A Property24 reader asks:

 

I am the owner of a flat in a sectional title block and have been for the last 18 years. In the last year, there has been water leakage from the flat above into my flat on two occasions, the last resulting in flooding of the bathroom, toilet, both the bedrooms and the lounge. 

The Insurance assessor has been in and the quotes for repairs to the damages have been accepted. On commencement of the work, it was discovered that there was still water leaking from above. The owner above is refuting this and refuses to take responsibility for his plumbing and do the required repairs. 

Since he is very difficult to deal with, the Chairman of the Body Corporate and the Managing Agents have said that they can no longer help me and I must liaise with this owner directly. He is exceptionally difficult and rude and has put the phone down on me when trying to sort the problem out previously. 

Please can you let me know how I am able to legally proceed with this issue?

Phil Calothi, owner and Managing Director of the Cape Town based managing agent company,     Land and Sea Development Services (Pty) Ltd    , advises:

If the water is coming through your roof slab, the owner of the unit above is responsible. There is no common property separating your unit from the unit above and, therefore, the Body Corporate cannot be held responsible.

The only way that the Body Corporate could have any involvement would be if the leak in the unit above is coming from the service shaft delivering the water to the unit above.

I find it odd that your neighbour above is not dealing with the leak in any event as it would surely be causing him similar discomfort and damage so it is extremely important to establish precisely what the cause of the leak is before taking legal action against him. Due to this oddity, there is a possibility that the Body Corporate could be responsible.

I would recommend the following course of action:

  1. The Body Corporate has a right of access into all units for maintenance purposes so ask your managing agent to urgently inspect the unit above and advise you as to what the cause of the leak is.
  2. If the leak is coming from the service shaft, the body corporate should fix it immediately.
  3. If the leak is coming from an installation in the unit above, the body corporate should ask the owner for permission to fix it immediately on his behalf, failing which the body corporate should advise you immediately so that you can engage your attorney to serve the owner with the necessary demands and claims against him.

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