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Responsibility for flooding the neighbour


English

2013-10-06

After being flooded, the owner of the apartment has to determine who to bear responsible for this act. The very fact of being flooded in not enough to have damages paid, we have to prove somebody’s guilt.

 

Is it always on the neighbour form the apartment above?

Seeing wet stains on your ceiling, you would immediately accuse the neighbour from the apartment above. And usually you would have been right. However, he may not always be the one the blame. In accordance with the Act on the Proprietorship of Premises, all areas excluded from the use of an individual owner, shell be considered shared areas ('shared area comprises the land as well as parts of the building and facilities, which are not in the exclusive usage of the owners of premises"). Vertical ducts of water, sewage piping and industrial tubes should also be considered "shared areas".

 

It means, that in the case of breakdowns or failures of such systems and installations, the housing community board (or housing co-operative) is accounted responsible. So, what exactly is an individual owner responsible for? The answer is: all the horizontally-placed elements of system or installation up to the shut-off valve, installed in the vertical service space (in the installation ducts, where water, gas or sewerage piping and tubes are placed). Each individual owner is responsible for the technical condition of these elements and their possible breakdowns.

 

"Whosoever causes damage to another, shell be liable to compensate the victim"

In order to receive a compensation, the victim has to prove that the flooding was caused by the particular offender, in accordance with the aforementioned art. 415 of Civil Code. This is the official statement of the Supreme Court, provided in the Act of February 19th, 2013. 

 

Before this statement, there were two regulations applicable in the situation of flooding – art. 415 and 433 of Civil Code. The first law stated, that the victim is obliged to prove guilt of the offender. The latter did not –  "a person who occupies the premises shell be accounted responsible for any damage caused by throwing out, pouring out or falling down of any subject form this premises, unless the damage was caused as the result of a force majeure, victim’s own fault, or actions of the third party, which could not have been prevented by the person occupying the premises".

 

This provision is based on rule of risk. There was no ultimate position of the judiciary system, whether the art. 433 is applicable to the situation of an apartment flooding. Insurance companies were also interpreting differently the limits of responsibility.

 

And so, the Supreme Court allayed all doubts stating, that art. 433 shell not be referred to in the case of establishing responsibility for the damage caused by the pouring out of water form one apartment onto another. The rule of risk would make the problem easier to solve for the victim, who would not have been obliged to prove other person’s guilt.

 

It would have been more convenient for the owner of the flooded apartment, but as the rule is not applicable in this situation, you should get a homeowner's insurance, which covers the flooding. It may save you a lot of trouble with proving somebody’s guilt and claiming compensation.

 

How to document a damage?

If your apartment is actually flooded by the neighbour, you should take photos of the leak and all damages caused by it, and also prepare a protocol providing a detailed description of such damages (photos may be attached to the protocol). It is also a good idea to have the owner of the apartment who caused the flooding and a representative of the housing community board sign the protocol. You may also hire a certified property valuer, who will assess the damage and make the claimed scale of damage more reliable.

 

Jakub Jastrzębski

 


Source:

• Act of April 23, 1964 Civil Code (Journal of Laws of 1964 No. 16, item. 93 as amended)

• Act of June 24, 1994 on the Proprietorship of Premises (Journal of Laws of 1994 No. 85, item. 388 as amended)

 

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