This article about damage caused by a water leak from the balcony above has been supplied by Tyrone Shandiman, Strata Insurance Solutions and Dan Slattery, Legal & Mediation Services.
- QUESTION: A leak from the apartment above caused damage to my apartment. Via their insurance, the OC will not repair much of the damage as they say it was pre-existing. Is this correct?
- QUESTION: I have a water leak which appears to have originated from the balcony above. Do I need to contact my neighbour myself? What can I do if they refuse access to have the leak investigated?
- QUESTION: Is there any way I can get the body Corporate or the Insurance company to take responsibility for damage caused by a water leak from the balcony above?
- QUESTION: Water leak from the balcony: I have a drain on the balcony the comes from the roof. There is a leak as it channels the roof water down from the third floor to the ground. Who is responsible?
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Question: A leak from the apartment above caused damage to my apartment. Via their insurance, the OC will not repair much of the damage as they say it was pre-existing. Is this correct?
I had a flood from an apartment above me which flooded my bathroom (50%) and kitchen/lounge (40%) – the issue is that the OC is saying a lot of the bathroom damage to the door/architraves in the bathroom was pre-exisiting, part of it was, but it has been exacerbated by the flood.They are basically sticking to their guns that it won’t be replaced or repaired due to being “pre-exisiting” however I’m concerned as the owner that I will be stuck with this damage for something I had no control over and certainly did not cause.
Answer: Water damage claims can differ on a case by case scenario so a “one size fits all” answer to the question isn’t always the best approach.
Water damage claims can differ on a case by case scenario so a “one size fits all” answer to the question isn’t always the best approach. If the policy is managed by an insurance broker, it is always best to get advice from the broker managing the policy as to the specific issues and exclusions raised by the insurer.
Generally speaking, the insurer is not required to repair any pre-existing damage. Notwithstanding, consideration should be placed on damage to property that did not have pre-existing damage. The insurer should be able to get a quote and scope of work and exclude any works that relate to repairs to pre-existing damage and settle the additional work.
If the repairs for the pre-existing damage are the same as the repairs from the new event, the insurer may have grounds to decline your claim.
One other consideration with regard to claims where pre-existing damage is an issue is whether the pre-existing damage can be claimed under another (prior) policy.
Tyrone Shandiman
Strata Insurance Solutions
T: 07 3899 5129
E: [email protected]
This post appears in Strata News #422.
Question: I have a water leak which appears to have originated from the balcony above. Do I need to contact my neighbour myself? What can I do if they refuse access to have the leak investigated?
I have water damaged on the floorboard in the lounge room. The plumber employed by the body corp has cut opened the plasterboard and he saw water cascading down the internal cavity wall.
In order to detect the source of the leak, the plumber requires access to the balcony above me to do a flood test. However, the owner above is reluctant because he is afraid the flood test will cause his tiles on the balcony lifted further and water will also leak into his apartment. The owner above me also has slow leaks into his apartment.
At the moment, we do not know for sure if the leak is coming from his balcony. However, body corp said that as the leaks involved both apartments, I will need to liaise with the owner above me to get flood test done.
There are common areas eg solar panel, roof, hot water on the level above me. The leaks can come from anywhere. Is it true that at this unknown stage I am required to talk to the owner above me personally? Also, is it legal for the owner above me to refuse entry for further testing on leaks?
If the plumber never gets access to do the flood test and we are never able to prove that the leaks originated from his balcony, will I still be able to claim building insurance? Do I need to go through body corp to claim building insurance?
Answer: If the leak is most likely from the balcony above, you must liaise directly with the owner of the upper apartment.
Interesting scenario in your email. I suggest that the Owners Corporation (“OC”) have their plumber determine if the water leaks are from any common property parts of the building – just to eliminate that possibility. From the description in your email, it does seem as though the balcony above has faulty tiles on its balcony – noting the waterproofing systems on that balcony all form part of the private property of that Lot.
If the OC plumber states that the source of the water leak is not from common property – and it is most likely from the balcony above – then the owner of the affected apartment below must liaise directly with the owner of the upper apartment – as this is a private owners issue – not an OC issue. If the owner of the upper level apartment will not allow for water testing of his balcony the affected owner must take the matter to VCAT to seek Orders that the plumber be allowed to test the waterproofing system of the upper level apartment.
An alternative (if the affected owner agrees) is that a solicitor’s letter be sent to the upper level apartment to “pressure” them to do the correct thing and allow access to water test the balcony.
As for insurance – the OC insurer will not cover any repairs to the apartment until the source of the water leak has been rectified.
Dan Slattery
Legal & Mediation Services
Phone 0412 102 978
E: [email protected]
This post appears in Strata News #314.
Question: Is there any way I can get the body Corporate or the Insurance company to take responsibility for damage caused by a water leak from the balcony above?
I have a ground floor apartment that is suffering from damage caused by a water leak from balcony above, most likely due to the failure of the waterproof membrane.
The building is only 6 years old, but unfortunately, the builder went out of business shortly after the completion of the building.
I have contacted the Body Corporate who in turn have contacted the Building Insurance company. The insurance company will not cover the cost of repairs because they say it is a building fault and should be covered by the Builder.
The only way to fix this will be to perform some costly repairs to the water leak from the balcony above but the private owner of this apartment is not interested.
Is there any way I can get the body Corporate or the Insurance company to take responsibility for this?
Answer: Water damage claims make up 45% of claims received by Strata Insurance Solutions in the calendar year 2017 and are often the most contentious claims.
Water damage claims make up 45% of claims received by Strata Insurance Solutions in the calendar year 2017 and are often the most contentious claims as there are things that are and are not covered by the insurer.
In essence, the policy should cover “water damage” that results from any leak. If the insurers are not looking to cover this portion of damage then it should be queried further, as it is generally accepted in the industry that water damage is deemed sudden and accidental damage and usually there are no exclusions the insurer can rely on.
Often what is not covered is the costs associated with fixing a leak. In the instance provided by the owner, it appears it is a building defect and most policies exclude rectification of defects.
Fixing a leak although not covered, can sometimes be the most expensive part of the claim particularly where say a waterproofing membrane sits underneath tiles and is leaking. To fix the leak, you need to remove the tiles and then apply a membrane and re-tile the surface.
Most States & Territories have builders warranty insurance which usually lasts up to 6 years after the property was built. Owners can apply for rectification of defects through State Government building authority. If this is not possible, the owner may also be able to apply to the applicable State Commissioner responsible for disputes within strata properties to compel the owner of the unit above to fix the leak.
As water damage claims are very individual, I would be happy to have a further discussion with the owner about their particular claim to help navigate them on the best way forward.
Tyrone Shandiman
Strata Insurance Solutions
T: 07 3899 5129
E: [email protected]
This post appears in Strata News #205.
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. This information is designed as a basic guide with relation to cover and you should refer to your Policy Schedule and Product Disclosure Statement for all terms and conditions related to cover under any insurance policy. 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.
VIC: Q&A Water Leak From the Balcony
This Q&A about who is responsible for a water leak from the balcony has been answered by Stuart Mellington, Select OwnersCorp Management.
Question: Water leak from the balcony: I have a drain on the balcony the comes from the roof. There is a leak as it channels the roof water down from the third floor to the ground. Who is responsible?
I have a drain on the balcony the comes from the roof. It channels the roof water down from the third floor to the ground.
This drain then goes down an internal wall on the second floor. It is leaking because when it rains the paint bubbles.
The strata company has said because the drain is on my balcony it is my issue, not the body Corporates.
How do I find the rules on this matter?
Answer: The answer to this is not so straightforward. The complications come in with the fact that the water referred to is as explained coming for the roof which is common property.
The answer to this is not so straightforward.
The complications come in with the fact that the water referred to is as explained coming for the roof which is common property. It is, therefore, the responsibility of the Owners corporation to ensure it is delivered to the legal point of discharge regardless of the downpipe traversing a private lot. This is dealt with under the Water Act.
In the event the water was being collected only on the balcony of the apartment then it may be the responsibility of that lot. The issue here falls under sec 129 (b) of the Owners Corporation Act 2016 where it states:
“a lot owner must maintain any service that serves that lot exclusively”.
It should be kept in mind though that if another unit is connected, whether it is obvious or concealed within the wall anywhere in the downpipe, between this unit and the ground then from the point the other unit is connected it becomes a common property issue and the responsibility of the Owners Corporation.
I would be very surprised if the downpipe pass by another lot that has a balcony and that that balcony is not connected to this downpipe. Therefore the issue of the replacement is a shared facility and therefore an Owners Corporation expense.
As you can see there are 3 scenarios:
- If the water is coming from the common roof and this appears to be the case. Then the downpipe is common property and the repair is the responsibility of the Owners Corporation.
- In the event the water being discharged via the downpipe was only originating from the balcony of the lot in question and no other unit is connected then it would be the responsibility of that lot owner.
- Should the downpipe only discharge the water collected from the balcony of the lot in question but another lot be connected along the length of the downpipe then the section from the point the second lot is connected is common and therefore the Owners Corporation’s responsibility.
This post appears in Strata News #135
Stuart Mellington
OwnersCorp Aust (Asset) Management t/as Select OwnersCorp Management
P: 9862 3730
E: [email protected]
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Hello,
We have a similar issue where the apartment below us has a leak and the Strata plumber is saying it is from a crack at the joint of the balcony tiles at the internal corner of the balcony where this meets the rendered wall.
In this case is the rendered wall common area and therefore this is a Strata issue or is this our property to repair.?
Plumber has advised that tiles have to be ripped up and membrane replaced without doing a flood test. Can we insist on the Strata plumber to a flood test or as them to gain a second opinion?
I would have a look at the Strata Plan of Subdivision to see if balcony is privately owned or part of common property. If you are having difficulties understanding Plan of Subdivision (which clearly states what is common, what is private), the surveyor’s name or company should be mentioned on the bottom of the POS and you should be able to give them a call, unless they’re deceased/no longer in existence.
Though your Strata Manager should be able to advise you if private or common.
Some P{ans of Subdivisions are woeful and I would consider paying for a surveyor to clearly articulate what is private, what is common and circulating it around. Though this will be at a cost.
The apartment below mine has water leaking from the patio ceiling into the courtyard.
The leak occurs when I put water down the drain on my balcony. It also occurs when the neighbor above me does the same on his balcony.
The three apartments are connected by a common pipe that leads to the basement.
The BM said it it my responsibility to maintain the area of the pipe that connects from my drain to the common line. I have had a plumber inspect this section of the pipe and the plumber could not detect any obvious fault. The leak may come from this junction but it’s unclear.
The plumber has advised the OC should take over matter.
The BM says the junction is my responsibility and I must carry out all investigations to prove it’s an issue with the common line or a building defect.
Who should carry out the tests? And if the fault does relate to junction where the two pipes meet (mine and the common line) who is responsible to fix it?