This is a common yet tricky issue that we often see as body corporate managers.

In many cases it is not immediately obvious whether a portion of the common property has failed or whether a lot ‘s fixture/fitting has failed, causing the water ingress and subsequent damage.

Recently an adjudicator considered this issue and laid out the law appropriately as part of his findings.

The Facts:

• The bathroom ceiling of Lot 11 began leaking one afternoon and collapsed entirely that evening before the owner of Lot 11 could take any steps to prevent the collapse;
• The owner of Lot 11 called a plumber for an emergency fix – plumber attended and undertook an emergency fix;
• Plumber for Lot 11 identified that the bath waste pipe within the boundary of Lot 29 had failed – not the common property sealing;
• Over the next couple of days, the owner or lot 11 had other tradesmen removed the damaged ceiling, fix electrical works and stop the leak from Lot 29;
• Owner of Lot 11’s received a quote of $6,343.00 to repair water damage to the bathroom;
• Owner of Lot 11 tried to engage with the owner of Lot 29 to have her repairs covered;
• Owner of Lot 11 was advised by her insurance company they would cover damage to her carpet but not until the bathroom ceiling was repaired;
• Owner of Lot 29 directed the owner of Lot 11 to make a claim on the body corporate’s insurance;
• Owner of Lot 29 advised the owner of Lot 11 the Body Corporate was responsible for half of the repair cost, as the ceiling was partly common property;
• Owner of Lot 29 advised there was a defect in the building at the time of its construction which meant Lot 29 was not responsible for repairs to Lot 11’s bathroom;
• Owner of Lot 29 pretty much gave the Owner of lot 11 a brush off with respect to the repairs and rectification of the water damage.

The Ruling:

• The bath waste pipe from Lot 29 was not part of the Body Corporate’s common property as it was within the boundary of Lot 29, it was for Lot 29’s sole use and was not inside a wall between two lots;
• The owner of lot 29 had a duty to maintain the bath waste pipe;
• That duty was breached as soon as the waste pipe fell into disrepair;
• The owner of Lot 11 was not under an obligation to make a claim on the body corporate’s insurance;
• The alleged building defect was immaterial  – it was Lot 29’s obligation to keep the bath waste in good repair;
• Lot 29 was ordered to pay for the works to make good and to pay for the $6,343.00 worth of repairs to Lot 11 bathroom as a result of water damage;
• The Body Corporate was not liable for any repairs to the Lot 11 damaged ceiling – it was not structural and not a body corporate responsibility.

The above decision highlights that the body corporate is not always responsible for fixing water leaks between lots. Relevantly – the Committee for this building were not involved in the dispute – it was an issue between the upstairs and downstairs neighbours.

How do I find out whether the damage has been caused by my above neighbour’s plumbing?

You would need to engage a plumber to enter your lot, look at the plumbing and write you a report to document what is causing the issues. You need photos and written evidence – a verbal review will not meet the requirements of evidence especially if the upstairs neighbour does not want to engage with you and stops returning calls or emails.

What if my neighbour says I should make a claim on the Body Corporate’s insurance?

It will not always be your responsibility to make a claim on the Body Corporate’s insurance – especially if the ultimate cause of the damage to your lot is your neighbour. Start by engaging a plumber to carry out an inspection and write a report on your behalf. If the damage if from your neighbour’s lot – your neighbour is responsible and you cannot look to the Body Corporate to pick up the tab if your neighbour does not want to engage with you.

What if my neighbour will not engage with me or agree to compensate me for the loss?

In that instance – you need to seek legal advice on how to proceed. You might want to instruct a law firm to write to your neighbour advising of their obligations to repair infrastructure within your lot and then compensation you for damage to your lot.

If you do not want to engage a law firm, then provided you have all the evidence you can prepare and file your own adjudication application to have an Adjudicator rule on the case.

If you want to read the case in full – you can find it here: https://classic.austlii.edu.au/au/cases/qld/QBCCMCmr/2024/330.html