Question:
We manage stack units, where the geysers of two units are in the roof of the top unit. I now have the situation where the burst geyser is still under guarantee, so there will be no excess for the owner to pay for the geyser. However, the unit underneath his unit, has consequential damage and the excess for that is R1500, which he refuses to pay. He will only pay the excess if I can show him in the Act where it stipulates that he must pay for the consequential damage of the other owner.  My view is that the owner downstairs would not have had the damage if his geyser did not burst?!

I am not sure from your description if the attorney is the owner of the top or the bottom unit. However PMR29(4) says the owner of a section is responsible for the excess of any claim affecting his section. Therefore the affected unit owner must pay the excess. He may however try and recover this amount by a private legal action against the owner of the section that is served by the burst geyser. I hope Graham agrees.

I confirm that I agree with the member’s answer. PMR 29(4) applies and the owner whose section is damaged must pay the excess (assuming no contrary special resolution has been taken) and then claim the amount back from the owner who is responsible for the maintenance and repair of the geyser.

I wish to inquiry on behalf of the trustees, as there is a unit being sold in our complex but the new owner has written to us and complained that in the storeroom at the back of the garage there is rising damp.

These units were built in 1981 and the previous owner of this unit had been living there for 20 years, in all this time she never once complained that there was rising damp.

The trustees must first find out whether this is in fact a case of rising damp, i.e. moisture coming up from the common property foundations, rather than some other form of damp problem, such as internal condensation. If, for example, the area is used to operate a washing or drying machine, you may find that the dampness is not related to a defect in the common property but to high internal levels of humidity and inadequate ventilation, and are therefore not the responsibility of the body corporate.

I recently had a case of rising damp in a unit belonging to a trustee and the body corporate was presented with various quotes for rectification. On inspection it was found that there was a brick paved apron along the outside of the wall where the damp showed internally. There were a number of plant pots standing on this apron, all receiving a regular watering resulting in a degree of ponding. Would it be correct to suggest that the owner had contributed to the problem and should therefore carry a share, if not all of the costs of the internal repair while the body corporate addressed the external waterproofing?

I have no doubt that a lawyer acting for the BC in these circumstances would support your suggestion, on the basis and assuming it was shown that the owner’s action in over-watering the pot plants was the direct cause of the excess moisture that damaged his or her section.