Published tribunal order
Tenancy Tribunal case 9070544 — Tenancy dispute in Otaki, Otaki
Decided 20 Nov 2025 · Published 20 Nov 2025 · Application 9070544
- Harassment
- Unit Titles
Order
- [The party], [The party] must pay Body Corporate 385871 $2,162.00 immediately, calculated as follows: DescriptionsApplicantRespondent Tree Service fee$454.25 Body corporate manager's costs for attendances up to hearing $1,006.25 Body corporate manager's attendance fee for hearing (1 hour) $201.50 Filing Fee$500.00 Total award$2,162.00 Total payable by Respondent to Applicant $2,162.00
- By declaration, the Tribunal confirms that the unit owners may not do any work to the lawns, gardens, trees or shrubs that are located on the common property owned by the body corporate.
- The body corporate’s application for penalty interest is dismissed.
Reasons
- Both parties attended the hearing. Mr McConnell from Boutique Body Corporate & Community Managers (BBC) represented the body corporate together with Mr Cubitt the chair. Mrs Fowler also attended. I allowed her son Mr Scott Fowler to represent her and her husband. The application
- The body corporate has applied for: • orders requiring the removal of a fence and gate erected by the unit owners on common property (and other associated orders relevant to that) • a declaration preventing the unit owners from undertaking any work on the common property • reimbursement of the cost of a Tree Service contractor • the payment of invoices for outstanding breach notices • penalty interest on those amounts • the body corporate manager’s costs preparing the application and attending the hearing • reimbursement of the filing fee.
- However, since the application was filed, the unit owners have removed the fence and gate and have begun to pay for the breach notices at the rate of $11.00 each fortnight. Mr Fowler confirmed that they would continue to do so.
- The only outstanding matters for the Tribunal to decide are whether a declaration should be issued; liability for the Tree Service fee; liability for the costs of the breach notices; costs; penalty interest; and the filing fee. Background
- This unit is one of 30 located at a unit title development in Otaki on Lot 2 DP 375899.
- The development is referred to as an ‘over 55 village’ intend for use by people in retirement.
- As is common for some developments such as this one, the unit owner’s property extends to the eaves of the unit with all the land around the unit being common property owned by the body corporate.
- Before the unit owners took possession, they sought approval to build a fence and gate. The body corporate provided some direction as to what was acceptable and approved the unit owner’s plans. But the result was different from what was approved.
- The body corporate asked the unit owners to remove the fence and gate. When they failed to comply, the body corporate made its application to the Tribunal.
- Before the hearing today, the unit owners removed the fence and gate, so no orders are now sought (or required).
- The unit owners also pruned a tree/shrub (a 5-finger Spanex) located on the common property and they used a product called ‘Weed and Feed’ on the common property lawn. That caused parts of the lawn to go black, which is an expected consequence allowing for regrowth.
- The unit owners consider they simply pruned the tree/shrub and did lawn maintenance; the body corporate believes the tree was damaged and it did not like the black discolouration.
- Regardless, the unit owners erred by doing anything to the tree/shrub and the lawn which are located on the common property.
- The body corporate issued breach notices to the unit owners for these breaches at a cost of $109.50 per notice. A body corporate can do that.
- As I have noted, by the time of the hearing, the issues for determination are fewer than the orders originally sought. Law
- The legal issues raised in this application involve basic principles. The common property is not the property of the individual unit owner, it is the property of the body corporate which has the responsibility to maintain and repair it.
- These units are part of a growing method of development where the unit owner owns the unit and the property as far as the eaves with all the lawns and gardens being common property. This obviously limits what they can do with the land around their unit in a way that does not apply with fee simple ownership. It has the benefit of relieving them of any garden and lawn care responsibilities.
- Adjusting to a model such as this can be difficult for owners who have been used to living on a fee simple parcel of land.
- While a unit owner might think ‘I’ll just prune that tree, or plant something over there’ they cannot do that on common property.
- If a unit owner fails to pay levies by the due date, interest accrues on the unpaid balance. A body corporate may charge interest up to 10% per annum 1 .
- A body corporate is entitled to recover any reasonable costs incurred by it when issuing breach notices as a debt due by the owner to the body corporate 2 . The Tribunal must order that the reasonable costs incurred by the body corporate in recovering costs, objectively assessed, be paid by a defaulting unit owner. Discussion
- The unit owners ‘pruned’ a tree/shrub on the common property, something they were not allowed to do. The photos produced in evidence show that the pruning was severe (though not ‘massacred’ as mentioned in the body corporate’s correspondence). The body corporate retained the services of a tree contractor to reshape the tree. I find proved the claim for the amount charged to the body corporate by its contractor - $454.25.
- The unit owners are liable for that cost. If they were not liable the body corporate would be. It is useful to remember that the body corporate is the sum of the unit owners. So, the other units owners would bear liability for the wrong actions of these unit owners.
- The unit owners have commenced paying $11.00 per fortnight towards the cost of the breach notices issued by the body corporate. They undertook to continue doing that. I make no order now. First, I accept the unit owners’ undertaking that they will continue to make the payments. Second, I was not provided with evidence of costs paid to date, so I am unable to make a money order that correctly reflects the amount currently outstanding. Third, the unit is now on the market, and it is likely that full payment of the outstanding amount would be required as a condition of sale.
- I have dismissed the claim for penalty interest. First, the amount claimed is $7.51; it is de minimis. Second, the Tribunal would usually expect to see a body corporate resolution authorising the imposition of interest since the statutory provision is discretionary – up to 10%. Third, this was not a claim for a levy where interest accrues on the unpaid levy. I was provided with no reliable calculation of the interest component taking account of the part payments made by the unit owners to date.
- The amount charged by the body corporate’s representative BBC is objectively reasonable for the work necessary to make the application and to prepare for a Tribunal hearing. The application was required because the unit owners did not agree to pay the costs for which they are liable and at the time the application was 1 See section 128 Unit Titles Act 2010 2 See section 124 Unit Titles Act 2010 made the fence issue had not resolved. I award the body corporate the amount charged by BBC - $1,006.25 – which is properly claimable.
- I award the body corporate the cost of the appearance at the hearing by its representative. I have allowed costs for one hour. The hearing lasted about 50 minutes.
- Because the body corporate has succeeded with the claim, I have reimbursed the filing fee 3 . Comment
- Mr Fowler addressed several issues in his submissions (which Mr Cubitt responded to). They included allegations of harassment, bullying, and elder abuse.
- I cannot address those matters. The Tribunal’s jurisdiction is limited to the matters raised in the application before it. There is no application for any orders by the unit owners.