This case involved an owners corporation suing a builder to recover losses and expenses arising from building defects.
In that case, it was observed that the bathrooms of various units were not common property and therefore the only way in which the installation of waterproofing in the bathrooms of these units could be the responsibility of the owners corporation is if the waterproofing was part of the slab forming the floor of the unit and was one of the “defined parts” of the building.
The Court acknowledged that slabs form part of the defined parts of a building. Therefore the question became whether or not the waterproofing treatment applied to the slab is part of the slab for the purposes of the maintenance obligations in the UTMA. In that case the area to which the waterproofing would be required to be installed (under a bath) was an area where tiles were not installed. However, in most bathroom areas there would be a cement topping over the slab providing the base for any tiles or other finishes.
While there were arguments both ways, the Court held that the waterproofing was better treated as a part of the slab because it was a functional rather than decorative treatment to the slab and was practically integrated with it. It was distinct from a finish such as tiling or painting.
In most cases, waterproofing will be different from a finish such as tiling or painting because it is buried under a cement topping within the bathroom. Therefore it usually is an area the maintenance of which is the responsibility of the owners corporation.