Commentary: What recourse do home owners have with persistent water leaks?

SINGAPORE: It has been said that a man’s home is his castle. But what if there are defects in that castle?

Water leakages and seepages are not uncommon problems in apartments. The issue is compounded in land scarce Singapore, where most people live in high-rise buildings with multiple floors and common property.

In Tengah, owners of new flats have complained about water leaking from their cooling units, which are connected to a centralised cooling system.

What recourse do home owners have in relation to defects, particularly in relation to the vexed issue of watertightness?

ESTABLISHING THE ROOT CAUSE OF THE PROBLEM

Ultimately, recourse depends on the root cause of the problem. It may be due to poor waterproofing by the contractor or poor design by the architect. Where multiple floors are involved, leaks could emanate from the upper floor unit, adjacent unit or common property.

One good starting point would be to engage a building surveyor to investigate the origins of any water leakage. Establishing the root cause of the problem is fundamental to the long-term resolution of the issue.

If it is suspected that your neighbour’s flat is involved, you might ask your neighbour to attend a joint inspection.

Documenting the problem through clear photographs and videos with date and time stamps is also crucial. In the event of a dispute, the Strata Titles Board or the Courts will ultimately review and rely upon such evidence.

Seeking legal advice early is also advisable for clarity on your legal rights and obligations. Legal professionals can help you understand your options and provide guidance on the best course of action.

THE “INDEPENDENT CONTRACTOR” DEFENCE

The problem is particularly acute for subsequent purchasers of property who do not have a contract with the developer. Developers can rely on the “independent contractor” defence, where they are not vicariously liable for the negligence of the main contractor responsible for construction works.

Likewise, a main contractor is not liable for the negligence of his sub-contractor when the “independent contractor” defence is made out. All that the developer or main contractor needs to establish is that they exercised reasonable care in appointing the sub-contractors and sub-consultants, which is a relatively low bar.

In 2011, the management corporation of the Seaview condominium sued the main contractor and architect for defects in the property including leaking windows, foul smells and falling concrete blocks. 

The defendant main contractor and architect successfully relied on the independent contractor defence. As the main contractor and architect had exercised reasonable care in appointing their independent sub-contractors and sub-consultants, they were not liable in negligence.

The “independent contractor” defence therefore limits the recourse available to homeowners by restricting them to claiming only against negligent sub-contractors directly responsible for the property defects. Such parties may have limited financial resources to compensate homeowners for losses and damage caused by the defective work or design.

LEGISLATIVE REFORMS FOR PROPERTY DEFECTS

Homes are one of the most significant economic commitments in a person’s lifetime. Against the growing number of housing developments in land-dense Singapore, the Singapore Academy of Law Building and Construction Sub-Committee recently penned a concept paper suggesting legislative reforms in relation to private residential property defects.

It recommends the imposition of a warranty that makes developers and the main contractor liable to original and subsequent homebuyers for property defects. These include structural cracks, fire safety defects and deficient waterproofing.

This would mean that the players with “deeper pockets” remain responsible for defects caused by the parties that they had engaged to carry out the works.

Another recommendation is to extend the limitation period - the period of time within which a homeowner must bring a claim against the contractor. The usual limitation period is usually six years from the date the project was completed.

The Sub-Committee proposes extending the limitation period to 15 years for cases of major defects, while retaining the six-year limitation period for defects related to quality and workmanship.

Finally, a broad proposal is to introduce compulsory insurance that can cover the full duration and extent of liabilities for defects after the completion of works, including work done by sub-contractors.

It remains to be seen whether the broad proposals for reform will be taken on board. But if in place, they will empower homeowners in seeking recourse for stressful and costly defects like water leaks.

Paul Sandosham is Partner at Clifford Chance Asia and Looi Ming Ming is Partner at Eldan Law LLP.