Where the water has come from a neighbouring property, this is not a cost that you should necessarily have to bear. The Water Act 1989 (Vic) sets out the legal position for those affected by water damage originating from a neighbouring property and provides an avenue through which legal action may be taken.
Who is liable for the water damage?
Section 16 of the Water Act provides that, if there is an unreasonable flow of water from Person A’s land onto Person B’s land, and that water causes damage to the property of Person B or any other person, then Person A, who caused the flow is liable for the damage.
This means that, if your neighbour caused the water to flow onto property, then they are responsible for paying to remedy the damage caused.
In these circumstances, in order to make a claim for such payment, it will be necessary to establish the following:
- That there was an unreasonable flow of water,
- That the water caused damage to your property, and
- That the neighbour caused the flow of water.
If your property is subject to an Owners Corporation, water damage caused by a failure to repair or maintain the common property, such as the roof of an apartment complex, generally falls within the provisions of the Water Act.
What damage is covered?
Only damage that is caused by the water is covered by the provisions of the Water Act. Accordingly, you may need to show that any repairs or other damages being claimed are attributable to the water damage.
In this respect, and depending on the extent of the damage, it may be beneficial to obtain a report on the cause and extent of the damage prior to any rectification works being undertaken.
What else do I need to know?
There is a limitation period of six years for causes of action arising under the Water Act. This means that, if you wish to bring a claim against a neighbour for payment of any damages caused by an unreasonable flow of water, you must institute proceedings within 6 years from when the damage initially occurred.
They won’t pay, what can I do?
If you have undertaken informal discussions with your neighbour and they are unwilling to pay for the damage, it may be appropriate to seek out further legal advice. Due to the significant cost involved, litigation may not be a viable option for your claim. Whether this is the case depends on your unique circumstances.
In the event that litigation is appropriate, Water Act claims can be heard by the Victorian Civil and Administrative Tribunal (VCAT).
How can Sharrock Pitman Legal assist?
If you require advice on whether you may have a claim regarding water damage, please feel free to contact our Litigation Team on (03) 9560 2922.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
Liability limited by a scheme approved under Professional Standards Legislation.
Caroline Callegari is an Associate Principal and leads our Disputes & Litigation team. She has an advisory and advocacy practice in the following areas: Commercial Litigation, corporate and personal disputes, debt recovery and, insolvency and bankruptcy matters. Caroline can be contacted on (03) 8561 3324 or by emailing caroline@sharrockpitman.com.au.
