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  • #8380
    Mailbox
    Flatchatter

      This question was sent by AllDamp

      Question:   a 1st floor tenanted flat’s bathroom has been leaking water into the bathroom below,  but due to a false ceiling this has been undetected, until the strata ceiling collapsed onto it,  and it then leaked. 

      Does the strata insurance cover replacing the original ceiling,  and the contents insurance of the flat below cover repairs to their false ceiling?   

    Viewing 9 replies - 1 through 9 (of 9 total)
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    • #16477
      Jimmy-T
      Keymaster

        More info from ALLdamp

        … the wooden floor between flats (1923) would be strata property.  {information edited at original poster’s request}  No idea if false ceiling was OK’d by strata, the owner below being on the strata committee! I don’t recall any such proposal, only their breaking open a door to the garden, I haven’t kept all the minutes…

        This is a curly one , isn’t it?

        The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
        #16479
        Whale
        Flatchatter

          Yes – it certainly is a curly one, but I’ll have a go!

          I doubt that either insurance policy would cover the damage, as the cause of the problem (the leak) would have been by definition a gradual occurrence, and not therefore a point-in-time “event” like a burst pipe.

          The original construction of the floor in the upstairs bathroom and its underside being the original ceiling of the bathroom below, would be Common Property and as such the responsibility of the Owners Corporation to repair.

          Repairs to the shower, and replacement tiles in the bathroom (below) would be the responsibility of the Lot Owner.

          This is the black-and-white approach to the problem, and I agree that there are grey-areas – like a gradual leak causing the common floor/ceiling to suddenly collapse, and the latter being perhaps considered a defined event for insurance purposes. Have you asked the Insurance Companies for a ruling?    

          #16483
          rthorburn
          Flatchatter

            I would suggest initially having a read of the insurance policy document.  I know that they are very wordy but I am uncomfortable leaving it to insurers alone to make a ruling.

            Whale, that is interesting what you say about a likley exclusion of the gradual occurrence.  I do not have experience in the area and cannot comment apart from I can see some logic behind it as it’s purpose could be to exclude claims that are a result of a lack of maintenance at the appropriate time.  In this case however, sure, it has been a gradual leak but if it was not detectable (due to the false ceiling), you might have a case to argue with the insurers

            A false ceiling would be regarded an acceptable structure to build within your Lot, although the insurer might argue that an inspection panel should have been provided to check for the very problem that has occurred.

            Is it possible that the false ceiling was installed for the purpose of concealing the staining caused by the leak?  If so, then you may choose not to reinstate the false ceiling, in which case all work will be OC responsibility.

            At the risk of stating the obvious, could I stress to you that the most important issue for you, in my view,  is not who pays for the false ceiling, it is will the cause of the water leak be permanently fixed?

            Regards,

            Rob T

            #16497
            Jimmy-T
            Keymaster

              Normally I would turn to the “Who’s responsible …”  memorandum but this is one situation where its advice seems a little contradictory and more than a little confusing.

              For a start, it says this is Owners Corp responsibility: “Water leaking through tiles or from one lot and affecting another lot or common property.’

              However, it also says the lot owner is responsible for ‘damage to a lot caused by any water leak mentioned above as a result of the problem itself.’

              Now, does that mean water leaking from another unit or does it just refer to damage within the lot where the leak occurs?  Every time I look at this I think I read it a different way

              And just to confuse things further, it says that damage to lot owners property caused by effecting a repair to common property is the responsibility of the Owners Corp.

              A couple of other things you need to bear in mind are that the memorandum isn’t law but it is the guideline to which your strata manager and the CTTT will turn to help determine any responsibilities.

              Throw into the mix the question of whether or not the leaking bathroom was a common property issue – for instance, if unapproved work had been done on the bathroom or if approved work had been done on the proviso that the lot owner took responsibility for any consequences, that that changes everything.

              However, this is how I see it – and am aware there are different views on this (some of which may have been expressed by me in previous posts).

              The Owners Corp has to pay for the repair of the  leak in the bathroom (if it is in common property) and  the damage to the lot owner’s property, including damage caused in effecting the repair.

              If there has been unapproved work done on the bathroom by you, the Owners Corp could argue that that was where the problem initiated and you could be liable for any claims that would otherwise have fallen to them.

              If the unapproved work was done by a previous owner, the Owners Corp would have to accept responsibility.

              If the work had been approved, you would look at the terms of any agreement or special resolution to see who was responsible for the repairs and maintenance.

              Getting back to the memorandum, even though it isn’t law (unless it has been adopted as a by-law,) it will be used as a reference by adjudicators. And that’s why the Department of Lands (who pulled this all together with input from all sorts of stakeholders) need to clarify that point – who is responsible for water damage to another property by a failure of common property?

              You can read the memorandum in full HERE.

              The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
              #16502
              rthorburn
              Flatchatter

                Hi Jimmy,

                I agree with all of your comment except for one point.  I feel that the Memorandum is fairly clear on the responsibility for water damage to another Lot by a failure of common property.  Once it is established that the leak is due to common property failure (aside from the approved vs unapproved complication), then Memorandum clause 2.17 d. would apply:

                 

                2.17 Plumbing (includes bathroom, kitchen and laundry) – OC responsibility

                d. Damage to unit after water leak when OC effecting a repair.”

                 

                Clause 2.18 m as you refer to as being applicable:

                2.18 Plumbing (includes bathroom, kitchen and laundry) – Owners responsibility
                m. Damage to a lot caused by any water leak mentioned above, as a result of the problem itself.”

                 

                would not in fact be applicable in this case as this is referring to water damage resulting from Owners responsibility items.

                 

                Does this sound right or am I misinterpreting 2.17 d?  I assume “damage to unit” in 2.17d. means damage to any Lot be it the one with the leak or the one below.

                Regards,

                Rob T

                #16505
                Jimmy-T
                Keymaster

                  Rob, you have pinpointed exactly where I have my issue with the memorandum.
                  It’s the very slack language of “Damage to a lot caused by any water leak mentioned above …” If “above” means only in that section pertaining to lot owner’ responsibilities, then the owners corp isn’t responsible.

                  Item 2.17d refers to the OC being responsible for damage caused “when effecting repair …”

                  It seems to read that the Owners Corp is only responsible for damage caused when repairing a leak, not for the damage caused by the leak.

                  This doesn’t make sense to me and seems to cut across common law principles that you are responsible for damage caused by things that you are in control of. But I have had strata managers insist vehemently that that’s exactly what the Memorandum means.

                  The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
                  #16508
                  giri
                  Flatchatter

                    @JimmyT said:
                     

                    If the unapproved work was done by a previous owner, the Owners Corp would have to accept responsibility.

                    dear JimmyT

                    Am I readiing this correctly? Are you saying that owners corp is responsible for problems if unapproved work was done by a previous owner?

                    if I AM reading it correctly, then

                    Is this only if the work was DONE on common property?

                    or does it include a situation if the work was done within the lot which impacted on common property. eg say unapproved work done by a previous owner (such as work on tiling on the front of a bath hob) contributed to a leak through the floor


                    #16450
                    Jimmy-T
                    Keymaster


                      @giri
                      said:
                      Are you saying that owners corp is responsible for problems if unapproved work was done by a previous owner? if I AM reading it correctly, then Is this only if the work was DONE on common property? Or does it include a situation if the work was done within the lot which impacted on common property. eg say unapproved work done by a previous owner (such as work on tiling on the front of a bath hob) contributed to a leak through the floor. 

                      It doesn’t make any difference if there were changes made to common property or changes that were made impacted on common property – if the person who made the changes is no longer in the building and there is no special resolution or written contract passing responsibility to the next owner, then the Owners Corp is ultimately responsible – for the simple reason that someone has to be.

                      In the case of the original question, if the current owner made changes to the bathroom that affected common property, the Owners Corp could argue that they are no longer liable for leaks etc.  If the current owner didn’t make any changes, then the Owners Corp is liable for damages caused (regardless of what the ‘who’s responsible’ memorandum says).


                      The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
                      #16546
                      kiwipaul
                      Flatchatter

                        @JimmyT said:

                        It doesn’t make any difference if there were changes made to common property or changes that were made impacted on common property – if the person who made the changes is no longer in the building and there is no special resolution or written contract passing responsibility to the next owner, then the Owners Corp is ultimately responsible – for the simple reason that someone has to be.

                         

                        Totally agree but consider it an open invitation for unscrupulous owner to do alterations without approval and then down the line when something goes wrong expect the OC to pick up the bill. I cannot imagine a rule so designed to disadvantage the honest owner and so encourage the cheats that when I first read about it I just didn’t believe it ( I regret to say I now do believe it and have sympathy for owners who get lumbered with unexpected costs over which they have no control).

                        At least in QLD alterations are the owners problem unless their is a clause in the bylaws saying otherwise. The direct opposite of NSW.

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