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I am in a block of 27 units and we have individual hot water systems under the kitchen bench. They are owner’s responsibilty. They have a life of about 10 years and are known to flood. One recently did just that and the owners were home but still did not act quickly to get a plumberr or shut down the water. The water poured out the slab and of course flooded their own unit and next door. Interestingly the strata insurance attended to the job. The neighbouring unit was luckily empty and because the magnesite was wet that has been replaced after the drying process (over a week). The owner will replace the carpet which has been dried out.
The owner of the unit causing this replaced the hot water system over 24 hours later. Their insurance came and took up the carpet and our insurance now continues the drying process, and will in a week’s time replace the magnesite and the kitchen cupboards damaged by the flooding.
Is this the way this is normally handled. I thought, owner’s hot water would mean owner’s insurance?
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@WMB said:Is this the way this is normally handled. I thought, owner’s hot water would mean owner’s insurance?
It’s not quite that simple. It usually also need negligence for the owner (and hence their insurance cover) to be legally liable.
And usually a lot owner’s fixtures and fittings are covered by OC/BC compulsory insurance.
Burst and leaking pipes etc are usually not a negligence matter unless there’s some manufacturer’s requirement to do inspections or maintenance. And the damage any such leak might cause to common property or lot property fixtures and fittings is usually covered by OC/BC compulsory insurance.
The Lot Owner is responsible for the Hot water service that is exclusive to a lot and is inside a lot. The Lot Owner is responsible for any damage caused by a leaking HWS.
I can’t understand why the strata insurance paid for the repairs to the Lot? Was the Lot owner on the Committee by any chance?
I would question why the OC paid for the repairs to the water affected apartment(s).
FYI – Some internal HWS with a drip tray also have Mildred Valve to help prevent flooding. The Mildred Valves
is a leak-sensing automated shut-Off valve for internally installed hot water systems. The batteries need to be changed to ensure that the valve will be activated when water starts to pool in the tray. Perhaps the Lot owner had not changed the battery. The batteries should be changed once a year.Lady Penelope said The Lot Owner is responsible for any damage caused by a leaking HWS.
I don’t believe that is correct advice.
A lot owner might be responsible for any maintenance and any replacement of a HWS but is not necessarily responsible for any subsequent damage caused by a leaking HWS unless legal liability can be established.
To be legally liable for any subsequent damage usually requires negligence to be established. That’s very hard to establish in the case of leaking water systems. Where was the negligence?
I have dozens of insurance situations in my strata experience that back up what I am saying.
Lady Penelope said I would question why the OC paid for the repairs to the water affected apartment(s).
Because the OC has insured that event and the property (lot property fixtures and fittings) that was damaged? In other words it’s an insurance claim issue, not the OC paying for the affected apartment(s) issue?
Austman – I understand your comment.
SSMA 2015 states:
153 Owners, occupiers and other persons not to create nuisance(1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
The Lot owner located above WMB has clearly breached their statutory duty by causing a nuisance or hazard to WMB from their Lot’s hot water system leak. The Court’s decisions provide authority that occupiers may have a private cause of action to seek damages or other compensation from lot owners who breach the statutory duty in section 153(1)(a) of the Act.
Plumbing is always a tricky issue to deal with with regard to responsibility. The first thing to check is the OC’s insurance policy. Many have comprehensive insurance policies that cover damage to fixtures occurring within units, others do not.
However, the elements of reasonable forseeability and causation are issues that need considering, don’t they? Shouldn’t we also consider whether the Lot owner’s actions, or lack of actions, materially contributed to the outcome?
The owners lack of attention to the maintenance and repair of items that they are responsible for should not be so easily absolved.
There is also the issue of contributory negligence where the owner could bear a proportion of the cost to repair the property.
How is a strata scheme able to ensure that their owners are maintaining those items that the owner’s themselves are responsible for if a claim can be made on the OC’s policy for all damage that results? An owner may not then undertake the correct vigilance.
If that was to be the case then why does the legislation include a HWS as an owner responsibility? Why not have the OC own all of the HWS systems and have the OC check them on a regular basis? Clearly there is some responsibility envisaged for the owner of the Lot.
If an owner failed to replace a battery in a Mildred valve, or failed to check the condition of the HWS that is located in the kitchen cupboard (e.g. a rusted HWS base), or constructed their kitchen in such a manner that made checking the HWS system impossible, then surely the owner should bear all or at least some of the costs of the repair, shouldn’t they?
The OC’s insurance premiums may rise or their excess may rise as a result of a claim, depending upon the insurance cover that has been taken out. This is not a good scenario.
I speak from a Qld perspective and recognise that NSW may be different, but in Qld the body corporate may recover the costs (of the maintenance/repairs), as a debt, from an owner or occupier whose actions cause or contribute to damage or deterioration of the part of the lot.
It is my understanding that in NSW recovery of costs by an OC from a Lot owner can only occur via an order of a Strata Schemes Adjudicator.
Jimmy T wrote an article on 13 AUG 2015 along similar lines to the scenario that we are currently commenting on:
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