satisfied that the Body Corporate has appointed Ms Pohlen as an agent because at today’s hearing 5 out of the 7 owners 1 were at the hearing and the four who were not the respondents confirmed that they were happy for Mr Pohlen to act as the Body Corporate’s agent.
Ms Pohlen says that she first made this application in her own name, and it was only then that she realised that due to a mistake by her lawyers, in conveying the title that she had not been registered as an owner of unit 5. She tells me that that has been rectified and she is now a registered owner
She also says that the other owners apart from the respondents were happy for her to take these proceedings in the name of the Body Corporate.
I am satisfied that the Body Corporate has appointed Ms Pohlen its agent for the purposes of this proceeding. Ms Pohlen is therefore entitled to represent the Body Corporate in this claim.

Was the Body Corporate entitled to install the water tank in the common area?

At the AGM held on the 4 January 2024 the following resolution was minuted Repairs and maintenance going forward – tanks were discussed due to the woeful state of Wellington Water and the public being notified to store water. Lucy to investigate and recommend best option. Clare suggested they could be stored under the property as this is where the HWC for flat 5 is.
On the 5 February 2024 February the chairperson (Lucy Bennett) sent around the following email to the other owners:
The owners of Units1, 3, 4, 5 and 6 responded favourably in writing to Ms Bennett including Mr Edward Ware who responded to Ms Bennett on the 11 February 2024 saying: 1 Ms Pohlen and Mr Cuttance, owners of unit 5, Ms Bennett, owner of unit 6, Ms Roebuck owner of unit 2 and Ms Mitson, owner of unit 3 attended the hearing , as well as both Mr Edward and David Ware.
As there was a clear majority agreement with 5/7 owners agreeing to it, the body Corporate installed the water tank set out in Ms Bennett’s email of the 5 February in the exact location suggested by Ms Bennett. The Body Corporate paid for the tank ($2495.00) the brackets ($149) downpipe connection ($98) and leaf guard ($112) totalling $2854- Mr Cuttance, the owner of unit 5 did the installation for free for the Body Corporate as he is a plumber and had installed many of these tanks.
On the 20 April 2025, Edward Ware, sent the following email to all the owners:
The respondents say that in or about December 2024 the respondents’ tenants left, and they had difficulty obtaining new tenants. The respondents say that when they visited the property and saw the placement of the water tank, they were upset as they had not realised that the installation of the water tank would have such a negative impact on their property. They say: • That Edward only gave his agreement in principle on the 11 February 2024 and had thought that actual purchase and placement of the water tanks would be decided in a further Body Corporate meeting or by further correspondence. • That they had not known of the impact on their unit until April 2025.
The Body Corporate owns the common property 2 . The Body Corporate is allowed to place structures on the common property and must maintain and repair the common property including any infrastructure that relates to more than one unit 3 .
There is no dispute that the water tank was placed on common property. The respondents submit that: a. The Body Corporate did not have the power to put in the water tank because there had not been a resolution passed by the owners allowing them to do so, and/ or b. That the placement of the tank breached unit 5’s quiet enjoyment of the property, by interfering with their light and view and the access to the property.
Having considered the evidence and submissions from both parties I am satisfied that the Body Corporate was entitled to place the water tank on the common property outside unit 5 because: a. The tank was placed on common property b. The resolution that was passed at the AGM delegated to Ms Bennett the ability to investigate and make recommendations to the owners about the tanks. c. Six out of seven of the owners, including Edward Ware agreed to the proposal circulated by Ms Bennett to the installation and placement of that particular water tank. The owners had been sent dimensions and a photograph by Ms Bennet showing where the tanks would be placed. It was clear from the correspondence that if the owners all agreed then the water tank would be installed. The Body Corporate did not go ahead with the purchase until it had agreement from a majority of owners. d. The specific issues with light interference and access were only raised once the tanks had been removed. Mr Ware does not refer to those issues in his email of the 20 April, he refers to ‘negative impacts’.
I therefore find that the Body Corporate was entitled to install the water tank into the position it did in March 2024 as it had clear agreement from the majority of the owners to do so.

Were the respondents entitled to remove the water tank?

Mr Ware’s email of the 20 April 2025 asked that the other owners come back to him by the end of April.
As another meeting could not be arranged before the end of April, the owners were asked to vote, in writing, on whether the water tank should be remain in its current position, moved slightly to the right, be moved elsewhere onto common property or be removed completely. Five owners voted for it to remain in the same 2 Section 54(1) Unit Titles Act 2010. 3 Section 138 Unit Titles Act 2010. place. 1 owner abstained and one owner (the respondents) voted for it to be removed.
As the majority of the owners agreed to leave the water tank in its current position, the respondents were told by the Body Corporate that the water tank would remain in that place.
On the 7 May 2025 the respondents removed the water tank installed by the Body Corporate. They say that they did this because they had had an expert look at the situation, and he had told them that the water tank was larger than what was required for an emergency water supply for 7 units, as any emergency water supply took into account the volume of water contained in each unit’s hot water cylinder. The respondents then replaced the Body Corporate’s tank with a much smaller tank that did not block their window or light. They acknowledge that they did this without obtaining the permission of any other owner. They say that the emergency water supply was better as it was filled from the hose, rather than the water collected from the roof, which given the location of the property would have had some contamination from diesel fumes etc. The relevant law
Section 80 UTA sets out the responsibilities of the owners of the principal units, the relevant provisions of that section are: a. Section 80(1)(b) UTA- that the principal owners must do all things necessary to the give effect to the decisions of the body corporate. b. Section 80(1)(j) UTA- that principal unit owners must comply with the body corporate operational rules:
The Body Corporate’s operational rules are contained in schedule 1 of the Unit Title Regulations 2011 the first rule is that: An owner or occupier of a unit must not, (a) damage or deface the common property and also must not (e) interfere with the reasonable use or enjoyment of the common property by other owners or occupiers. Decision
I am satisfied that the Respondents breached both s 80(1)(b) s80(1) (j) UTA by breaching the operational rules, by removing the water tank from the common property, thereby damaging common property an interfering with the reasonable use and enjoyment of the common property by all other units, because: a. The respondents were not entitled to unilaterally remove the water tank. If they had a dispute over the placement of the water tank, then they should have gone through the correct dispute resolution methods including, if necessary, taking a claim against the Body Corporate to the Tribunal. The tank was there for the benefit of all owners in the case of an emergency. It was placed on common property and the respondents had no right to remove it from the common property. b. The Body Corporate had just voted, and it was clear that the majority of owners wanted the tank to remain in place. c. Section 3 of the UTA sets out the purpose of the Act, which is to provide a legal framework for the ownership and management of land and associated buildings and facilities on a socially and economically sustainable basis of communities. When a unit owner buys a unit title, they do so knowing that they must abide by the rules of the Body Corporate and that the Body Corporate will be run as a collective. This may mean that from time to time the Body Corporate will make decisions that individual owners may not agree with but are nevertheless bound by them. The rights of individual owners are curtailed. The purpose and structure of the UTA, means that individual owners cannot, as they would if this was a fee simple property, do as they please.

What is the remedy?

When the respondents removed the old tank, they put the old tank in the patio/ courtyard area. This common area is used by all owners. They say that they did this as they wanted the Body Corporate to still use the tank and suggested it could be placed somewhere around the building where the negative impacts would be more equitable. The removed water tank was simply placed in the courtyard without any bracing. The respondents say this was a temporary measure until the owners could come to an agreement about where it would be permanently placed, sold or disposed of.
The other owners say it was a health and safety concern, they were worried that it would fall and crush a young child especially in high winds.
There was further email correspondence between the unit owners. On the 19 May 2025 the Mr Ware emailed some of the unit owners offering to pay for the tanks. Those owners say that they accepted his offer. At the hearing Ms Ware confirmed that he had agreed to reimburse the Body Corporate the full amount for the tanks, and remove the tanks but only did so because he was under duress to do so.
Mr Ware says he thought that once tensions had settled down, that there would be further discussions about the cost.
A party who claims duress must satisfy the Tribunal: • There was illegitimate pressure applied. •The pressure was a significant cause inducing them to enter into the agreement. (In this case the agreement to reimburse the Body Corporate for the purchase of the water tank) •The party had no reasonable alternative but to submit to the pressure.
I do not consider that the respondents were under duress to agree to reimburse the Body Corporate. The emails provided by the Body Corporate show that Mr Ware made this offer first to both Ms Mitson and Mr Galvin not to Ms Pohlen and Ms Bennet who he says was putting him under pressure. The Ware’s were not under any pressure to agree to payment of the tanks. It was Mr Ware’s offer to pay for them, that lead to the Body Corporate agreeing that that would resolve matters. On the 25 May 2025 the old water tank was removed from the property by the respondents.
Compensation should restore the breached party into the position that they were before the breach occurred. This loss can be easily measured in what the Body Corporate had paid for the tanks and the associated equipment.
The respondents argue that if I awarded the cost of the tank to the Body Corporate would be better off because they would receive the cost of the original tank which would have depreciated and the value of the new water tank. They say the they paid $250 for the new tank and the installation and removal of the old tank was $850.00, they say that this should be offset against any amount they have to pay. They also say that the tank was already one year old and therefore depreciation must be applied, and that the Respondent should not have to reimburse their own share; i.e 1/7 of the cost.
The Body Corporate says they were happy with the water tank in that position, the new water tank is inferior, and that there is ongoing maintenance costs associated with the new tank that they will have to bear. They say that the payment came out of the Body Corporate’s current account and was not levied to owners and therefore there should be no reduction of the amount owed by 1/7 th .
I award the Body Corporate the claimed cost of $2854.00. This takes into account: a. This is the amount that the Body Corporate paid for the water tank and the associated equipment. b. The respondents agreed to pay this amount. c. Water tanks are expected to last a long time, the depreciation on a water tank would be nominal. d. The Body Corporate has suffered a loss of $2885, it purchased an asset it now does not have, having been deprived of that asset by the respondent. e. The purchase was paid out of the current account not from levied amounts. f. The respondents have not accounted for the water tank they removed. They say that they gave it to the person who removed it, in consideration for him removing it. There was no evidence provided by the respondent that confirmed this position, such as a statement from the person who removed it. g. The water tank that the respondents installed will require ongoing attention and additional maintenance by the Body Corporate (the respondents have agreed to do this at the moment, but if they sell or did not do it, then this would become a responsibility of the Body Corporate as it is infrastructure), the respondents have committed the Body Corporate to ongoing maintenance that it was not expecting nor had agreed to. Filing fee.
As the Body Corporate has been successful in this matter, I award the Body Corporate reimbursement of the filing fee.

Tenancy Tribunal case 9069804 — Unit Titles in Thorndon, Wellington

Tenancy Tribunal case 9069804 — Unit Titles in Thorndon, Wellington

Order

Reasons

What is this dispute about?

Was the Body Corporate entitled to install the water tank in the common area?

Were the respondents entitled to remove the water tank?

What is the remedy?

Order

Reasons

What is this dispute about?

Was the Body Corporate entitled to install the water tank in the common area?

Were the respondents entitled to remove the water tank?

What is the remedy?