Water leaks in Sectional Title Schemes: Who is responsible for water damage inside your Unit?

Water leakage caused by the roof, gutter, drainpipe, Unit above or any other area of the Building is one of the most popular complaints received in management of Sectional Title Schemes. Incurring water damage inside your Unit is very frustrating and can cause a tremendous amount of damage to your home and your belongings.

What should you do when there is a leak inside your section and who should pay for it?

The answer to this question is not straight forward. There are various factors that need to be considered before we may define the lines of responsibility.  

First things first.

The official belief is that water travelling from top to bottom.  Establish the exact source of the leak and report it to your managing agent. Is there a roof above your section, is there another Unit or could it be a geyser situated above the area that is affected by the leak? This is an important information necessary for your managing agent in order to take necessary steps in addressing the leak. Determining the cause of the leak will assist your managing agent in identifying the way forward, i.e. who to contact and who is responsible for the repair of the leak.

Leak originating from common property.

Lets look at what Sectional Title Schemes Management Act (STSMA) states. Section 3 of the Act prescribes that Body Corporate is responsible for maintenance and repair of the common property. Thus if the leak originated from any part of common property, in other words not from within the  section owned by another Owner, the Body Corporate is responsible to rectify the leak.

Leak originating from the Unit above.

In terms of Section 13 of STSMA the Owner must maintain his section in a state of good repair. If the leak originates from inside the section above, within the median line of the walls, i.e. leaking shower, flooding from washing  machine, failed waterproofing of the balcony, etc. the Owner is obliged to repair the cause of the leak. It is important to note that Owner is responsible for waterproofing of his balcony , only if the balcony forms part of the section. The information, whether balcony forms part of the section, can be found in Sectional Title Plans of the Scheme.

To avoid delays and prevent further damage to your unit, reach out to your neighbor upstairs, keep communication open, requesting regular updates on the status of the repair.

But what happens if the Owner from the Unit above is not cooperative?

In the instances like this you may request Trustees of the Body Corporate to intervene.

Section 13 of the Act states the following:

13. (1) An owner must—

(a) permit any person authorised in writing by the body corporate, during reasonable hours and on notice

(except in case of emergency, when no notice is required), to enter his or her section or exclusive use area for the purposes of inspecting it and maintaining, repairing or renewing pipes, wires, cables and ducts existing in the section and capable of being used in connection with the enjoyment of any other section or common property, or for the purpose of ensuring that this Act and the rules are being observed;

(b)forthwith carry out all work that may be ordered by any competent authority in respect of his or her section, other than such work as may be required for the benefit of the building generally, and pay all charges, expenses and assessments that may be payable in respect of his or her section;

In the case of an emergency where the water leakage may substantively cause a health risk or risk of flooding to other units, forceful entry may be affected. However it is essential that witnesses are present during the entry to prevent accusation of trespassing.

Dealing with resultant damages.

Section 23 of the Act states that Body Corporate must provide cover against the risks referred to in regulation 3 of the Act, one of such risks listed is water escape, including bursting or overflowing of water tanks, apparatus or pipes;

The Owner of the unit which suffered the damage may claim for resultant damages on recognised fixtures and fittings of the unit from the Scheme’s Insurance. The insurance of movable items remains the responsibility of the unit owners.

The repairs to the damages suffered is authorized by the insurer only after the cause of the leak is rectified. As mentioned earlier the onus of repairing the cause of the leak lies with the party where the leak originated from: Body Corporate or the Unit Owner. The insurer will request all relevant documentation, i.e. damage reports, photos, invoice, proof that repair work was done.

It must be noted that Insurance covers the damage due to sudden and unforeseen event, the damages attributed to lack of maintenance, gradual deterioration or wear & tear are likely to be repudiated by the Insurance.

Who pays excess on my insurance claim?

In terms of STSMA, Regulation 23(2)(b) states the following:

(2) A member is responsible –

(b) for any excess amount that relates to damage to any part of the buildings that member is obliged to repair and maintain in terms of the Act or these rules.

Thus, the general concept is that the member, who claiming for the damages pays excess. The Act does not prescribe that Body Corporate is responsible for payment of the excess where the damage inside the unit resulted from common property, however we do suggest that Body Corporate accept the responsibility for payment of the excess in such circumstances.

What happens if your insurance claim is rejected and who is responsible for the damages now?

In the event the claim is declined, the insurance provider will provide the letter explaining specific reasons for the rejection of the claim. But who is responsible for resultant damages to Section now?

The Act does not apportion responsibilities of resultant damages whether it caused by a failure of common property or another Unit. Nevertheless, the owner of the unit, that suffered the leak, is at liberty to claim compensation for expenses incurred on repairs of resultant damages. This can be done by furnishing the Body Corporate, or another Owner, with damage report, copy of the invoice and payment receipt.

In case the claim is rejected, the Owner may approach Community Scheme Ombud Service for assistance.

Section 38(1) of the Community Schemes Ombud Service Act 9 of 2011, provides for an owner to approach the Ombud with an application if such person is a party to or affected materially by a dispute.

Need an expert advice on management of your Community Scheme, contact Graff Properties today.

*The views expressed in this blog are of Yuliya Moshorovska

*Any information herein is not intended nor does it constitute a legal advice