The legal position and liability of the potential damage caused by a balcony leaking onto other balconies below your balcony and/or the damage caused by leaking balconies above your balcony is to be considered in many ways.
Firstly, it is important to note that when considering with whom liability lies, one has to consider whether the balcony is regarded as either being part of the member’s section, or common property, or an exclusive use area which has been ceded to the member.
The best way to identify this is by checking the sectional plan of the scheme. The areas that are enclosed within the solid line that outlines the boundary of the section will be considered as part of the section and therefore, if the balcony falls within the solid line, then the balcony will be considered as part of the section.
In this situation, the balcony will be regarded as being part of the member’s section and the owner of this section will be obliged to repair and maintain his section in a state of good repair as per Section 44(1) of the Sectional Titles Act 95 of 1986 (hereinafter referred to as the “Act”) (as amended from time to time).
If the waterproofing membrane of the balcony above your section has failed, that owner is obliged to repair it and if your ceiling is damaged as a result of the failed waterproofing membrane, it is your responsibility as the owner of the lower section to repair it, as the underside of the balcony forms part of your section and subsequently your responsibility. In this instance, there is no common property between your section and the one above yours and therefore the body corporate is not obliged to involve itself in dealing with any complaints relating to the leaking balcony or initiate and oversee any repairs in this regard.
In the event the balcony does not form part of the member’s section (not within the solid line) then the balcony will be considered as either common property and/or an exclusive use area.
Should same be considered as common property, the Body Corporate will be responsible for the repair and maintenance of the section as per Section 37 of the Act. If an exclusive use area has been ceded to the member, in this case, the balcony, then the owner shall repair and maintain his section as per Section 44(1)(c) of the Act.
In light of the above, it is clear that it is important to establish whether the balcony is common area, an exclusive use area or part of the section before further steps can be taken.