Water Leaks in Apartments – Know your Boundaries!
The Important Distinction between Common Property and Private Property.
By Stefano Marchesin, Lovegrove & Cotton.
Since the legal case of Rylands v Fletcher in 1868, legal battles over damage caused by water leaks have been assisted by legal developments. In modern times, and especially for apartment dwellers, the decision to litigate should be based on sound knowledge about the source of the ingress of water.
What is important for apartment owners is evidence of how the water enters the apartment
Does the water enter via “Common Property” or “Private Property”? This distinction is important, as was seen in Penniall Enterprises Pty Ltd v Owners Corporation RN4160667X & Ors (Owners Corporation)  VCAT 943 (4 July 2012)
“It was common ground between the parties that the water leaking into apartment 21C physically came from apartment 21E. Mr Gillard’s position was that the elements of the building which were leaking were common property, and thus the responsibility of the Owners Corporation.
The Owners Corporation argued that the water came from Mr Gillards’s private property, and alternatively that section 49 of the Owners Corporation Act made Mr Gillard liable in any event.”
People who are part of Owners Corporations or Body Corporates know the distinction between Common Property and Private Property – for those readers who don’t, the term Common Property indicates the property which is the responsibility of the Owners Corporation. Parts of the building such as elevators, stairwells, gardens, car parks and the like, which every resident has use of, are Common Property. This term also includes structural columns, slabs, beams, walls, roofs and ducts. The term Private Property refers to lots within title boundaries owned by the private lot owners.
This case illustrates the importance of identifying where the water comes from, the essential question being, does the water enter through common property or private property?
It is important to refer to the plan of subdivision to determine responsibility. The location of boundaries is set out on the plan. Note that in all plans of strata subdivision the boundary between a lot and common property, or a lot and another lot, is the median of the wall unless the plan indicates otherwise (r.64 Subdivision (Procedures) Regulations). In later plans of subdivision, the boundary between common area and an individual lot is often the building line.
The responsibility for a windowsill repair, for example, will be partly determined by the location of the boundary and by who benefits from the repair. For most lots, the overhanging eaves are the responsibility of the lot owner to maintain (s.131 Owners Corporation Act). The responsibility for external painting of the eave is therefore a private responsibility. Many owners corporations carry out external painting of privately owned windows and eaves by utilising section 12 of the Owners Corporation Act, which allows for the provision of services to members provided a special resolution is obtained:
In the Penniall case, it was found that water entered via a sliding door that lead out to a balcony, rather than from the balcony (which is private property). The sliding door was an installation in a structural wall, which was common property. Consequently, VCAT found that the water had entered the apartment below via common property, thus the owners corporation was liable for the damage.
For more advice on your rights and responsibilities in this area of law, or if you are perchance in a dispute yourself, do not hesitate to take prompt legal advice now.