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Whose Roof?

5 June 2019

The question of liability for repairs and maintenance in a unit title development is a pressing matter for all bodies corporate and unit owners. Each wants (and needs) to know who is responsible for repairing and maintaining what – who has to pay for it and in what shares.

Recent case law has emphasised the importance of collective responsibility and body corporate responsibility for weathertightness and building-wide systems (Body Corporate S73368 v Otway [2018] NZCA 612 and Body Corporate 199380 v Cook [2018] NZHC 1244). Every building is, however, different, and each case needs to be considered on its own facts.

In Naeyaert Investment Properties Ltd v Body Corporate 83134 [2019] NZTT Christchurch 9011601, a dispute arose between the owners of Unit 5 and Body Corporate 83134 in respect of who is responsible for repairing and maintaining the roof of Unit 5.

The Tenancy Tribunal held that:

  • the roof of Unit 5 is not a building element that relates to or serves any other unit in the development; therefore, it is not the Body Corporate’s duty to repair or maintain the roof of Unit 5; and
  • the owner of Unit 5 is not liable to contribute towards a report obtained by the Body Corporate in respect of the roof of Unit 6.

The Adjudicator’s decision turns on the particular circumstances of the units on DP 83134.

The unit title development comprises a row of six townhouses. The roof of each townhouse is unit property; that means each roof is owned by the owner of the relevant townhouse (the roofs are not common property).

The roofs of the townhouses are not continuous – physically. The roofs can be maintained and replaced independently with minimal interference to adjoining units. There is some relationship between adjoining roof structures; in that, the roof of Unit 6 discharges stormwater onto the roof of Unit 5, and a failure to maintain the roof of one unit could potentially result in damage to an adjoining unit (by way of moisture building up in the cavity of the parapet connecting one unit to another).

The adjudicator found that this relationship was insufficient to reach the threshold of “relates to or serves another unit” in section 138(1)(d) of the Unit Titles Act 2010. Section 80(1)(g) of the Unit Titles Act 2010 requires unit owners to repair and maintain their units to avoid damage to other units (or the common property). That statutory duty, together with the Body Corporate’s powers to inspect units under section 80(1)(a), provides substantial protection to the owners of adjoining units.

This decision emphasises the importance of development-specific analysis of repair and maintenance obligations.

Matters Advised On

We have recently advised bodies corporate, unit owners, and body corporate managers on the following matters:

  • enforcement of body corporate operational rules
  • redevelopment of unit plans
  • sale of common property
  • responsibility for repairs and maintenance
  • meeting and voting procedures; and
  • unpaid levies.