Damage due to works on the common parts
The general meeting of your residence decides to carry out certain works on the common areas. But as a co-owner, what should you do if you suffer damage as a result of these works to the common areas? For example: the roofer does not carry out the works according to the rules of the art resulting in you having a lot of water damage in your flat. Does this mean you have to tolerate the damage because you are not a co-contractor? Of course not! We discuss your options in this Wanted fact.
Were the works carried out on the private or on the common areas?
First of all, a distinction must be made between the private areas of the apartment building and the common areas. You should always check where exactly the works were carried out. This has an impact on the different parties you can or cannot claim against.
The private areas of a building are the areas that belong exclusively to one owner and can therefore only be used by that owner.
Examples include the flats themselves, the storerooms, the garages, etc., but sometimes also parts of the external wall such as a private part of the garden or, in some buildings, windows or balconies.
Common areas, in turn, are those parts of a building that serve several co-owners. Examples include the corridors, lifts, the roof, communal gardens, manoeuvring space, etc.
Sometimes certain usage rights are granted to privates on common areas, but that does not make those areas private. They remain common parts, which continue to be managed by the association of co-owners, for whom the trustee intervenes. The co-owners' association only has jurisdiction over the common parts of a building and, with a few exceptions, may not interfere with the private parts, exceptions that must be expressly and specifically justified.
The detailed description of what is private and what is common within a building can be found in the basic deed.
Who all can I sue as a co-owner?
The first and simplest course of action is to invoke the insurer's cover whereby damages to the private within the coverage limits are compensated. Almost every co-owners' association has a block policy to which you can also refer as a co-owner. Towards the insurer, you will claim the damage in new value, with deduction of the exemption that can be recovered from the third party causing the damage.
A second course of action is to declare the contractor in default and, if necessary, sue him if the works were not carried out according to the rules of the art.
The third course of action is for you, the private owner, to sue the co-owners' association for the damage caused by the works to the common areas of your flat.
When should I take further action?
If (defective) works were carried out on a common part of the residence, such as the roof, it is up to the co-owners' association to act appropriately and prevent further damage. In other words, if you notice any damage, you should report it as soon as possible to the trustee/co-owners' association so that they can inform the parties involved.
After all, the co-owners' association can be held liable for keeping a defective thing, in this case a defective roof, in accordance with Article 6.16 of the Civil Code (art. 1384, paragraph 1 old Civil Code).
The time limit for initiating legal proceedings depends on the type of defect in your flat. In practice, there are three types of defects: visible defects, hidden defects and slightly hidden defects.
Visible defects are simple and are visible. You should report them immediately and request the necessary repairs.
The hidden defects are not visible and are often only noticed some time later. As soon as you notice them, you should inform the trustee/co-ownership association as soon as possible. When these defects can affect the structure and/or stability of the building, you have a ten-year period.
Slightly hidden defects are not always immediately visible, and are not of such a nature that they affect the structure and/or stability of the building. In this situation, you should initiate proceedings within a reasonable period of time. A lot has already been written in case law about what exactly the ‘reasonable’ period means.
Conclusion
So what can you do if the damage results from works carried out on the common parts? First of all, you will need to be sure whether the works were carried out on the common parts.
If you appointed the contractor yourself to carry out works on the private property, you will have to sue the contractor and/or sue your insurer and ask for intervention. You can then choose how you wish to have your damages compensated.
If the works were carried out on the common parts and they are defective, you will have to notify the trustee/co-ownership association.
Always ensure that you act in good time!
Contact Wanted Law!
Are you troubled by such a situation or considering litigation? Feel free to contact one of our Wanted Lawyers so that we can advise and assist you personally.