e. Intermediate flat owners

e. Intermediate flat owners 

A fundamental principle in water seepage litigation is that there is no legal presumption that water leakage necessarily originates from the flat immediately above the affected unit. The burden of proof rests solely on the plaintiff to establish, on a balance of probabilities, that the seepage originated from the defendant’s flat. 

Consequently, the fact that a defendant’s flat is located between the suspected source of seepage and the affected flat does not, by itself, make the defendant liable simply because he is in the middle of the path of water penetration. The central question is whether the defendant’s flat is the actual source or whether the defendant has, by action or inaction, “continued” a nuisance originating elsewhere. 

Liability will usually depend on the (i) evidence concerning the source of the water, (ii) the route of seepage, (iii) the defendant’s knowledge of the problem, and (iv) whether the defendant took reasonable steps after becoming aware of the leakage. 

Where water merely passes through the defendant’s flat 

If the evidence shows that the seepage originated from the defendant’s own flat (e.g. from an internal pipe or bathroom renovation), the defendant may be liable in nuisance, negligence, and breach of the Deed of Mutual Covenant (“DMC”).  

The position is different where the water originates from the flat above the defendant’s flat and merely passes through the defendant’s flat before reaching the plaintiff’s property. 

As a general rule, a person is not liable for a nuisance which he did not create. Therefore, if the seepage truly originates from another flat and the defendant’s premises are only an intermediate passageway, the defendant will not automatically be liable merely because the water passed through the defendant’s flat.However, this does not mean that an intermediate owner can always avoid liability.  

Continuation of nuisance 

If (i) an owner, after becoming aware, or after he ought reasonably to have become aware, that the seepage is originating from or passing through his flat, and  (ii) he fails to take reasonable steps to investigate or abate the problem within a reasonable time, such owner may be treated as continuing a nuisance. 

Contribution to the path of the seepage 

Independently of the principles of continuation and adoption, an intermediate owner may be liable if his own acts or omissions contributed to the path of seepage or made the damage worse. Examples include: 

• defective waterproofing within the defendant's flat that allowed water to pass through more readily; 
• unauthorised structural alterations that created new pathways for water; 
• failure to maintain pipes, drains, or sanitary fittings within the defendant's exclusive area as required by the DMC; or 
• failure to comply with obligations under the Building Management Ordinance (Cap. 344) or regulations made thereunder. 

In such cases, the defendant may be liable as a joint tortfeasor or as an independent tortfeasor contributing to the same damage.