Joanna Pidgeon, Oscar Robertson & Nishita Ganatra
Disputes among neighbours are not uncommon and in bodies corporate (BCs) they can arise from the content and operation of the rules that govern the complex.
Some owners want comprehensive operational rules to manage their complex in a prescriptive manner; others want more freedom, citing their right to quiet enjoyment with their home as their castle unless an activity negatively impact their neighbours.
These different approaches can create tension, particularly in relation to pets. However, it is important to remember that s 106 of the Unit Titles Act 2010 (UTA[i]) limits the way the default rules governing the complex can be amended or changed, meaning the legislation can curb a BC’s rule-making power.
The default unit title rules are set out in Schedule 1 of the Unit Titles Regulations 2011 (UTR). They are brief and make no reference to pets[ii]:
1 An owner or occupier of a unit must not—
(a) damage or deface the common property:
(b) leave rubbish or recycling material on the common property:
(c) create noise likely to interfere with the use or enjoyment of the unit title development by other owners or occupiers:
(d) park on the common property unless the body corporate has designated it for car parking or the body corporate consents:
(e) interfere with the reasonable use or enjoyment of the common property by other owners or occupiers.
2 An owner or occupier of a unit must dispose of rubbish hygienically and tidily.
Section 106 of the UTA allows for the amendment, revocation and additions to these default rules[iii]:
106(1)Any amendment or addition to the body corporate operational rules must relate to—
(a) the control, management, administration, use, or enjoyment of the principal units, future development units, accessory units, or common property; or
(b) the regulation of the body corporate.
(2) No powers or duties may be conferred or imposed on the body corporate that are not incidental to the powers and duties conferred or imposed on the body corporate under this Act.
(3) Any amendment, revocation, or addition—
(a) must be made by ordinary resolution at a body corporate general meeting; and
(b) does not have effect until the body corporate has notified the Registrar in the prescribed form.
(4) Any amendment or addition that is inconsistent with any provision of this Act or any other enactment or rule of law is invalid.
The Dixon case
The lack of detail in the default rules means many BCs will try to step into the gap and create their own rules. The temptation is to be too specific and prescriptive, particularly when it comes to having pets. This was explored in the recent case of Body Corporate 182881 v Gavin William Dixon & Ors[iv].
In Dixon, the original BC rule prohibited unit owners from having any animal or pet in any unit or common area unless the unit owner relied on a hearing or assistance dog. The Dixons trained assistance dogs and wished to house them in their unit. In the Tenancy Tribunal, the Dixons successfully argued that by prohibiting them from keeping disability dogs that were still being trained, the BC breached their right to quiet enjoyment of their unit.[v]
However, on appeal, Judge Davenport reversed the tribunal’s decision, holding that there needed to be a balancing of rights and a right to minority relief. The right to quiet enjoyment was not unfettered and could be restrained by rules, regulations and the statute, the judge said. A rule forbidding pets was not a breach of the right to quiet enjoyment and if were, it would be a minor and insubstantial infringement and not actionable.
This appeal had an unusual factual matrix. After the tribunal’s order but before the District Court hearing, the BC amended its rules to permit the training of assistance dogs on the property. The Dixons were content and did not participate in the appeal. The court engaged an amicus to assist on behalf of the Dixons and the BC pressed on, claiming the tribunal’s ruling was ultra vires and that it had an absolute right to decide what happened in the complex.
But because of the change in the BC’s rules, the issue of ultra vires was not presented in court, meaning the court in Dixon did not consider the issue of whether or not a BC rule applying a blanket ban on pets was ultra vires. Nor was there any discussion about the relationship between the rights of unit owners to quiet enjoyment (as set out in s 79) and the BC’s power to amend, revoke and add to body corporate operational rules (as set out in s 106). This issue was addressed in the Hutchison decision of the Tenancy Tribunal[vi] (which is guiding but not binding).
Because s 106 was not raised, the result in Dixon is per incuriam – a decision made in ignorance of the relevant statutory provisions, knowledge of which would have led to a different result.
Other cases
In Wu v Body Corporate 366611[vii] in the High Court it was stated:
While it has been observed that the body corporate model is essentially democratic, it would be wrong to regard the body corporate as the equivalent to the authorised Parliament of the proprietors. It does nothave unbridled power.
Housley v Body Corporate 199318[viii], a Tenancy Tribunal decision, specifically considered the issue of rules being inconsistent with fundamental and basic rights of owners. The tribunal held that rules contravening these rights would be invalid pursuant to s 106(4) of the UTA.
The tribunal considered a rule prohibiting short-term letting and said:
the default body corporate operational rules prescribed under section 21 of the Unit Titles Regulations 2011 (‘the Regulations’) and set out at Schedule 1 of the Regulations prohibits an owner or occupier of a unit from creating noise likely to interfere with the use and enjoyment of the unit title development by other owners or occupiers. This prohibition against an owner or occupier from making noise does not infringe on the unit owner’s right to quiet enjoyment under s79(d) UTA; it only infringes the unit owner’s right to enjoyment, and fairly so, of their unit insofar as it interferes with the use and enjoyment of the unit title development by other owners or occupiers.
Moreover there is the fundamental issue as to whether any rule confers:
powers and duties on the body corporate that are not incidental to the powers and duties conferred or imposed on the body corporate under the UTA, the amended rule is invalid pursuant to section 106(2) UTA.
The legislation
As discussed, s 106(2) UTA provides that no powers or duties may be conferred or imposed on the BC that are not incidental to the powers and duties conferred or imposed on the body corporate under this Act.
The term “incidental” was judicially considered in Velich v Body Corporate No 164980[ix], where the Court of Appeal reasoned that an amended or added rule is valid only if is “incidental” to the powers of the body corporate:
A rule which appreciably expands the existing powers and duties of the Body Corporate cannot be fairly regarded as incidental to those existing powers and duties.[x]
The existing powers of the BC are set out in s 84 of the UTA and the default rules are limited in scope. These default rules prohibit activities interfering with the right to quiet enjoyment, such as damage or unreasonable interference with common property, waste and noise.
While Velich was decided under the 1972 Act, it has been applied to the UTA as the correct approach in several decisions after the judgment was delivered in 2005.[xi]
Applying Velich to the Dixon decision, operational rules which have been amended, revoked or added must be extensions or variations of the default rules prescribed in schedule 1A of the UTR – that is, rules that control an occupant’s behaviour which would interfere with other occupants’ right to quiet enjoyment.
The BC rule prohibiting pets, apart from assistance dogs, was an unreasonable exercise of a statutory power.
It would be a unusual for a dog to be prohibited from moving into a complex ab initio, unless it was a banned breed. However, if a permitted dog on an ongoing basis disturbed other owners’ quiet enjoyment by barking incessantly or attacking occupiers, a rule could require the dog to be removed from the complex. So, it is expected that a future court will also follow Velich and the long line of authority which supports the outcome of the Court of Appeal in that case.
The way forward
As rules may be amended by a simple majority (unlike the more entrenched rules under the 1972 Act), it is easy for rules to be changed, which may prejudice existing owners, entitling them to minority relief. However, before enacting rules, a more principled approach would be to analyse existing and proposed rules as to whether or not they are vires, using s 106(2), meaning a rule such as that in Dixon would likely be held ultra vires. No doubt Dixon will not be the last word on this issue.
Notwithstanding the decision in Dixon, BC rules which attempt to appreciably expand the existing powers of BCs will not be regarded as merely incidental to the existing powers and duties contained in the UTA and will likely be held to be ultra vires following Velich.
Section 106(2) ensures that BCs do not excessively interfere with the private property rights of unit owners by exceeding their powers beyond their legislated scope under the UTA.[xii]
The ability to keep pets which do not disturb the quiet enjoyment of other unit holders is an example of such a private right. Any interference with it may be in breach of s 106(2) and therefore be ultra vires and unenforceable.
Joanna Pidgeon is a director of Pidgeon Judd, convenor of The Law Association’s Documents & Precedents Committee and a member of the Property Law Committee. Oscar Robertson and Nishita Ganatra are law clerks.
[i] Unit Titles Act 2010, s 106.
[ii] Unit Titles Regulations 2011, sch 1.
[iii] UTA, s 106.
[iv] Body Corporate 182881 v Gavin William Dixon & Ors [2025] NZDC 7827
[v] Gavin William Dixon & Ors v Body Corporate 182881 [2024] NZTT Auckland 9048364 at [5].
[vi] Hutchinson v Body Corporate 195843 [2019] NZTT North Shore 9011421.
[vii] Wu v Body Corporate 36611 (2009) 10 NZCPR 917 at 40.
[viii] Housley v Body Corporate 199318 [2020] NZTT Auckland 9018322.
[ix] Velich v Body Corporate No 164980 (2005) 6 NZCPR 143.
[x] Velich, at [31].
[xi] Body Corporate S90876 v Palmer Trading Ltd [2022] NZHC 146; Russmorr Ltd v Body Corporate 345866 [2016] NZCA 418; Body Corporate 401803 v Vermillion Wagener Ltd [2015] NZHC 285; Law v TAN Corporate Trustee Ltd [2012] NZCA 620; Low v Body Corporate 384911 [2011] 2 NZLR 263; Body Corporate 164205 v Berachah Investments Ltd (2010) 12 NZCPR 385; Body Corporate 159626 v Min Holdings Ltd (2010) 11 NZCPR 869; Russell Management Ltd v Body Corporate No 341073 (2008) 10 NZCPR 136.
[xii] Housley , at [64].
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