Property

Water from the apartment above is leaking into mine, what can I do?

Property Clinic: A key starting point is to check the lease agreements for the development

What can you do if the apartment above is leaking water? Photograph: iStock

Wed Jun 24 2020 - 06:00

For the second time in two years, my apartment has been damaged by water from the apartment above. When I brought this matter to the attention of the owner (above mine), she said it had nothing to do with her. I subsequently contacted the managing agent for the development, hoping to use them as a middle man, and they did send in a plumber to investigate. The plumber confirmed the damage in my apartment but was refused access to the apartment above. When the owner of that property was contacted by the managing agent, the reply was that they “didn’t cause the damage”. What are my options please?

The last time out I had to threaten legal action before the owner paid for painting of my apartment.

A common issue that arises in a multi-unit development (MUD) can be occasional water ingress from another unit. As you note, there are a number of different stakeholders involved – owners of the different apartments, the owners’ management company (OMC) and the managing agent. These parties need to work together (with appropriate contractors) to resolve issues.

A key starting point is to check the lease agreements for the development. These are the documents that owners signed when they purchased their apartments. Normally, they contain a clause that obliges the owner to maintain their property “in a good and tenantable state”. The precise wording may vary from lease to lease but the essence is that the owner cannot let their property fall into a poor state, either visually or in a way that could impact negatively on other apartments.

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One implication of such a clause is that, in MUDs, it is good practice for apartment owners to ask a plumber to inspect seals in bathrooms and kitchens on a periodic basis. You don’t say how old your development is but, as developments get older, seals will fail and this can cause an escape of water, from a shower or washing machine for example. Sometimes an issue might not be apparent in the apartment where it occurs until its effects are noticed in another unit, eg downstairs.

Addressing issues of water ingress involves an element of detective work, so any information that you can provide to the managing agent will be useful. For example, where precisely in your apartment did the leak happen? Was it once-off or more frequent (and, if so, at what times)? Was the water clear or soapy, as it would be from a washing machine?

Even if a leak appears to be coming from an apartment directly above, this may not be the case. Water can sometimes travel from an apartment two or even three floors up, bypass a couple of floors and then re-appear. However, the first port of call would certainly be the unit directly above, especially as there was a previous occurrence in this regard.

It is not acceptable for your neighbour to deny access to a plumber appointed by the managing agent to inspect their apartment and to simply deny responsibility. The managing agent should talk to the owner above and show them the pictures of the damage to your apartment. The request is for access for an appointed person (eg chartered surveyor or plumber) for a specific purpose. In light of the Covid-19 restrictions in force in 2020, assurances would need to be given that all appropriate health and safety procedures would be followed by any contractor entering the apartment.

If the owner upstairs refuses to allow access, then the OMC may need to invoke the lease agreement as signed by owners. Lease agreements normally permit the OMC to access an apartment in specific circumstances, for example if a leak is ongoing and damage is being caused to another unit. The managing agent, supported by a solicitor, would need to review this provision. Ultimately, the OMC can get a court order to get access to the unit upstairs and can force the owner to fix the leak. However, such remedies can be costly and time consuming so it is always better if the matter can be resolved amicably.

Who pays?

As regards who pays for the repair to ensure that the escape of water has been stopped and will not recur, and in relation to any consequent damage that was caused, obviously the facts will have to be established first. However, it may be that a claim can be made under the block insurance policy, either directly by yourself or via the managing agent. There is normally an excess in relation to claims for water damage on such policies and the level of this excess will depend on the claims history of your development. Such excesses can sometimes be significant. As such, an estimate will be required for the cost of the repair work to help to decide if it is worth pursuing a claim on this matter.

As well as having their properties covered on the block policy via the OMC, all apartment owners should also have a contents insurance policy. This includes cover for damage to their possessions, and includes public liability for damage or injury caused to third parties. These contents policies may also include specific cover for the block policy water damage excess.

Once the leak is fixed and dry for a period, your ceiling may require repainting. Hopefully, this cost will be included in the insurance claim. Given the existence of policy excesses, as mentioned above, and the fact that these quite small painting jobs can sometimes cause friction between neighbours, it can be useful for OMCs to have a small budgeted amount for such redecoration works as it is essentially an expense of living in a MUD and ultimately benefits all apartment owners over time.

While it is important to know the legal situation, a good managing agent will try to find practical solutions to issues that arise while maintaining good neighbourly relations. Goodwill between neighbours is often a crucial ingredient in solving such issues.

Finbar McDonnell is a chartered property manager and a member of the Society of Chartered Surveyors Ireland scsi.ie.

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