VII. Common types of nuisance: Water leakage
Water leakage is a common type of nuisance in Hong Kong’s multi-storey buildings.
Water leakage not only causes annoyance and inconvenience to the affected owners and occupiers, but it may also cause damage to the structure of the building.
Property owners should pay attention to whether there is water leakage from or to their flat.
A. What are some common causes of water leakage?
Common causes of water leakage are:
- leakage in the drainage pipes of your flat or one above or adjacent to your flat;
- leakage in the water supply pipes of your flat or one above or adjacent to your flat;
- deteriorated waterproofing of floor slabs or bathtub seals; and
- seepage of waste water or rain water through the roof or external wall.
B. How can the source of the water leakage be identified?
Property owners are responsible for maintaining and managing their flats, including investigating water leakage problems. If water seepage/leakage is found inside a private property, the owner should first investigate the cause and, as appropriate, co-ordinate with the occupants and owners concerned for repairs.
The Joint Office of the Food and Environmental Hygiene Department (FEHD) and Buildings Department (BD) published a pamphlet entitled “ Do-it-yourself water seepage test ”, which introduces various methods to identify the source of water leakage. The owner may co-operate with the neighbour to carry out the tests referred to in the pamphlet.
If the owner fails to identify the source of water leakage, he should directly engage a building technician or licensed plumber to identify the source of the water leakage for prompt repairs.
C. How can a water leakage dispute be settled?
If the water leakage is suspected to originate from a flat above or next door, the owner should quickly approach the owner and the occupier of the suspected flat to investigate and arrange repair work to stop the leakage.
If the water leakage is suspected to originate from the common area of the building, assistance may be sought from the managers or the incorporated owners of the building, as they are responsible for the maintenance of the common parts of the building.
If necessary, the owner may, with the engagement of a building professional or legal consultant, request the responsible person to stop the water leakage nuisance in accordance with the provisions of the deed of mutual covenant, or even lodge a claim for damages and an injunction under the tort of private nuisance. (For further details, please refer to “G. What the plaintiff has to prove in a civil action for water leakage nuisance below.)
If the owner cannot resolve the dispute with his neighbour, he may lodge a complaint with the Joint Office of the FEHD and BD.
D. The FEHD/BD Joint Office
The Food and Environmental Hygiene Department (FEHD) and Buildings Department (BD) established a Joint Office in mid-2006 to handle water leakage problems in which the Government has a responsibility to intervene.
The Joint Office provides a “one-stop service” for dealing with complaints about water leakage in buildings. Its role is to enforce the relevant provisions of the Public Health and Municipal Services Ordinance ( Cap. 132 of the Laws of Hong Kong) in abating any nuisance caused by water leakage.
If necessary, the Joint Office will refer cases to the BD or the Water Supplies Department (WSD) for follow-up action. For example, the BD will tackle the problem of building dilapidation and defective drains under the Buildings Ordinance ( Cap. 123 ), while the WSD will check if there is any wastage of water under the Waterworks Ordinance ( Cap. 102 ).
E. Procedures adopted by the FEHD/BD Joint Office for handling water leakage complaints in residential units
Upon receipt of a water leakage complaint, the Joint Office staff will contact the complainant within six working days to arrange a site inspection.
The Joint Office staff will inspect the unit concerned and survey the condition of water leakage to assess whether it constitutes a public health nuisance, a risk to the structural safety of the building, or wastage of water.
If it is established that the case may involve an offence, Joint Office staff will conduct a basic investigation into the cause of the leakage, by inspecting the pipes and sanitary fitments inside the unit and, as necessary, liaising with the occupants of the upper or adjacent units for further tests, including, for example, a colour water test, water meter flow check, reversible pressure test, moisture content monitoring test, etc.
If the owner/occupant concerned refuses to co-operate, the investigation process may be extended as the Joint Office will have to apply to the Court for a warrant to enter the flat in question.
If the source of water seepage/leakage cannot be identified through the initial investigation and tests, the Joint Office will arrange for a consultant to conduct further tests. Depending on the circumstances of the individual case, the consultant will employ more in-depth methods to find the source of water seepage/leakage, including a ponding test, a water spray test for walls, a water meter flow check, a reversible pressure test, a ponding test for roofs, a moisture content monitoring test, etc.
With the co-operation of the concerned owners/occupiers, normally the Joint Office will complete the investigation and inform the complainant of the outcome within 90 working days. If the investigation cannot be completed within 90 working days, the Joint Office will notify the complainant of the investigation progress in writing.
F. What can the FEHD/BD Joint Office do to abate water leakage nuisance?
The Joint Office is authorised to enforce the relevant provisions of the Public Health and Municipal Services Ordinance .
If the source of leakage is identified, the person concerned is issued a nuisance notice requiring abatement of the nuisance within a specified period of time, failing which the person will be subject to prosecution. Upon conviction, the person concerned is liable to a maximum fine of $10,000 and a daily fine of $200 ( section 127(3) and schedule 9 of the Public Health and Municipal Services Ordinance ).
If the case involves a risk to the structural safety of the building or water wastage, the Joint Office refers it to the BD or WSD, as appropriate, for follow-up.
The Joint Office may also apply to the Court for a Nuisance Order requiring the person concerned to abate the nuisance. Failure to comply with the order will result in prosecution. Upon conviction, the penalty is a maximum fine of $25,000 and a daily fine of $450 ( section 127(7)(a) and schedule 9 of the Public Health and Municipal Services Ordinance ).
G. What does the plaintiff have to prove in a civil action for water leakage nuisance?
In determining cases in which a plaintiff claims relief on the basis of water leakage constituting a nuisance in common law, the plaintiff must prove that (1) the water leakage originates from the defendant’s premises, and (2) the defendant has actual or constructive knowledge that the leakage of water originated from the defendant’s property.
“Knowledge” can be what the defendant actually knew (actual knowledge) or what the defendant should have known with normal and reasonable diligence (constructive knowledge).
The onus of proof remains on the plaintiff to prove, on the balance of probabilities, that the seepage of water originated from the defendant’s premises. The onus is not on the defendant to prove that the seepage of water did not originate from his premises, nor to prove that he did not create the nuisance.
The defendant needs to compensate the plaintiff for damage only after the defendant had actual or constructive knowledge of water leakage and failed to take remedial action within a reasonable time. If your neighbour delays telling you that your flat may be a source of water leakage, you are not responsible for compensating your neighbour for any losses arising before he made the complaint to you, unless you already had actual or constructive knowledge.