Leaky apartment problem

Question from Agnes updated on 23rd May 2014:

We own an apartment on a cross lease. The apartment above us leaks into our kitchen, we think it is from the deck above. We have repaired our bathroom and laundry below periodically but now are looking for a permanent repair from above. The other owners refuse to do anything. We have no body corporate structure to ask for help. We also have the same leaking issue but our ingress goes into our garage and is not impacting anyone but us. Our garage walls are concrete block, we simply wipe up any water whereas our internal walls in the bathroom and laundry need constant repairing from the leak above. We also wish to repair our problem but the other owners have forbidden any structural work to be carried out. Our builder has suggested some structural work as a means to permanently fix. Any advice is appreciated. We have a basic 1970s/80s cross lease agreement with no added clauses.

Our expert Leanne MacKenzie responded:

Based on the information supplied it appears the damage to both areas of your apartment is being caused by structural design defects in the building itself. Unfortunately this type of damage is excluded on all home insurance policies. Depending on your policy (and assuming you are insured) the resultant damage to other parts of the property when the original event happened may have been covered, but only if it was a sudden and accidental. When the loss first happened, there was probably not any real damage caused but now this has festered over time and is therefore classed as gradual damage. Most policies do provide a limited amount of cover for hidden gradual damage but only in certain situations (i.e. leaking from hidden internal water pipe and water systems etc) and unfortunately the type of damage you have sustained does not appear to fall into this category. Whilst there may be no obligation in your cross lease there should be a common law duty of care owed by the owner of the apartment above not to cause damage to its neighbouring apartments, and therefore this is more of a legal issue than an insurance issue.

Leanne MacKenzie has over 25 years experience in the New Zealand personal property insurance industry. As personal lines manager for Crombie Lockwood she has been instrumental in introducing the important changes that have been made in the sector over the last 12 months. “Every property owner owes it to themselves, as a landlord and a homeowner, to understand the new regime.” Leanne is based in the company’s national office in Auckland.

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