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Commissioners Corner – Water Damage (QLD)

“Water, water, everywhere…”

Whether water occurs as a result of a storm, overflow or maybe a burst pipe, water leakage and resultant water damage can cause considerable destruction and stress.

This is particularly so in a community titles scheme, where, for example, a water leak in a high-rise building has the potential to cascade downwards, leading to significant repairs.

There is also the vexing question of who is responsible for water leakages and damage at a community titles scheme.

While my Office cannot give legal advice or a ‘ruling’, this article will attempt to clarify some of the main issues to consider.

Section 20 of the Body Corporate and Community Management Act 1997 provides for the treatment of utility infrastructure as common property.

‘Utility infrastructure’ is defined as cables, wires, pipes, sewers, drains, ducts, plant and equipment by which lots or common property are supplied with utility services.

A ‘utility service’ means, among other things, a telephone service or a cold water pipe.

The responsibility for maintenance of utility infrastructure can only be determined when a number of factors have been identified, for example what is the nature of the utility infrastructure, who it services, what has caused any damage and where it is located.

While section 20 of the Act states that utility infrastructure is common property, it does provide an exception.

This section provides that utility infrastructure will not be common property if three specific criteria are met, which are:

  • that the utility infrastructure is solely related to supplying utility services to a lot
  • that the utility infrastructure is within the boundaries of the lot, and
  • that the utility infrastructure is located other than within a boundary structure for the lot (‘boundary structure’ means a floor, wall or ceiling that is the boundary of the lot with another lot or the common property).

It is important to note that all of the above criteria must apply for it not to be considered common property utility infrastructure.For example, if a leaking cold water pipe is located in a boundary structure (a wall) between two lots, the pipe is the responsibility of the body corporate to maintain.

If the cold water pipe is not in a boundary structure and is within the lot and supplies a utility service only to the lot, the cold water pipe is the responsibility of the lot owner to maintain.

Another exception provided in legislation is the responsibility of a hot water system and its pipes and wiring. For example, if a hot water system services only one lot, the lot owner is responsible to maintain the hot water system and all associated pipes and wiring regardless of its location.

A common scenario is for a pipe to leak and cause damage to a lot or common property.

In the first instance, the building insurance can be reviewed to make an insurance claim for water damage.

The applicable regulation module will require most bodies corporate to hold building insurance that includes cover for lightning, storm tempest and water damage (amongst other things).

Whether the insurance company will accept the claim for water damage, or to what extent, is a decision for the insurance company.

For damage not covered by insurance, the responsibility for repair is generally determined by who was responsible for the maintenance of the pipe.

For example, if the pipe was a common property responsibility as determined by section 20 of the Act, the body corporate would be responsible for the repair and any damage caused to the lot or common property, including carpet, plasterboard or personal property.

The alternative is also relevant, for example, if a hot water system or an associated pipe that serviced only one lot leaked and damaged a lot or common property, it would be the responsibility of the lot owner to repair the damage.

An adjudicator has the power under section 281 of the Act to order a person to undertake repairs or reimburse another person for repairs.

In an application of this nature, an adjudicator must be satisfied that the applicant t has suffered damage to the property because of a contravention of the Act or the community management statement. The adjudicator must also believe that on reasonable grounds, the other person (the respondent) was responsible for the contravention.

There are many adjudicators’ decisions on this matter and it is worthwhile to read about the circumstances of each dispute – decisions can be found at http://www.austlii.edu.au/.

Defining responsibility for water leakages and resultant damage is not necessarily a straightforward exercise and even if a lot owner or the body corporate could not foresee that the leak would have occurred, they may still be held responsible.

Each individual instance is different and there is no substitute for seeking your own independent advice, firstly about insurance requirements and then, in the event of an incident occurring, who is responsible and to what degree.

If it appears that responsibility is in dispute, it is a legislated requirement that an attempt be made to resolve the matter prior to accessing dispute resolution through my Office.

That attempt may, for example, involve putting a motion to a general meeting about water leakage and resultant damage or it may be as simple as speaking to other affected lot owners if and when it becomes apparent that water issues are occurring.

For further, general information, contact the Information Service of the Commissioner’s Office on 1800 060 119 or BCCM@justice.qld.gov.au.

As well, the website at www.qld.gov.au/bodycorporate has a raft of information products which may assist.

This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.

Leave a Reply

  1. D Parker

    From a section on the net entitled, ‘building-format-plan-maintenance’, I quote, “The lot owner is generally responsible for: doors and windows leading onto a balcony that forms part of a lot.”
    Seems clear but may not be if the word ‘generally’ leaves room for wiggle.
    Imagine a non existent door hob, sub-sill or tanking around a door in the BFP of the lot above (Not required under existing QBCC regs). Imagine wind pressure from an east coast low. Imagine water leaking inside the walls into the unit below. Not a BC issue, perhaps, if one reads the common sense meaning into the statement above. Insurance covers resultant damage of the lot below but up to the lot owner above to fix the leak issue; poorly maintained door seals, one would assume, But we see a word, ‘generally’ with some wiggle room for the owner to say ‘but I am not responsible, poor tanking’. The floor of one lot is the roof of another particularly where tiled balconies are seen. Is the BC not always responsible for roof maintenance and building integrity – generally?
    Who unscrambles the exact meaning and interprets the words used in regs? No doubt the BC has the deeper pocket here and, so, must be drawn into a non-existant membrane issue in that leaking roof above and fix it.
    One may substitute a drainage pipe for the untanked door arguing that it will always service 2 lots; in the floor of one (where it is situated within the boundaries of) and the roof of the lot below.

    1. Chris Irons, Commissioner for Body Corporate and Community Management

      Hello and thanks for your comment. I would recommend you contact the Information Service of my Office on 1800 060 119 to obtain further information about this issue.

  2. B Kessell

    If the roof of a unit, a duplex, is the responsibility of the BC and water leaks through and damages the ceiling,who is responsible for the repair of the ceiling?

    1. Jane Wilson, Acting Commissioner for Body Corporate and Community Management

      Hello and thanks for your comment. I would recommend you contact the Information Service of my Office on 1800 060 119 to obtain further information about this issue. Adjudicator’s have also made decisions on similar circumstances that you describe. You can search for those decisions on our website http://www.qld.gov.au/bodycorporate.

  3. Louise

    If a lot owners hot water system leaks and causes damage to the lot underneath, are they
    responsible to pay for the excess on the insurance claim?
    If so, and they refuse to acknowledge fault, can that excess be added to their levy account for payment ?

    1. Chris Irons, Commissioner

      Hi Louise and thanks for your comment. I would suggest you contact the Information Service of my Office for some further information on this matter. They can be reached on 1800 060 119 or http://www.qld.gov.au/bodycorporate

  4. Graeme Ritchie

    Hello Chris,

    I live in a complex in a building format plan governed by the BCCM Standard Module 2008.
    There are 40 one bedroom flats and each flat has their own isolation valve for water that services the flat. Water pipes are not shared. Each flat has a hot water system , washing machine, toilet, shower, electric stove, air conditioning and other devices.
    In the legislation it states that the owners are responsible for utility infrastructure, even if the utility infrastructure in on common property, if it is one of the following and service their flat only;
    Hot water system, washing machine, clothes dryer.
    Then it says any device which provides a utility service to the lot. Does this mean devices like toilets, shower cubicle, basins and troughs and taps which provide water? Stoves and power points that provide electricity?
    It would seem that owners at this complex are responsible for all utility infrastructure, even utility infrastructure on common property or in boundary walls that services their flat only .
    I am correct in saying this?

    1. Chris Irons, Commissioner

      Hello Graeme and thank you for your query. I recommend contacting the Information Service of my Office on 1800 060 119 to obtain further information about this matter.

  5. Julia Hartmn

    I have applied, nearly two weeks ago now, to the BCCM to stop the person in the unit above me using their ensuite because it is leaking into my unit. They have two other bathrooms in that unit. The BCCM tells me they must have time to reply. My ceiling has collapsed and I have industrial fans trying to dry out the water damaged. My unit is uninhabitable yet the unit above continues to have the right to use the ensuite and has done so since being advised of the problem. The issue is a hole cut in the concrete ceiling/floor to accommodate his spa drain. Before I recently bought the unit a boxed in cavity was created below the concrete floor/ ceiling in my unit to accommodate the pipes to drain his spa. As he is not playing fair do I have any right to block those pipes and seal the hole in the concrete?

    1. Esther Blest A/Commissioner for Body Corporate and Community Management

      Hi Julia, Thanks for your enquiry. I apologise for the delay in my response. You may wish to contact the Information and Community Education Unit at my Office on 1800 060 119 regarding your issue. They may be able to give you some tips on how best to proceed. More information can be found on our website http://www.qld.gov.au/bodycorporate.

  6. James Channells

    Hi Chris, I recently had a hot water shower washer fail, that was my responsibility to repair, I now seem to have water leaking from the false ceiling in my bathroom, from my reading of your original post, I would assume (generally) that if it was caused by a leaking hot water pipe it will be my responsibility, if from a cold water pipe (as it was not in “airspace” of my unit) it would be BC responsibility. Would that be a reasonable assessment of the Act?
    Thanks, James

    1. Chris Irons, Commissioner

      Hello James, it’s not possible for me to give a yes/no answer here to your question as there are a few variables that may be involved. I’d recommend you contact my Office on 1800 060 119 for some further information about this situation.

  7. Jake Martin

    Good article & excellent way to articulate. Keep it up.

    1. Chris Irons, Commissioner

      Thanks for your positive feedback Jake

  8. waterproofing solutions Bay of Plenty

    These are some great information that you have shared here on commissioners corner water damage . I really loved it and thank you very much for sharing this with us. You have a great visualization and you have really presented this content in a really good manner.

  9. Helen

    There is a small area on the common property, where water hot system is installed. That area is locked and residents do not have an access there and to use that area as the storage. There is an idea to lease that area. Would be appropriated to do not lease that area to the third party as the storage? Is that water hot system considered as utility infrastructure? If that area is leased, the BC will not have access to hot water system. How is possible to solve this matter? Thank you.

  10. Bruce (Shane) Wells

    Hi Chris,

    The floating hardwood flooring in my lot was damaged by a leaking hot water pipe on the rooftop of the building. the Body Corporate is stating their insurance does not cover carpets and floating floors so they will not replace the damaged flooring. The hot water pipe services all lots in the complex and not just one lot.

    he building also has a company who owns the building management rights to the building – on behalf of the Body Corporate.

    Should I pursue this matter further and demand the Body Corporate cover the full cost of the floor replacement?

  11. Best Roof Hatches

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  12. Maria Morales

    This is very informative.

    When it comes to water pipe leaks, I still believe that we should never skip regular checkup and maintenance to save us from headache and dealing with these kinds of problems.

  13. Dave Weilder

    Dear Smart Strata,

    I recently came across your blog post titled “Commissioner’s Corner: Water Damage” and wanted to express my appreciation for the insightful information you provided on this topic. Water damage is a common concern in strata or community living, and it’s crucial for commissioners and residents to be well-informed about preventive measures and appropriate actions to take in case of water-related incidents.

    Your emphasis on regular inspections and maintenance of common areas, including roofs, gutters, and plumbing systems, is spot on. Identifying and addressing potential issues promptly can help prevent water damage and minimize the impact on residents. Your suggestion to create a maintenance checklist for commissioners is an excellent way to ensure that no essential maintenance tasks are overlooked.

    I also appreciate your recommendation for residents to be proactive in reporting any water-related issues they observe within their units or common areas. Timely reporting allows for swift action and can help prevent the escalation of damage. Encouraging residents to take responsibility for their own units and promptly address any plumbing leaks or other water-related issues is crucial for maintaining the overall well-being of the community.

    Your mention of the importance of having a reliable emergency response plan in place is commendable. A well-prepared and practiced plan can make a significant difference in managing water damage incidents effectively. Ensuring that all residents are aware of the emergency procedures and having designated personnel responsible for coordinating the response can greatly minimize the impact of water-related emergencies.

    Lastly, your emphasis on the role of insurance and the importance of reviewing strata insurance policies is crucial. Understanding what is covered and having appropriate insurance coverage in place is essential for both commissioners and residents. It’s also beneficial to educate residents about individual insurance options to protect their personal belongings in case of water damage events.

    Thank you for providing such valuable information and guidance in your blog post. It is evident that you are dedicated to promoting the well-being and safety of strata communities. I look forward to reading more informative articles from Smart Strata in the future.

  14. Dave Hinson

    I recently read the article titled “Commissioner’s Corner: Water Damage” on your website, and I wanted to commend you for addressing the issue of water damage in strata properties.

    Water damage can be a common and significant problem in strata communities, and your article offers valuable insights and suggestions to help property owners and residents navigate this issue effectively.

    I appreciate how you highlighted the importance of understanding the strata scheme’s by-laws and responsibilities related to water damage. Clarifying who is responsible for maintaining and repairing various components of the property’s plumbing infrastructure is essential for ensuring a prompt and efficient resolution to water-related issues.

    Your recommendation to promptly report and document water damage incidents is crucial. By promptly reporting issues to the strata manager or committee, residents can help ensure that the necessary actions are taken to address the problem and prevent further damage. Documenting the incident with photographs and detailed descriptions can serve as valuable evidence during the claims process or any subsequent disputes.

    Furthermore, your suggestion to engage qualified professionals for water damage assessment and repairs is highly commendable. Water damage can have far-reaching consequences, and relying on experienced experts ensures that the issue is adequately addressed, reducing the risk of further complications and long-term damage.

    One suggestion I would like to add is to encourage proactive measures to prevent water damage, such as regular maintenance and inspections of plumbing systems, roof areas, and common areas where water-related issues are likely to occur. Promoting a culture of preventive maintenance can significantly reduce the occurrence of water damage incidents and help preserve the overall integrity of the strata property.

    Overall, your article provides valuable guidance on dealing with water damage in strata properties. By raising awareness of the issue and offering practical advice, you are empowering property owners and residents to address water-related issues effectively.

    Thank you for sharing such valuable information and contributing to the knowledge base of strata communities.