29 Sep Water damage liability in sectional title schemes: What you need to know
A body corporate is responsible for the maintenance of the common property of the scheme which includes planned and unforeseen maintenance. Maintenance to water damaged areas tends to raise the question: “Who is responsible for the repairs after a leak has been discovered?”
To determine this one needs to establish where the leak originates and what caused the leak.
Leaks originating from common property
Most leaks originate from the roof or walls, or from the building’s foundation. These areas are categorised as common property and accordingly, any leaks originating from common property must be repaired by the body corporate. This includes any damage caused to the inside of units as a result of the leaks.
Owners in a community scheme own an undivided share in the common property and contribute to the maintenance of the scheme by way of a levy which is calculated based on their participation quota (PQ). While an owner on the ground floor of a complex will not be affected by a leak from the roof, they still contribute to the maintenance or repair cost by way of their contributions to the maintenance fund.
On the other hand, owners who have suffered damage due to leaks from common property areas can expect the body corporate to take care of the cost of these repairs. This may also include internal damage to the unit or damage to fixtures and fittings. The sooner the body corporate attends to the repairs, the smaller the possibility of further damage being caused, possibly leading to further costs due to the delay.
If the body corporate has successfully submitted an insurance claim for the damage caused to a unit, the body corporate will also pay the insurance excess amount.
Repairs to leaks, along with the resulting damages, are the responsibility of the body corporate and must be addressed immediately to avoid further damage or costs, and potential counter claims against the body corporate.
Leaks originating from inside a unit
It can be quite tricky to establish the origin of a leak. Pipes located in the walls and floor are generally the biggest causes of undetected leaks.
To establish the origin of the leak, a leak detection company or plumber will be asked to trace the location of the leak and to determine how and where the leak started. If it has been established that the leaking pipe is located on the inside of the wall (the part of the wall ‘facing’ the inside of the unit), the owner of the unit will be responsible for the repairs to the pipe and the damage caused by the leak. Should the owner have successfully submitted and insurance claim for the repairs resulting from the leak, the owner will be responsible for the insurance excess amount.
Where a leak has originated inside a unit and caused a leak into another unit, the owner of the unit where the leak originated will be responsible for the repairs to the damaged unit. In this instance, both owners will have to share the excess amount based on the extent of the damage in each unit proportionately.
As these types of leaks are not easily detected, accepting responsibility, submitting insurance claims and attending to the repairs may take some time to action. This leaves the affected party having to rely on the owner where the leak originated to resolve the matter, sometimes resulting in much frustration.
Leaks caused by neglected maintenance
Leaks can also appear much later than when it originally occurred. Copper or steel drainage pipes in older complexes may have deteriorated over many years and slowly started leaking. The location of these pipes often makes it very difficult to do regular maintenance to prevent deterioration.
Where ongoing maintenance to a structure can be expected – such as the roof or gutters – and leaks occur that causes damage to units, the insurance may decline a claim for the repair of the damages. In this instance, the body corporate will be responsible for the repairs of the roof or gutter, along with the damage caused to the unit and its fittings.
Insurance companies will always assess where the responsibility lies with regards to maintenance before assessing an insurance claim. If damage was caused due to maintenance neglect, the insurance company is more likely to repudiate the claim. For that reason, it remains important for bodies corporate to attend to regular and proactive, long-term maintenance to avoid unnecessary insurance claims, and damage to common property and individual units.
Insurance excess payable by the owner or body corporate
As indicated above, the insurance excess for a leak will either be paid by the body corporate or the owner, depending on the circumstances. However, sometimes schemes amend their rules to allow for the excess payable by an owner to be covered by the body corporate instead.
This does not happen often and can also be a financial burden on the body corporate as it is difficult to estimate the potential number of claims that may arise every year.
Conclusion
Maintenance of common property and common property fixtures are important in any scheme. If done regularly and proactively it can save a body corporate and its members a lot of frustration and damage, and can avoid unnecessary insurance claims and excess payments.