Sectional title water damage. Who’s responsibile?
“However, in most cases the solution is actually quite simple,” says Andrew Schaefer, MD of leading national property management company Trafalgar. “Water and damp problems usually originate on the roof, in the foundations or in an outside wall. And as these are all parts of the common property, the body corporate – made up of all the owners in the scheme – is responsible for any work necessary to stop a water leak, and for the cost of those repairs, in terms of Section 37 of the Sectional Titles Act.”
In other words, he says, the owners of ground floor sections have the same responsibility to pay for any roof repairs that are necessary as the owners of sections on the top floor. Similarly, top-floor owners have to pay a portion of any foundation repairs that are necessary.
“And if a special levy has to be raised to pay for the repairs, this must be done according to owners’ participation quotas, unless nominated values in terms of Section 32 of the Sectional Titles Act apply.”
In addition, Schaefer says, the owners of sections where there has been interior damage as a result of water seeping in from common property are entitled to expect the body corporate to also pay for the costs of their repairs – which the body corporate may be able to claim from insurance if the leak and resulting damages are the result of an unusual event such as a severe storm.
“On the other hand, if a leak that causes damage originates in another section – from an overflowing bath, for example – the owner of that section will be responsible for the costs of repair. Common sense also dictates that a leak originating within a section, or damage caused by such a leak, is the sole responsibility of the section owner.”
There are some instances, though, where the source of a leak is not obvious. It could be from a pipe in the slab that forms the floor of one section and the ceiling of another, for example, or in a wall between two sections. In such cases, if the pipe is “in transit” from one part of the building to another, or if the pipe serves more than one section, the body corporate may be responsible for the cost of repairs, he says.
“However, the Act provides that if the pipe contains hot water, the owner of the section being served by the hot water is responsible for repair of the pipe as well as any damage caused by the leak.”
Schaefer also emphasises that it makes no sense for bodies corporate to try to delay the implementation of common property repairs to allow time to raise sufficient funds to pay for them. “In fact, this is a very risky practice that can result in even more damage to sections and common property – and more costly repairs in the long-run.
“For instance, if water is leaking through the roof and down the internal walls of a section, the body corporate will have to repair the roof, replace the ceiling and pay for repairs to the owner’s walls. But if repairs are delayed, the body corporate might also have to pay for replacement of carpets and the contents of built-in cupboards, not to mention wall and floor tiles that have lifted and, in extreme cases, the warped and split timber trusses that support the roof itself.”
What is more, he says, any claims made against the body corporate’s insurance cover for costs related to water damage are likely to be repudiated if the source of the leak is maintenance-related.
“In short, repairs to common property are not discretionary, they are mandatory, and if the body corporate reserve fund is too low to cover the cost of the repairs, it will have no choice but to raise a special levy or obtain a specialised loan.”