The inescapable reality of property ownership is that damage to it can and does occur. Who is liable when that occurs?
In the case of freehold property i.e. homes that are not part of a sectional title development, the answer is straightforward. The owner is responsible for the maintenance and upkeep of the entire structure built on his property, both the inside and the outside thereof.
Cluster developments invariably have homeowners associations who are responsible for the management of the development. These associations bear no responsibility for the maintenance of homes in the development or for any damage that may occur to them.
The sectional title scenario is very different.
The general rule is that the body corporate of a sectional title scheme, managed by the trustees, is responsible for the maintenance and upkeep of the common property in that scheme.
What is common property?
Common property is the land and buildings that don’t form part of the sections in the scheme. It also includes the exterior of sections i.e. walls and roofs. Usual maintenance of this part of the common property would include repairs to leaking roofs or the repainting of the outside walls.
The interior of a section, on the other hand, is the owner’s sole responsibility. The cost of repairing any damage to it would be for his account.
What is the position if a roof leak and the interior of that section is damaged as a result of that leak?
The owner would not be responsible for repairing the damage to the inside of his section if it is shown that the damage he suffered was the direct result of that leak(resultant loss). The cost of those repairs would then be for the body corporate’s account. The damage is treated as being directly linked to a defect for which the body corporate is responsible.
Assume an owner who has had a roof leak repaired by the body corporate, subsequently claims he has suffered loss as a result of that damage (consequential loss), for example, an expensive artwork was warped as a result of water leaking down the wall.
The Sectional Titles Schemes Management Act does not define consequential loss nor does it prescribe who is liable for such loss. One must therefore look to the common law for the answer.
The enquiry then is: was there a causal connection between the leaking roof and the damage to the painting? If the answer is yes, the body corporate is liable.
If the connection cannot be established the owner would have to carry the costs of repairing the painting.
Both the owner and the body corporate may of course find relief in insurance cover that may exist in respect of the section or its interior.