Leak from section above enquiry

Leak from section above to section below – Is this an insurance claim?

This is an actual, recent question from a client along with our response to this common enquiry:

Enquiry:

We have the following problem, which we need to resolve, as the one owner A has threatened legal action.

Owner A suffered damage to his apartment due to a leak from the apartment above (named B). The leak was found to be in the slab in between the two sections, originating from beneath the shower in section B above.

Owner B has since repaired the leak. Owner B has repaired his resultant damage.

1. Is this an insurance claim?
2. Can Owner A now seek recovery of his loss from Owner B?
3. I assume it has nothing to do with body corporate as it is a matter between the two section owners?

Our response to the 3 questions posed:

Question 1: If the resultant water damages to A below were ‘sudden’ (dry one minute and sopping wet the next), an insurance claim can be submitted for the insurer’s consideration. However, if the resultant damages were more gradual (slow ongoing process each time the shower was used – multiple leak events), then the circumstances, unfortunately, do not qualify as an insurance claim.

Questions 2 & 3. If no insurance claim is submitted or the insurer rejects the claim on the above basis, Owner A is entitled to take legal steps against B for recovery of the loss amount suffered due to failed shower waterproofing/waste trap in the slab between them. This is a personal/private matter between individual owners and trustees need not involve themselves in this. Only the median line (middle of the slab) separates the two sections and no common property is involved.

If a claim is to be submitted, it should be done within 30 days of the water/flooding event, failing which, the claim is compromised. As a rule, leaks of any nature are typically not covered by insurance policies.

Notwithstanding the above, if this event is recent, we invite that a claim be submitted to allow the insurer to consider the resultant water damages on the merits presented.