c. Owners of source flats

c. Owners of source flats 

Under section 34H of the Building Management Ordinance (Cap. 344), an owner who has exclusive possession of any part of a building must maintain that part in good repair and condition. This statutory duty is restricted to owners only, specifically excluding tenants or occupiers, and is deemed an obligation owed to all other owners in the building. 

Where the source of seepage is a private flat, the registered owner of that flat is usually the principal defendant and is responsible for the loss and damage suffered by the affected flat owner.  

The legal bases of the claim may include private nuisance, negligence, breach of the Deed of Mutual Covenant (“DMC”), and contravention of section 34H of the Building Management Ordinance. 

Liability usually depends on whether the owner knew, or ought reasonably to have known, that seepage was originating from his flat and failed to take reasonable remedial steps within a reasonable time. Once an owner has actual or constructive knowledge of the problem, delay or refusal to investigate and repair may expose the owner to liability. 

Liability for tenants and occupiers 

If the owner lets his flat to a tenant who is responsible for the seepage, the owner may also be liable. 

Many DMCs impose obligations on the registered owner to ensure that persons occupying or using the owner’s flat comply with the DMC. As a result, even if the tenant is the person who physically caused or continued the seepage, the owner may still be sued for breach of the DMC, while the tenant may be sued in tort.  

Some DMCs also require an owner to indemnify the manager or other owners for damage caused by the owner’s tenants, licensees or other persons using the flat with the owner’s consent. In such a situation, the owner may in turn seek recovery from the tenant, depending on the tenancy agreement and the facts. 

In practice, where water seepage affects another unit, the affected owner or occupier may sue both the registered owner and the tenant of the suspected source unit. The owner may be sued for breach of the DMC and, where applicable, statutory obligations under the Building Management Ordinance, while the tenant may be sued in private nuisance and negligence as the person in occupation and control of the premises. This is because the owner and tenant may have different but overlapping responsibilities. The owner may have responsibility for the condition of the unit and compliance with the DMC, whereas the tenant may have responsibility for day-to-day use, control, access, and any acts or omissions occurring during occupation.