Leaky home owners lose appeal

Last updated 15:51 21/12/2012

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The Court of Appeal has dismissed appeals by unit owners over who will pay for leak repairs in the well-known Endeans Building, which has stood at the foot of Auckland's Queen St for more than a century.

Like many other of the city's buildings, the Endeans Building has developed serious weathertightness issues which has led to long-running arguments between the 37 unit owners on how the costs should be apportioned between them.

The Auckland Council issued a notice to fix in 2009. Repairs are likely to be at least $2 million.

Two-thirds of that work involves the three penthouse units on level six and their auxiliary units on level seven.

The other third of the work involves the rooftop atrium that is common property.

In addition, cracks and other damage to the exterior walls of the building also need repair, the cost of which has not yet been assessed but is expected to be substantial.

Owners of the three penthouse units successfully got High Court approval for a scheme of arrangement under the 1972 Unit Titles Act that would see all the necessary repairs paid for by unit owners based on the floor area of their unit. 

It over-rodethe Body Corporate rules which unusually said the exterior walls of the building were the private property of the unit owners rather than common property vested in the Body Corporate and the ground floor commercial owners were limited in the levies they would have to pay. 

Owners of the ground floor units and the owners of 15 of the 26 residential units in the middle levels of the building both appealed the High Court decision.

But the Court of Appeal has upheld the High Court's findings with the judges saying they didn't accept there was a disproportionate benefit in favour of the penthouse owners under the approved scheme. 

''Ultimately it is in the interests of all unit owners to have a watertight building. Water penetration from the roof or walls in a steel-framed building is an obvious risk to the building's structural integrity as the expert evidence has confirmed, the judgement said. 

The judges said the alternative proposals were ''wholly impracticable'' as the prospect of individual unit owners bearing separate responsibility to effect repairs only to those portions of the exterior walls relating to their own units was unrealistic.

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- Auckland Now

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