When water causes damage to your property, it can be costly and time-consuming to fix. If the source is your neighbour's property, what do you do?

Where the water has come from a neighbouring property, this is not a cost that you should necessarily have to bear. The Water Act 1989 (Vic) sets out the legal position for those affected by water damage originating from a neighbouring property and provides an avenue through which legal action may be taken.

Who is liable for the water damage?

Section 16 of the Water Act provides that, if there is an unreasonable flow of water from Person A’s land onto Person B’s land, and that water causes damage to the property of Person B or any other person, then Person A, who caused the flow is liable for the damage.

This means that, if your neighbour caused the water to flow onto property, then they are responsible for paying to remedy the damage caused.

In these circumstances, in order to make a claim for such payment, it will be necessary to establish the following:

That there was an unreasonable flow of water,
That the water caused damage to your property, and
That the neighbour caused the flow of water.

If your property is subject to an Owners Corporation, water damage caused by a failure to repair or maintain the common property, such as the roof of an apartment complex, generally falls within the provisions of the Water Act.

What damage is covered?

Only damage that is caused by the water is covered by the provisions of the Water Act. Accordingly, you may need to show that any repairs or other damages being claimed are attributable to the water damage.

In this respect, and depending on the extent of the damage, it may be beneficial to obtain a report on the cause and extent of the damage prior to any rectification works being undertaken.

What else do I need to know?

There is a limitation period of six years for causes of action arising under the Water Act. This means that, if you wish to bring a claim against a neighbour for payment of any damages caused by an unreasonable flow of water, you must institute proceedings within 6 years from when the damage initially occurred.

They won’t pay, what can I do?

If you have undertaken informal discussions with your neighbour and they are unwilling to pay for the damage, it may be appropriate to seek out further legal advice. Due to the significant cost involved, litigation may not be a viable option for your claim. Whether this is the case depends on your unique circumstances.

In the event that litigation is appropriate, Water Act claims can be heard by the Victorian Civil and Administrative Tribunal (VCAT).

How can Sharrock Pitman Legal assist?

If you require advice on whether you may have a claim regarding water damage, please feel free to contact our Litigation Team on (03) 9560 2922.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

For further information contact

Caroline Callegari

Caroline Callegari is an Associate Principal and leads our Disputes & Litigation team. She has an advisory and advocacy practice in the following areas: Commercial Litigation, corporate and personal disputes, debt recovery and, insolvency and bankruptcy matters. Caroline can be contacted on (03) 8561 3324.

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When water causes damage to your property, it can be costly and time-consuming to fix. If the source is your neighbour's property, what do you do?

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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What can I do if water from a neighbouring property causes damage?

When water causes damage to your property, it can be costly and time-consuming to fix. If the source is your neighbour's property, what do you do?

Who is liable for the water damage?

What damage is covered?

What else do I need to know?

They won’t pay, what can I do?