Property Law and Sectional Title

 

 

While geysers often form part of the common property and are insured by the Body Corporate, Prescribed Management Rule (PMR) 31 states that the owner whose section or EUA the geyser serves is responsible for its maintenance, repair, and replacement. If a geyser serves multiple sections, the owners concerned must share the costs on a pro-rata basis.

Yes, if the leak originates from a source for which another party (either another owner or the Body Corporate) is responsible, you are generally entitled to claim the reasonable costs of repairing the consequential damage to your section or EUA from that responsible party. This often involves a claim against their respective insurance policies.   

The Body Corporate's building insurance generally covers sudden and unforeseen damage to the common property and sections caused by insured perils like burst pipes. However, a crucial exclusion often applies: damage caused by a lack of regular, proactive maintenance or gradual deterioration (wear and tear) is usually not covered.

If an insurance claim is repudiated due to a lack of maintenance or negligence, the party responsible for that maintenance (either the individual owner for their section, or the Body Corporate for common property) will be fully liable for all repair costs, including consequential damages. This highlights the importance of a proactive maintenance plan.
 

If a leak from common property causes damage to your section or EUA, the Body Corporate is responsible for repairing the source of the leak and is generally liable for the reasonable costs of repairing the consequential damage to your property.

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Water Leaks in Sectional Title Schemes

Addressing Water Leaks - Expert Legal Guidance for Sectional Titles

Water leaks and the damage they cause are regrettably common occurrences in South African sectional title schemes, often leading to complex disputes regarding liability and repair costs. Navigating these challenges requires a clear understanding of the applicable legislation, property classifications, and insurance implications.

At VDM Attorneys, we specialise in sectional title law, providing expert guidance to Body Corporates, trustees, and individual owners on the intricacies of water leak issues, helping to determine liability and facilitate resolution.

In a South African sectional title scheme, a water leak refers to the egress of water from a source within the scheme that causes damage. Legally, the liability for repairs and associated damages depends primarily on whether the leak originated from an individual section (owner's responsibility) or common property (Body Corporate's responsibility), as defined by the Sectional Titles Schemes Management Act (STSMA) and the scheme's rules. Crucially, insurance claims related to such leaks can often be repudiated if caused by a lack of proper maintenance.

Understanding the Legal Framework and Property Classifications

To properly address water leak issues, it's crucial to understand the governing legislation and how properties are categorised within a sectional title scheme:

  • Applicable Legislation The primary legal instruments are the Sectional Titles Act 95 of 1986 (STA), the Sectional Titles Schemes Management Act 8 of 2011 (STSMA), and their respective prescribed rules: the Prescribed Management Rules (PMR – Annexure 1 of the STSMA) and Prescribed Conduct Rules (PCR – Annexure 2 of the STSMA). It's important to note that while these are the 'default' rules, schemes may have lawfully amended their rules, which could impact specific responsibilities.
  • Sections These are the individually owned parts of the building, delineated by the median line of the walls, floor, and ceilings that surround them. Owners are solely responsible for the maintenance of their section.
  • Common Property This refers to all parts of the scheme that are not included in a section, such as the land, roofs, foundations, main walls, shared passages, gardens, and communal facilities. Owners collectively own the common property in undivided shares according to their participation quota. The Body Corporate is responsible for maintaining the common property.
  • Exclusive Use Areas (EUAs) These are parts of the common property that are designated for the exclusive use of one or more specific section owners (e.g., a balcony, garden, or parking bay linked to a unit). While an EUA is common property, the owner with the exclusive right of use typically has specific maintenance and cleanliness responsibilities for that area, as outlined in the scheme's rules.

Determining the Source and Liability for Water Damage

The first and most critical step in any water leak incident is to establish the origin of the leak. This determines who bears the responsibility for repairs and associated damages.

1. Leaks Originating from a Section
If the source of the leak is located within an individual section (e.g., a burst pipe inside a wall that only serves that section, a poorly sealed shower, or a leaking appliance within the unit), the owner of that section is responsible for repairing the source of the leak.

Consequential Damage: If the leak from one section causes damage to another section or to common property, the owner of the originating section is generally liable for the reasonable costs of repairing that consequential damage.

2. Leaks Originating from Common Property
If the leak emanates from common property (e.g., a leaking roof, a burst main pipe in a common wall, or water ingress through common property external walls or foundations), the Body Corporate is responsible for repairing the source of the leak.

Consequential Damage: In such cases, the Body Corporate is also responsible for repairing any damage caused to individual sections or EUAs as a result of the leak from the common property. Owners of affected sections may claim the reasonable costs of their repairs from the Body Corporate.

3. Specific Case: Burst Geysers (PMR 31)
Even though a geyser (water-heating installation) serving a section or EUA often forms part of the common property and is insured by the Body Corporate, PMR 31 explicitly states that the member (owner) must maintain, repair, and, when necessary, replace such an installation that serves their section or EUA. Where an installation serves multiple sections, the concerned owners must share the maintenance, repair, and replacement costs proportionally.

4. Specific Case: Pipes, Wires, Cables, and Ducts Serving More Than One Section
Section 3(1)(r) of the STSMA clarifies that if a pipe, wire, cable, or duct is within a section but is capable of being used in connection with the enjoyment of more than one section, or the common property, or in favour of one section over the common property, the Body Corporate must maintain, repair, and renew it when necessary. Regardless of its physical location, if it serves more than one section or the common property, the Body Corporate is responsible for its maintenance at its expense.

The Critical Role of Insurance and Maintenance Programs

Water damage is a common peril, and both Body Corporate and individual owners typically hold insurance. However, the success of an insurance claim is often contingent on the responsible party having maintained the property adequately:

  • Insurance Claims Damage caused by leaks can often be claimed from the Body Corporate's insurance (for common property origins) or the individual owner's household insurance (for section origins).
  • Repudiation Due to Neglect A significant challenge arises when leaks occur due to neglected maintenance. Insurance companies are highly likely to repudiate claims if the damage is a result of a lack of routine or proactive maintenance (e.g., a roof that hasn't been maintained for years). In such instances, the responsible party (either the Body Corporate or the individual owner) will be solely liable for the full costs of repair to both the source and any consequential damages.
  • Proactive Maintenance This underscores the vital importance of the Body Corporate diligently adhering to its 10-year maintenance plan and attending to ongoing maintenance of common property. Similarly, owners must ensure regular maintenance of their sections to prevent leaks. Proactive maintenance can significantly reduce the risk of costly repairs and insurance claim disputes.

Steps to Take When a Water Leak is Detected

Early detection and swift action can significantly minimise damage:

  • Immediate Notification Promptly inform the managing agent, Body Corporate trustees, and your insurance broker about the leak.
  • Identify and Stop the Source If possible and safe to do so, take immediate steps to stop the leak (e.g., turn off the main water supply to your unit).
  • Leak Detection Arrange for a qualified plumber or leak detection company to trace the exact origin of the leak. This report is crucial for determining liability.
  • Document Damage Take photographs and videos of all damage caused by the leak. Keep detailed records of all expenses incurred for repairs.
  • Prompt Repairs The responsible party should attend to the repairs of the source and consequential damage without delay to prevent further deterioration. Delays can lead to increased costs and potential claims for additional damages.

Conclusion

Water leaks in sectional title schemes are often contentious and complex issues. While the STSMA and its associated rules provide a framework for determining responsibility, the specific circumstances of each leak, coupled with the critical element of maintenance history, can significantly influence liability and insurance outcomes.

At VDM Attorneys, we possess a deep understanding of sectional title legislation and the nuances of water damage claims. We can assist Body Corporates and owners in interpreting their scheme's rules, accurately assessing liability, navigating insurance claims, and resolving disputes efficiently. Don't let water damage overwhelm you – contact VDM Attorneys for expert legal guidance.