Who Pays for Resultant Damage in Sectional Title?
By Jennifer Paddock
The question of who is responsible for resultant damage is one of the most common, and often misunderstood, issues in sectional title schemes.
Consider this familiar scenario: a leaking shower base in one section causes damage to the ceiling of the section below. Who is responsible for repairing, and paying for, that damage?
At first glance, the answer may seem obvious. But in sectional title, the legal position is more nuanced.
A Common Misunderstanding
There is a widely held belief that the person responsible for the source of a problem is automatically responsible for the resultant damage.
This is not correct.
The confusion arises because the law distinguishes between:
- the statutory obligation to repair and maintain property, and
- legal liability for damages
To determine who ultimately bears the cost, we must consider two distinct legal frameworks.
- The Statutory Framework (the STSMA)
Under the Sectional Titles Schemes Management Act 8 of 2011 (STSMA), responsibility for repair and maintenance is determined purely by location, not by cause.
In simple terms:
- The body corporate must maintain and repair common property [section 3(1)(l)]; and
- Each owner must maintain and repair their section [section 13(1)(c)].
This means that if part of your section is damaged, you are responsible for repairing it, regardless of how the damage occurred.
- The Common Law Framework (Delict)
While the STSMA tells us who must do the repairs, the law of delict determines who must ultimately pay, where the damage was caused by someone else.
To succeed in a delictual claim, the affected party must prove:
- a wrongful act or omission;
- fault (usually negligence);
- causation; and
- resulting loss.
In practical terms, this means you can only recover your repair costs from another party if you can prove that they were negligent.
Why This Distinction Matters
The distinction between who must fix, and who must pay is critical because it leads to an often surprising outcome.
You may have to pay upfront to repair your own section, even if someone else caused the damage.
Only thereafter can you attempt to recover those costs, if you can prove fault.
Applying the Law: The Leaking Shower Example
Returning to our example: A leaking shower in an upstairs section damages the ceiling of the section below.
Under the STSMA, the owner of the section below must repair their ceiling. This is because the ceiling forms part of their section, which they are obliged to maintain and repair [section 13(1)(c)].
Under the common law of delict, the downstairs owner may have a claim against the upstairs owner. But only if they can prove that the leak was caused by the upstairs owner’s negligence (for example, a failure to maintain the shower)
If the leak occurred without negligence (such as a sudden or unforeseeable failure) the downstairs owner may have no claim and must bear the cost themselves.
Where Does Insurance Fit In?
In practice, many of these situations are resolved through insurance.
Typically, the body corporate’s policy covers resultant damage to sections and claims are often processed without requiring proof of fault, subject to policy terms.
However:
- Excesses must be allocated
- Some claims may be rejected
- Not all damage is covered
And importantly, insurance does not change the underlying legal principles. It simply provides a practical mechanism for funding the repairs.
Conclusion
The key principle regarding resultant damage is this:
- Maintenance and repair responsibility is determined by the STSMA (i.e., location).
- Liability for damage is determined by delict (fault).
Understanding this distinction helps trustees, managing agents, and owners approach these situations with the right expectations and avoid one of the most common sources of dispute in sectional title schemes.
_________________________________
Article reference: Paddocks Press: April 2026, Volume 21, Issue 4
This article is published under the Creative Commons Attribution license.
Recent Comments