Who's responsibility for flood from flat above?
I've had a flood from upstairs flat. We are 4 owners in a Grade II listed building, all leaseholders, no freeholder, we have our own management company set up and are shareholders in that. We pay a service charge and have a Buildings Insurance policy in the management company's name, I am company secretary and currently manage the building in terms of maintenance and accounts etc.
I came back from 6 days away to my bathroom flooded and a large hole in the ceiling. A plumber had fitted new taps in the upstairs flat bathroom on the first day we were away. That same plumber attended the flood as there are tenants in the upstairs flat and it was 5am. After working on it, switching mains water on and off etc, he said the water was coming from a disintegrated 0 ring in the waste water pipe for the bath. He said this could have been happening for a period of 15 years and the ceiling then suddenly given way causing the flood. As the water coming into my flat was clear and running when we arrived back and stopped when we turned off the mains water supply I was suspicious of this as a cause. He said just a coincidence that it happened at the same time he changed the taps..
For the moment I will spare all the details. I can't claim on the buildings insurance as the other flat owners don't want the premium to go up or the water ingress excess. As we are all shareholders I need the consent of a quorum to do act. The premium is already inflated because the upstairs tenants already caused a flood to my ceiling 3 years ago and an insurance claim was made (by a previous management agent). I have read the small print and and we would not be covered for damage as a result of workmanship or from deterioration.
So, what can I do? I am getting conflicting advice. The letting agent (for above flat) is downplaying the damage, says I am exaggerating and wants her maintenance man to fix the damage for £500. The owner also wants this. I've had 4 quotes all quoting £3,000. I've also paid a building surveyor to assess the damage and provide a report, the damage is as bad as I suspected.
What do I do now? The letting agent is acting on behalf of the owner, the owner will not have dialogue with me, they insist it is a buildings insurance claim or the management company pay for the damage out of the sinking fund.
Do I sue him? How? Or is it the plumber who is responsible? Where does the ultimate responsibility lie? I need to get fixed asap as I am the sole carer for my mother who is dying from leukaemia, she has to stay once a week as she has all-day transfusions and I live next to the hospital, she is an hour away from hospital. I am on E&SA for acute stress. This situation in the flat is not helping and I have already had a weird 'turn' (where I lost my sight and had to go to the doctors) when the letting agent, who has from the outset been combative and aggressive, threatened to sue me for libel after sending her maintenance man to my house and who then covertly recorded our conversation.
Help! I feel it is a very simple situation that is being complicated by bullies, is there a simple solution?
Many thanks.
Julia
There are a number of points
There are a number of points here.
Almost certainly the company in which all owners have a shareholding will be the freeholder.
Each owner will hold their individual flat on a lease from the freeholder which will set out among other things the repairing obligations of the relevant parties.
The lease would generally place the burden of maintaining the structure on the freeholder subject to the payment of a maintenance charge from the individual owners.
Generally the freeholder is under an obligation to insure the building against normal comprehensive risks.
Where services are used jointly between all owners the freeholder will be responsible for the upkeep.
Where services are used exclusively for an individual flat then that owner will be responsible for their repair and maintenance.
If the structure of your flat has been damaged by water ingress from another flat then this should be covered by insurance. I do not believe you require the consent of the other owners to make a claim. You, as an owner, have an interest in that policy and I can see no reason why you should not claim. After all what is the point of paying towards a premium on a policy which is not going to be used when damage is suffered.
It is not entirely clear what has caused the leak but the owner of the flat above would be under the duty to you to ensure that water did not escape from his flat.
If it did, it is reasonably forseeable that you would suffer damage and therefore I believe the owner of the flat above is liable to you.
In the normal course of events you would, as I have said, make a claim on the insurance policy. The insurance company would then make a decision as to whether they wanted to recover their outlay against the person ultimately responsible.
Thank you for your reply. I
Thank you for your reply. I have checked with the Land Registry and there is no freeholder, the company that did own it went into liquidation in 1982. The freehold is probably with the Treasury Solicitor.
If we all pay for an insurance policy then we all surely have a say whether it is claimed on by an individual? As we are all affected by the knock-on premium rise and also the question of who would pay the excess? As it is always this flat above that does the damage, our premium and excesses are sky high, so we want to put a stop to it.
Flat owner
I really do not understand
I really do not understand the logic of your argument.
There is no point in paying premiums if you are not going to claim when loss is suffered.
When would you claim?
If the building was burnt to the ground would you make no claim because the insurance on the rebuilt block might be more costly?
It just does not make sense to me.
I still say that you can claim.
As a matter of practice you might have to pay the excess but you can recover this from the management company - I still assume it is responsible for insurance and structure -who in turn can claim it from the person who caused the damage namely the owner of the flat above you.
If the freeholder is the Treasury then steps should be taken immediately to get the freehold transferred to the management company.
I assume the flats are held on the type of leases I referred to in my previous post.
If the other owners do not like this try and get the freehold transferred to to you personally.
This would give you a measure of control over the others.
Thank you for your reply,
Thank you for your reply, perhaps I haven't been clear enough in my explanation. We've just had yet another flood. Clearly caused by bad workmanship from the same plumber who caused the last flood.
So, as per my original question. Who is responsible for paying for the damage? The flat above is managed by a letting agent on behalf of the owner. Is it the plumber, the owner, or the letting agent who instructs the plumber to do the work?
Of course we would make a claim if the building burnt down, and that is the exact point. The building insurance is for the fabric of the building, big problems like roof leaking, ceilings in the common areas coming down, tenants tripping over faulty steps in the stairwell and plunging to their deaths in the common areas. It is not meant to cover dodgey plumbers who come in and do dodgey work in owners flats or tenants or owners not looking after their fixtures and fittings properly which then leads to damage to other flats or the common areas.
The premiums and water ingress excess is so high because of this flat owner and his flat. The other owners quite rightly do not want to carry on paying for his irresponsibility.
Seems quite clear to me.
As for the freehold, it is in hand but not complete.
Flat owner
OK OK. So you do not want to
OK OK.
So you do not want to make a claim.
It seems odd to me but so be it.
As I have said the person responsible is the owner of the flat above you who owes you a duty not to let water escape from his flat.
In my view he has negligently allowed this to happen.
The damage you have suffered is reasonably foreseeable.
Therefore he is liable.
He in turn might bring into the action the plumber and/or the letting agent but your claim will lie against the owner.
Thank you for you reply,
Thank you for you reply, thats clear now.
Re the Buildings Insurance though....
I still dont understand why everyone says you HAVE to claim on a buildings insurance just because you have one. Surely its a choice to make? Its there for the big external structural things but if I flood my floor and its damaged, Im not necessarily going to claim on the buildings insurance if its my mistake. Why should everyone else pay the price for my stupidity? Whats happened to the world, no-one takes responsibility for their actions?
Also if our leases say we are own the floors, ceilings and stud/partition walls of our flats "the demised property" and we are responsible for upkeep of them, not the management company, then why should the Buildings Insurance cover personal mistakes, bad workmanship in the private flats? Its very confusing to me.
I have done a lot of research on this, though not with a solicitor. The insurance companies give conflicting advice, some are willing to cover you and then others say if you have two insurances it makes them both void. Surely there must be some sort of procedure if you have a flat owner who isnt being responsible. This is now the 4th flood from upstairs...I've never caused a flood to the flat beneath me, I maintain my plumbing, switch off taps etc etc. There must be an accidental cover bolt on to a home insurance or a landlord's liability insurance which clearly lays the responsibility and onus on the flat owner only. So if damage happens as a result of person action then the owner has to take the hit of the premium and excess rise himself?
Sorry to bang on but its a difficult subject when the status quo is just always "oh claim on the buildings insurance".
Thank you.
Flat owner
Hi, Ian is absolutely correct
Hi,
Ian is absolutely correct in everything that he has said. However it is clear that you do not want to claim on the insurance policy because presumably because the premiums will increase and you do not think that this is fair when the leaks always come from the same flat.
The alternative in this situation is simply to take the owner of the property to court. Issue a small claim against the owner of the property, as Ian has stated he owes a duty of care to the owners and occupiers of the other flats not to allow water to escape from his property.
You will find plenty of guidance on how to issue a small claim in other posts of the forum.
I hope that this helps.
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Great, thanks, yes, that is
Great, thanks, yes, that is the reason for not wanting to claim. Thanks Ian and Gerard for advice.
Flat owner
Some final points.1. It is
Some final points.
1. It is the lease which sets out the responsibilities of the freeholder and the individual owners.
2. Insurance is available to persons who wish to cover themselves against loss due to the happening of certain specified events or loss arising out of their liability to others.
3. Generally speaking there is never a compulsion on those who have insurance to make a claim on it.
4. In this particular case you wish to hold responsible the person who caused the damage. That is fine provided that person is not bankrupt with no equity in any properties he owns. In the event of the latter situation you may find insurance quite useful.
5. The normal cover which a freeholder obtains will cover damage to the fabric of the building caused by water leaks.
6. The cost of repairing the damage would be covered but if the leak was caused by a pipe which had deteriorated by fair wear and tear then the cost of sorting out that pipe would not be covered. I agree that the insurance company may impose conditions on the policy until the problem was rectified.
7. You will have to go back to the lease to establish ultimate responsibility for the repair of that pipe.If it exclusively served a paticular flat it will be that owner who is liable. The freeholder / management company will have rights in the lease to repair it if the owner does not and claim back the cost.
8.If the pipe seves more than one property it will be a maintenance issue with all owners contributing.
9. If the insurance premium increases because of one owner's default it seems to me the freeholder/ management company will be able to charge that increase to the defaulting owner.
I should point that none of the above changes my view as I set out in my post of the 30th August