Upstairs leak: who pays and how to claim

A stain appears on the living room ceiling. Days pass, and it grows. You call the upstairs neighbor, who says there's no leak in their apartment. The administrator isn't quite sure where to start. And you, with the ceiling falling in pieces, don't know who will pay for the repair.

Leaks are one of the most frequent conflicts in communities of owners — and also one that generates the most misunderstandings, because responsibility doesn't always fall on whom it seems logical. The Spanish Horizontal Property Law (LPH) has clear answers if you know where to look.

First: identify the origin of the leak

Before discussing who pays, you need to know where the water is coming from. And this is not always obvious. A leak in the ceiling of the third floor could come from the fourth floor, from the common terrace, from a common downpipe, from the building's roof, or even from a break in the drainage system. The origin determines who is responsible.

The first step is to call a plumber or a surveyor to locate the origin. If it's not clear, the community can commission an expert report. This report will be fundamental both for determining responsibilities and for any subsequent claims.

Case 1: the leak comes from private elements of the upstairs neighbor

If the origin is in a private installation of the upper apartment — the bathtub, the shower, the washing machine, the pipes running exclusively through that apartment — the responsibility lies with the owner of the upstairs apartment.

Article 9.1.b of the LPH obliges each owner to maintain their property in good condition, so as not to harm the community or other owners. If their defective installation causes damage to the apartment below, they are obliged to repair both the fault in their apartment and the damages caused.

If the neighbor refuses to act or pay, the affected party has two options: claim directly against the neighbor (via civil action) or claim against the neighbor's insurance. If the apartment has home insurance with third-party liability coverage — which is most common — the neighbor's insurance should cover the damages in the apartment below.

Case 2: the leak comes from common elements

If the origin is in common elements — roof, common terrace, general downpipes, facade — the responsibility lies with the community. This is established by Article 10.1 of the LPH: the community is obliged to carry out the necessary works for the proper maintenance and conservation of the property and its services.

In this case, the community must commission and pay for the repair of the common element, and also the damages caused in the affected apartments. If the community has community insurance — mandatory for buildings of a certain age in many Autonomous Communities — the insurance should cover both the repair and the damages.

Case 3: the leak comes from the private terrace of the upstairs apartment

This is the most complex case and the one that generates the most conflicts. When the terrace is for the private use of an owner but has a roofing or waterproofing function for the lower apartments, the LPH distinguishes between:

• Ordinary maintenance of the terrace → responsibility of the owner who uses it
• Waterproofing and structural conservation works of that terrace → responsibility of the community, even if it is for private use

The Supreme Court has reiterated this criterion in several rulings: if the terrace functions as a roof, its waterproofing is a common element even if its use is private. The most recent jurisprudence (STS 2023) confirms that the cost of waterproofing a terrace-roof falls on the community, not on the owner who uses it.

How to document the leak correctly

If you are going to file a claim — against the neighbor, the community, or the insurance — you need solid documentation:

1. Photos and videos of the damages, with date and time
2. Written communication to the administrator and the upstairs neighbor (email, WhatsApp, burofax) — with date
3. Plumber's or surveyor's report identifying the origin
4. Repair estimate for the damages in your apartment
5. Repair invoice once the works are done

The most common mistake is to repair the damages without documenting the origin or communicating it formally. If you repair without documenting, you lose the right to claim.

What role does community insurance play?

Community insurance usually covers water damage when the origin is in common elements. The usual process is:

1. The administrator reports the incident to the community insurance
2. The insurance surveyor visits the property and identifies the origin
3. If the origin is a common element → the insurance covers the repair and the damages
4. If the origin is a private element → the community insurance can claim against the insurance of the responsible neighbor

If the community does not have insurance or the insurance does not cover the incident, the affected owner can claim directly — against the neighbor via civil action or against the community if the origin is a common element.

How long do I have to claim?

The statute of limitations for claiming damages from leaks is two years from when the affected party becomes aware of the damages and the responsible party (Art. 1968 CC for non-contractual liability). However, each time a formal written claim is made, the period is interrupted and starts counting again.

That's why it's crucial to document and report the leak from the very first moment, even if you're not yet sure who will pay.

How IgeraFincas manages leak incidents

When there's a leak, the first few minutes are critical for correct documentation. With IgeraFincas, the owner can report the incident directly via WhatsApp, attach photos, and the system automatically opens a ticket with the date, time, community details, and problem description.

The administrator receives the notification immediately, can coordinate the plumber's visit from the same panel, and all communication is recorded — ready for insurance or any subsequent claims. No need to look for emails from three months ago or remember who said what and when.