Water leaking from the flat above: who pays for the repair?
It is the most common complaint in any housing society. The answer depends on where the water is coming from, and the model bye-laws draw that line quite clearly.
The short answer
- If the water comes from the terrace, the external walls, the structure or a common pipe or drain, the repair is the society’s responsibility and cost (Bye-law 159(a)). That includes the damaged ceiling and plaster of a top-floor flat below a leaking terrace.
- If it comes from inside the flat above — its toilet, bathroom, sink or internal pipes — the member of that flat must get it repaired at his own cost, with the society’s approval (Bye-law 159(b)).
- On a complaint, the society’s secretary must arrange an inspection, and members must give access to their flats for it (Bye-law 156).
- If the committee does not act, the dispute about repairs and leakage can go to the Co-operative Court; for a building less than five years old, the builder may also be liable.
First, find the source
Everything turns on one question: where is the water entering? A damp patch on your ceiling does not by itself tell you whether the cause is the bathroom above, a cracked common pipe in the duct, or rainwater coming through the terrace or an external wall. A few clues help:
- Leakage that gets worse in the monsoon and dries in summer usually points to the terrace or external walls.
- Leakage that appears when the flat above uses its bathroom or kitchen, whatever the season, usually points to that flat’s plumbing or waterproofing.
- Dampness along the line of a duct or shaft often points to a common pipe (soil, waste or rainwater line).
The bye-laws expect the society to establish this. On a member’s complaint, the secretary is to inspect the property, with a technical expert if needed, and report to the committee, which decides what repairs are to be done. Members, including the member upstairs, must allow the inspection and co-operate with the repairs (Bye-law 156).
Who pays: the bye-laws
| Source of the leak | Who repairs, at whose cost |
|---|---|
| Terrace, roof and parapet; external walls; structural repairs | The society |
| All leakage caused by rainwater, and leakage from external common pipes and the drainage line | The society |
| Damaged ceiling and plaster of top-floor flats caused by rainwater leaking through the terrace | The society |
| Leakage caused by the toilet or bathroom of a flat | The member of that flat, with the society’s approval |
| Any other repair inside a flat that is not in the society’s list | The member of that flat |
This is Bye-law 159 of the 2014 model bye-laws, which most housing societies have adopted. Part (a) lists the repairs the society must carry out at its own cost; part (b) says that all other repairs are the members’ own responsibility, and that leakage caused by a flat’s toilet or bathroom must be repaired by that flat holder, at his own cost, with the society’s approval. Your society’s registered bye-laws may number these differently, so check the copy you have.
What about damage to my own interiors?
The bye-laws decide who must repair the leak. They do not fix compensation for damage it has already caused — to your false ceiling, paint, furniture or electrical fittings. Whether you can recover that, and from whom, depends on who was responsible and whether they ignored the problem after being told. It is usually settled by agreement once the source is established; if not, it is a claim to be pursued separately, and you should take advice before starting one.
What if the member upstairs will not co-operate?
This is where most leakage disputes get stuck. The member above may refuse entry, deny that the leak is his, or simply delay. A few points:
- Members are bound by the bye-laws, including the duty to allow inspection and repairs. The committee can require it.
- Once the source is established as his flat, the committee can call on him in writing to repair it, and record that in its minutes.
- If he still does not act, the affected member (or the society) can take the dispute to the Co-operative Court. The model bye-laws list “repairs, including major repairs, internal repairs and leakage” among the disputes to be referred to the Co-operative Court under Section 91 of the Maharashtra Co-operative Societies Act (Bye-law 174).
New building? The builder may be liable
If the building is in a project registered under RERA and you received possession less than five years ago, structural defects and defects in workmanship or quality can be brought to the builder’s notice. Under Section 14(3) of the Real Estate (Regulation and Development) Act, 2016, the builder must rectify them within 30 days without charge, failing which compensation can be claimed before MahaRERA. Leakage from poor waterproofing in a new building often falls in this category.
What to do, step by step
- Record it. Photograph the leak with the date, and note when it gets worse (rain, use of the bathroom above, etc.).
- Write to the society. Give a written complaint to the secretary or any office-bearer, describing the leak and attaching photographs (Bye-law 172). Keep a copy with the acknowledgement.
- Ask for an inspection. Request the secretary to inspect, with a plumber or structural engineer if needed, and to report to the committee (Bye-law 156).
- Get a decision. The committee should decide the complaint at its next meeting and inform you within 15 days (Bye-law 173): either the society repairs, or it directs the member above to repair.
- Escalate if needed. If you are not satisfied, or hear nothing within 15 days, the bye-laws let you go to the competent authority (Bye-law 174). For a leakage dispute, that is usually the Co-operative Court; structural danger can also be reported to the municipal corporation. For a new RERA building, write to the builder first.
For committees
Treat leakage complaints as a process, not a favour between neighbours. Record each complaint, inspect promptly, decide in the committee meeting with reasons, and write to the member concerned. A society that does this is rarely taken to court; one that leaves neighbours to fight it out usually is.
Related on this site
This post is general information, not legal advice. Bye-law numbers refer to the 2014 model bye-laws; check your society’s registered bye-laws. Every case turns on its own facts.
Have a question about your society?
Write to the office with a brief description of the matter. Meetings are by prior appointment.