Help! It’s raining in my apartment

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Contributed by Datuk Chang Kim Loong

IF you live in a high-rise building and have an inter-floor leakage problem, rest assured you are not alone. Water leakage is one of the most common issues faced by apartment dwellers.

While the leakage may appear only in a particular parcel, the source of the leakage may be from the unit above or even elsewhere. The cooperation of more than one party is therefore required, without which the problem can’t be solved.

The first step is to pinpoint the source of the leakage. Next, who will be responsible for the repairs? But how do you know who is responsible before the cause of the problem is ascertained?

Section 142 of the Strata Management Act 2013 (SMA) states that if the leakage is on the ceiling, then it is presumed to be from the unit above unless proven otherwise.

So, if your ceiling is leaking, inform your upstairs neighbour that he/she is responsible for rectifying the problem. What if your neighbour is uncooperative? Simple, just quote Section 142 of the SMA.

But the law does not place full responsibility on your upstairs neighbour. Then, who is responsible?

In dealing with inter-floor leakage, you must not only look at Section 142 of the SMA but also Part XV of the Strata Management (Maintenance & Management) Regulations 2015 (SMR).

Indeed, it is Part XV of the SMR which tells you what to do if you discover dampness, moisture or water penetration from your ceiling -- or you find that it is raining in your apartment!

If the leakage occurs during the defects liability period, the property developer is required to rectify the problem because it is provided for in the statutory sale and purchase agreement (SPA).

First in the line of responsibility

If the leakage is not covered by the SPA, then the owner of the affected unit may serve notice on the developer or the joint management body (JMB), management corporation (MC) or the subsidiary management corporation (sub-MC).

This is provided for in regulation 56(1) of the SMR, which lets you serve notice on the body responsible for the maintenance and management of the common property. So, the party first in the line of responsibility is not your upstairs neighbour but the management.

Once notice is received, the management must within seven days carry out an inspection to determine the cause of the leakage and the party responsible for rectification (regulation 57). Later, the management must issue a “Certificate of Inspection” stating the cause of the leakage as well as the party responsible for repairs (regulation 59).

What then is the purpose of Section 142? This section merely creates a presumption that the defect lies in the unit above. In practical terms, this does not resolve any inter-floor leakage issue other than being a starting point for inspection. After all, the leakage cannot be rectified until and unless the actual defect is identified.

Determining factors

Under regulation 58 of the SMR, the management must take into account the following matters once the defect is identified:

(1) that any defect in something which serves more than one parcel is a common property defect; and

(2) that any defect in something which serves only one parcel is a defect of that particular unit even though that something is situated within a common property or in void space.

The determining factor is not the location of that defective something but which parcels it serves. If it serves just one parcel, that unit owner is primarily responsible and must rectify the defect, failing which the management shall carry out the rectification works and charge the expenses to that owner.

The decision of the management is, as expected, not final. Anyone not satisfied with a decision made against him/her may refer to the Commissioner Of Buildings (COB) who shall ascertain the cause of the leakage and the party responsible, in accordance with regulation 64(1) & (2). The decision of the COB shall be complied with by all parties.

Grant access or risk prosecution

It goes without saying that neither inspection nor rectification works can be carried out without access to all relevant parcels and common property. Hence, the imposition of a statutory obligation on all relevant parties to give access, as provided for by regulation 63(1) of the SMR, comes as no surprise.

Whoever fails to give access to those carrying out the inspection commits an offence and faces a maximum fine of RM50,000 or a jail term of up to three years or both, under regulation 63(2).

These provisions are a step in the right direction, given that the lack of cooperation from some parcel owners or occupants has remained a main cause of delay in resolving inter-floor leakage problems.

Cynics out there may brush this aside as something unlikely to be enforced. But do you want to take the chance and risk prosecution over not giving access for inspection or rectification?

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