A progressively competitive property market and increasing population growth is resulting in higher density living in urban areas. This means more apartments and multi-level buildings are being constructed to meet the demand.
While many new apartments are adorned with the latest tech and highest quality living standards, there are, unfortunately, more occurrences of water leaks than ever before. Water leaks are especially common in balconies, external sliding doors and specific types of facades, which are more likely to be exposed to water.
Disputes regarding water leaks can often be acrimonious, protracted and expensive, especially because they may involve multiple parties. Neighbours can be quite upset if water traverses down and through their property. You may also be part of an owners corporation or body corporate, which requires you to communicate with the management company or nominated representative.
This can be awkward to navigate (and occasionally, hostile), making it difficult for you to enjoy the property you have long dreamed of. Knowing your rights and obligations will help to ensure water leaks are dealt with in an efficient manner. Meaning you can stop the damage and start enjoying your home or investment.
Note this article refers to Victorian legislation but we also advise in property disputes in New South Wales and Queensland. This relates to both apartments and properties in Owners Corporations.
So, what can you do if you have a water leak in your apartment? Who is responsible?
Liability for Water Leaks
The Water Act 1989 (Vic) (Water Act) is the predominant legislation governing water leaks in Victoria. However, if your property is located in an apartment building or within a Owners Corporation or Body Corporate, other legislation may also apply, such as the Subdivision Act 1988 (Vic) and the Owners Corporations Act 2006 (Vic).
Section 16(1) of the Water Act states as follows:
- If—
a) there is a flow of water from the land of a person onto any other land; and b) that flow is not reasonable; and c) the water causes—— the person who caused the flow is liable to pay damages to that other person in respect of that injury, damage or loss.i. injury to any other person; or ii. damage to the property (whether real or personal) of any other person; or iii. any other person to suffer economic loss
However, determining responsibility is not necessarily easy or straightforward, especially where apartments, multi-level buildings or properties within an Owners Corporation or Body Corporate are involved.
Who is responsible?
If you have a water leak in your apartment, a good starting point is to ask:
1. Where is the water leak coming from?
You should contact an expert and have them inspect the water leak. It may be necessary to seek permission from the other property owner/s so that their property can also be inspected. If you are unable to obtain consent – you may need to deal with the relevant Owners Corporation or Body Corporate (if appliable).
2. What caused the leak?
Again, this will likely involve an investigation by an expert. It is important to retain an appropriate expert for your issues.
3. Who owns the land where the water leak is coming from?
This will likely involve an analysis of the Plan of Subdivision, if you live in an apartment building or within an Owners Corporation or Body Corporate, to determine whether the leak is coming from land owned by a private lot owner or from common property.
4. Do you need to stop the leak or prevent damage to your property?
It is important to note that you may have obligations to carry out works at your property to mitigate your losses by slowing or pausing the flow of water into your property (if possible). However, before you begin doing any works you may have an obligation to inform specific or potentially responsible parties so it is important not to do works (unless emergent or urgent) until you have sought advice on your legal standing or any possible claim you may have.
Balcony Water Leaks
In the case of a balcony, Regulation 10 of the Subdivision (Registrar's Requirements) Regulations 2011 (SR NO 111 of 2011) (Vic), as confirmed in the case of Owners Corporation PS508732B v Fisher [2014] VCAT 1358, states that a private lot owner is responsible for the tiles, grout, waterproofing, screed and membrane of their balcony tiles, unless otherwise explicitly stated on the Plan of Subdivision (which is very rare in Victoria). Everything else – the internal structure of the balcony, including the slab – is considered common property and is therefore the responsibility of the relevant Owners Corporation or Body Corporate.
Responsibility to repair
Once you determine who is responsible for a water leak, the question then returns to its repair.
Section 16(5) of the Water Act states as follows:
(5) If the causing of, or the interference with, the flow (as the case requires) was given rise to by works constructed or any other act done or omitted to be done on any land at a time before the current occupier became the occupier of the land, the current occupier is liable to pay damages in respect of the injury, damage or loss if the current occupier has failed to take any steps reasonably available to prevent the causing of, or the interference with, the flow (as the case requires) being so given rise to. [Emphasis added]
In Connors v Bodean International Pty Ltd (Real Property) [2008] VCAT 454, it was determined that:
"reasonable steps" in the Act infers that the current occupier takes the necessary steps within a reasonable time..... I would allow the Respondent a reasonable time to carry out investigations, assess the results and to implement measures to ensure the unreasonable flow is ceased.
Further, relevant sections of the of the Owners Corporation Act 2006 (Vic) (OC Act) state as follows:
A lot owner must—
- properly maintain in a state of good and serviceable repair any part of the lot that affects the outward appearance of the lot or the use or enjoyment of other lots or the common property; and
- maintain any service that serves that lot exclusively.
An owners corporation must repair and maintain—
- the common property; and
- the chattels, fixtures, fittings and services related to the common property or its enjoyment.
Getting advice early to deal with water leaks and property damage.
Private lot owners or Owners Corporations/Body Corporates who are notified of a leak causing damage should seek advice from a trusted expert and follow the recommended course of action. Most importantly, it is crucial not to delay in addressing and responding to the issue.
If you are unsure on how to handle a water leak, our building and construction lawyers will help provide guidance or representation when navigating a potential dispute. Our owners corporation lawyers have extensive experience in advising property owners and resolving owners corporation disputes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
