Large potted trees on lots’ terraces have damaged the waterproofing and caused water ingress into the units below. Who’s responsible for the repairs and the damage?
The rooftop terrace areas of our building are occupied by two units, and Land Registry Services recently advised that these terrace areas are the property of the two resident unit owners.
Some 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. Hitherto, repairs to the rooftop terrace areas have 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 damage caused by water ingress?
Should a motion be passed to adopt a by-law distinguishing between common property and lot-owner responsibility for care and maintenance of these rooftop-terrace areas?
Responsibility depends on the strata plan, by-laws and use of the rooftop areas. A strata lawyer and building engineer should review before any liability is allocated.
Responsibility for rooftop terraces is not always black and white. It will depend on the registered strata plan, any exclusive-use or common property rights by-laws, and the actual use and function of the rooftop areas.
Even where the terrace itself forms part of a private lot, elements such as the roof structure, waterproofing membrane and drainage and building services may still be common property or may service the building as a whole. Therefore, a strata lawyer should review the strata plan and by-laws before responsibility is determined.
From an engineering perspective, whoever is responsible for the defective element should arrange for the source of the water ingress to be rectified. This may include replacement of the waterproofing system by suitably qualified parties in accordance with the applicable statutory requirements.
If it can be established that the large planter boxes, trees or irrigation system have caused or contributed to damage to the rooftop waterproofing, the rooftop lot owners may also have some responsibility. However, this should be supported by evidence, not assumed.
Any consequential damage to the lots below, such as damaged ceilings, walls or internal finishes, should also be considered as part of the overall rectification and liability assessment.
For the proposed by-law, I recommend having a strata lawyer draft it so that responsibility is clearly defined for the rooftop areas, including waterproofing, drainage, finishes, planter boxes, irrigation systems, maintenance obligations and liability for any resulting damage.
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Mark Joseph is the founder and Managing Director of MJ Engineering Projects, a Sydney remedial engineering consultancy established in 2007. He has over 25 years of remedial engineering experience, much of it investigating and rectifying defects in strata buildings. Mark is a Registered Design Practitioner, an accredited inspector under the NSW Strata Building Bond and Inspections Scheme, and a licensed builder. He is regularly engaged as an expert witness in building disputes and acts as an Undertaking Manager under Building Commission NSW's Project Intervene program, working with owners corporations and strata managers across NSW.
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