Sean Radue – Radue Attorneys
The owner of a sectional title unit that suffered damage as a result of serious damp issues has asked the YourProperty expert for help in claiming from the body corporate’s insurance provider.
The reader explains that she purchased the unit more than a decade ago. At the time of purchase she was aware of the damp problem on the interior walls, which was ostensibly due to water seeping in from the roof and exterior walls.
She explains that the roof and exterior walls were eventually repaired two years ago and that she and other unit owners then submitted claims to the insurance of the body corporate for the interior damage.
The reader says the insurance company rejected the claims on the basis that they formed part of an ongoing insurance issue but no further information or explanation was forthcoming.
While she does not clarify the details or extent of the interior damage, the reader now questions whether she has a claim against the body corporate for the interior repair costs because she was prevented from taking any earlier steps in repairing the exterior issues.
The reader’s argument is that the exterior of a unit falls within the scope of authority of the body corporate with the exterior forming part of the common property.
According to Sean Radue of Radue Attorneys in Port Elizabeth, a body corporate is obliged to insure the buildings forming part of the scheme against fire and other prescribed risks, with the regulations listing a multitude of possibilities.
“More interestingly and relevant to our reader’s question is what is included under the concept of ‘building’.”
Interior fixtures and fittings could arguably form part of the building and, accordingly, could be included as part of the insurance policy of the body corporate, says Radue.
“The policy itself should be examined to determine whether the body corporate elected to include such items as part of the policy.”
The reader does not say if she has determined whether her insurance policy covers the damage she suffered and, if so, whether she has lodged a claim with that insurer, he says.
“If she has not explored this option, it may be worth a call to her broker or insurer to ascertain whether any such cover is in place.”
Radue says there may be a degree of overlapping of the content covered by each party.
“But the unit owners in the complex should have received notice of the assessed replacement value of each unit 14 days prior to the annual general meeting, so each owner should, at least, have some idea of what is covered under the policy and thus could have structured his or her own policy accordingly.”
He says it appears that the body corporate members performed their duties, although it could be argued that the repairs took too long to carry out but we are not advised of the reasons or circumstances giving rise to the delay.
“Perhaps the delay was due to a very drawn-out process in dealing with the insurer.”
One could argue, says Radue, that the body corporate is ultimately liable for the maintenance of the common property for the benefit of the owners, and accordingly takes care of any external issues.
“But for those issues, the internal damage would not have arisen. Therefore it could be argued the body corporate may ultimately be responsible for the resultant internal damage suffered by the owners.”
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