Water Leaking From the Flat Above — Who Pays for the Repair, and Under Which Bye-law

The ceiling above the second-floor kitchen has a brown patch spreading since the monsoon. The flat above says it's the terrace. The flat below says it's the upstairs bathroom. The committee has painted the patch twice and billed the society both times. Nobody has actually looked.

Two different leaks, two different bye-laws

Bye-law 68(a) — repairs the society carries out at its own cost — lists exactly what the society must fix: item (xiv), "all leakages of water including leakages due to rain water, and leakages due to external common pipe line and drainage line"; item (xvii), "the damaged ceiling and plaster thereon in the top floor flats, on account of the leakage of the rain water through the terrace." If the water is coming from the terrace, an external wall, or a common pipeline, the society pays — not the flat below, not the flat above.

Bye-law 68(b) draws the opposite line for what is not on that list: "All the repairs, not covered by the bye-law No. 159(a) shall be carried out by the Members at their cost. The expenditure of the internal leakage due to toilet, sink etc. should be borne by concerned flat holders, with intimation to the Society." (Bye-laws 68 and 159 repeat this identical clause in two different chapters of the model bye-laws — one under "Dues and Charges," one under the Committee's functions — which is why bye-law 68 itself cross-refers to 159(a).) A leak from an upstairs bathroom or kitchen sink into the flat below is an internal leak, and the member responsible for that flat bears the cost.

Who decides which one it is

The committee does not get to guess. Bye-law 47 sets the procedure: the Secretary, with another committee member, inspects the flat — with prior intimation to the member — to ascertain what repair is necessary, and reports to the committee indicating what falls to the society and what falls to the member. On a report that the society must pay, the committee assesses the cost and gives notice of its intention to carry out the repair, and the member must allow access. On a report that a member must pay, the committee gives that member notice to carry out the repair to the satisfaction of the society's architect, within a stated period; if the member does not comply, the Secretary or the society's architect can enter the flat and carry out the work, and the cost is recovered from the member.

For a genuinely disputed source — is this seepage rising from the bathroom below, dripping from the terrace above, or coming through an external wall — nothing in bye-law 47 stops the committee from asking its architect for a written opinion before it decides who pays. It should ask for one. A repair ordered on the wrong side of bye-law 68 produces a bill the paying member can dispute later, and often does.

The member causing it cannot just ignore the notice

Bye-law 48(a) bars a member from doing or permitting anything in the flat that causes "nuisance, annoyance or inconvenience" to another member. An upstairs member who lets a known leak run for months after being told is not only liable for the repair cost under bye-law 68(b) — the conduct itself falls within bye-law 48's bar on causing inconvenience to a neighbour, and the committee can act on the complaint through that bye-law as well.

When it becomes a dispute

Most leak complaints end with the repair. Some do not — the flat below wants the ceiling repainted or a ruined wardrobe replaced, or the flat above disputes the architect's finding altogether. Bye-law 172(b)(iii) puts disputes about "Repairs, including Major Repairs, Internal Repairs, Leakages" squarely within the jurisdiction of the Co-operative Court under Section 91 of the MCS Act, 1960 — not the Registrar, and not a civil suit. A committee that has kept the inspection report, the notices issued, and a record of who was told what and when has already built the file that dispute will run on.

What your committee should do this week

1. 1On the next leak complaint, do not authorise painting before the source is identified. Send the Secretary and one committee member to inspect under bye-law 47, and record the finding in writing.
2. 2If the source is a common structure — terrace, external wall, common pipeline — order the repair at the society's cost under bye-law 68(a) and book the invoice against that head, not against the affected member's account.
3. 3If the source is another member's internal plumbing, issue that member a written notice under bye-law 47(c) with a stated repair period, before the affected flat suffers further damage.
4. 4Where the source is genuinely unclear, get the society's architect's opinion in writing before assigning cost to either flat — it is the single document that decides a later dispute.
5. 5Keep every inspection report and notice in the flat's maintenance file. If the matter reaches the Co-operative Court under Section 91, bye-law 172(b)(iii) makes that record the case.

So — the ceiling patch is not the society's problem, or the neighbour's, by default. It is whichever bye-law 68 says it is, decided by an inspection under bye-law 47 — not by whoever complains loudest at the next committee meeting.