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Hoping for your knowledge on this problem.I had a big water leak in my top floor apartment. Water went to the apartment underneath mine causing water damage to the neighbour’s ceiling.Strata wants me to pay $960 for neighbour’s repairs.Am I liable?
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More information is needed on the source and cause of ‘your big water leak’. If it was an OC responsibility, then they can lodge an insurance claim. I assume they would have done this already if it was considered to be their fault/ responsibility. However, if you were at fault or it was from a pipe that is considered owner responsibility, then you will have to pay. It always pays to have insurance, and that is the risk you take in not having insurance. $960 seems quite a moderate cost considering a broken balcony door handle replacement in my complex cost almost $1,000.
More information is needed on the source and cause of ‘your big water leak’.
Exactly. What happened, where and how?
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.
I am well experienced in having to deal with this as the aggrieved downstairs neighbour where I used to live…
As such, I am sorry but I don’t have much sympathy for your predicament I’m afraid. I’ve been on the other end of your dilemma, and it is very unpleasant and costly to have property damaged due to an installation mistake or poor workmanship of an upstairs neighbour’s plumbing.
$960 seems very reasonable as payment for a tradesperson to come rectify the damage caused to your neighbour’s property. Your neighbour should get the OC to pay straightaway so as to relieve them of the damage and then they can get back to their lives, and it remains that the OC can then bill you for the additional on your levy notice.
Remember though it will cost you more than that – you will need to rectify the source problem without delay, at your own cost and to the satisfaction of the OC and/or the neighbour downstairs. Ideally you will have your works done prior to your neighbours so that the issue won’t exacerbate after they have had their repairs done.
Not sure about liability of whether you are liable or the OC in terms of NSW law and regulations. It seems reasonable to expect you are liable and the OC is correct in asking you to pay for the damage. But you also must repair the source as well and with urgency.
For those interested – here is my story of five years of putting up with an unreasonable upstairs neighbour and a leak that would not go away – https://www.flatchat.com.au/topic/bathroom-leak/#post-61282
Reply from Victoria. I’m not a lawyer, just experienced as a resident and committee mbr of many years.
Am I liable?
Went in and found one of the fixtures in the bathroom broken and most of the unit flooded.
You almost certainly will not be legally liable.
For you to be legally liable, a claiming party has to establish your negligence. That can be hard to do with spontaneous plumbing failure situations. But it is what they have to do. Eg they’d have to establish that you should have reasonably known of the situation before it spontaneously happened. Ownership of something is, alone, not enough to establish liability.
If you are not liable it’s up to you whether you pay for the other lot’s damage or not. It might be good manners and neighbourly to do so. If you have access to insurance that covers your legal liability, your insurer would almost certainly refuse your claim because they too would doubt your liability. You could check that if you do have such insurance.
Seems it’s a bush lawyers pile on, so do let me jump right in. Two points: One: be aware that apparently those flexi hoses in most folk’s bathrooms hidden under vanities have a shorter life than most folks realize and which may be specifically mentioned as time-limited in your home insurance cover. And two: be careful of who you mess with, and how long you mess with them. A building near me had someone try to use the floor waste as an outlet after installing laundry gear in their modified bathroom. The 2 floors below were sopped in water. Both owners, and the committee, lawyered up as did Larry Laundry. So far it’s been years of action, counter action, and over a million dollars in lawyer fees and court costs and unsaleable units for an initial 3 grand repair job.
I am a lawyer and my comments are:
- If the cause of the leak is a tap fitting, then that isn’t a defect in common property that the owners corporation has to repair and maintain;
- I am not sure exactly how the water got from the tap fitting to the apartment below. If that was a problem with tiling, waterproofing or drainage, then that may be an owners corporation problem because those elements are common property;
- Flooding will be a trespass or a nuisance and they do not require proof of negligence.
If you are looking to mount a case that the owners corporation pay this modest repair cost, you may want to suggest that the real cause of the leak to the unit below was the drainage and tiling in the bathroom floor.
Flooding will be a trespass or a nuisance and they do not require proof of negligence.
On that point, there’s a lot of even online published legal opinion about strata water leaks, liability and negligence.
Basically to be liable, the event has to be foreseeable. It’s not an absolute liability:
Although that’s for VIC, the same principles apply nationwide.
There are also state Water Acts that can apply but again a test of reasonableness of prediction will be needed.
These are the same kinds of tests needed to establish negligence.
How could a reasonable person foresee a burst pipe or fitting? Maybe they could have. But that’s what you have to establish.
I have a huge problem with the idea (often repeated here) that a failure to contain water in one person’s apartment is not their responsibility if it accidentally floods another unit – and that the affected owner has to prove the upstairs owner’s negligence.
I would think you might well start from the indisputable fact that water went from one apartment to another and then let the person who owns the flat where the water started its journey prove, if they can, that they were not responsible. Since this started with newly installed equipment, I’m guessing there’s a fair chance it was the installation that’s at fault.
The link to the article above doesn’t help much. I would be interested to see a Tribunal ruling (if one exists) that the affected neighbour had no claim against the upstairs owner unless they could prove negligence. It’s a lot harder to prove someone didn’t do something than it is to prove they did.
So – until someone shows me a tribunal ruling to the contrary – I am going to agree with stratalawyer (above) that there is liability and, if it was caused by a poorly installed fitting, then the upstairs neighbour should chase their plumber for the costs.
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.
You two raise an interesting point re responsibility for failed installation. On say, a balcony where someone has done the work on a reno such as waterproofing and tiling, and a proactive committee has made agreement that the lot owner can do it and it is thereafter that lot’s ongoing responsible for its upkeep and no longer other owners. Then should other common reno areas, such as bathrooms, also be assigned as that lot owner’s ongoing responsibility?
It seems a bit tricky as though these areas are usually considered strata responsibility, but when you consider the content insurer-used reference that ‘if you tipped the joint upside down: everything that fails to the floor is the owners and that which doesn’t is usually the Strata’s.’ but hard-surface areas obviously won’t unless the tiling really is totally dodgy!
I’ve heard of balcony reno work being assigned, but not internal works. So should they be?
I’ve heard of balcony reno work being assigned, but not internal works. So should they be?
In NSW it is common for parts of bathrooms – common walls and floors, for instance – to be considered common property. Retiling a floor would involve resetting the waterproofing and that would require a by-law which should assign responsibility for continuing upkeep to the renovator and successive owners.
Considering that leaking bathrooms are the No 1 defect in apartment blocks, this makes perfect sense.
This might not apply to townhouses as there may be little or no common property involved.
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.
I would be interested to see a Tribunal ruling (if one exists) that the affected neighbour had no claim against the upstairs owner unless they could prove negligence.
Here’s one: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2015/1912.html
There are others as well but I think that one is a fair example. It’s a spontaneous plumbing leak event. In this case a sewage containment leak. And the “upstairs owner” is the Owners Corporation but it could have been a lot owner.
The affected lot owner claimed $9,494.00 in damages from the OC. But lost. They could not establish the OC’s negligence or failure to maintain its common property …
I have a huge problem with the idea (often repeated here) that a failure to contain water in one person’s apartment is not their responsibility if it accidentally floods another unit –
… or the OC’s requirement to contain the flow eg under Water Act.
Two of the case findings:
- The OC did not breach its duty under s47 of the OCA to repair and maintain the sewer stacks; and
- The OC did not cause the flow of sewerage from the sewer stack into the apartment of Mr O’Connor under s16 of the Water Act 1989.
There’s no mention of a trespass claim. I believe trespass requires intent.
The affected lot owner claimed $9,494.00 in damages from the OC. But lost. They could not establish the OC’s negligence or failure to maintain its common property …
From reading the finding, the was no ruling against the owners corp as it was obvious that someone else was at fault, not the Owners Corp. Indeed, the quoted section of the Water Act said: “the person who caused the flow is liable to pay damages to that other person in respect of that injury, damage or loss.”
Obviously the owners corp had not stuffed the pipes with kitty litter and disposable nappies (as had happened here) and the Tribunal couldn’t establish who had. The plaintiff in this case was seeking damages from the wrong body.
The ruling doesn’t say what has been argued here previously, that the OC would not have been liable if, say, the pipe had ruptured, causing the flood. It’s a false equivalence.
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.
The plaintiff in this case was seeking damages from the wrong body.
That’s right.
And in the case of a spontaneous burst water pipe, the body responsible is likely the pipe manufacturer or the pipe installer. The owner might be liable if they could have reasonably foreseen the event.
Regardless, the affected lot has to establish the liability. That can be hard to do that with spontaneous plumbing failure events. They can be pretty unpredictable.
The main point of the linked case was to show that ownership alone is not enough to establish liability. The OC owned the pipes. The OC’s pipes caused a flow. The OC was not liable because the OC could not have reasonably foreseen or prevented the incident. That’s the requirement for liability. Not just ownership.
And in the case of a spontaneous burst water pipe, the body responsible is likely the pipe manufacturer or the pipe installer. The owner might be liable if they could have reasonably foreseen the event.
But it wasn’t a spontaneous event. Someone literally stuffed up a sewage pipe that was otherwise functioning normally. I think someone who has been stuffing disposable nappies and cat little down their toilet might have foreseen that it could cause a problem. Just as well you don’t have to pass an intelligence test to be a parent (or pet owner).
The OP in this thread had just had a new piece of equipment fitted and it failed, flooding the flat below. That probably isn’t a spontaneous event. It was more than likely a failure of equipment or its installation. They should pay and claim it against their insurance, if they have any.
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.
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