Dealing with Damp in an Apartment - who is responsible?

Recently, our offices were contacted by someone struggling with a damp problem in his flat.

Here is the text of his enquiry and the advice which he was given:

Question: I own a flat in Bloemfontein, and my flat and two others in the block have been badly affected by damp in the last year. It is an old building and so one can expect a certain amount of damp, but in this case it has become so severe that one of the tenants had to move out for medical reasons! Fungi were growing out of his walls!

The Body Corporate repaired the damp at the end of last year, after an engineer’s report was done. However, the problem has returned. Now the Body Corporate is back-peddling and saying that it is not their problem and that it was not really their responsibility to fix the damp issues the previous year. Is it my responsibility? I think they are objecting because of the extra costs involved and in the meantime I am losing my rental income as the flat is uninhabitable. Do you know whether it is my responsibility or the Body Corporate’s to fix the damp problem?

Answer: The first step is to get a copy of the engineers report as he is an independent qualified person and you will be able to see how severe your damp problem is and what is causing it. In 95% of cases I have witnessed over the past 8 years (100's of units), fungi is caused by lack of ventilation during humid and wet seasons. Once the fungus grows, it is difficult to kill it and it re-occurs. There are ways of reducing the possibility of the fungi growing back, like washing the walls and ceilings with white vinegar and hot water. Then the ceilings must be painted with matt road marking paint. If this is the situation, then you as the owner are responsible for the repairs. Putting in an extractor fan in the bathrooms is always helpful.

Just for your information, the following covers a court case regarding damp in a unit:-

The status of the walls will have to be determined. The Sectional Title plan approved by the Surveyor General and filled with the registrar of Deeds will provide the answers.

The outer part of the outer walls are beyond the median line of the wall and are defined in section 5(4) of the Act as common property, this is if this wall is not directly adjoining the neighbour’s wall (i.e. sharing the bricks).

There seems to be a lot of confusion in sectional schemes about damp; principle sources of water ingress into sections are through the roof, up from the foundations or through the outside walls. All of these are parts of the common property so the responsibility for fixing the problem rests with the Body Corporate. So far, so good – no confusion, no exceptions!

Section 37(1)(j) of the Section Titles Act requires the Body Corporate to maintain and repair the common property and every member is entitled to expect it to be done, even if it means raising a special levy. So that there is no misunderstanding about this, the owners of ground floor sections have the same responsibility to pay for roof repairs as the owners of sections on the top floor. Similarly, top floor owners have to pay a portion of foundation repairs. As all regular readers of these articles know, special levies for repairs, like all special levies, have to be raised according to owners’ participation quotas unless nominated values in terms of section 32 (4) of the Sectional Titles Act apply.

Not all cases are simple. Often the source of a leak is less obvious. The leakage may be from a pipe in the slab that forms the floor of one section and the ceiling of another, or in a wall between two sections. In such cases, if the pipe is “in transit” from one part of the building to another, or if the pipe serves more than one section, the Body Corporate may be responsible for the costs of repairs. On the other hand, if the pipe contains hot water, the owner of the section being serviced by the hot water is responsible for the repair and resulting damage. Any leakage within a section and damage caused by such a leak is the owner’s responsibility.

Leaking balcony floors are a major cause of confusion:

· Balconies can be parts of sections, in which case the section owner will be responsible for repairs.

· Balconies can be common property with rule protected exclusive use in which case the Body Corporate will be responsible.

· Balconies can be common property with registered exclusive use, in which case the 1977 “Solidatus” ruling in Witwatersrand Local Division of the Supreme Court will apply, and the section owner will be responsible.

Any section owner who suffers damage to the inside of his or her section, as a result of water seeping in from common property, is entitled to claim the costs of repairs from the Body Corporate. If the leak originates in another section, the owners of that section will be responsible for the costs.

Some Body Corporates try to delay implementation of common property repairs to allow time to raise sufficient funds. This is a very dangerous practice that can result in even more damage through the roof and down the internal walls of a section; the Body Corporate must repair the roof, replace the ceiling and pay for the repairs to the owner’s walls. If the roof continues to leak, the Body Corporate may have to pay for replacement of carpets and the contents of built-in cupboards. Water may get behind the wall tiles in a bathroom or kitchen, making it necessary to re-tile the walls and possibly the floor. In extreme cases, the timber trusses that support the roof may swell, twist or split and have to be replaced.

Repairs to common property are not discretionary – they are mandatory. If the Body Corporate reserve fund is too low to carry out the repairs, it will have to raise a special levy. The repairs must be done as soon as is possible. It cannot ask any owner to repair “their” roof, as all the roofs are common property and are the collective responsibility of all the owners.

Although the findings in this case has to be taken in the particular situation that was prevalent at the time. There have been other cases with a different outcome as the original damp situation was different.

In conclusion, the most important thing to do in the case of damp in a Sectional Title property is to get the engineer’s report and his findings. Photographs will also be of assistance.

Lilian Waldeck

Imber Property Management

084 421 0970

lilian.imber@cch.co.za

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