Water ingress claims in apartments. What lot owners can claim against an owners corporation

Water ingress claims in apartments…

This week I advised a lot owner on water ingress related to an apartment.

In this case, like many, the common property is the location where water ingress begins and a claim at VCAT exists against the owners corporation.

I wanted to take this opportunity to explain the types of damages that a person as a lot owner Applicant can claim, this includes:

1. Injunctive relief. In the form of requiring repairs to the common property, for example to ensure the CP is made watertight. To undertake certain works or scope of works including repairing defective CP, installing sufficient drainage and repairing plumbing or pool leaks. Many of these I see repeatedly. Not to mention - balcony and other waterproofing repairs;

2. Resultant damage. In the form of physical damage to the apartment and contents including mould remediation and cleanup, replacement and repair of damaged plasterboard or contents of the property. This could also include rectification of damaged cabinetry and other damaged property such as replacing carpets and floor coverings;

3. Disbursements, in the form of expert evidence. Such as engineer, forensic plumber or building consultant costs directly related to the proceedings, SOW or investigating evidence of the issue;

4. Legal fees, I emphasise s112 VCAT Act offers which apply if orders made by VCAT are not more favourable to the other party than the offer;

5. Consequential loss in the form of storage costs, removal fees, alternative accomodation. Also, utility expenses while not living in the property can also be charged. Plus owners corporation fees while not living in an apartment to name some;

6. Loss of amenity can also be claimed and awarded. See for example Hill v Owners Corporation PS524229U (Building and Property) [2022] VCAT 494.

Lot owners making these claims need to know:

• legal advice to obtain reliable expert evidence and draft solid Points of Claim is critical; and

• to never assume what is and isn’t common property. This can be a far more technical consideration legally than you or other non legal professionals think. Regularly, I see building and property professionals get this wrong.

If you’re suffering water ingress in an apartment - reach out!

We deal with this issue day-in day-out and ‘YES’ I know that the insurance policy doesn’t always cover your first party claim for damages, but that doesn’t mean you can’t claim against the owners corporation which triggers a different liability section of the strata insurance!

If an OC fails in a reasonably timely manner to make necessary repairs to stop an unreasonable flow of water - liability can attach to the owners corporation!

BUT often by setting out the cause clearly in an expert Water Act lawyer’s letter with RELIABLE expert evidence this can avoid a costly trial at VCAT anyway.

With the warmer months behind us, don’t wait, if you’ve got an issue you need to be efficient for practical and legal reasons.

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Tagged as:

• building disputes
• property disputes
• litigation
• insurance law