D. Sources of water seepage

D. Sources of water seepage

In water seepage cases, it is important to identify whether the source of seepage comes from an individual flat or from the common parts of the building. This affects who may be legally responsible. If the problem comes from an individual flat, the claim will usually be made against the owner or occupier of that flat. If the problem comes from the common parts, the proper party will usually be the Incorporated Owners and, where appropriate, the building manager. 

For more information, please refer to “Parties to proceedings”. 

What are “common parts”? 

Under section 2 of the Building Management Ordinance (Cap. 344), common parts are identified mainly in two ways. 

First, the law looks at the registered documents of the building, especially the Deed of Mutual Covenant (“DMC”). If a part of the building is specified or designated for the exclusive use, occupation or enjoyment of a particular owner, it is normally not a common part. An individual flat is usually described in the DMC as a unit over which the owner has exclusive possession as against other owners or occupiers. 

Secondly, if a part of the building is not so designated, it may fall within the non-exhaustive list of common parts in Schedule 1 of the Building Management Ordinance. Schedule 1 includes, for example, foundations, columns, beams, structural supports, external walls, common pipes, drains and other installations used for the common benefit of the owners, such as a roof’s waterproofing membrane. 

Why the distinction matters 

The distinction is important because it determines the legal duty to repair and maintain the relevant part of the building and identify the legally responsible party. 

If the defective area is a common part, the Incorporated Owners have duties under the Building Management Ordinance to manage and maintain it. 

If the defective area is inside an individual flat or is otherwise under the exclusive possession of an owner, that owner may be responsible for keeping it in proper repair and condition. 

Structural supports and floor slabs 

Foundations, columns, beams and structural supports are generally common parts under Schedule 1 of the Building Management Ordinance. A structural concrete slab separating two floors is usually treated as part of the structure of the building and therefore a common part. 

However, not every item attached to or placed on the slab is a common part. Floor finishes, such as tiles, screeding or decorative finishes inside a flat, are usually treated as part of the individual flat. 

Difficulties may arise where a pipe serving only one flat is embedded in or passes through a structural slab. Although the slab itself may be a common part, the owner of the flat served by that pipe may still be responsible for maintaining the pipe if it is used exclusively for that flat. 

External walls and canopies 

External walls are normally presumed to be common parts unless the DMC clearly gives exclusive possession of the wall to a particular owner. 

An owner may have a limited right to attach something to an external wall, such as a sign, an air-conditioner frame or pipes. However, such a right does not necessarily mean that the owner has exclusive possession of the external wall itself. 

Canopies may also be treated as common parts even if they are not expressly listed in the DMC or Schedule 1 of the Building Management Ordinance.  

Rooftops and waterproofing layers 

Whether a rooftop is a common part depends mainly on the DMC and the registered plans. 

In many buildings, the roof is a common part maintained by the Incorporated Owners. However, in some cases, a rooftop is part of an individual flat if the DMC or the relevant Assignment clearly designates it as being for the exclusive use or enjoyment of that owner. 

Whether a waterproofing layer is a common part or a private part depends on the DMC, registered plans, location, function, and whether it serves the building generally or only one flat. Rooftop or external-wall waterproofing is more likely to be treated as common because it protects the building envelope and other common facilities. By contrast, waterproofing within a private bathroom, kitchen, balcony, or other wet area may be the responsibility of the individual flat owner if it serves only that flat, unless the DMC, registered plans, or surrounding facts point otherwise. 

Pipes, drains and other utility installations 

Pipes and drains are a common source of disputes in water seepage cases. 

Pipes serving the building generally, such as main water supply pipes, communal drainage pipes and vertical soil stacks, are usually common parts. The Incorporated Owners will normally be responsible for maintaining them. 

However, pipes serving only one flat are more likely to be treated as the responsibility of the owner of that flat, even if the pipes are located in a concealed space. 

The classification is not always straightforward. In Incorporated Owners of Summit Court v Full Surplus Investment Ltd (2007), the court held that water pipes branching from a main tank could remain common parts even after passing through individual meters. 

For information on identifying responsible parties, please refer to “Parties to proceedings”.