Tenant Ordered to Stop Feeding Birds in Communal Area

OUTCOME: Allowed

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[2025] NZTT 9060164

TENANCY TRIBUNAL AT AUCKLAND | TE TARAIPIUNARA RETIHANGA KI TĀMAKI MAKAURAU

APPLICANT: [redacted] [NAME_1]

RESPONDENT: [redacted] Owner of a principal unit

UNIT ADDRESS: Unit/[ADDRESS], [POSTCODE]

ORDER

1. It is Ordered by way of declaration, that by habitually feeding birds within the Courtyard of her unit, being Unit/[ADDRESS], [POSTCODE], [NAME_3] is in breach of:

a. Rules 1(e) and 3(c) of [NAME_1] (“Rules”); and

b. Section 80(1)(g) and (j) Unit Titles Act 2010 (“UTA”).

2. Pursuant to s.171(3A)(b) UTA, [NAME_3] is ordered to refrain from feeding birds within the courtyard of [ADDRESS], [POSTCODE].

3. [NAME_3] must pay [NAME_1] $7,031.86 immediately, calculated as follows:

Descriptions Applicant Respondent

Legal cost to TT hearing $5,956.86 Costs TT hearing $575.00

Filing Fee $500.00 Total award $7,031.86

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Total payable by Respondent to Applicant

$7,031.86

Reasons:

1. Both parties attended the hearing.

2. [NAME_1] has applied for orders declaring the Unit Owner to be in breach of the Rules and the UTA by feeding birds at her unit. An order that she refrain from doing so is also sought.

3. [NAME_1] has applied for recovery of legal costs incurred in seeking to have the Unit Owner stop feeding birds at her unit and in bringing this application.

4. [NAME_1] sought to add an application for recovery of the cost of painting work on the building. That application was withdrawn during the hearing.

Is the Unit Owner in breach of her responsibilities?

5. The Unit Owner acknowledges having a habit of feeding birds in the courtyard of her unit.

6. Photographs taken between June and August 2024 show the numbers of birds frequenting the unit and the extent of their droppings on the pergola over the Unit Owner’s courtyard, balcony railings and nearby units.

7. A neighbouring unit owner gave evidence of the effect on his use and enjoyment of his unit, of the presence of the birds and their droppings. Rental appraisals were provided from mid-August 2024, showing a reduced prospective rental return from his unit, without the bird droppings being cleaned away. His evidence is that the property manager providing the appraisals would not rent the premises with access to the balcony because of the droppings. The evidence suggests similar concerns being expressed by other unit owners.

8. [NAME_1] arranged extensive cleaning in April 2024, which improved the condition/ presentation of the building somewhat. The neighbour says that the bird feeding has continued and the problem with accumulated bird droppings increased again. The neighbour was unable to comment on the cleaning work the Unit Owner recently had done, which she says shows the bird droppings could be removed quite quickly and easily.

9. Notices were sent to the Unit Owner by [NAME_1] on 16 May 2024 and 12 June 2024 letting her know that she was considered to be in breach of the Rules by feeding birds at her unit, leading to “…an unsightly and unhygienic

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condition on the northeastern corner of your building and causing damage to common property paintwork.”

10. [NAME_1] then engaged its lawyers who sent letters to the unit owner on 12 August 2024 and 16 September 2024, again letting the Unit Owner that her feeding of birds at the unit was considered a breach of the Rules and that an application to the Tribunal would made if it continued.

11.The Unit Owner’s evidence is that because she is not conversant with e-mail, she received only one of those notices which she believes was in September 2024. She was unable to recall whether that was a notice from [NAME_1] or its lawyers.

12.She says that after receiving that notice she did modify her habit for several months by only feeding the birds outside the property on the berm, which she was told on good authority was not a breach of the Rules. She acknowledges though that after becoming concerned for the birds’ wellbeing, she resumed her practice of feeding them in her courtyard.

Findings

13.The Unit Owner does no oppose the making of an Order that she must not feed birds in the courtyard of her unit.

14.Having considered the evidence provided, I am satisfied, on balance, that by continuing to feed the birds at her unit, she has breached her obligation under the Rules:

(a) not to, “Interfere with the reasonable use or enjoyment of the common property by other owners or occupiers” (Rule 1(e)); and

(b) to, “…..maintain any deck, balcony or courtyard forming part of the unit in a neat and tidy condition…..” (Rule 3(c)).

15.That constitutes a breach of her responsibility under s.80(1)(j) UTA to, “…comply with [NAME_1] operational rules.”

16. I also find the Unit Owner to be in breach of s.80(1)(g) UTA, due to the physical and economic harm caused to other units and common property.

17. I find that it would be appropriate for the Tribunal to exercise its jurisdiction under s.171(3A)(b) to make an order that the Unit Owner refrain from feeding birds at her unit.

Is the Unit owner liable for costs?

18.Section 127 UTA allows a [NAME_1] to recover from a unit owner any expense it incurs in taking actions that it is authorised to take and that are

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necessary due to a unit owner’s breach of the UTA or [NAME_1] operational rules.

19.[NAME_1] has provided evidence, through its lawyer’s fee invoices, supported by time records, of the legal expenses it has incurred in trying to have the Unit Owner refrain from feeding birds at her unit and in bringing this application for an Order that she must not do so.

20.The steps taken by [NAME_1] are steps it was properly able to take and that were necessary due to the Unit Owner’s continuing breach.

21.The Unit Owner’s position is that she should not be required to pay for costs incurred by [NAME_1] before September 2024 when she first actually received a breach notice in hard copy. The Unit Owner’s son says that he made [NAME_1] manager aware of his mother’s difficulty managing e-mail.

22. I have no reason to doubt the Unit Owner’s evidence that she was not aware of the breach notices until September 2024.

23.However, the earlier notices were properly served by [NAME_1]. There is no corroborative evidence of [NAME_1] having agreed or undertaken to communicate with [NAME_2] differently.

25.When the Unit Owner did receive a hard copy breach notice in September, though she did initially change her approach to feeding the birds, she was unable to sustain that change. The Tribunal cannot infer that if she had received prior notices, the outcome, or the extent of the expenses incurred by [NAME_1] would have been different.

26.That being so, I find that [NAME_1] is entitled to recover all the legal expenses it incurred in addressing the Unit Owner’s breach.

27.[NAME_1] has succeeded with the claim I have reimbursed the filing fee. Section 176(1) Unit Titles Act 2010 and section 102(4) Residential Tenancies Act 1986.

B King 24 March 2025

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You may make an application to the Tenancy Tribunal for a rehearing. Such an application must be made within five working days of the order and must be lodged at the Court where the dispute was heard.

The only ground for a rehearing of an application is that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur. Being unhappy or dissatisfied with the decision is not a ground for a rehearing. (See ‘Right of Appeal’ below).

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If you are dissatisfied with the decision of the Tenancy Tribunal, you may appeal to the District Court. You only have 10 working days after the date of the decision to lodge a notice of appeal.

However, you may not appeal to the District Court:

1. Against an interim order made by the Tribunal. 2. Against an order, or the failure to make an order, for the payment of money where the

amount that would be in dispute on appeal is less than $1,000. 3. Against a work order, or the failure to make a work order, where the value of the work

that would be in dispute on appeal is less than $1,000.

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Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

http://www.justice.govt.nz/fines/civil-debt