This article discusses QLD unit waterproofing leak responsibility and who may need to pay for damage to the unit below.
Question: In a QLD unit, water from our shower leaked into a unit below due to failure in the waterproofing. Who is responsible for the damage?
We had a small amount of water from our ensuite shower leak into a unit below due to failure in the waterproofing. The water was leaking from the grout in our ensuite. It travelled between the units and leaked into a bathroom ceiling not directly below our unit. We have paid to have our ensuite shower waterproofed again and the leak is resolved.
Who is responsible to pay for the damage to the unit below? The cost is less than the insurance excess so the unit below is asking us to pay. The units are just out of building warranty and issues like this in the past were fixed by the builder. The plumber provided a report to say the damage was caused by failure of the waterproofing between the units.
Answer: Refer to your contents insurer and there may not be an excess for legal liability claims under your policy for content.
This is a really good question. ‘Who is responsible?’ basically comes down to a legal question that, in some instances, lawyers can be involve if it goes to the commissioner, and judges and so on. I’m happy to share my wisdom on this because I’ve had a number of these claims and instances and I’ve seen the outcomes of them.
First and foremost, I do just want to say that if you have landlords or contents insurance, there is a component in the policy which covers legal liability for property damage to other person’s property. You may find that even though it’s below the strata excess, it may not be below your contents insurance excess. To trigger a contents insurance claim for legal liability, the owner below must make a demand in writing to you. You should then go to your contents insurer and specifically ask them to lodge a claim under the legal liability section of the policy.
There are two arguments in favour of the owner above (where the leak originated) and the owner below that had the damaged unit.
Legal argument: The lot owner above
If you’re the owner of the apartment where the leak originated, the argument is that the leak itself was not foreseeable, it could not have been prevented by any type of prior maintenance, and your response to the leak was adequate. That is a line that you may take with the owner below in respect of this claim.
Legal argument: The lot owner below
The owner below may have a legal argument that you’ve breached the legislation. I’m going to go through section 211 of the Queensland standard module regulations Section 211 requires that the owner of a lot included in a scheme must maintain their lot in good condition. What does that mean? A reasonable person might say, ‘Well, I’ve maintained my lot in good condition. I’ve done everything possible that I could do to maintain the lot. Have I met that standard?’.
MAGOG (NO. 15) Pty Ltd v The Body Corporate for the Moroccan
Well, there’s been a case that the Queensland District Court refers to, and that particular case is MAGOG (NO. 15) Pty Ltd v The Body Corporate for the Moroccan. This was owner versus body corporate, but it can give you some understanding as to what the thresholds of maintaining in good condition can actually mean. The judge said in that case, the duty is not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so but a strict duty to maintain and keep in repair. The duty to maintain involves an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition in a state which enables it to serve its purpose for which it exists. Thus, there is an obligation not only to attend to cases where there is a malfunction, but also to take preventative maintenance measures to ensure that there not be a malfunction. As soon as the property is no longer operating effectively or at all or has fallen into disrepair, there has been a breach of this duty. So, the duty to maintain in good condition actually is very high for a lot owners.
Essentially in this case, there are two arguments to run. I think it may favour the owner of the damaged property in this instance, but if it was me, I would refer to your contents insurer and there may not be an excess for legal liability claims under your policy for content.
This post appears in Strata News #575.
Tyrone Shandiman
Strata Insurance Solutions
E: tshandiman@iaa.net.au
P: 1300 554 165
This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisenent Australia AFSL No 240549, ABN 15 003 886 687.
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