Re: Who pays when upstairs kitchen floods?

@Mailbox said:
The following was sent via email by a reader who was unable to negotiate the registration process of the website – 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.

Not so. The “tenant’s dishwasher” could just as easily refer to the USER of the dishwasher.  This kind of nitpicking gets us nowhere.

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.

Why would you even bother to make that assumption? It makes no difference either way.

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.

Naturally, the person complaining would have a full accounting of the damage that I neither had the space nor the inclination to print in my column.

 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”.

More speculation!  I am now beginning to wonder if my sense of “fair play” was seriously misplaced.

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.

There is plenty of information around the installation of dishwashers and other appliances to suggest that not checking pipes and hoses is an essential part of maintenance. It’s hard given the information provided to ascertain whether or not that was the case – but we can’t assume that this was an “act of God.” Failure to maintain is negligence.

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.  

This is arrant nonsense. Strata insurance does not cover fixtures and fittings except where they are part of common property. The SCA’s “who’s responsible …” document clearly defines damage of this nature as being the responsibility of the lot owner or tenant.

The rest of the post is just so much Bush Lawyer Bull.  I’m now wishing i had never posted this.