Question: If a water leak from one unit causes water to flow through the floor into the ceiling of the downstairs unit, does the owners corporation get involved in arranging the repair or is that up to that lot owner?
Answer: Initially, it’s prudent for the owners corporation to seek expert advice to ensure common property is not the cause or that common property is not being affected.
If you’re the unit owner downstairs, your first action should be to advise the owners corporation or the strata manager of what has occurred.
The owners corporation does not need to get involved in matters that are disputes between lot owners for water ingress. It is up to the lot owner downstairs to make a complaint directly with their upstairs neighbour to get the matter rectified. However, it is prudent for the owners corporation to seek expert advice to ensure common property is not the cause or is not otherwise being affected if it is unclear. Water ingress going between floors can affect the slab between lots (by affecting the steel reinforcement which causes rust/concrete cancer). If the slab is common property then the owners corporation has a duty to ensure that it is not damaged and to take action if it is. If the slab is private lot property and the water ingress is a defect from private lot property only then the owners corporation need not get involved.
It is important that the owners corporation consider the source of the leak and the impact of that leak.
If the owners corporation says, “It’s not our problem. It’s private lot property,” the owners corporation needs to be careful if years later someone engages an expert and finds out that it is actually common property that is defective and letting water through. This may mean that someone has not been able to rent out their property for two years and has a massive loss of rent claim against the owners corporation. The owners corporation would have saved themselves a lot of money if they had investigated initially and determined the true source of the water ingress. It also allows the owners corporation to make an assessment on the likely damage (if any) to common property that lies between the two private lots.
Otherwise, if it’s definitely private lot property, the strata manager really does not need to get involved. The owners corporation does have powers under section 48 of the owners corporations Act to deal with lots not properly managed in some situations. However, that power should be used carefully and usually only when there is a risk to common property. The power of the owners corporation to undertake repairs for a failure to comply with a section 48 notice can lead to other problems particularly if the works do not resolve the issue. Water ingress rectification can be a complicated and prolonged process. It can take many attempts at fixing water ingress issues before the water is stopped. An owners corporation taking over what is effectively a private lot matter can expose the owners corporation to substantial costs being incurred which they are left to seek from the defaulting lot owner.
This post appears in the July 2024 edition of The VIC Strata Magazine.
Phillip Leaman
Tisher Liner FC Law
E: ocenquiry@tlfc.com.au
P: 03 8600 9370
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