An occupant notices a spreading damp patch on their ceiling. They approach the flat above and are told the defect is in the building's pipework rather than in that flat. They approach the owner, who says the damage results from the occupant's misuse. While the two exchange denials the leak continues until furniture is ruined, mould spreads, and the electrical installation is damaged. This dispute recurs constantly in Kuwaiti buildings, and its legal treatment is clear once the basis of liability and the burden of proof are understood. This article explains the position under Civil Code No. 67 of 1980 and the tenancy rules.
Who Bears the Repair: Owner or Tenant
- The rule: a landlord must deliver the premises fit for use and keep them so throughout the term, and therefore bears the necessary repairs.
- Necessary repairs: those affecting the structure and safety of the property, such as main pipework, the roof, waterproofing, concealed installations, and lifts, which fall on the owner.
- Tenant's repairs: minor maintenance arising from ordinary use, such as replacing a tap or a light fitting, ordinarily borne by the tenant.
- Misuse: where damage arises from the tenant's fault or negligence, such as blocking drains with unsuitable materials or altering installations, the tenant bears the consequence.
- Contrary terms: a clause imposing all repairs on the tenant however substantial is viewed with reserve, as the landlord's fundamental obligation to provide usable premises cannot be emptied of content.
- Where the owner refuses: if the landlord fails to repair after notice, the tenant may seek an order compelling repair, authorisation to carry out the repair at the landlord's expense and deduct it from the rent by court order, a reduction in rent, or rescission where use becomes impossible.
- A practical warning: do not deduct from the rent unilaterally, as deduction without authority exposes you to eviction proceedings for non-payment.
Damage Originating in Another Unit
- The basis: liability arises for fault where the occupant's or owner's negligence is established, and may also arise on the basis of custody of things without proof of fault.
- Custody of things: a person with actual control of a thing answers for the damage it causes and can escape liability only by proving an external cause such as force majeure, the victim's fault, or the act of a third party.
- Practical importance: this basis greatly assists the injured party, who need only prove that the damage originated from a thing in another's custody without having to prove negligence.
- Who is the custodian: the owner in principle, though the description may pass to a tenant with actual control and independence in use and direction.
- Common parts: where the source of the leak lies in common parts such as main pipes, the tank, or the roof, liability falls on whoever manages and maintains them, usually the owner.
- Neighbourly nuisance: where the harm exceeds what is ordinary in neighbourly relations, the injured party may seek its abatement and compensation even without proving the neighbour's fault.
A Building Custodian's Liability for Collapse
- The rule: a person with the right of disposal over a building answers for damage caused by its collapse, including partial collapse.
- Its ground: unless it is proved that the incident is not attributable to neglect of maintenance, the age of the building, or a defect in it.
- Prior notice: a person threatened with harm from a building may require the owner to take the steps necessary to avert the danger, an important preventive measure often overlooked.
- Its effect: where notice was given and the owner failed to act, their liability is reinforced and their defence weakened.
- Decennial liability: where the defect is structural in a recent building, the contractor and the engineer may be liable for defects threatening the building's safety and stability for ten years.
- Recourse: having compensated the injured party, an owner may have recourse against the contractor, engineer, or whoever caused the defect.
Proving the Loss
Proof here is the difference between compensation and loss:
- Immediate documentation: photograph and film the damage as soon as it is discovered with a clear date, before any repair.
- Written notice: notify the owner and the neighbour responsible in writing immediately, as the date of notice determines when liability for aggravation begins.
- Do not rush to repair: repairing before inspection destroys the evidence and gives your opponent a strong defence. Carry out only what is needed to prevent aggravation and document it.
- Preserving evidence: an order recording the state of affairs may be obtained before the traces disappear, among the most useful measures in these disputes.
- Expert evidence: an expert is appointed to identify the source and cause of the leak, apportion responsibility, and assess the cost, and their report is usually what the judgment rests on.
- Invoices: keep invoices for repairs and damaged furniture, technicians' reports, and any expense you were forced to incur such as alternative accommodation.
- Duty to mitigate: an injured party must take steps to limit the loss, and allowing a leak to worsen for months may reduce the compensation.
What Can Be Claimed
- Cost of repair: restoring the position to what it was.
- Damaged movables: at their value allowing for depreciation.
- Loss of use: for the period during which the premises or part of them could not be used.
- Rent reduction: where use is diminished without being lost.
- Rescission: where the premises become unfit for use.
- Moral damage: within its recognised limits where the grounds exist.
- Insurance: review any building or contents policy, which may cover the loss directly and shorten the dispute.
Practical Guidance
- Prepare a handover record at the start of the tenancy describing the condition of the premises and installations, your reference point in any later dispute.
- Always notify in writing, as an oral complaint to a caretaker or agent proves nothing.
- Do not wait for the damage to worsen in the hope of an amicable resolution, as delay harms your claim.
- Request a documented joint inspection with both parties present before any repair.
- Keep a copy of the tenancy contract and its maintenance provisions.
- Owners: carry out and document periodic maintenance, your strongest defence against an allegation of neglect.
- Owners: repair promptly on notice, as damage accumulating after your knowledge transfers full responsibility to you.
A leak dispute is decided by technical evidence rather than argument, and the party who documents early prevails. Yamnak Law Firm advises on maintenance and property damage disputes and handles applications to preserve evidence and claims for compensation, rent reduction, and rescission before the courts.
