The following was sent via email by a reader who was unable to negotiate the registration process of the website. I don’t agree with much of it but in the interests of fair play … – JT.
I have read with interest your expose of the insurance vagaries arising from the very common event of an escape of water in a Strata building causing damage to property. There are certain aspects of this matter which need to be exposed, emphasised and clarified in order that the outcome may be clarified for the assistance of all concerned.
In the second paragraph there is reference to a “tenant’s dishwasher” which means a dishwasher belonging to the tenant (of the upper flat). In the third paragraph there is a reference to the “owner of the dishwasher” which is obviously referring to the owner of the upper flat from which the water escaped. These two references are in direct contradiction of each other respectively so that one of the statements is in error. It would be possible for a tenant to be the owner of the dishwasher but for practical purposes it may be assumed that the dishwasher was owned by the owner of the upper flat.
The damaged property is not described other than to say that it “will cost about $4,000 to rectify”. The absence of a proper description is a serious omission by the informant which requires clarification. It could be speculated that carpeting belonging to the owner of the lower flat was damaged but reading the information supplied as a whole it is more likely that the primary damage was to (kitchen) cupboards in the lower flat. If the tenant suffered damage to his/her property then this would likely be to TVs and other electrical appliances which damage is not usually described as a lump sum “to rectify”.
It is apparent that the informant is under the impression that the owner of the dishwasher has a strict liability for any damage caused by water escaping from the dishwasher. The informant is seriously misguided in this regarded and should be disabused of this error. The crucial question is to ascertain whether the damage was caused by negligence (which is difficult to prove) and, if so, which party was negligent. The absence of any reference to this, especially as it is adequately covered on the Forum, is a serious omission.
Insurance. There is not any legal obligation for tenants or landlords to insure and anecdotal evidence suggests that most of them do not. The Strata legislation stipulates that that part of the building which is inside a Lot forms part of the building for insurance purposes. Furthermore, the Strata legislation requires that each such building be insured, in breach of which there are penalties, so that it may reasonably be assumed that the building, including that part of the building inside the Lot, was insured.
So, if clarification with the informant confirms that the subject damage was to the building and/or its fixtures, a claim should be lodged immediately on the building insurer. Problem solved. Having paid the claim the insurer will explore the prospects of recovery but this is unlikely to be successful. If the damage was to carpet or curtains or the like then each will be saddled with his/her own costs probably without prospect of recovery from any other source.
The article commences with an implication that only two parties were involved so it might be interesting to consider all the potential parties:
Body Corporate
Owner of the upper flat
Tenant of the upper flat
Owner of the lower flat
Tenant of the lower flat
Repairer of the dishwasher prior to water escape?
Installer of the dishwasher
Retailer from whom the dishwasher was purchased
Manufacturer/importer of the dishwasher
Insurer of each of the foregoing
Possibly, others