AVAILABLE REMEDIES TO A PARCEL OWNER AFFECTED BY INTER-FLOOR LEAKAGE

Over recent years, urbanisation has led to an increase in the population living in high rise buildings in Malaysia. Undoubtedly, high rise residential development has offered a few key benefits to the parcel owners. However, concurrently, it also poses some concerns for the parcel owners. One of the common issues faced by the parcel owner is inter floor leakage. 

This article discusses the remedies available to the parcel owners regarding the issue of inter floor leakage. 

The Strata Management Act 2013 and the Strata Management (Maintenance and Management) Regulations 2015

The Strata Management Act 2013 (hereinafter referred to as “SMA 2013”) repeals the Building and Common Property (Maintenance and Management) Act 2007 (hereinafter referred to as “BCP 2007”) with the intention of resolving the problems associated with BCP 2007. The by-law, Strata Management (Maintenance and Management) Regulations 2015 (hereinafter referred to as “SMR 2015”) was drafted pursuant to Section 150 of SMA 2013. SMR 2015 came into force on 2 June 2015. It provides a more comprehensive solution to the problems regarding the maintenance and management of strata building and common property. 

Regulation 55 to 64 SMR 2015 has outlined the procedures, timelines and obligations of the relevant parties in regard to inter-floor leakage. 

Definition of inter-floor leakage

According to Regulation 55 of SMR 2015, the inter-floor leakage is defined as any evidence of dampness, moisture or water penetration on the ceiling or on any furnishing material, including plaster, panel or gypsum board attached, glued, laid or applied to the ceiling which forms part of the interior of a parcel, common property or limited common property, as the case may be. This also includes an accessory parcel that is used or intended to be used together with a parcel. 

Remedies available to the parcel owners affected by inter-floor leakage Under SMR 2015 

In the event of a parcel owner whose parcel is affected by inter-floor leakage, a parcel owner shall promptly give a notice to the developer, joint management body, management corporation or the subsidiary management corporation (hereinafter referred to as “the Management”), as the case may be. 

The Management shall, within seven (7) days from the date of receiving of the said notice, carry out an inspection to determine the cause of the inter-floor leakage and the party responsible to rectify any defect that has caused the inter-floor leakage. 

After the inspection of the affected parcel is completed, the Management shall, within five (5) days thereof, issue a certificate of inspection in Form 28 to state the cause of the inter-floor leakage and the party responsible to rectify any defect that has caused the inter-floor leakage. 

Upon receiving the Form 28, the party responsible shall take all necessary steps and measures to rectify the inter-floor leakage within seven (7) days thereof. 

Matters to be considered in determining the cause of inter-floor leakage 

The Management will consider the following matters in determining the cause of inter-floor leakage:- 

1.     There is a presumption that the inter-floor leakage is caused by the parcel above the affected parcel, common property or limited common property, unless proven otherwise;

2.     The defect in any water meter, water pipe, drainage pipe, sewerage pipe, gas meter, gas pipe and duct that serves more than one parcel is a defect of the common property or limited common property; 

3.     The defect in any water meter, water pipe, drainage pipe, sewerage pipe, gas meter, gas pipe and duct that serves only one parcel is the defect of that parcel even though water meter, water pipe, drainage pipe, sewerage pipe, gas meter, gas pipe and duct may be located in the common property; and 

4.     The Developer shall be responsible if the defect of any parcel, common property or limited common property occurs during the defect liability period and it is due to defective workmanship or materials or was not constructed in accordance with the plans and description approved by the appropriate authority. 

What is the next action available if the parcel owner, proprietor or occupier of the affected parcel and/or other parcel refuses access for inspection?

Regulation 63 of SMR 2015 has given the Management the power to access the affected parcel and other parcel(s) on seventh (7th) day’s written notice for inspection. However, the requirement of the written notice is not applicable to the emergency where there is a likelihood of floor or danger to life or property that would result from inter-floor leakage. 

It is to be noted that anyone who fails to give access to the Management for them to carry out the inspection, commits an offence and shall, on conviction, be liable to a fine not exceeding Ringgit Malaysia Fifty Thousand (RM50,000.00) or to imprisonment for a term not exceeding three (3) years or to both. 

What is the next action available if the party responsible to rectify the defect fails, refuses or neglects to take action to rectify the inter-floor leakage? 

If the party responsible to rectify the inter-floor leakage fails, refuses or neglects to rectify the defect, the Management shall immediately take all the necessary steps and measures to rectify the inter-floor leakage at the costs of the party responsible to rectify the inter-floor leakage. 

Refer to Commissioner of Buildings if the party is not satisfied with the decision made against him/her

Regulation 64 of SMR 2015 has stated that anyone who is not satisfied with any decision made against him/her, shall be entitled to refer it to the Commission of Buildings. The Commission of Building shall determine the cause of inter-floor leakage and the party who is responsible to rectify the inter-floor leakage.  

In conclusion, SMR 2015 has provided comprehensive steps in resolving the issue of inter-floor leakage. As a last resort, the parcel owner affected by the inter-floor leakage may commence legal proceedings or refer the matter to the Strata Management Tribunal. 

This article was written by Teoh Yin Fang, the Legal Assistant of Messrs Khaw Ewe Seng & Co.

This article is provided for general information purposes only and does not constitute legal advice.