What was the outcome of Tenancy Tribunal case 9071645?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9071645?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9071645?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9071645?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13331993-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9071645?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9071645?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9071645?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9071645?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13331993-UTA_Tribunal_Order.pdf.

Thorndon, Wellington Tenancy Tribunal Case 9071645 — Unit Titles

Order

The application is dismissed.

Reasons

The Tribunal must consider a dispute filed within its unit title jurisdiction between two unit owners. The dispute relates to parking at the complex

BACKGROUND

The background in this case is not particularly involved.
The premises are a unit titled complex in Wellington. There are seven principal units, which are dwellings, and a number of accessory units (AUs) used as carparks.
This dispute relates to the car parks at AU 4 and AU5:
The applicant, Ms Roebuck, owns AU 4. The respondent, Mr Ware, owns AU 5.
Traditionally, there has not been a line between AU 4 and 5, and I understand that the occupants did their best to get two cars into those parks, but that really meant that anyone parking in AU 4 would likely park over the strict boundary with AU 5.
More recently a dispute arose between Ms Roebuck and Mr Ware about parking. Mr Ware had the car park surveyed by surveyors Adamson Shaw. That survey identified where the line between AU 4 and 5 is located, and the result was not in Ms Roebuck’s favour.
Mr Ware painted marks between the carparks to show where the boundary was for both car parks. If the marking was complied with, the result is that Ms Roebuck could only park a very small car in AU 4.
Ms Roebuck now seeks orders from the Tribunal in effect enlarging the area she has for parking.

APPLICANTS CASE

Ms Roebuck advised she purchased the property in 2017, and has a designated parking spot (AU 4). Ms Roebuck says that she has been able to park in that spot with relative ease.
More recently, a single survey line was put in place by Mr Ware, which has now rendered the parking spot unusable, and has the effect of reducing the sale price as the premises could not now be marketed with parking.
Ms Roebuck seeks to have the parking issue resolved.
Ms Roebuck notes that there is a corner out of Mr Ware’s car park, and if a strict approach was to be taken, then he is probably using common property for parking.
Ms Roebuck notes that over the years she has had no trouble with parking in the car park, which she purchased with her unit.

RESPONDENTS CASE

Mr Ware considers that if a practical solution cannot be reached, the fallback position is that the units have allocated car parks, and they are entitled to them. If Ms Roebuck is unable to use her car park, that is not a matter that Mr Ware is responsible for.
Mr Ware notes that when there are two small cars being parked in these car parks there is generally no problem, but the problem is when there are two SUV-sized cars, they do not fit.
Mr Ware concluded by stating that he wants to get this issue resolved so that a solution is found that works for everyone. I took Mr Ware to mean his preference would be a sustainable result that work for all users, but if that was not able to be achieved, then he is entitled to use the carpark as surveyed, exclusively.

WITNESS EVIDENCE

Ms Bennett

Ms Roebuck called Ms Bennett, the prior body corporate chair as a witness.
Ms Bennett advised that over the years, the residents have managed to get on with each other, and there would be some give and take, parks might be swapped, there could be some encroachment of common property, but otherwise, people get on living with each other.
Ms Bennett states that there was at some stage a metal fence put up, which has limited the space for parking at AU 4 and AU 5, taking up about a third of the carpark.
Ms Bennett states that the car parking was divided up at a time when people had smaller cars, and that people acted flexibly.
Ms Bennett states there has never been an issue previously, the occupants acted flexibly. Ms Pohlen
Ms Pohlen is the current chair of the body corporate.
Ms Pohlen advised that it has always been a fairly informal arrangement with parking. One of the unwritten understandings, is that AU 4 and 5 would only be used for small cars, and if the occupants of the relevant principal units had larger cars, then parks would be swapped around. Ms Fraser
Ms Fraser confirmed she is Mr Ware’s partner and lives in the apartment. Ms Fraser does not drive, so they have rented the car park to someone else. However, problems arose where that person would get messages when they were parking forward of the ‘line’ onto common property in front of AU 5, and would be warned that the car could be towed away. Ms Fraser described continuing conflict around parking, including with Ms Roebuck.
Ms Fraser advised that if they park too far forward they would get complaints from other unit owners, whereas if they parked too far back, they would get complaints from Ms Roebuck.
In order to resolve the issue, it was determined that the parks should be surveyed.

ANALYSIS

This is a dispute not just about parking, but the rights of a unit owner to their titled property.
The Tribunal is required to determine a dispute concerning parking arrangements at this unit-titled complex. Parking at the complex is constrained, given the limited land area. Historically, the occupants appear to have adopted a pragmatic and flexible approach, including informal arrangements such as swapping parks, tolerating minor encroachments onto common property, and not raising issues where one vehicle extended into another unit’s designated space.
Having heard from the parties and witnesses, it is clear that a less tolerant approach has developed. The evidence suggests that complaints relating to parking on AU 5 prompted Mr Ware to commission a survey. It was certainly open to Mr Ware to establish with certainty the location of the boundary between AU 4 and AU 5.
Ms Roebuck does not dispute the accuracy of the survey. There is no evidence before the Tribunal to suggest that the surveyor’s conclusions as to the boundary line are incorrect.
It is important to emphasise that the survey has not altered the legal boundary of Ms Roebuck’s car park; rather, it has done no more than confirm its location. Ms Roebuck’s concern is that, as a result of the survey, she may be unable to sell her unit with the benefit of a car park. I am not convinced the survey had that effect. It neither confers nor removes any parking entitlement; it simply identifies the existing boundary between the accessory units AU 4 and AU 5. The title does not guarantee that AU 4 can be used as a car park; it defines only the legal boundaries of the accessory unit.
As a matter of law, the boundary as recorded on the title is determinative and binding. From a strict legal perspective, Ms Roebuck has no legal entitlement to occupy or use any part of AU 5. The survey does not alter that position. The Tribunal has no jurisdiction to authorise the use of a neighbour’s accessory unit.
I acknowledge Ms Roebuck’s concern regarding the practical implications for the use and potential attractiveness of her unit if it were on the market for sale, but that is not a matter I can take into account and make orders that would otherwise impinge on Mr Ware’s ownership interest in his unit.
One of the matters that was raised today, related to the fence at the side of the car parks limiting the parking space. I express no view on that, because this is not a claim from Ms Roebuck against the body corporate in relation to that fence. But I note it would not seem relevant, because the photographs show that even with the fence, a car can still be parked within the bounds of the allocated park.
While the Tribunal cannot grant the orders sought, this does not preclude the parties, or the body corporate more broadly, from reaching a practical arrangement. Any such solution would necessarily be based on agreement and pragmatism, rather than legal entitlement. I note Mr Ware’s indication that he is open to exploring such options, and I encourage the parties to engage constructively in that conversation.
But as far as this application is concerned, it must be dismissed, because no breach of any legal obligation has been identified as far as Mr Ware marking the boundary line to between AU 4 and AU 5, nor any expectation that the boundary be complied with.

Order

The application is dismissed.

Reasons

The Tribunal must consider a dispute filed within its unit title jurisdiction between two unit owners. The dispute relates to parking at the complex

BACKGROUND

The background in this case is not particularly involved.
The premises are a unit titled complex in Wellington. There are seven principal units, which are dwellings, and a number of accessory units (AUs) used as carparks.
This dispute relates to the car parks at AU 4 and AU5:
The applicant, Ms Roebuck, owns AU 4. The respondent, Mr Ware, owns AU 5.
Traditionally, there has not been a line between AU 4 and 5, and I understand that the occupants did their best to get two cars into those parks, but that really meant that anyone parking in AU 4 would likely park over the strict boundary with AU 5.
More recently a dispute arose between Ms Roebuck and Mr Ware about parking. Mr Ware had the car park surveyed by surveyors Adamson Shaw. That survey identified where the line between AU 4 and 5 is located, and the result was not in Ms Roebuck’s favour.
Mr Ware painted marks between the carparks to show where the boundary was for both car parks. If the marking was complied with, the result is that Ms Roebuck could only park a very small car in AU 4.
Ms Roebuck now seeks orders from the Tribunal in effect enlarging the area she has for parking.

APPLICANTS CASE

Ms Roebuck advised she purchased the property in 2017, and has a designated parking spot (AU 4). Ms Roebuck says that she has been able to park in that spot with relative ease.
More recently, a single survey line was put in place by Mr Ware, which has now rendered the parking spot unusable, and has the effect of reducing the sale price as the premises could not now be marketed with parking.
Ms Roebuck seeks to have the parking issue resolved.
Ms Roebuck notes that there is a corner out of Mr Ware’s car park, and if a strict approach was to be taken, then he is probably using common property for parking.
Ms Roebuck notes that over the years she has had no trouble with parking in the car park, which she purchased with her unit.

RESPONDENTS CASE

Mr Ware considers that if a practical solution cannot be reached, the fallback position is that the units have allocated car parks, and they are entitled to them. If Ms Roebuck is unable to use her car park, that is not a matter that Mr Ware is responsible for.
Mr Ware notes that when there are two small cars being parked in these car parks there is generally no problem, but the problem is when there are two SUV-sized cars, they do not fit.
Mr Ware concluded by stating that he wants to get this issue resolved so that a solution is found that works for everyone. I took Mr Ware to mean his preference would be a sustainable result that work for all users, but if that was not able to be achieved, then he is entitled to use the carpark as surveyed, exclusively.

WITNESS EVIDENCE

Ms Bennett

Ms Roebuck called Ms Bennett, the prior body corporate chair as a witness.
Ms Bennett advised that over the years, the residents have managed to get on with each other, and there would be some give and take, parks might be swapped, there could be some encroachment of common property, but otherwise, people get on living with each other.
Ms Bennett states that there was at some stage a metal fence put up, which has limited the space for parking at AU 4 and AU 5, taking up about a third of the carpark.
Ms Bennett states that the car parking was divided up at a time when people had smaller cars, and that people acted flexibly.
Ms Bennett states there has never been an issue previously, the occupants acted flexibly. Ms Pohlen
Ms Pohlen is the current chair of the body corporate.
Ms Pohlen advised that it has always been a fairly informal arrangement with parking. One of the unwritten understandings, is that AU 4 and 5 would only be used for small cars, and if the occupants of the relevant principal units had larger cars, then parks would be swapped around. Ms Fraser
Ms Fraser confirmed she is Mr Ware’s partner and lives in the apartment. Ms Fraser does not drive, so they have rented the car park to someone else. However, problems arose where that person would get messages when they were parking forward of the ‘line’ onto common property in front of AU 5, and would be warned that the car could be towed away. Ms Fraser described continuing conflict around parking, including with Ms Roebuck.
Ms Fraser advised that if they park too far forward they would get complaints from other unit owners, whereas if they parked too far back, they would get complaints from Ms Roebuck.
In order to resolve the issue, it was determined that the parks should be surveyed.

ANALYSIS

This is a dispute not just about parking, but the rights of a unit owner to their titled property.
The Tribunal is required to determine a dispute concerning parking arrangements at this unit-titled complex. Parking at the complex is constrained, given the limited land area. Historically, the occupants appear to have adopted a pragmatic and flexible approach, including informal arrangements such as swapping parks, tolerating minor encroachments onto common property, and not raising issues where one vehicle extended into another unit’s designated space.
Having heard from the parties and witnesses, it is clear that a less tolerant approach has developed. The evidence suggests that complaints relating to parking on AU 5 prompted Mr Ware to commission a survey. It was certainly open to Mr Ware to establish with certainty the location of the boundary between AU 4 and AU 5.
Ms Roebuck does not dispute the accuracy of the survey. There is no evidence before the Tribunal to suggest that the surveyor’s conclusions as to the boundary line are incorrect.
It is important to emphasise that the survey has not altered the legal boundary of Ms Roebuck’s car park; rather, it has done no more than confirm its location. Ms Roebuck’s concern is that, as a result of the survey, she may be unable to sell her unit with the benefit of a car park. I am not convinced the survey had that effect. It neither confers nor removes any parking entitlement; it simply identifies the existing boundary between the accessory units AU 4 and AU 5. The title does not guarantee that AU 4 can be used as a car park; it defines only the legal boundaries of the accessory unit.
As a matter of law, the boundary as recorded on the title is determinative and binding. From a strict legal perspective, Ms Roebuck has no legal entitlement to occupy or use any part of AU 5. The survey does not alter that position. The Tribunal has no jurisdiction to authorise the use of a neighbour’s accessory unit.
I acknowledge Ms Roebuck’s concern regarding the practical implications for the use and potential attractiveness of her unit if it were on the market for sale, but that is not a matter I can take into account and make orders that would otherwise impinge on Mr Ware’s ownership interest in his unit.
One of the matters that was raised today, related to the fence at the side of the car parks limiting the parking space. I express no view on that, because this is not a claim from Ms Roebuck against the body corporate in relation to that fence. But I note it would not seem relevant, because the photographs show that even with the fence, a car can still be parked within the bounds of the allocated park.
While the Tribunal cannot grant the orders sought, this does not preclude the parties, or the body corporate more broadly, from reaching a practical arrangement. Any such solution would necessarily be based on agreement and pragmatism, rather than legal entitlement. I note Mr Ware’s indication that he is open to exploring such options, and I encourage the parties to engage constructively in that conversation.
But as far as this application is concerned, it must be dismissed, because no breach of any legal obligation has been identified as far as Mr Ware marking the boundary line to between AU 4 and AU 5, nor any expectation that the boundary be complied with.

Tenancy Tribunal case 9071645 — Unit Titles in Thorndon, Wellington

At a glance

Tenancy Tribunal case 9071645 — Unit Titles in Thorndon, Wellington

At a glance

Claims & awards

Order

Reasons

BACKGROUND

APPLICANTS CASE

RESPONDENTS CASE

WITNESS EVIDENCE

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

APPLICANTS CASE

RESPONDENTS CASE

WITNESS EVIDENCE

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions