Property Clinic: Is OMC liable for leak in my apartment?

Q. I have a semi-solid floor in my apartment (2nd floor) which appears to have rotted in one area due to a leak from below an external patio door to my external balcony area. The management company advise that this is not covered under the apartment block insurance and therefore they have no liability. The doors have not been inspected or maintained since new and I wonder if the management company are in fact liable due to a lack of maintenance?

They suggested I contact my own insurers where I don’t appear to be covered, nor would I wish to make a claim in any case as this may affect my premiums.

A. This is quite a complex issue that touches on a number of different areas. In the first instance it raises the question of insurable risk, proximate cause and consequential damage and in the second instance the responsibilities of an owners’ management company and apartment owner.

With regard to insurance, claims against a property policy are typically linked to an insurable risk such as fire, floor, burst pipe, impact, storm etc. Insurance does not cover certainties only uncertainties. From the information provided, it would appear that the leak occurred over a period of time and due to wear and tear or lack of maintenance of some of the building fabric. Wear and tear items or neglect of a building are typically excluded under property insurance as is the consequential damage caused by it.

Another matter for consideration when you are looking at apartment block policies is that the management company is required to cover insurable risks and damage to fixtures and fittings. One could argue that the wooden floor was not installed nor is owned by the owners’ management company and therefore should not be theirs to insure. In many situations apartment insurance policies cover items that are not the owners’ management company responsibility such as internal decoration, fixed floor coverings, bathroom fixtures and fittings, fitted wardrobes and kitchens.

With regard to the maintenance of the balcony doors, this falls to the wording of the long leasehold title of the apartment which determines the responsibility of owners’ management company (lessor) and apartment owner (lessee). Windows and their frames have long been a bone of contention and can differ from lease to lease. In general terms, “frames and the glass therein” are often the responsibility of the apartment owner and it usually falls on each individual owner to repair, replace and renew their windows subject to restrictive covenants preventing any changes to the external appearance and subject to permission of the owners management company.

In the event that the owners’ management company is responsible for the window frames, it also raises a question of reasonability in expecting it to inspect all windows in the estate when they do not have free access to them and the reasonability on your part as to whether you should have noticed the matter sooner and brought it to their attention.

In any owners management company it is important that there is some knowledge regarding responsibility for the different parts of the building fabric and realistic expectations on the ability of the owners’ management company and owners to inspect and take action to prevent damage as prevention is always better than a cure.

Paul Mooney is a Chartered Property Manager and member of the Society of Chartered Surveyors Ireland, scsi.ie