Water leak? Whose responsibility is it?

Barry, Botha & Breytenbach Inc
Maintenance of a sectional title scheme can appear straightforward, but the reality is that disputes arise frequently regarding maintenance issues relating to sectional title units. This is often the result of the complex relationship of close quarter living and the shared form of ownership represented by sectional titles. Making things even more complicated is the silence of the Sectional Titles Act on many of the nitty gritty issues encountered daily in sectional title schemes. So how does one approach maintenance issues in a sectional title scheme?

Let’s look at the following scenario to provide perspective on the complex situation that can arise:

Dave owns a section on the second floor of a sectional title scheme. There is a water leak coming from flat A above him, causing damp problems in his flat and the owner of flat A does not repair the leak. This scenario creates a flurry of questions:

  • Can Dave or the body corporate repair the leak?
  • Can they enter flat A or do they need permission from the owner first?
  • If the owner of flat A refuses to grant access, what are they to do to stop the leak and further damage occurring?
  • Who is responsible for the damage the water caused?
  • Can the damage be claimed from the body corporate’s insurance?

The law with regards to responsibility

Section 44(1)(a) and (c) of the Sectional Titles Act read with management rules 68-70 of the Sectional Titles Act provides that an owner must repair and maintain his section in a state of good repair. The owner must also allow a person authorized in writing by the body corporate to enter his section at a reasonable time and after notice was given (except in case of emergency when no notice is required) with the purpose to inspect, maintain, repair or renew the pipes, wires cables and ducts capable of being used in connection with the enjoyment of any other section or the common property.

Section 37 of the Sectional Titles Act requires the body corporate to maintain and repair the common property. From this it is clear that if the leak originates from pipes that are used by more than one section and is situated in the walls separating these sections from each other, these pipes form part of the common property and are therefore the responsibility of the body corporate to maintain. However, it is the duty of the owner to maintain the hot water installation which serves his section, or, where such installation serves more than one section, the owners concerned shall maintain such installation pro-rata, notwithstanding that such appliance is situated in part of the common property and is insured in terms of the policy taken out by the body corporate.

But let’s complicate matters a little further. Who would be responsible for the repair of and damages caused by water due to the fact that the shower base of flat A has not been properly sealed? This water leak has nothing to do with the pipes and the shower base does not form part of the common property. In this instance the Sectional Titles Act fails to provide a clear answer for this position and therefore a practical solution must be found.

The law with regards to insurance

Section 37(1)(f) of the Sectional Titles Act provides that the body corporate must insure the buildings of the sectional title scheme against fire and such other risks as may be prescribed and management rule 29 provides specifically for the bursting or overflowing of pipes. A portion of a sectional title owner’s levy contribution is used by the body corporate to pay for building insurance.

Accordingly, an owner who sustained damages due to the water leak should be able to claim for the repairs of the damage. The sectional title owner will have to ask the trustees to lodge the claim on his behalf seeing that the insurance is on the name of the body corporate of the scheme.

The insurance company will request proof of the repairs from the sectional title owner who suffered the damage or the body corporate who effected the repairs (as the case may be) before they will pay out the amount for the damage caused to the section.

Depending on the insurance policy of the body corporate, certain assets may be included and in some instances excluded from the cover of the insurance. For example, if you could take a section in your hands and turn it upside down so that the roof is now at the bottom, all those belongings that fall to the roof will generally not be covered by the insurance of the body corporate (as is the case with most body corporate insurance policies). This means that if you sustained damages to your television or furniture it will not be covered by the insurance policy because it does not form part of the buildings.

There are, however, certain insurance policies that provide for what is often referred to as ‘resultant damage’. This type of clause in the insurance policy could cover the damage to your ceilings or carpets caused by the water leak. It is thus important for a sectional owner to make sure he knows and understands the insurance policy of the body corporate and to consider taking out his own insurance to cover the content of his section.

A possible solution

Until the Sectional Titles Act provides for an exact procedure to be followed with regards to maintenance aspects such as water leaks caused, for example, by a shower base that was not properly sealed, a workable practical solution must be sought.

In our opinion, in the above example where the leak is caused by flat A’s shower base and therefore forms part of the section and not the common property, it should be the responsibility of the owner of the section causing the damage and the leak to repair it.

If such an owner does not repair the leak within a reasonable time as to stop further damage, the owner suffering the damage can ask the body corporate to step in and repair the leak using the same procedure as in the instance where the leak is caused by pipes forming part of the common property. The body corporate can then recover the cost of repairs from the defaulting owner.

It is still in this instance also possible for the owner who suffered damages to his section to claim from the sectional title scheme’s insurance as set out above, although resultant damage may not be covered, depending on the policy.

Conclusion

From the above it is clear that in most instances the duty to repair will fall to the body corporate. It is only in a few instances where it will be the responsibility of the sectional owner to repair the water leak at his own cost. Until the Sectional Titles Act provides for specific solutions, the best way to approach a situation such as where a leak is caused by a shower base of a section is for the two sectional owners to resolve it themselves. If for any reason the sectional owner whose section is causing the leak does not want to repair the leak then the body corporate must be involved to repair the damage and claim the cost from the defaulting owner.

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