A Guide to Preventing & Fixing Water Ingress in Strata Properties

Introduction

Water ingress is a leading cause of disputes and costly repairs in strata properties, affecting both owners corporations and individual lot owners. Understanding how legal responsibilities are divided in strata schemes is essential for preventing damage, managing repairs, and avoiding unnecessary conflict.

This guide explains the legal framework for strata water ingress, clarifies who is responsible for repairs, and provides practical steps to protect your property and your rights within a strata community.

Interactive Tool: Check Who Is Responsible for Your Strata Water Leak & Damage

Understanding the Legal Responsibilities for Strata Water Ingress

The Owners Corporation’s Strict Legal Duty to Maintain Common Property

Under Section 106 of the Strata Schemes Management Act 2015 (NSW), the Owners Corporation (OC) has a fundamental duty to manage the common property. This is a strict and absolute legal obligation, interpreted by the courts as a strict liability duty. As a result, the OC must repair defects in common property regardless of the cause.

The OC is required to act immediately once an issue arises. Notably, excuses such as a lack of funds, delays in passing resolutions, or not knowing about the defect are not considered valid legal defences for failing to act.

The core responsibilities of the OC include:

• Properly maintaining common property: This involves proactive and preventative measures to keep shared areas and structures in good condition.
• Keeping common property in good and serviceable repair: When something breaks or deteriorates, it must be fixed promptly to restore its function.
• Renewing or replacing fixtures and fittings: As parts of the common property wear out over time, such as waterproofing membranes or pipes, they must be renewed or replaced as necessary.

This duty is owed to every lot owner within the strata scheme. If the OC fails in this duty, it can be held liable for any reasonably foreseeable losses an owner suffers as a result of the breach.

The Lot Owner’s Legal Responsibility for Their Private Lot

While the Owners Corporation is responsible for common property, individual lot owners have a corresponding legal duty for their own property. Section 126 of the Strata Schemes Management Act 2015 (NSW) requires owners to maintain their lot to prevent their actions or inactions from damaging common property or any other lot. If a water leak originates from within the airspace of a private lot, the responsibility for the repair falls to the owner.

A lot owner’s maintenance responsibilities generally cover several key areas within their unit, including:

• Internal Plumbing and Fixtures: This covers leaks from taps, toilets, shower heads, and sinks, as well as the pipes that connect these fixtures to the main utility lines.
• Appliances and Hoses: Owners are responsible for any leaks from appliances they own, such as dishwashers and washing machines, including the flexible hoses that connect them.
• Bathroom and Wet Area Maintenance: This includes ensuring that the waterproofing and silicone sealants around showers, baths, and laundries are intact and in good condition to prevent seepage.
• Internal Finishes: Damage to items like paint, plasterboard, carpets, and floating floorboards within the lot is the owner’s responsibility.
• Personal Contents: Any damage to personal belongings, including furniture, electronics, or vehicles, must be covered by the lot owner’s own contents insurance policy.

Common Causes & Sources of Water Leaks in Strata Properties

Failures in Roofing & Rainwater Systems

Defects in a building’s roofing and guttering systems are among the most frequent causes of water ingress, particularly during periods of heavy rain. Since these elements form the primary defence against weather, any failure can lead to significant internal damage. As parts of the common property, the legal responsibility for their maintenance and repair almost always rests with the Owners Corporation.

Common issues that lead to leaks from these systems include:

• Deteriorated Materials: Over time, materials can break down. This includes deteriorated roof flashing, cracked tiles, or rusted metal sheeting that allows water to penetrate the building structure.
• Failed Seals: Seals around roof penetrations, such as vents or skylights, can fail, creating entry points for rainwater.
• Blocked Gutters and Downpipes: When gutters and downpipes become clogged with leaves and debris, water can overflow and seep into walls and ceilings, causing widespread damage.

Plumbing Issues & Pipework Failures

Water damage in a strata property often originates from the complex network of plumbing that runs throughout the building. Legally, the source of the leak determines who is responsible for the repairs. Leaks from common property pipework are the Owners Corporation’s liability, while those from fixtures within a lot are the owner’s responsibility.

Plumbing failures can be traced to several sources:

• Common Property Pipes: Burst or leaking pipes located within boundary walls, concrete floor slabs, or other shared areas are a common cause of water ingress affecting multiple lots.
• Lot Property Fixtures: Within an individual lot, issues such as dripping taps, leaking toilets, or failed flexible hoses connected to washing machines and dishwashers are the lot owner’s responsibility to maintain and repair.
• Blocked Drains: Blockages in the plumbing system can cause water to back up and overflow, leading to damage in both individual lots and common areas.

Waterproofing Deficiencies in Balconies & Wet Areas

The failure of waterproof membranes is a significant and persistent cause of water ingress in strata buildings. These failures are particularly common in wet areas and on balconies, often leading to complex legal disputes over liability. Waterproofing defects are noted as the most commonly occurring serious defect in strata properties.

Key areas of concern for waterproofing include:

• Balconies: The waterproof membrane located beneath the tiles of a balcony is typically considered common property. A failure in this membrane, often indicated by cracked tiles or grout, is a frequent source of leaks into the lots or common areas below, making it an Owners Corporation responsibility.
• Internal Wet Areas: While the Owners Corporation is responsible for membranes that are part of the common property structure, lot owners are generally responsible for the waterproofing within their own bathrooms and laundries, such as ensuring silicone sealants are intact.
• Failed Sealants: Deteriorated or improperly applied sealant around window and sliding door frames can also compromise the building’s waterproof seal, allowing wind-driven rain to penetrate the property.

Issues with the Building Structure Windows & Cladding

Water can also enter a property through failures in the core building structure itself. External walls, windows, and cladding are generally defined as common property, which places the legal responsibility for their maintenance and repair on the Owners Corporation.

Structural sources of water ingress often involve:

• External Walls and Foundations: Water can seep through cracks that develop in external walls or foundations, leading to issues with dampness and mould inside the building.
• Cladding Systems: Poor installation, unsealed joints, or deterioration of cladding materials can allow water to get behind the building’s outer skin, damaging internal walls and framework.
• Windows and Glazing: Improperly sealed window frames are a common entry point for water. Glazing systems must comply with Australian Standards, such as AS2047, to ensure they are fit for purpose and can resist water penetration under various weather conditions.

A Proactive Legal Approach to Preventing Strata Water Damage

A Prevention Checklist for the Strata Owners Corporation

Key preventative actions for the Owners Corporation include:

• Annual Roof & Gutter Inspections: A qualified roofer should be engaged to conduct yearly inspections. These checks should look for cracked tiles, rusted metal sheeting, and any deteriorated flashing or seals that could allow water to enter the strata building.
• Regular Gutter & Downpipe Cleaning: It is essential to clear gutters and downpipes of leaves and debris at least twice a year, particularly before the storm season. This prevents blockages and overflows that can force water into the roof cavity or down external walls.
• Façade & Window Sealant Checks: The sealant around window frames and building joints should be inspected regularly. Budgeting for the replacement of these seals every 7–10 years is crucial for maintaining a weatherproof exterior and preventing leaks.
• Drainage & Stormwater System Maintenance: All common property stormwater drains, pits, and grates must be kept clear of blockages. Ensuring proper water flow away from the building is vital to prevent water from pooling and seeping into the structure.
• Balcony & Planter Box Audits: Routine audits of balconies and planter boxes can identify cracked tiles or failing grout. These are often early warning signs of a compromised waterproof membrane, which requires immediate attention to prevent leaks into lots below.

A proactive maintenance schedule for all common property helps prevent water ingress, avoids costly future repairs, and demonstrates that the strata scheme is fulfilling its statutory duty to properly maintain the building. A well-managed plan is the best defence against water damage in strata properties.

A Prevention Checklist for Strata Lot Owners

A personal prevention checklist should include:

• Inspect Bathroom & Laundry Sealants: Regularly check the silicone sealant around showers, baths, and sinks. If it appears cracked, mouldy, or is peeling away, it must be removed and replaced to prevent water from seeping into wall cavities and floors.
• Check Appliance Hoses: Flexible hoses for washing machines and dishwashers should be inspected for bulges, rust, or cracks. These hoses have a limited lifespan, often five to ten years, and should be replaced periodically to prevent a sudden burst.
• Address Leaks Promptly: Dripping taps or continuously running toilets should be repaired without delay. These seemingly minor issues can waste water and may indicate a more significant plumbing failure is imminent.
• Know Your Water Shut-Off Valve: Every lot owner should know the location of their main water shut-off valve, often called a stopcock. This allows you to quickly stop the water flow in an emergency, such as a burst pipe, minimising damage to your strata unit.

While the Owners Corporation is responsible for common property, lot owners also have a crucial role in preventing water damage. Maintaining items within a lot is not only good practice but also a legal requirement to avoid causing damage to neighbouring lots or common areas of the strata property.

Your Legal Action Plan for Reporting & Fixing Strata Water Leaks

Immediate Steps to Preserve Your Position

When you discover a water leak, taking immediate action is essential not only to minimise the physical damage but also to preserve your legal position. Any party seeking to claim damages has a legal duty to mitigate their loss, which means taking reasonable steps to prevent the situation from worsening. Failure to do so could impact a future compensation claim.

Initial practical steps should include:

• Contain the water: Use buckets and towels to catch dripping water and prevent it from spreading to other areas of your strata property.
• Protect your belongings: Move furniture, electronics, and other valuables away from the affected area to prevent damage.
• Ensure safety: If water is near electrical points, turn off the electricity at the circuit board, but only if it is safe to do so.
• Shut off the water supply: If the source is clearly within your lot and accessible, such as a burst flexible hose, use the main water shut-off valve (stopcock) to stop the flow.

Formally Reporting Water Ingress to Put the Strata Committee on Notice

After taking immediate steps to control the situation, you must formally report the issue to the strata manager or the strata committee. While a phone call can be a good starting point, it is legally crucial to follow up with a detailed written notice, typically via email. This action creates a formal, dated record that officially puts the Owners Corporation on notice and triggers its legal duty to investigate and act under the Strata Schemes Management Act 2015 (NSW).

Your written report is a critical piece of evidence for any subsequent legal action and should include the following details to be effective:

• Your contact information: Provide your full name, lot number, and the best way to contact you.
• Date and time of discovery: Note when you first noticed the water ingress.
• Specific location: Clearly describe where the leak is occurring, for example, “the ceiling in the second bedroom above the window.”
• Description of the damage: Detail the extent of the problem, mentioning issues like dripping water, stained plasterboard, soaked carpets, or visible mould.
• Suspected source: If you have an idea of the origin, such as the roof during heavy rain or the apartment above, include this information.
• Visual evidence: Attach clear photos and videos of the leak and any resulting damage to support your report.
• Formal request for action: State that you are requesting the Owners Corporation to investigate and repair the issue as per its duty under Section 106 of the Strata Schemes Management Act 2015 (NSW).

Understanding Liability for Consequential Damage

A common point of dispute in a strata scheme is who is responsible for the consequential damage caused by a leak. Once the source of the water ingress is identified as common property, the Owners Corporation is legally responsible for arranging and paying for the repair of that source. However, the liability for the resulting damage to an individual lot is divided.

This division of responsibilities underscores the importance for every lot owner to have their own contents insurance policy. The repair obligations are typically split as follows:

• The Owners Corporation is responsible for:
  • Repairing the source of the leak on common property.
  • Fixing damage to other common property elements.
  • Repairing the basic structure of the lot, such as the raw plasterboard on a ceiling or structural timbers.
• The lot owner is responsible for:
  • Repairing or replacing internal finishes like paint, wallpaper, carpets, and floating floorboards.
  • Covering the cost of damage to personal contents, including furniture, electronics, and other belongings.

Legal Protocols for Managing Urgent Repairs & Water Emergencies in Strata

The Emergency Powers of the Owners Corporation

Under the Strata Schemes Management Act 2015 (NSW), the Owners Corporation has special powers to address emergencies, such as a burst pipe or severe flooding. In situations where there is a threat to the health or safety of residents, it can authorise urgent repairs to common property without needing to convene a committee meeting.

This authority allows the strata scheme to act decisively in protecting the building and its occupants. Key emergency powers include the following:

• Bypassing Quote Requirements: In emergencies, the standard requirement to obtain at least two independent quotes for work valued over $30,000 does not apply, allowing immediate engagement of contractors to manage severe storm damage or burst pipes.
• Rapid Fundraising: To cover the unexpected costs of urgent works, the Owners Corporation can issue a special levy to all owners with only 14 days’ notice to pay, ensuring funds are available quickly.

A Lot Owner’s Right to Arrange Urgent Strata Repairs

A lot owner has a limited right to arrange urgent repairs to common property and seek reimbursement from the Owners Corporation. This right applies only in genuine emergencies where there is a serious risk to property and the strata manager or a committee member is unreachable.

To be eligible for reimbursement, the owner must prove that the action was necessary and reasonable under the circumstances. The conditions for reimbursement are strict and require the owner to demonstrate that:

• The issue was time-sensitive, posing an immediate risk of further damage.
• Reasonable attempts were made to contact the strata manager or a member of the strata committee before taking action.
• The work authorised was strictly limited to what was necessary to make the situation safe or prevent further damage, rather than constituting a comprehensive or permanent repair.

Your Legal Recourse When the Strata Owners Corporation Fails to Act

Legal Remedies Available to Strata Lot Owners

When an Owners Corporation fails to fulfil its duty to repair common property, lot owners can seek legal recourse through the NSW Civil and Administrative Tribunal (NCAT). There are three primary remedies available to enforce your rights and seek compensation for any losses suffered.

The main legal remedies you can pursue include:

• Injunctions: You can apply to NCAT for an order, known as an injunction, that legally compels the Owners Corporation to carry out the necessary repair work. For this to be successful, the order must be specific and include a detailed scope of works, which typically requires a report from a qualified expert.
• Damages: A claim can be made for financial compensation for any reasonably foreseeable losses incurred due to the breach of duty. This can cover a range of costs, such as lost rent if the property is uninhabitable, alternative accommodation expenses, and the cost of repairing or replacing damaged personal contents like carpets and furniture.
• Appointment of a Compulsory Strata Manager: In severe cases where the Owners Corporation consistently fails to perform its duties, NCAT has the power to appoint a compulsory strata manager. This manager effectively acts as an administrator, taking over the functions of the strata scheme to ensure the required repairs are organised and completed.

How to Build a Strong Legal Case for Water Leaks & Defects

To succeed in a claim against your strata scheme at NCAT, you must present a well-documented and robust case. Simply stating that a leak exists is not enough; you need to provide clear evidence to support your application for repair orders or compensation.

Key elements required to build a strong legal case include:

• Proof of Ownership: You must be the current owner of the lot at the time you file the claim.
• Identification of the Defect: You need to pinpoint the specific defect in the common property that is causing the water ingress. This usually requires a professional report from a qualified expert, such as a building consultant or hydraulic engineer.
• A Clear Scope of Works: To obtain an order for repairs, you must provide a detailed scope of works that outlines exactly what needs to be done to fix the problem. This should be based on the recommendations from your expert’s report.
• Evidence of Financial Loss: If you are claiming damages, you must provide documented proof of your losses. This can include invoices for repairs, quotes for replacing damaged items, rental ledgers showing lost income, or receipts for alternative accommodation.

The Critical Two-Year Limitation Period for Claims

It is crucial to act promptly when pursuing a claim for damages against the Owners Corporation. Under the Strata Schemes Management Act 2015 (NSW), there is a strict two-year limitation period for filing a claim for compensation.

This two-year period begins from the moment you first become aware of the loss you have suffered. For instance, if a water leak makes your investment property uninhabitable, the clock starts running as soon as you realise your tenant will no longer be paying rent.

You must initiate legal action in NCAT within this timeframe; simply notifying the strata manager of your intention to claim is not sufficient. Failure to file your application within two years will likely result in your claim being barred.

Conclusion

Effectively managing water ingress in NSW strata properties hinges on understanding the legal duties of the Owners Corporation and lot owners as defined by the Strata Schemes Management Act 2015 (NSW). From proactive maintenance and identifying leak sources to formally reporting issues and managing urgent repairs, a clear action plan is essential for protecting your property.

For trusted expertise in navigating complex water ingress disputes or clarifying your rights under strata law, contact PBL Law Group’s specialist strata dispute lawyers today. Our strata lawyers will help you resolve your matter effectively and protect your property.

Frequently Asked Questions (FAQ)