Tenant's Signage Claim Dismissed by Tenancy Tribunal

OUTCOME: Dismissed

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[2025] NZTT North Shore | Ōkahukura 9045244

TENANCY TRIBUNAL AT North Shore | Ōkahukura

APPLICANT: [redacted] [NAME_1]

RESPONDENT: [redacted] Owner of a principal unit

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

ORDER

1. The [NAME_1]’s application for an order that [COMPANY_2] remove its signage is dismissed.

2. The Tribunal declares that the [NAME_1]’s resolution dated 6 May 2024 purporting to decline its consent to [COMPANY_2]’s signage is invalid and of no effect.

REASONS

1. [NAME_3] of [NAME_1] & Community Managers ([NAME_4]), the [NAME_1]’s manager, attended the hearing for the [NAME_1].

2. [NAME_5] of [NAME_6] appeared for the unit owner [COMPANY_2] (“[NAME_2]”). [NAME_7] attended as the unit owner’s authorised person.

3. The [NAME_1] seeks an order that [NAME_2] remove signage from its unit and costs. The main issue with the signage is that it is attached to the development’s roof and so that it juts out above the façade’s profile, whereas none of the other units do.

1 [NAME_7]’s full legal name is [NAME_7]. However, I shall use [NAME_7] because that is the name that appears in communications between the parties.

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4. This matter had previously been consolidated with the unit owner’s collateral claim targeting the [NAME_1]’s processes and actions involving the unit owner.2 However, at the hearing, I decided to proceed with this claim separately.3

Background

5. The unit is one of one of seven commercial/office units on [ADDRESS]. Five of the units, including the unit at issue, are on one level. Two have two levels, but they are only slightly taller than the one-level units. The units are built in the same style. They share an adjacent driveway and car park which conveniently provide parking for the units’ occupants and its customers.

6. [NAME_2] operates a business called [NAME_8] from the unit. Other units also have businesses operating from them.

7. The development is a typical commercial/office set-up for commercial areas like this. As to be expected, all the units have signage. The signage identifies the particular business to its customers and probably serves to promote the business’s image.

8. [NAME_2] purchased the unit on about 18 August 2022. The same day, [NAME_7] emailed the [NAME_1]’s manager, [NAME_4], to ask, “Do you have any policy related to sign board which each unit holder can follow?”

9. On 22 August 2022, [NAME_9] of [NAME_4] responded:

I have attached a copy of the [NAME_1] for your reference which has a rule relating to signage at the property as per below.

7. Signs and notices

An Owner must not, without the written consent of the [NAME_1] place or paint any signs or notices of any kind on to the common property or external part of a unit. Only two signs or notices per Unit will be permissible by the [NAME_1].

If you wish to change any signage a request would need to be sent to the [NAME_1] for approval. It is beneficial to provide the design and measurement details along with information of the location in order for the owners to be able to make an informed decision.

2 [COMPANY_2] v [NAME_1] 178494 NZTT 9059084. 3 The parties had not filed documents in advance of the hearing as directed. The [NAME_1] sought an adjournment of the other matter due to receiving the documents only the day before the hearing. The other claim is about the [NAME_1]’s management in general, as well as [NAME_2]’s grievances against the [NAME_1]’s management of the signage issue. The interface between the claims is not straightforward. Neither claim is determinative of the other. The claims can most expediently be dealt with separately.

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10. [NAME_4]’s email clearly states that any proposed signage required [NAME_1] approval. Notwithstanding the email, [NAME_2] installed prominent signage without seeking [NAME_1] approval in November 2022.

11. On 13 November 2022, one of the unit owners alerted [NAME_4] of the signage, complaining, “I was not consulted on this issue and am vehemently opposed to the sign on the roof”.

12. The signage comprises two signs. The more prominent sign is 6 metres wide and 1.2 metres high. The sign has a smartly-designed “GF” logo and the words “[NAME_8]” and “your best interest since 1999”. The sign is brightly coloured in green, purple, and white. While the sign is large it is in proportion with the unit’s size and is comparable in size to some other units’ signs.

13. The distinguishing feature of the sign is that it is mounted on the roof. It juts out above the development’s façade’s profile. All of the other units’ signs are attached to the unit walls and are do not protrude over the roofline.

14. On 14 November 2022, [NAME_4] emailed [NAME_2] asking it to remove the signage and make a formal request for permission for the signage in accordance with the rules.

15. [NAME_2] did not comply.

16. On 5 December 2022, [NAME_4] issued a breach notice to [NAME_2] for the signage. The breach notice was supported by the other unit owners.

17. The parties continued to disagree on the matter.

18. On 19 July 2023, the [NAME_1] filed its claim seeking, inter alia, an order that [NAME_2] remove its signage.

19. On 27 March 2024, [NAME_2] sought retrospective consent for the signage.

20. On about 6 May 2024, a proposed postal resolution without a general meeting adopted by the other unit owners refused [NAME_2]’s application.4

Were the [NAME_1]’s rules validly amended?

21. This litigation led to [NAME_2] finding evidence that the [NAME_1]’s amended rules, which include the signage rule, were not validly registered.5

4 [NAME_2] claims the purported resolution is invalid. 5 Witness statement of a former owner and committee member, [NAME_10] dated 22 January 2025.

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22. The Notice of Change to [NAME_1] notice records [NAME_10] as the [NAME_1]’s chairperson. However, she was not the chairperson. The notice refers to the modified rules having been modified by an ordinary resolution at a general meeting held on 24 July 2012. However, no general meeting was held on that date. Nor does it appear that the [NAME_1] ever passed such a resolution.6

23. Just recently, on about 6 May 2024, the [NAME_1] passed a resolution without a general meeting by email or post to ratify the rules or reregister them. The wording of the resolution is:

Following a challenge to the validity of the [NAME_1] rues currently registered with LINZ and to avoid any uncertainty the [NAME_1] hereby ratifies and re-adopts the rules that were already adopted and registered and agrees to be bound by them, and the [NAME_1] shall, if necessary proceed to reregistration of the rules adopted.

24. Since the purported rules were not validly registered, the [NAME_1] cannot simply ratify them.

25. The [NAME_1] can re-register the rules as they stand. However, they may wish to amend the signage rule to ensure that it is intra vires. [NAME_5]’s submissions that the old “rule” was ultra vires would be a sensible starting point. If an amended signage rule included objective guidelines as to size and placement (for instance) as opposed to a bare [NAME_1] right of refusal, the rule is more likely to be intra vires.

26. At the hearing, [NAME_11] did not seriously pursue the claim under the purported rules. He submitted it was otiose to do so because s 80 of the Unit Titles Act 2010 applies:

3. Whilst any technical issues with the registration is regretted there was no prejudice to any party and the matter is otiose as Sections 80(1)(h) & (i) engage.

27. Consequently, the majority of the hearing was spent on the next issue.

Does the signage breach s 80 of the UTA?

28. Section 80 of the UTA sets out unit owner’s duties. It relevantly provides, inter alia:

80 Responsibilities of owners of principal units

(1) An owner of a principal unit—

…

6 Ibid.

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(h) must notify the [NAME_1] of his or her intention to carry out any additions or structural alterations before the commencement of any work:

(i) must not make any additions or structural alterations to the unit that materially affect the use, enjoyment, or ownership interest of any other unit or the common property without the written consent of the [NAME_1]:

(j) must comply with the [NAME_1] operational rules…

Meaning of “any additions or structural alterations”

29. [NAME_11] submitted that [NAME_2]’s signage is an addition or structural alteration under s 80(1)(i) of the UTA.

30. [NAME_5] submitted the signage was an “installation”. I accept that “installation” aptly describes the signage. It is something that is “installed”. The word could equally be applied to items as aerials.

31. I considered whether if the signage is merely an “installation”, it suggests that the signage might not amount to an addition or structural alteration under s 80(1)(i).

32. Section 10(1) of the Legislation Act 2019 provides:

How to ascertain meaning of legislation

The meaning of legislation must be ascertained from its text and in the light of its purpose and its context.

33. The leading text on statutory interpretation in New Zealand Stature Law in New Zealand comments:7

Central to the understanding of any statute is its purpose. If the purpose of an Act is clear, its text should if possible be interpreted so as to give effect to that purpose. In New Zealand, there has for over a century been a legislative direction that the purposive approach to interpretation should be used.

34. There are two broad meanings of “additions” applicable here: one that is specific to buildings; and one that is more general.

35. The meaning of “additions” specific to buildings is the adding to an existing building of a built structure such as an additional room, or a deck. The more general meaning of “additions” is the adding of some item of an unspecified kind. The former meaning would be more likely to result in “additions” not capture the signage. The latter would.

7 [NAME_12] in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 289. Footnotes omitted.

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36. The UTA also refers to “additions” in a similar sense to s 80 at ss 79(e) and 82. Section 79(e) gives unit owners the right to make alterations, additions, or improvements subject to s 80(1)(h) and (i), and that do not material affect other units or common property:

79 Rights of owners of principal units An owner of a principal unit—

… (e) subject to section 80(1)(h) and (i), may make any alterations, additions, or improvements to his or her unit so long as these are within the unit boundary and do not materially affect the use, enjoyment, or ownership interest of any other unit or common property:

37. Section 82 also uses the term. That provision requires subsidiary body corporates to obtain unit owners and the [NAME_1]’s consent for additions or structural alterations that materially affect the [NAME_1]’s units or common property:

82 Requirements relating to consent by subsidiary [NAME_1] to additions or structural alterations

(1) The subsidiary [NAME_1] may only consent to additions or structural alterations under section 80(1)(i) to any principal unit in the subsidiary unit title development that materially affect any other unit in the parent unit title development or the common property of its parent unit title development if the subsidiary [NAME_1] has obtained the written consent of…

38. I find that the purpose of s 80(1)(h) and (i) is to regulate unit owners’ ability to make enduring additions or changes to their unit that substantially affect other unit owners.

39. Something that is an “installation” might be enduring and have the quality of substantially affecting other unit owners or the common property.

40. I renounce my initial attraction to the idea that an installation could not be “additions” under s 80(1)(h).

41. In this case, I prefer to take the view that the word “additions” in s 80(1)(h) and (i) can apply to signage.

42. It follows that the signage engages s 80(1)(h) and (i). The Tribunal must therefore proceed to consider the relevant facts and evaluate whether the signage breaches those provisions.

[NAME_2] breach s 80(1)(h)?

43. The [NAME_1] had clearly advised [NAME_2] that it needed to notify it about the signage (albeit it relied on the invalid amended rules).

https://www.legislation.govt.nz/act/public/2010/0022/latest/link.aspx?id=DLM1160656#DLM1160656 https://www.legislation.govt.nz/act/public/2010/0022/latest/link.aspx?search=sw_096be8ed81e3f0ed_addition_25_se&p=1&id=DLM1160656#DLM1160656

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44. I accept [NAME_11]’s submission that even absent the “rules”, [NAME_2] had a duty under s 80(1)(h) to notify the [NAME_1] of its “intention to carry out any additions” before installing the signage.

45. What then is the consequence of [NAME_2]’s breach?

46. The Tribunal dealt recently dealt with this issue in found in similar case. In that case the respondent installed a pergola in their back garden without seeking the [NAME_1]’s consent. The Tribunal found that (assuming only for argument’s sake that the pergola was “an addition”) the respondent’s failure to notify the [NAME_1] of its installation does not carry any consequence. The Tribunal stated:8

40. It is important to recognise that section 80 is not a provision that the [NAME_1] can use in order to refuse consent for works, it is a provision which does no more than set out the “responsibilities” or expectations on a unit owner.

41. In terms of sub-subsection (h), assuming that building a pergola was an addition to the unit, then I would agree that [NAME_13] should have notified the [NAME_1] of her intention to do that work. But this provision does not carry any consequence should the unit owner not notify their [NAME_1]. Certainly you could say there has been a technical breach, but that would be as far as the [NAME_1] could take it.

39. I concur with that reasoning. [NAME_2] breached s 80(1)(h). However, no order of the Tribunal is called for.

Does the signage “materially affect” other unit owners?

47. Having found that the signage is an addition, the Tribunal must decide whether the signage would “materially affect the use, enjoyment, or ownership interest of any other unit or the common property”.

48. In the just-mentioned “Pergola” case, The Tribunal discussed how “materially” in s 80(1)(i) should be interpreted:9

35. The term ‘materially’ is not defined in the UTA, so it must be given its plain English meaning. The Oxford English Dictionary (on-line version) defines the word ‘materially’ as follows:

To a material or important extent; significantly, substantially, considerably

49. The Tribunal went on to find that the pergola would not have materially impacted the other unit owners:10

8 [NAME_13] v [NAME_1] 326889 & [NAME_1] [2024] NZTT 9050924 at paras 40 and 41. 9 Ibid para 35. 10 Ibid para 36.

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36. Having considered the photographs presented, including the photographs from the neighbour’s properties, I do not consider that any reasonable committee could reach a conclusion that the unit 7 pergola would result in an impact on the neighbours in their use or enjoyment of their property that was important, significant, substantial or considerable. Certainly, there could be a minor (probably very minor) impact, but that would not be close to the necessary standard of being a material impact.

50. I concur with the Tribunal’s approach in [NAME_13].

51. I have viewed the photographs of the signage and carried out an informal scene visit (with the parties’ consent).

52. The development building is a continuous structure. The building is a commercial/office-type structure. Its design is simple, modern, and unpretentious. It has a functional design similar to many commercial developments built in Auckland this century.

53. Importantly, this is a commercial development, not a residential one. If a unit owner put up signage like this on their residential unit when other units did not have any signage, the Tribunal might be inclined to find there was material impact on other units. In this commercial development, all the units have broadly comparable signage.

54. [NAME_11] submits the other unit owners are unhappy with [NAME_2]’s signage. In his submission that unhappiness is well-founded because the sign as inconsistent in appearance with the rest of the complex. He describes the signage as grandiose and reflective only of [NAME_7]’s ego. The signage is bigger than anyone else’s in addition to being placed in a visually discordant way that breaks up the profile of the building. The sign is so large and dominating, it suggests [NAME_2] has a dominant proprietorial interest in the development by. The [NAME_1]’s purported resolution refusing consent drafted by [NAME_4] and carried by a majority states:

The [NAME_1] declines a retrospective application for the roof signage by unit C on the basis, it is excessive in size, dominates the roof-line, is a branding operation which detracts from the complex, impacts on ownership interests, and it materially affects other unit owners within the complex, in detracting from the complex aesthetics, and amenities…

55. [NAME_11] relied on s 3 of the UTA, which set out the purposes of the Act, and especially the purpose, “to protect the integrity of the development as a whole”. He emphasised that unit title developments should be run democratically, and [NAME_2]’s signage was plainly against the will of the majority of owners, comprising every single other owner. He says Muir J

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encapsulated this point when he said: “If you want your home as your castle don’t buy into a [NAME_1]”.11

56. [NAME_11] also emphasised that the complex’s uniformity of exterior aesthetics goes to the integrity of the development as a whole. He relied on the Court of Appeal’s dicta in [NAME_14], a case involving the [NAME_1]’s duty to maintain the premises under s 138(1)(d) of the UTA and that section’s interplay with the unit owner’s duty to maintain under s 80(1)(g). [ADDRESS] observed of Muir J’s judgment in the High Court:12

Nevertheless, the Judge was entitled to regard the preservation of uniform aesthetics as a matter going to the integrity of the development as a whole for the purposes of s 3(d).

57. In the High Court Muir J received evidence from a valuer who had told the Court:13

The concept of economic and aesthetic elements are interrelated in that the value of the units or their economic wellbeing is obliviously tied to the maker’s perception of the overall development’s structural, aesthetic and watertight integrity.

58. Muir J observed:14

[NAME_15] was not cross-examined and the plaintiffs called no expert evidence to challenge his conclusions. In my view his opinions reinforce in a practical way why maintenance of the integrity of the development as a whole is an essential purpose of the Act. Only by doing so is it possible to manage the building on a socially and economically sustainable basis, as s 3 itself recognises.

59. I accept that s 3(d) can inform the Tribunal’s approach to assessing whether [NAME_2]’s signage breaches s 80(1)(i). It is a matter of assessing the evidence against the paragraph in light of that principle.

60. One of the unit owners emailed that:

[NAME_1] rules were created to ensure that our building would not be denigrated by large and obvious signage and so I am very much in favour of [NAME_4] issuing a formal breach notice.

61. Another unit owner was more concerned with the fact that [NAME_2] had not followed due process:

The [NAME_1] are there to control what happens on the site.

If someone is in breach then they need to be held to account.

11 Paragraph 19 of the [NAME_1]’s submissions. 12 [NAME_14] and others v [NAME_1] 342525 [2016] NZCA 247 at [44]. 13 [NAME_14] and others v [NAME_1] 342525 and Stent [2015] NZHC 884 at [50]. 14 Ibid at [51].

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62. [NAME_5] submitted a letter from [NAME_16], the occupier of Unit B, the neighbouring unit, saying he is untroubled by the signage. He wrote a letter “to whom it may concern” on 10 October 2024, saying:

The signage, located on the roof above their entrance door, has not caused any disturbance or inconvenience to me or my business. I believe it makes easier for visitors to find the right unit.

I have no objection to [NAME_8]’s request to retain the signage and believe it contributes positively to the identification of their business.

63. [NAME_14], I have not heard any expert evidence on the impact of the signage. I must proceed on the factual evidence, including the photographs and my scene visit.

64. The signage cannot dominate the complex from the street-front, as it is not visible from the adjacent street-front. The signage may be visible from further down the street, but I have not seen images demonstrating that.

65. The signage itself is generally consistent with the other units’ signage. It is inconsistent with the other unit owners signage only in that the main sign hovers over the roofline by its full width of 1.2m.

66. The signage is clearly visible upon entering the main carpark area of the complex. I doubt an objective bystander would be perturbed by the aesthetic dissonance of the sign jutting up above the development’s profile. They probably wouldn’t much notice. It is just a commercial sign in a line of commercial units

67. On the other hand, I could not say the signage positively adds to the development’s aesthetics.

68. [NAME_2] could have achieved its signage goals of identifying the business’s location and projected an equally positive message if the main sign had been positioned on the façade. If it had done so, [NAME_2] probably would not have fallen into dispute with the other unit owners. However, that hypothetical is not central to this assessment.

69. The sign does is not very tall at 1.2m high. Although 6m wide, at its widest it is still well inside the side-boundaries of the unit. It is unlikely that any other unit would suffer shadowing or a sense of dominance. Nor has the [NAME_1] produced expert evidence to suggest otherwise.

70. In my assessment, the signage does not detract from any of the other units. The signage could be described as bold as compared to more subtle signage at the development but does not “bring down the tone of the neighbourhood”. The signage is bright, confident, and commercially vital. However, it is clearly just the expression of the particular unit that the signage relates to.

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71. If a building resource consent-like process were followed, one could be confident that an objective assessor would find any effects on other owners would be less than minor.

72. I do not lose sight of the concept that “the preservation of uniform aesthetics as a matter going to the integrity of the development as a whole for the purposes of s 3(d)”. If the signage materially affected the uniform aesthetics in a way that harmed the integrity of the development as a whole, the signage would probably breach s 80(1)(i).

73. That might well be the case if a unit owner in a residential development installed similar signage. However, this is a commercial development. I am not persuaded that the signage materially affects the integrity of the development as a whole.

74. The [NAME_1] has not proven that the other unit owners or the common property are relevantly affected by the signage to “a material or important extent; significantly, substantially, considerably”.15

75. I am not satisfied that the signage materially affects the use, enjoyment, or ownership interest of any other unit or the common property.

Conclusion

76. The [NAME_1] has not proven that the signage offends against s 80(1)(i).

77. The [NAME_1]’s application for an order that [NAME_2] removes the signage is dismissed.

Status of the purported 6 May 2024 resolution refusing consent

78. [NAME_5] has asked the Tribunal to make a declaration as to the validity of the [NAME_1]’s 6 May resolution declining [NAME_2]’s retrospective application for consent.

79. The [NAME_1]’s consent to the signage was not required. Even if the resolution were properly passed ([NAME_2] submits it is invalid for process reasons anyway) it would be invalid for being in breach of the unit owners rights under s 79(e) of the UTA.

80. The purported resolution is invalid and void. The Tribunal will make a declaration to that effect.

15 Above, n 9.

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Costs reserved

81. The issue of costs is reserved pending resolution of [COMPANY_2] v [NAME_1] 178494 NZTT 9059084.

R Kee 11 February 2025

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Please read carefully:

SHOULD YOU REQUIRE ANY HELP OR INFORMATION REGARDING THIS [COMPANY_18] [PHONE].

MEHEMA HE PĀTAI TĀU E PĀ ANA KI TENEI TAKE, PĀTAI ATU KI TE [COMPANY_18] [PHONE].

AFAI E TE MANA’OMIA SE FESOASOANI E UIGA I LENEI MATAUPU FA’AMOLEMOLE IA FA’AFESO’OTAI’I LOA LE OFISA O LE [COMPANY_18] [PHONE].

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