Help! My apartment is leaking! Who’s liable?

Water has an uncanny ability to find its way into all sorts of strange places. In a residential apartment block, water damage may arise either from one lot to another or from the common property into a lot.

Water has an uncanny ability to find its way into all sorts of strange places. In a residential apartment block, water damage may arise either from one lot to another or from the common property into a lot.

It may not always be clear-cut as to who is responsible for the water damage.

A claim for water damage may arise against a builder or some other professional if it was a result of defective building works.

If an individual owner fails to maintain their individual unit and causes damage to another owner’s unit, the first owner may be expected to make good the damage suffered as a result of their failure to maintain. This includes damage for incidents such as leaving a window or door open or leaving a tap running.

Body corporate/owners corporations are generally responsible for maintaining common property which may include damage occurring in the roof or water leaking through walls or pipes and gutters serving multiple apartments.  

In some cases, the offending water may originate a long way from where it is causing the damage. In such situations, water ingress from storms or during the wet season necessitates the damage being assessed on a case by case basis. This can create complex scenarios when assigning responsibility for the repairs and rectifications works.

What to do if water ingress is detected:

Section 16 of the Water Act 1958

Section 16 of the Water Act 1958 (“the Act”) creates a statutory cause of action for liability arising out of a flow of water. The elements of the cause of action are:

  1.   There is a flow of water from the land of a person to any other land;
  2.   The flow is not reasonable; and
  3. The water has caused injury, property damage or loss from the land.

It is important to note that VCAT has exclusive jurisdiction in respect of claims made under s.16(1) of the Act.

Owners Corporations Claim

Section 46 of the Owners Corporations Act 2006 stipulates that an owners corporation must repair and maintain:

  1.   The common property; and
  2.   The chattel, fixtures, fittings and services relating to the common property or its enjoyment.

Domestic Building Dispute Resolution Victoria (DBDRV)

A claim under the Domestic Building Contracts Act 1995 (“DBCA”) may arise against a builder. However, section 56 of the DBCA prevents a party to a domestic building work dispute from approaching VCAT unless a certificate has been furnished by DBDRV. The certificate will confirm whether the matter has been resolved or was unsuitable for conciliation between the parties.

If you have experienced water damage to your apartment or wish to discuss your options as to resolving a water ingress dispute with a builder, owners corporation or a lot individual, contact Steven Dangerfield, Angela Catanzariti, Bojana Balen or Lynda Lim of Dangerfield Exley Lawyers for a frank discussion on your legal rights and options available.

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