Question
Water is slowly coming through my ceilings. Is this my responsibility or the Body Corporate's?

Answer
It is difficult to answer this question without obtaining further information from you as the answer will vary depending on a number of factors. I will therefore answer the question in general terms.

In terms of section 44(1)(c) of the Sectional Titles Act 95 of 1986 ('the Act') it is an owner's responsibility to properly maintain and repair his/her section. You own your section to the median line or midpoint of its floors, walls and ceilings and therefore you are responsible to fix your ceiling if it is leaking.

However, in all likelihood the leak is coming from the property above your section. You therefore need to identify what type of property is above your section so you know who is responsible for it — is there another section above yours or is it common property?

If there is another section above yours and the leak is emanating from that section then the issue is between you and the owner above. It doesn't seem sensible for you to fix your side of the ceiling if the owner above doesn't fix the area that is causing the leak. Therefore you should ask the owner of the above section to fix the cause of the leak that is within his/her section. You would also be entitled in terms of the law of delict to compensation from the owner above for any money you spend fixing your ceiling if you can show that the damage to your ceiling was as a direct result of his/her failure to adequately maintain and repair his/her section.

If the leak is emanating from common property above your section, for example from the roof of the building or a common property balcony, then you may demand that the body corporate repair the leak as it is obliged to maintain and repair the common property in terms of section 37(1)(j) of the Act. You would also potentially have a delictual claim against the body corporate to compensate you for any damage you suffered as a result of its failure to adequately repair and maintain the common property.

If the leak is emanating from common property above your section which is subject to exclusive use rights in favour of a particular person, for example a balcony or a roof garden, then the situation is slightly different. The body corporate is responsible to repair and maintain the exclusive use area as it is part of the common property, but the owner entitled to exclusive use of that area is obliged to pay for any expenses which the body corporate incurs in respect of that area. Therefore you would be entitled to demand that the body corporate fix the leak in the exclusive use area, but the body corporate would be entitled to recover the money it spends doing so from the owner holding the exclusive use rights to that area. Your potential delictual claim would be against the body corporate that would in turn be able to claim from the holder of the exclusive use rights.

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