The Court of Appeal held recently that the powers provided to a body corporate (under the Unit Titles Act 2010 (“the Act”)) to carry out repairs to a complex to the benefit of all owners, trump individual owners’ rights to choose how, when and whether they repair and maintain their units.
In Wheeldon & Ors v Body Corporate 342525 [2016] NZCA 247 (PDF) the Court of Appeal dismissed an appeal against the High Court’s decision to permit a body corporate to carry out weathertightness repairs to an apartment complex in Paihia, against the wishes of some unit owners. The case dealt with the primacy of s 138(1)(d), which confers on body corporates the obligation to repair and maintain building elements that relate to more than one unit, over s 80(1)(g), which requires a unit owner to repair and maintain their unit to ensure that no damage is caused to common property or any other units in the building.
The facts are, sadly, common to many leaky complexes. Issues of weathertightness exist, principally in relation to deck tiling. The body corporate resolved to appoint building surveyors and architects to advise it in relation to an appropriate repair scope, comprising work to the value of $3 million. Five unit owners objected, on grounds including that the Act places the primary obligations for works for individual units on the unit owner; that s 80(1)(g) prevails over s 131(1)(d); and that a lesser scope of repair was appropriate. The owners also objected to other aspects of the process relating to the establishment of an appropriate scope to repair the problems; but the fundamental issue was whether they, or the body corporate would decide what repairs were necessary.
The court reviewed the Act and its predecessor the 1972 Act, held that s 138 prevailed over s 80, and upheld the Judge’s finding that s 138 permitted the body corporate to undertake work on individual units, where that work is necessary to maintain the common property.
Discussion
The decision recognises the inherent tension between the rights of the owners of units in a body corporate complex to quiet enjoyment of their units, and the Act’s provision of powers to the body corporate to enable it to carry out repairs on a “whole of complex” basis to enable all units and associated common property, building elements, and infrastructure, are repaired. The court approved the High Court’s reference to an approach suggested by a commentator that “…if a building element or infrastructure serves more than one unit, the body corporate has the obligation to repair it, if it is part of unit but does not serve more than one unit then it is the owner’s responsibility to repair, and if it is common property it is the body corporate’s responsibility.”
A contrary result, would mean some unit owners could prevent repairs being carried out to the benefit of all owners. As the court pithily observed:
“The aphorism “a man’s home is his castle” is therefore not applicable to a unit title development.”