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Access for Repairs and Maintenance

4 June 2020

As allotments get smaller and buildings get bigger, it is inevitable the space required to maintain a building is not always available on the same property as the building.

Common solutions include temporary licences to occupy agreed between neighbours. But, when agreement cannot be reached, as in Body Corporate 328392 v Northern Trustee Services (No. 145) Limited [2020] NZHC 235, the courts can step in to provide a solution.

In that case, Body Corporate 328392 (Body Corporate) applied for orders under sections 319 and 320 of the Property Law Act 2007 for access to the land of Northern Trustee Services (No. 145) Limited (NTS). The Body Corporate sought to erect (and later dismantle) scaffolding to enable remedial works to be completed under a reinstatement scheme established under section 74 of the Unit Titles Act 2010.

The scaffolding would extend approximately 1.5 metres into NTS’ land, narrowing a footpath on the property. The main pedestrian and vehicular access on the other side of the property would, however, be unaffected. The scaffolding would be in place for the duration of the remedial works, approximately 12-14 months.

The High Court granted the orders sought by the Body Corporate subject to a range of conditions relating to notice, access, make good, etc. The Body Corporate was also required to indemnify NTS against all losses (including loss of rent), costs, and expenses suffered or incurred arising out of the Body Corporate’s entry onto NTS land.

In the case of Body Corporate 328905 v Shelton Agar [2020] NZTT Wellington 901941, the issue was not access over adjoining land, but over an owner’s principal unit.

Part of Body Corporate 328905’s regular maintenance programme was to have the exterior walls and windows washed. In order to complete the work, access was required through the Shelton Agars’ penthouse unit (PU 15) to the common property roof.

The Shelton Agars claimed the access arrangements for maintenance were inconvenient and caused damage to their unit. They sought compensation from Body Corporate 328905.

The Tenancy Tribunal held washing the exterior of the building, including the exterior windows, constituted maintenance of building elements that relate to or serve more than one unit for the purposes of section 138(1)(d) of the Unit Titles Act 2010, and that Body Corporate 328905 is entitled access through PU 15 to carry out such maintenance.

The rights given to a body corporate are not a carte blanche, but the remedy is compensation or damages not injunctive relief. Compensation may be provided for in the context of a section 74 scheme (as per LV Trust Holdings Ltd v Body Corporate 114424 [2012] NZHC 3578 and on appeal in [2014] NZCA 21). The onus is on the party claiming compensation to prove a disproportionate benefit or cost. A complainant must establish a lack of relativity or disproportionality if any compensation would be warranted.

The Tenancy Tribunal made orders: the proposed maintenance is caught by section 138(1)(d) of the Unit Titles Act 2010, and access through PU 15 is allowed under sections 80(1)(a)(ii) and 138(3). No decision was made in respect of compensation.