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Hi there again,
I could again use some advice. The situation is that a unit owner, rented her unit, the new tenant put dishwasher on and went out. Dishwasher malfunctioned, flooding the unit. Water entered the unit below, causing damage. The damage caused will cost in the vicinity of $4000.00 to rectify. Owner of the dish washer unit is claiming that the responsibility to fix the damage to the unit below is not theirs and that the owner of the damaged unit should claim on their own insurance. I would have thought that it was obvious that the person responsible for the damage pays to have it fixed. The owner of the dishwasher acknowledges the cause of the damage to the unit below is from their flooding dishwasher. The response we have had from them is ‘ it is not our problem, let them claim on their own insurance.’ How do we make them live up to their responsibility to make good the damage they caused? The owners of the damaged unit have been very patient in waiting several months for the damage to be fixed and it now looks like the Owners Corp will be left to pay for the work to be done. Any advice would be appreciated.
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PTB – I’m always loath to get involved in insurance matters, but IF the Owners of the damaged Unit have insurance, then why wouldn’t they make a claim on that, include there the details of both the Tenant and the Owner of the Unit from which the leakage occurred (including the admissions by the former), and let their Insurance Company sort it out?
Unless there’s been consequential damage to Common Property, then as sympathetic at it may (collectively) feel, the Owners Corporation would be foolish to become involved, particularly as responsibility and logically the costs for making the necessary repairs would be shared with an Owner; but which one and how could that be apportioned?
@powers that be said:
I would have thought that it was obvious that the person responsible for the damage pays to have it fixed.It’s not always so. Generally negligence has to be proved (tort law), but it can vary.
As per Whale’s advice, it’s often better for the damaged party to claim on their own insurance and leave any subsequent claiming of damages up to their insurance company. There is the matter of excess I know.
But if nothing else, the damaged party’s insurance company should be able to give advice on the best course to follow.
The tort of negligence is the failure to take reasonable care, i.e a harm caused by carelessness. A malfunctioning dishwasher isn’t negligence.
The owner of the damaged lot should claim on their insurance and it is up to their insurer what action they may take. Note that the other person may not have insurance, that is not uncommon.
If the damaged unit is insured, then the owners should claim against their own insurance and ask the upstairs owner to pay the difference.
If the downstairs unit is not insured, then the owners should present a bill to the upstairs owner for the repayment of the repairs and follow that up with a claim at a local court, if need be.
I can’t see any circumstances in which the Owners Corp should be liable in this situation, unless there was a failur os common property that contributed to the damage.
It’s time for the people who suffered the damage to stop hoping that the owners corp will ride to their rescue, and get things going themselves. It’s really not that hard. The dish washer caused the damage. The owner of the machine and/or the unit where it resides is liable. Get a bill. Make a claim.
All the EC should be doing is providing written support as to what happened and who they believe is at fault. If the owner of the unit at fault isn’t insured, that’s their problem, no one else’s.
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@JimmyT said:
…All the EC should be doing is providing written support as to what happened and who they believe is at fault…I’m not sure the EC should say who they believe is at fault. I think they should stick purely with helpfully confirming plain facts such as stating what damage was present in each unit and that it does appear that the water that caused the damage emanated from a leaking dishwasher upstairs.
@PeterC said:
I’m not sure the EC should say who they believe is at fault. I think they should stick purely with helpfully confirming plain facts such as stating what damage was present in each unit and that it does appear that the water that caused the damage emanated from a leaking dishwasher upstairs.
That’s kind of what I meant, Peter, but I can see the subtle difference between stating the facts and apportioning blame. The former can allow insurers or a court to make their own mind up. My point is, I think the EC’s considered involvement will help the downstairs neighbours achieve a fair and equitable result.
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@JimmyT said:
@PeterC said:
I’m not sure the EC should say who they believe is at fault. I think they should stick purely with helpfully confirming plain facts such as stating what damage was present in each unit and that it does appear that the water that caused the damage emanated from a leaking dishwasher upstairs.
That’s kind of what I meant, Peter, but I can see the subtle difference between stating the facts and apportioning blame. The former can allow insurers or a court to make their own mind up. My point is, I think the EC’s considered involvement will help the downstairs neighbours achieve a fair and equitable result.
Agreed. That’s what I meant too!