a. Property damage

a. Property damage 

Claims in nuisance and negligence: 6 Years 

Claims in nuisance and negligence are tort claims. Under section 4(1) of the Limitation Ordinance (Cap. 347), an action founded on tort must generally be brought within 6 years from the date on which the cause of action accrued. 

Claims for breach of the DMC: 12 Years 

A claim for breach of the DMC is treated differently. A DMC is executed under seal and is therefore regarded as a specialty. 

Under section 4(3) of the Limitation Ordinance, an action upon a specialty must generally be brought within 12 years from the date on which the cause of action accrued. 

This longer limitation period may apply where an owner alleges that another owner has breached obligations under the DMC, such as obligations relating to repair, maintenance, use of premises, or prevention of nuisance. Breaches of duties under sections 34H and 34I of the Building Management Ordinance may also be treated as breaches of the DMC. 

A significant strategic advantage in water seepage litigation is that the plaintiff may still be able to claim for a breach of the DMC even if his claims in nuisance and negligence are time-barred. 

Because the limitation period for a specialty (12 years) is double that of a tort (6 years), the plaintiff who discovers long-term, persistent seepage that began 7 or 8 years prior may find his negligence and nuisance claims barred by the 6-year rule.  

In such a case, the plaintiff may still seek appropriate remedies for breach of the DMC, including damages and, where justified, an injunction requiring the defendant to stop the seepage or carry out necessary repair works. 

Accrual of the cause of action  

Ordinarily, time begins to run from the moment the cause of action accrues.  

In cases involving building defects or damage, the cause of action generally accrues from the date that the physical damage occurs in a real and substantial sense, rather than the date it is discovered. 

However, for latent damage, that is, property damage which does not involve personal injury and which was not immediately discoverable (e.g. where seepage is hidden behind walls), the Limitation Ordinance provides special rules. 

Under section 31 of the Limitation Ordinance, if a person only discovers the relevant damage after the usual limitation period has started to run, the person may still bring a negligence claim within 3 years from the “date of knowledge” of the damage. This extended period applies where it gives the plaintiff more time than the ordinary 6-year limitation period. 

However, this extension is subject to an absolute time limit. Under section 32 of the Limitation Ordinance, no negligence claim for latent damage may be brought after 15 years from the date of the negligent act which caused the damage, even if the plaintiff only discovered the damage later.