NSW: Q&A Water damage on my ceiling from the apartment upstairs

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A lot owner from NSW is wondering what to do about “the water damage on my ceiling” caused by the apartment upstairs.

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• QUESTION: Two lots have a rooftop terrace. Large potted trees on the terrace have cause water ingress into the units below. Who is responsible for the damage caused by the water ingress?
• QUESTION: The apartment upstairs had some water leakages which has damaged my apartment. Am I responsible for repairs to the damage inside my unit?
• QUESTION: Who is responsible for the water damage on my ceiling and the white goods in the kitchen caused by the apartment upstairs? Their laundry upstairs is in a cupboard and is not plumbed in properly. This has flooded my kitchen numerous times.

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Question: Two lots have a rooftop terrace. Large potted trees on the terrace have cause water ingress into the units below. Who is responsible for the damage caused by the water ingress?

The rooftop-terrace areas of our building in NSW are occupied by two units and the Land Registry Services recently advised that these terrace areas are the property of the two resident unit owners.

Several other lot owners contend that large pot plants holding large trees and an irrigation system on the rooftop terraces have damaged the rooftop tiling leading to water ingress and damage to the lots directly beneath the rooftop lots. Hitherto, repairs to the rooftop terrace areas has been borne by the owners corporation.

Should the owners of the rooftop terrace lots pay for rooftop repairs and compensate the lower-level lot owners for any damage caused by water ingress?

Also, how can I word a motion to pass a by law distinguishing between common property and lot-owner responsibility for care and maintenance of these rooftop-terrace areas?

Answer: Generally insurers do not cover the cost associated with fixing a leak (maintenance) but they do cover consequential water damage.

The first consideration is whether the water damage claim is covered by insurance or not.

Generally insurers do not cover the cost associated with fixing a leak (maintenance) but they do cover consequential water damage. If there is an insurance claim the insurance policy will cover the damage to lower level lot owners.

Outside of an insurance claim, there can be a number of factors that determine who is legally responsible for repairs & maintenance of property – this can include:

1. Who owns the property;
2. Is someone other than the owner legally responsible for repairs (e.g. because of negligence or a breach of the Strata Management Act).

With regard to a motion which between common property and lot owner responsibility for care and maintenance of these rooftop terrace areas, you should seek advice from your strata manager (if you have one). My unqualified opinion is the Strata Management Act & your strata plans already do this and you need to be careful not to write a bylaw that contravenes the strata management act.

Tyrone Shandiman
Strata Insurance Solutions
T: 07 3899 5129
E: [email protected]

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 and the specific coverage afforded under their policy wording. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisernet Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in the October 2020 edition of The NSW Strata Magazine.

Question: The apartment upstairs had some water leakages which has damaged my apartment. Am I responsible for repairs to the damage inside my unit?

I own an apartment in NSW which is tenanted and agent managed.

The apartment upstairs had some water leakages which has damaged both the duct connecting the floors as well as the walls, tiling and cupboards in my kitchen. The strata agent says that I am responsible for repairs to the damage inside my unit. The cost is about $3K. I can’t believe that this is correct.

Answer: You should not be liable for damage caused to your apartment through no fault of your own.

You should not be liable for damage caused to your apartment through no fault of your own.

Your strata managing agent should be contacting upstairs and arranging an inspection to determine the cause of the damage/leak – if it is a defect in the common property, the Owners Corporation should rectify it and repair all the damage caused to your lot at its own cost or through its insurance (if it is an insurable event). If the upstairs residents have carried out renovations and this is determined to be the cause – they should be held liable.

If no-one cooperates with you, it is open to you to apply for mediation before seeking Orders from NCAT.

Leanne Habib
Premium Strata
P: 02 9281 6440
E: [email protected]

This post appears in Strata News #401.

Question: Who is responsible for the water damage on my ceiling and the white goods in the kitchen caused by the apartment upstairs? Their laundry upstairs is in a cupboard and is not plumbed in properly. This has flooded my kitchen numerous times.

My question is in regards to flooding and water damage on my ceiling from the laundry in the apartment upstairs.

Who is responsible for the water damage on my ceiling and the white goods in the kitchen?

I live in a ground floor apartment in a small strata scheme.

Upstairs they have a kitchen / laundry that has flooded my kitchen numerous times.

The owners of the apartment live upstairs, the laundry upstairs is in a cupboard and is not plumbed in properly, nor has a drain or waterproofing.

Our building was built in the 1940’s, I’m not sure when the laundry cupboard was added.

Answer: As a general proposition, the upstairs people should be liable for their shoddy works which have caused you loss and damage.

There are many matters to be considered here:

1. Did the upstairs owners have their works approved?
2. Was a by-law created for their works?
3. Do you have contents insurance?
4. Do you have a strata manager?

As a general proposition, the upstairs people should be liable for their shoddy works which have caused you loss and damage.

You should contact them and seek their co-operation in compensating you and properly finishing the laundry to avoid future flooding. If they refuse to rectify their works you may wish to make an application for Orders to NSW Civil & Administrative Tribunal but you would need to apply for Mediation through Office of Fair Trading first.

Leanne Habib
Premium Strata
P: 02 9281 6440
E: [email protected]

This post appears in Strata News #184.

Read Next:

• NAT: Q&A Water Damage Insurance Claims and The Excess in Strata Properties
• NSW: Q&A How Does the Committee Organise a Leaky Roof Repair?

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

Visit Maintenance and Common Property OR NSW Strata Legislation.

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