Who is responsible for damage caused by a leak from the flat above mine?

Hi Zoe,

If it is clear that the water in your shop came from a burst pipe in the flat above it is more than likely that any damage caused to your shop, will be the responsibility of the landlord. The landlord's insurance company should have sent a loss adjuster to your shop to put a value on the damage that has been caused by the water.

It is not acceptable for the estate agent simply to say that the damage was not caused by the leak from the flat above if it was.

What has your insurance company said, I would have thought that they would be reluctant to pay out if you have explained the situation. Are you claiming on your contents insurance?

What did the estate agents say exactly about the landlord's insurance? Did the estate agent give any justification for saying why the landlord wasn't responsible.

If you could provide some more information it would be helpful.

hi i had a loss adjuster come to my shop through my insurance.i explained to the loss adjuster that we were going through the landlords insurance not mine due to the esate agent telling me that on the day i found the damage.the loss adjuster said that he would need a letter off the estate agent acting responsible for that to happen so i rang him confident that there wouldnt be a problem and thats when he said i had got to go through my insurance!! which gobsmacked me after he had said that everything would be ok.i saw a plumber at the flat a couple of days after the flood and asked him what had happend and ha said NO COMMENT!!! the esate agent got a contractor in who put a dehumidifier in my shop for five days.isnt that acting responsible???? ive not heard or seen the esate agent for about three weeks now.thanks zoe.

Hi Zoe,

Have you managed to open your shop again? What sort of damage was caused, was any of your stock damaged by the leak. How much has it cost you to put the shop back in the condition it was in before the leak occurred?

Since you saw the loss adjuster have you heard anything further from your insurance company?

I think that you should keep ringing the estate agents or even visit their office and ask for a full explanation as to why they are stating that you have to claim through your own insurance company. Your landlord or his insurance company should be responsible for any damage caused to your shop.

From the information that you have given I cannot see that it is your responsibility to claim on your own insurance.

my shop is still closed,ive got a sunbed shop,thankfully ive had my five sunbeds tested and they are ok,it would cost around £30.000 to replace them,ive got to have new ceiling,floor,counter and shelving plus replace fixtures and fittings,ie chairs.i had a letter yesterday off my loss adjuster asking for a report on my sunbeds saying if they can be fixed or not,ive got a report stating that hey are ok that i shall post in the morning and then the loss adjuster will send it to my insurance.to be very honest with you i dont think the estate agent has told the landlord as i think he wouldnt be very happy with esate agent being careless.thakyou.zoe.

Has your insurance company said that they will consider paying out then? Presumably they will only pay for the contents and not repair any damage to the ceiling or floor.

Have you considered approaching your Landlord or his solicitors direct? What type of Lease have you got?

It may well be that the estate agent has been negligent in some way and therefore doesn't want to inform the Landlord or make a claim on his insurance. However depending on the terms of the Lease you may have an obligation to inform the Landlord of any problems that you experience with the property.

Ultimately you should work with your insurers and they should be able to advise you on what steps to take next. I would advise you to make a detailed record of all of your conversations with the estate agent, i.e. dates, times, what was said etc. If you cannot make any progress you may need to consult a solicitor or the legal department of your insurance company who may be able to advise you further.

You should also advise the estate agent that if they do not give you a full written explanation as to why you are not able to make a claim against the landlord's insurance then you will be seeking independent legal advice.

Hopefully you will be able to resolve the situation but from what you have said I would say that it is definately the Landlord's responsibility.

gdavis@s-law.co.uk

I would just add 2 points.

1. The landlord must be in breach of his covenant  to you for quiet enjoyment irrespective of the insurance position.

2. Most commercial leases contain a provision by which rent is suspended if the premises become unusable. You should check your lease as soon as possible.

very similar scenario with my family business  (restaurant) - leak from upstairs flat caused by water pipe. Had contents cover and paid contribution towards buildings cover. Landlord said would claim for his part and we should do the same.  Landlord now says we owe him rent for the closed period January, february and currently March. He for some reason is unable to claim or is not claiming from his insurance for the rent which is covered by the lease and the buildings cover.   Insurance offered a small portion of quote which barely covered any of the damage equipment to which they assumed could be repaired or salvaged. A figure we refused and still wait for new offer. The experts say that fixing or repairing would be breaching many of the new GVT legislations and guidelines in force and they would not touch it. 

    We also became aware of some additional information that the building upstairs was a liability from previous tennant. Leaks and plumbing upstairs was a constant problem to which the landlord was aware of but did nothing and the place was deemed a fire hazard by West Mids Fire and failed his fire safety certificate. Explains why flats became empty all of sudden.  

    With this in mind and running costs of a closed business we decided to surrender our lease and hand back the keys. Landlord took back the keys and said he would erect signboard for new tenants to which he has done.  We got our solicitor to put this in writing and get confirmation from his solicitor.  The landlord has now done a complete U turn - He is under impression we will get lump sum payment from our insurance and wants us to pay arrears for period jan-March (this is verbal) and intimidates with the lease saying we still have 5 years remaining.  He tells his solicitor that if we pay all arrears and up to half of March and all legal fees he will surrender.  We were upt to date with rent until closure to which we had insurance cover and were happy to pay his legal fees and pay rent for march till present day to which we agreed and his solicitor was in agreement. Went to settle the balance only to be told that he had instructed his solicitor again and that we would have to pay rent until he gets a tenant. We`are at a stalemate and are considering all options.    We feel our solicitor is a bit soft and wants us to agree to everything that the landlord demands and says he has the lease and upper hand.  

    We considered sueing the landlord for negligence and also know that he has authorised new tenants to move in to which they have keys and have started stripping the wallpapers and alterations discretely.  We have monitored the premises and are 100% confident that these are tenants and not his builders mainly because of the secrecy..  We explained this to our solicitor but he still emphasises that we still have a lease.   do we still have a lease???  Also my brother recalls that the landlord during the leak pipe, landlord inadvertently mentioned that the was a problem with the buildings cover and that there was no cover during that period due to admin blunder to which he does not want to discuss.  We do not want to fight him but leave his propertyand get on with repairing our livelyhood.  He is asking for a fight - do we have enough ammunition to fight him from a legal point of view.

Hi Lou,

I think that your situation is slightly different to Zoe's in that you have actually tried to surrender your Lease.

The starting point is still that your Landlord should claim under his buildings insurance for any damage caused to the premises as a result of the leak. If he does not have buildings insurance then you can potentially sue him and force him to pay for the damage caused by the leak. The point you make about fire safety certificates is an interesting one. Many insurance companies are now stating that they will not honour insurance claims if the Landlord has not complied with the relevant safety legislation. This could explain the Landlord's "problem" with the buildings insurance.

Secondly as my Ian pointed out above there should be a clause in your Lease which states that the rent payable by you is suspended if the premises cannot be used. If this clause is in your Lease then you do not owe the Landlord any rent for the period that you were not able to use the property.

Finally it would seem that you have now left the property and wish to surrender the Lease. Unfortunately simply vacating the property and handing the keys back to the Landlord does not release you from your Lease or the obligations that it imposing on you. Unless the Landlord has signed a formal Deed of Surrender then you still have a Lease.

However if the Landlord has definitely let new tenants into the property and they are carrying out works then you are in a strong position to argue that the Landlord, by his actions, has agreed to and acknowledged the surrender of the Lease.

I would suggest that you resist any claims for the rent during the period when the property could not be used following the leak. If you can gather evidence together to show that new tenants are in the property I think that this would be sufficient to confirm that the Lease has been surrendered.

I hope this helps.

Thanks for your prompt reply -

We have now instructed our solicitor to ask the Landlord for confirmation and copy of the buildings cover for the specific period.  No reply yet!

As for the fire-safety certificate, He didnt have one and only made urgent repairs and had safety work done after tenant upstairs walked out. The tenant made complaint to DSS who were paying his rent about heating and plumbing. Just wondering if the local auths. had put pressure on the landlord to get his act together.  

Also to make matters more confusing, Insurance company has been informed by landlord that we have surrendered our lease so therefore they will only pay business interruption for 2 months from closure uptill day of surrender.  Great, I wish this landlord would make up his mind and tell everyone concerned what the reality is and his intentions.  

waiting for his next move.  

Hi Lou,

It would appear that you have a very strong case to show that the Lease has been surrendered especially given that the Landlord has told the insurers that this is the case.

Hopefully your solicitor will be successful in obtaining confirmation from the Landlord that the Lease has been formally surreneded.

Hi,

I have a similiar issue that hopefully somebody could help with.

There was a leak above from a flat that is also owned by the landlord of my property below and the my lease is managed by a management company as it is a comercial property. 

Some work was carried out by a plumber to install a new boiler, this unfortunatley identified a week joint in some existing pipe work.  Which resulted in a leak into our office that probably occured for 2 days before we were back in our offic.  This has unfortunatley caused a serious amount of damage to my electrical equipment.

As it stand the landlords buildings insurance will cover the damage to the office i.e. walls, ceiling, floor.  But will not cover my electrical items.  I unfortunatley do not have any contents insurance but still believe that he is responsible for the damage equipment as it can clearly be identified that it was a faulty pipe that cause the leak.

Is this the case and can I make a claim directly.

Regards

I believe you can claim against your landlord in these circumstances. I am surprised that he has no insurance against 3rd party claims but this does not prevent you from suing him. Presumably he has assets on which you can levy if successful.

Your claim will be in contract (derogation of grant) and in tort (negligence and/or nuisance).

sorry, its me again. This is the only place where I seem to get any hope or encouragement.

Situation so far is that the landlord has sent copy of his buildings insurance to my solicitor. Hey presto, HE DOES NOT HAVE COVER for that period. Insurance commences well after incident.  My solicitor hasn't noticed this important factor and is still waiting for instructions on how and when the landlord wishes to surrender from his solicitor. one of the conditions of the lease is buildings cover and this he failed to do (our own contributions-which he has pocketed) main reason being that he did not have all the necessary safety certificates at the time. 

I'm under impression my solicitor does not want to get into any dispute with landlord.

What are my options

change solicitor,

sue landlord for breach of lease, Claim damages for business loss and trade.

Hi Lou,

Please don't apologise for posting again, this is exactly what the forum is for!

I was under the impression that your primary concern was the surrender of the Lease and obtaining the Landlord's confirmation that the Lease had been surrendered. From what you have said in your previous posts I think that it would be difficult for the Landlord to say that he had not accepted the surrender of the Lease.

If you want to sue the Landlord for loss of business this may be slightly more difficult. How much money have you lost as a result of the leak, i.e. the profit you would have taken had the restaurant been open between the time that the leak first occurred up to the time when you vacated the premises. To prove this you will need to produce your accounts for the same period for the last three years so that you have evidence of what you had earned in previous financial periods. Depending on the extent of your loss you may be better starting your own claim in the county court through the moneyclaim online system, link below:

https://www.moneyclaim.gov.uk/csmco2/index.jsp

This allows you to start proceedings against the Landlord yourself without using a solicitor. For claims under £5,000.00 this is often the best option for individuals who have civil law disputes. If you decided to use this option you would need to ensure that you had extensive paperwork to prove your case, i.e. a copy of your Lease, full trading accounts, quotes for repairs to equipment, quotes from loss adjustors etc.

If your loss is over £5,000.00 it may be wise to speak to your solicitor about suing the Landlord for loss of trade etc. However it is likely that it will be very expensive to pursue this course of action and your legal fees will only be paid if you won your case at court and the court ordered that the Landlord should pay your costs.

As your solicitor knows all the facts of the case he may believe that there is no prospect of recovering any loss you have incurred as a result of the business being closed.

If you can provide some more information about the value of your loss I may be able to give you some more information. You should only consider changing your solicitor if you are not happy with him or you do not believe he is following your instructions. However I would try to arrange an appointment with him to specifically discuss what you want to do and ask him to explain to you whether it is possible and if it isn't, why it isn't

Hopefully this helps.

thanks.  

Independent quotes for repairs and restoration  were in the region of £20.000 for damages and repair in the kitchen were most of damage occured. High costs were due to refurbishing and layout to meet current health and safety etc.. legislations.

Insurance offered £8.000 including business loss because they feel equipment can be repaired contradictory to the independent experts.

Landlord informed the Insurance that we handed keys and surrendered.  They have no intention of paying any business loss after this period.

Landlord wont surrender lease officially through his solicitor until he gets a tenant. As I mentioned earlier in my post he wanted 3 months rent which he classed as arrears from January - March. We were closed in January till present so meaning Landlord was covered by the buildings insurance for loss of rent until trading. We`explained and told him there were no arrears and current rent was covered by his insurance and offered his legal expense and some contribution for March. He declined and is keeping silent..   My solicitor is not doing anything on the issue of surrender and I have explained the same thing on this post to him.  On the question of no Insurance cover by the landlord is this a breach of the lease. He has made no comment and I dont think he has even looked at the dates which clearly shows there was no cover. To cut this saga short Landlord is not surrendering, solicitor is waiting for some activity from landlord solicitor and I am getting frustrated.  I still have tax, business acct open.(acct bill) I have cancelled direct debits, pay all utility bills etc for the business out of my own pocket because i was not trading.Not to mention this legal expense. 

Yes I had just wanted the surrender initially but this landlord with his uncertainty and change of minds is costing me time and money.(unable to start work until released of all commitments and liability) He has also informed insurance about me surrendering so they have stopped business interuption. I'm thinking he should meet the shortfall, after all the problem occured in his flat due to his negligence.

I hope you can understand my frustration and dilema.

As for my  solicitor he is only acting as a communications tool between me and the landlords solicitor. No glimmer of hope so far from him or anything for that matter.

What would be my best course of action?

Hi Lou,

I can totally understand your frustration. Unfortunately I am afraid to say that litigation is a very long process and it is not unusual for a case like yours, where you want to claim for loss of potential profits etc, to take between 12 months and 2 years to be resolved.

I realise that you must feel like your solicitor is not making any progress but have you actually spoken to him at length about all of your concerns?

I think that because of the amount of your loss and the relative complexities of your case you really should pursue this matter via your solicitor. If you don't feel like your solicitor is acting on your instructions you should change solicitor. However please bear in mind that although it may appear that your solicitor isn't doing much there may be a lot of correspondence being exchanged between your solicitor and the Landlord's solicitor. Your solicitor will be limited in what he can do if the Landlord won't accept liability or confirm that the Lease has been surrendered. If the Landlord continues to take this stance your only option will be to issue court proceedings against him.

Out of interest have you paid for a barrister's opinion and if so what did this say? Also has mediation been mentioned at all, this is often an alternative to going to court and is far less expensive that having a full trial at court etc.

I hope that you will appreciate that it is very difficult to give any further advice without seeing all of the documents relating to your case. Every single case is different and option the right advice can only be given after all of the paperwork has been considered.

I stand by my original comments though, I really do think that you should pursue this matter via a solicitor and if necessary issue proceedings against the Landlord. This of course will be very expensive and you will need to be confident that you will be successful at court otherwise you risk extremely large legal fees.

Hi, following on from my past comments in the Law Forum, I thought of updating the forum on the progress I have made so far on the leak at my family restaurant from flat above and the fiasco regarding the surrendering of the lease. 

To date, we have changed solicitors and he has brought instantly some sanity and common sense back to the problem. He is seeking deed of surrender without any penalties confirming that he ( landlord) has surrendered the lease with his own actions by letting new tenants in and made the landlord solicitors aware of this situation.

However a leopard doesn't change his spots.  The landlord has gone awol.  No deed of surrender has emerged.  Landlords solicitor say they have no further instructions from their client and are awaiting his instructions or intentions.  By tomorrow it would have been a month since our solicitor instructed for the signed deed of surrender to be sent. 

The landlord has re-let the property and a new business has been trading for over 2 weeks  (Fully refurbished)at our existing premises.  They cant possibly have a lease in place and I presume contract is verbal. 

Once again I would appreciate some feedback on options to deal with this jackal landlord and what to instruct our solicitor to do next.  I hoped to report some positive update to the Law Forum but unfortunately this has not been the case..    More extended legal bills, uncertainty and a wall of silence.  

  Again many thanks...   lou.

Hi Lou,

I think that it is clear that the Landlord has now surrendered the Lease by letting new tenants into the property. Although the Landlord has not signed a Deed of Surrender I do not think that he would be able to persuade a court that he had not now surrendered the Lease.

With regard to suing the Landlord for loss of future earnings, damage to equipment etc from the leak you must take guidance from the new solicitor that you have instructed. If he thinks that your chances of success at court are high in percentage terms and you are getting nowhere with the Landlord's solicitors then it may be time to issue proceedings against the Landlord.