05 Mar Who’s to blame for damage caused by a domestic water leak?
Accidental water damage can cause plenty of headaches for property owners and their neighbours. Learn more about your legal rights and how to manage a water damage situation.
Water leaks and domestic housing are a terrible combination. They’re as incompatible as bare feet and Lego, Sinatra and punk music, or chocolate and onion. And when an owners corporation is involved, and the situation becomes a murky muddle which needs careful navigation.
Can I claim for damages under the Water Act 1989?
The Water Act 1989 deals with the management of Victoria’s water resources, including the flow of water from one person’s property onto another person’s property. The Water Act allows you to take legal action against someone if their water leak damages your property.
But first, you’ll have to jump through a few hoops.
What’s an unreasonable flow of water?
The Water Act 1989 requires you to establish that there was an unreasonable flow of water from someone else’s property to yours. To understand this, we must first understand what’s meant by flow.
The Act defines flow as:
discharge, release, escape, percolation, seepage and passage, and includes both surface and underground flow
So the water flow needs to fit the definition.
Next, you need to establish that the flow was unreasonable. The Water Act sets out a range of ways in which a flow is considered unreasonable. Two key ways are if:
- The person failed in their duty to do something to prevent the flow of water
- A reasonable person could have predicted that damage may occur from the flow of water
Working out whether the flow is unreasonable will also help you work out who is responsible. Whoever caused the trickle which ruined your rugs, or the waterfall which wrinkled your wallpaper, may be liable for damages.
Things can reach boiling point when other complicating issues are in play. For example, what happens when the water leak was due to an owner’s failure to maintain plumbing? Or repair pipes?
When are owners corporations liable for water leaks?
Owners corporations were formerly known as body corporates or strata companies.
When a subdivision of land creates a common property, an owners corporation is established. For example, a block of units with common garden areas, driveways and walkways will have an owners corporation which looks after those areas. If you’re the owner of a unit in the block, you’re also a member of the owners corporation.
Owners corporations can exist in residential, commercial, retail or industrial developments.
Victorian laws require owners corporations to:
- Repair and maintain the common property; and
- Repair and maintain the chattels, fixtures, fittings and services related to the common property
For example, lawn mowing and gardening, fixing steps and paving, changing light bulbs.
Importantly, owners corporations must also take reasonable steps to prevent foreseeable water damage, meaning water damage which can be predicted or anticipated.
An Owners corporation can be liable for an unreasonable flow of water, which caused damage to a neighbouring property, where it was foreseeable that the flow would cause the damage.
When are lot owners liable for water leaks?
Parcels of land are sold as lots. If you buy a vacant block of land, a unit, a house or other real estate, you’re known as a lot owner.
If you buy a lot which also has a common area, for example, a unit with a common driveway and footpath, you become a lot owner of your private unit, as well as a member of the owners corporation for the common areas. In this type of situation, your duties are to:
- Maintain any part of the lot that affects its public appearance
- Maintain any part of the lot that affects the use or enjoyment of other lots or the common property; and
- Maintain anything on common property that exclusively services your lot, for example, water pipes
If you’re thinking about buying a lot, make sure you do your research. You may be liable for a flow that began before you moved into the property, if you fail to address the ongoing problem.
Once you’ve settled on the property, if there’s an issue, you should take reasonable steps to fix the problem. In this situation you’re entitled to:
- Notice of the problem (for example, someone told you about the problem, you saw the problem, or it’s reasonable that you ought to have known about the problem)
- Reasonable time to fix the problem
If you’re concerned about a water flow, water leak or water damage issue, especially if it happened before you moved into the property, contact us to find out how we can help you.
Our final two litres’ worth
Avoiding legal issues due to water damage is all about risk management.
Owners corporations should have a system to monitor and repair common property. If you’re looking at buying a property which has an owners corporation, make sure you find out whether this system is in place. Ask as many questions as necessary to reassure yourself that you’ve got enough information to purchase the property confidently.
As a lot owner, you need to maintain your property, especially any pipes on common property that exclusively service your lot. If you’re looking at buying a lot, make sure you have a building inspection which includes an inspection of the pipes on common property. Check with the owners corporation about any history of water leaks or floods.
Taking preventative measures means it’s unlikely that one day you’ll arrive home from work to find custom art floating to greet you and your cat backstroking wildly across the lounge. But if it does happen to you, or if you’re concerned about the potential for it to happen, we’re here to help. Contact us to find out more.
This article was written by our Property team, who have a particular expertise in Owners corporation matters.
DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can get from marshalls+dent+wilmoth and other relevant experts.