- This topic has 11 replies, 6 voices, and was last updated 13 years, 3 months ago by .
-
Topic
-
The source of a water leak that has been ongoing for years has been finally resolved. This required the building manager removing a section of an apartment wall behind a fridge to acess the bathroom plumbing (an internal wall). A pipe in this internal, non load bearing, wall between the kitchen and bathroom was found to have a pinhole leak. The water then settled on the slab floor, leaked through a crack in the slab to the apartment below damaging ceilings (common property?),paint (lot property?), then down an external wall cavity to the apartment below, damaging MDF window sills (common porperty?)
Who pays for the repairs? owners corp, their insurer or the lot owner or their insurer?
My initial thoughts are that the source leak is not common property but lot property. Therefore the lot owner is liable for all damage to all property. However the building manager, as was necessary, damaged a lot wall to find the source of the leak.
The ceiling of the apartment underneath and the window sill below that are common property, therefore the OC should bill the lot owner for the damage to common property, as opposed to making a claim on the OC's insurance policy.
Or was this damage to common property not intentional, therefore the OC should pay?
Is there an easy answer?
-
Replies
-
In Victoria at least, the OC is responsible for the repair and maintenance of Common Property regardless of why the repair or maintenance is needed.
Of course the OC can try to claim the costs of a repair on another party.
In this case, as the damage is accidental and caused by a water pipe 'burst', my guess is that one party's insurance company will pay (most probably the OC's building insurance).
This has been the situation, for similar incidents, a few times in my building.
Hi JeremyS
The answer to your question depends upon the answers to a number of other questions.
If a pipe is to be found entirely within the boundaries of the lot and is for the exclusive use of the lot, it will be the lot owner's responsibility to maintain, repair, renew or replace.
If the pipe is located partly within the boundaries of the lot and partly within common property walls, floor or ceiling, then a variety of conclusions as to responsibility can be made depending upon a range of factors.
Regards
Chris KerinPartner – Building Defects
TEYS Lawyers
The Strata Law Experts
02 9562 6500
1300 TEYSLAWYERS
Suite 73, Lower Deck
Jones Bay Wharf
26-32 Pirrama Rd
Pyrmont NSW 2009Don't miss our next
monthly webinar:
Public Officials and Certifiers-
What's Their Fair Share of Liability?Register Here
JeremyS – your initial thoughts are correct, and as Chris has suggested, there's no easy answer.
The leaking pipe is in an internal wall so it's not Common Property, and IF it can also be confirmed by inspection at the time of the repair that the leaking pipe services only that Lot (and as it's a bathroom supply that's likely), then all repairs are the responsibility of the Lot Owner where the leak occurred.
If that Owner has contents insurance, that should cover all investigatory and consequential costs, including those of the Building Manager, but it won't cover the costs of the repair itself.
Not wishing to complicate matters, but if the Owner doesn't have insurance, and as the Owners Corporation has a vested interest in ensuring that repairs to its Common Property are properly undertaken, it could offer to arrange those repairs and to seek an agreement from the Owner of the “leaking pipe” to make a negotiated contribution.
The pipe itself may very well be private property (i.e. the lot owner's responsibility to maintain and repair).
However, I think repairing the damage caused by the water from the pipe to Common Property is still the OC's responsibility.
The lot owner's contents insurance might cover repairs to the pipe (mine does). But the owner might not have contents insurance as it's not compulsory. The OC's compulsory building insurance should cover repairs to the Common Property at least. It then becomes the OC's insurance company's decision to decide to try to recover these costs from the lot owner.
Our compulsory building insurance covers a lot more than just Common Property – some of lot contents are covered too, e.g: “Proprietor's fixtures, fittings and improvements which form part of the building”.
It all comes down to liability versus responsibility versus getting the job done and Austman touched on it with this comment:
It then becomes the OC's insurance company's decision to decide to try to recover these costs from the lot owner.
If you take the simple concept from common law that whoever causes the damage then has to pay for repairs, then if the pipe is the owner's responsibility, then so is the damage to common property. Whether or not the CP insurers want to pursue that is up to them but an Owners Corporation that made a lot of claims for damage caused by owners might find their premiums rocketing after a while.
There seems to be a bit of confusion (generally) around the difference between liability and insurance cover. Just because your insurance doesn't cover something doesn't mean you're not liable for repairs – if it's your fault, you have to pay whether you are insured or not, and that applies to individuals and Owners Corporations alike.
But you'd be amazed how often we hear the argument that the OC's insurance doesn't cover this so the owner has to pay.
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 have a question that's related to the previous postings. I hope someone can help.
Last Sunday water from the unit upstairs began trickling down my bathroom wall, forming a continuous pool of water by the drain. By Monday a section of the paint on my bathroom ceiling began to deteriorate. On Tuesday our Strata Management body advised the owners of the damage the water was causing and confirmed with me that the problem was a leaking pipe from the toilet in the unit upstairs. On Wednesday morning the water stopped, only to begin again today (Friday). The Strata Mgt Body again contacted the owner upstairs, but nothing has been done. Meanwhile the paintwork in my bathroom ceiling continues to deteriorate.
The Strata body advised that repairs are not something Strata would pay for, as it is only the paintwork that is damaged and that is not common property. I seemingly have to get the owner to cover damages, which he is unlikely to do given that we are soon to have a mediation session about the ongoing noise emanating from his wooden floorboards late at night and early morning.
It seems crazy that an owner can be negligent and not bear responsibility for the cost of the repairs to my ceiling. Is there any way he can be made to pay for the repairs?
Given what was said in the previous postings could Strata organise for the leak that is causing the water to flow in to my unit to be repaired?
Any advise appreciated.
Liz.
First, make sure the leak has been fixed. If it was the other owner’s property that caused the leak (which seems to be the case), then the other owner is responsible. But if it was common property that caused the leak, then the OC is responsible.
If it is only paint that is damaged then it is your responsibility to repair it. But if the ceiling itself is damaged, that would be common property and therefore the OC’s responsibility to repair.
Either your own insurance or the OC’s building insurance should cover the painting and or repair costs. If it is only painting then any insurance excess would have to be paid by you.
Of course, you could demand payment of the painting costs or even any excess costs from the other owner. I’ve tried this in the past – but if the other owner refuses to pay, you have to start legal action against the other owner.
A couple of points. The Strata manager or OC has the power in an emergency (such as damage being caused by a water leak) to gain entry by force if necessary to fix the problem. That's the number one priority.
Secondly, they need to properly establish what 's causing the problem – a leaky pipe might not be a problem unless, for instance , the waterproof membrane is also defective. That could make it a common property issue.
Finally, let's just accept the principle that whoever caused the damage pays for the repairs. This is an entirely separate issue from the flooring noise. Send him a letter of demand to pay for the paint work. How to do that and then pursue a case through the Small Claims court is explained 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.
Thank you for your advice. The leaking has stopped but the Strata manager, at my request, is now organising for a contractor to come out to assess the damage and the cause of the leak. Thank you again,
Liz
Lizben said:
Thank you for your advice. The leaking has stopped but the Strata manager, at my request, is now organising for a contractor to come out to assess the damage and the cause of the leak. Thank you again,
Liz
JimmyT said:
A couple of points. The Strata manager or OC has the power in an emergency (such as damage being caused by a water leak) to gain entry by force if necessary to fix the problem. That's the number one priority.
Secondly, they need to properly establish what 's causing the problem – a leaky pipe might not be a problem unless, for instance , the waterproof membrane is also defective. That could make it a common property issue.
Finally, let's just accept the principle that whoever caused the damage pays for the repairs. This is an entirely separate issue from the flooring noise. Send him a letter of demand to pay for the paint work. How to do that and then pursue a case through the Small Claims court is explained HERE.
Jimmy I've just had an assessment of the damage done. According to the plumber, there is no waterproof membrane on the floor of the above unit. Apparently these weren't installed in the sixties, when the units were built.
I assume that given that's the case, that my only course of action now is to have the damage repaired and send a letter of demand?
Thanks for oyur advice,
Marianne
I may be wrong but I think the missing membrane is a building defect and therefore a problem that the Owners Corporation has inherited. Nobody's fault but their responsibility.
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 must be logged in to reply to this topic.