Water damage from above - Owner or their tenant responsible ?

[slick132]

Looking for some expert opinion please.

 

Block of 5 leasehold flats, self-managed by the leaseholders who jointly own the freehold.

 

New tenant moved into upper flat 5 recently and connected their own washing machine poorly, causing a steady leak which went unnoticed as flat 4's occupant below was away.

 

When new tenant noticed leak, they tried to fix it but caused a significant flood of water into, not only flat 4 below but also, flat 3 underneath too.

 

Leak has been fixed. Owners of lower flats 4 and 3 have spoken to flat 5's owner, who says it is their tenants responsibility to cover the significant losses (carpet, bedding, mattress and redecorating) and nothing to do with flat 5's owner.

 

Flat 5's tenant is highly unlikely to be able to pay for the damage caused to both flats, as they are on min wages.

 

Am I right in thinking that the owner of flat 5 is ultimately responsible for the damage to the lower flats.

 

Flat 5's owner can, I assume, seek compensation from the tenant that caused the problem, if they wish.

 

The only insurance in place is buildings ins'ce on the block. This would only cover costs of damage to fabric of the building like redecorating. This won't be claimed on ins'ce as the redecorating costs are minimal.

 

Many thanks 8)

[mariner51]

Do any of the underneath Ts have personal contents Ins?

 

Notify building's Insurer, let them sort it out,

[NewSAHD]

Am I right in thinking that the owner of flat 5 is ultimately responsible for the damage to the lower flats.

 

Flat 5's owner can, I assume, seek compensation from the tenant that caused the problem, if they wish.

 

From the perspective of an Agent:

 

a) Yes - the leaseholder (owner) of Flat 5 is responsible for the actions of their tenant

 

and

 

b) Yes - the leaseholder of Flat 5 could pursue their tenant, perhaps, which is their prerogative, of course, but (strictly speaking) of no concern / interest to other leaseholders

 

Any policy excess should, ideally, be covered by the leaseholder / tenant (etc) of Flat 5 too

[slick132]

Thanks for the replies.

 

Mariner - As I said above, the only insurance is buildings cover on the block which only covers the building itself, ie redecorating. Contents of the lower flats have no contents cover.

 

NewSAHD

 

a) Yes, as I thought.

 

b) Agreed it is of no concern, although knowing the owner has recourse to the tenant will hopefully be a comfort to the owner. They would at least have the deposit available and the ability to recoup any balance in excess of the deposit.

 

Much appreciated. 8)

[mariner51]

I anticipate several aggrieved Ts & LLs/owners

It is claimed leak was caused by flat 5s failure to connect T washing machine correctly (T liability)

Flat 5 T could claim leak caused by crack in water feed pipe to w machine (LL resp, covered by buildings Ins)

Crack in feed pipe could have been caused by T applying undue force on feed pipe connection (Tliability)

Was flat 4 damage exacerbated by occupiers being absent for more than 3 weeks, thus invalidating flat 4 Ins claim?

Can flat 5 LL be held resp for Ts?

Flat 5 tenant app cannot pay other occupants claims and LL can only use deposit for damage to own prop?

Other occupants do not appear to have personal contents Ins (bad move)

If B/contents Ins claim was invoked they would likely apportion liability

At the moment flat 5 LL appears to be the scapegoat

A buildings Ins claim would decide liability IMO

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[slick132]

Hi Mariner,

 

Tenant failed to properly tighten T's w/m hose to LL's w/m connector tap - this was witnessed and established, without doubt. There was no crack in any pipe.

 

Bldgs Ins'ce claim will not be made as costs of redecorating will be minimal. £500 or less for the 2 affected flats so claiming would be unwise considering the likely effect on future premiums and inability to get competitive quotes elsewhere.

 

Lower flats have no contents cover in force - this may be a bad move, on reflection, but is factual.

 

At the moment flat 5 LL appears to be the scapegoat

Not sure I understand you here. An episode has occurred resulting in damage. Surely someone is responsible and accountable.

 

[slick132]

Hi Mariner,

 

Tenant failed to properly tighten T's w/m hose to LL's w/m connector tap - this was witnessed and established, without doubt. There was no crack in any pipe.

 

Bldgs Ins'ce claim will not be made as costs of redecorating will be minimal. £500 or less for the 2 affected flats so claiming would be unwise considering the likely effect on future premiums and inability to get competitive quotes elsewhere.

 

Lower flats have no contents cover in force - this may be a bad move, on reflection, but is factual.

 

At the moment flat 5 LL appears to be the scapegoat

Not sure I understand you here. An episode has occurred resulting in damage. Surely someone is responsible and accountable.

 

[MrShed]

Tenant negligent. Tenant responsible. Simple.

[slick132]

Hi Mr Shed and nice to hear from you again.

 

I understand tenant is responsible but may be unable to pay the amounts involved.

 

Are you saying that the LL is NOT responsible for damage caused by their tenant from the LL's flat.

 

8-)

[MrShed]

No the LL isnt.

 

A party is only responsible for "collateral damage" as a result of damage to their own property if it was due to their negligence.

 

If I'm honest, this came as a surprise to me too, but it is definitely the case.

 

Even if (for example) the property was unoccupied and there was a burst pipe, causing damage to the property below - the owner would only be responsible IF that burst pipe had occurred due to negligence. If the owner can show things such as, heating left on, insulation in place, etc, he would NOT be liable for the damage.

 

And hi also

[NewSAHD]

MrShed, hi, jumping straight in, as off out the door shortly...

 

All these years dealing first hand with water leaks (just for starters) and you're making me reconsider my position here - one that has never been argued against (successfully) out in the so called real world

 

Slick132 says "Tenant failed to properly tighten T's w/m hose to LL's w/m connector tap - this was witnessed and established, without doubt" and, further, when the problem was identified the tenant made the problem worse - resulting in damage to two flats (which, tbh, takes some doing)

 

The landlord is not negligent here, perhaps*, the tenant is, but I've always (successfully, again, sorry) resolved this sort of thing by directing all 'formal' dealings to the leaseholder - whilst having 'polite' chats with all concerned, to ensure the focus is still on the tenant. I accept that the 'polite' threat of legal/admin costs being added to Service Charge may help matters along, but I gather from our earlier exchanges that you may have ready access to your inhouse legal team (so to speak), so I'm interested in what you say here

 

To my mind there may, perhaps, be at least two conversations to be had here

 

I agree with your point

 

"Even if (for example) the property was unoccupied and there was a burst pipe, causing damage to the property below - the owner would only be responsible IF that burst pipe had occurred due to negligence. If the owner can show things such as, heating left on, insulation in place, etc, he would NOT be liable for the damage."

but that's not the issue here, to my mind. If I were the Agent I would treat the scenario above as 'one of those things', let the Insurers/contractors resolve it - and simply Service Charge the policy excess to the block as a whole. Simple - with no extra "s" in there either

 

The difference here, perhaps, is that the Tenant has arguably been negligent / committed 'waste' - and whilst they could be the first point of contact, it simplifies matters to simply direct all dealings against the leaseholder...

 

Hmm. I'm now beginning to doubt this. Would welcome further comments here too!

 

 

EDIT - added

 

* (although there may be some mileage in knowing if the landlord knew a washing machine was to be installed and did they leave instructions with the tenant over the same?)

[MrShed]

But bear in mind that the insurance has no obligation to cover the damage. That is my point.

[NewSAHD]

'Decent' buildings insurance cover would tend to cover damage done to the fabric of the building (redecoration etc) - and should also include for 'trace and access' cover, if the source of the water leak is not obvious. From an Agent's perspective that's a useful thing to have

 

In your scenario (the 'accidental water leak') it would just be one of those things - and relatively simple to resolve

 

Here, though, you have a tenant who has not once, but twice, caused a problem (the second incident arguably being worse, perhaps) - and it is at this point that the tenant's liability and, to my mind, their landlord's responsibility is coming in to play

 

The landlord of the flat may have been unaware of what was going on, but if they left plumbing for the tenant to plumb in a washing machine, did they at any point say to their tenant "please ensure you plumb the machine in properly, if you are are uncertain tell me, and I will do it myself, or get an engineer in for you - otherwise I will hold you responsible for any damage done"

 

Also, the other tenant's should have had contents insurance, but surely they can still pursue the tenant / landlord for damage done? (answer, yes, but legally can they - which is the point of this thread?) And, if so, do you pursue a 'man of straw'? I think that's the phrase

 

Really got to go, but will check back in later!

[Ed999]

My advice is applicable only if the premises are entirely within England and Wales, and a tenancy of flat 5 was created.

 

 

Read this FAQ - Disrepairs in privately rented accommodation

 

If the water leak was due to disrepair - a fact that is not proved, and apparantly ruled out - then the shorthold landlord in flat 5 might be liable to his own tenant under section 11; but he will not be liable to anyone else.

 

Even if it was disrepair, it is not clear whether he owes any duty under section 11 if the disrepair relates to water pipes that serve only his flat. Disrepair to water pipes that serve his flat can result in his water being cut off, which is why section 11 protects his tenant; but if a pipe that does not provide him with water is out of order everyone else's water supply will be unaffected, so it is difficult to see why section 11 should extend to any other flat.

 

 

The downstairs flat has other legal remedies - nothing to do with tenancy law - against the shorthold tenant in the upstairs flat, on ordinary principles of tort: such as the right to sue him for negligence; or in nuisance, e.g. for noise nuisance; or under the strict liability in Rylands v Fletcher, if he causes damage by allowing an escape of water (or fire).

 

Tort liability is normally 'not transferable', which is to say it does not emulate the law of contract, such as the law of agency or the law of master and servant; nor does it emulate the liability of a parent for a child; nor is it a form of vicarious liability; for so far as I am aware it is not imputed to a landlord that he shall be liable for the torts of his tenants. What a can of worms that would open!

 

 

A typical remedy in a leased block of flats is for the ultimate freehold owner to enforce the repairing covenants of the head lessees, and/or to perform certain repairs to structure and exterior and common parts himself, recovering the cost through the service charge payable by all the head lessees in the block.

 

The head lessees rarely give covenants in their long leases to anyone but the freeholder; so there is usually liability only to the freeholder, not between the individual head lessees, under their individual covenants for repair. The freeholder usually covenants to enforce the repairing covenants given in the individual leases at the request of any head lessee.

 

Alternatively, an individual claim on the block's buildings insurance policy can be made by the freeholder; or individual head lessees might claim on their individual household insurance.

Edited April 23, 2011 by Ed999

[slick132]

Hi Ed and thanks for your input.

 

It appears that disrepair has nothing to do with my scenario above.

 

The tenant was negligent by not properly tightening the washing machine hose to the supply tap.

 

There are no insurance policies for contents in the 2 lower flats and the buildings insurance will not be used for the relatively small costs of redecorating.

 

Unless the top flat tenant has insurance cover (which I doubt), she will be unlikely to be able to afford to pay for the damage caused to contents of the lower flats. But this looks like the only chance of recovering the costs of damage caused, so I will pursue this course of action.

 

8)

[Ed999]

It appears that disrepair has nothing to do with my scenario above.

 

The tenant was negligent by not properly tightening the washing machine hose to the supply tap.

 

There are no insurance policies for contents in the 2 lower flats and the buildings insurance will not be used for the relatively small costs of redecorating.

 

Unless the top flat tenant has insurance cover (which I doubt), she will be unlikely to be able to afford to pay for the damage caused to contents of the lower flats. But this looks like the only chance of recovering the costs of damage caused, so I will pursue this course of action.

 

 

In fact, you'd done a pretty good job of explaining most of this in your previous posts. My intervention was purely in relation to the doubt over whether the head lessee of flat 5 could be sued for the torts of his tenants.

 

In relation to contractual liability, the head lessee of that flat could still be liable to you, or rather to all the head lessees collectively, if the provisions of his long lease impose any liability on him for the recent leak as a matter of contract. Sometimes, but not always, the tenant covenants in a long lease impose particular obligations on each lessee; so you could usefully review the terms of your own lease - all the long leases are probably identical - to see what it says about tenant liability for damage to neighbouring flats, if anything.

 

In principle, the cost of repairing serious structural damage is equalised across all the long leases in the block, through the service charge; and in practice is normally borne by the block's master insurance policy, leaving only the increase in the insurance premium to be borne through the service charge.

Edited April 25, 2011 by Ed999

[slick132]

Hi Ed,

 

Noted and thanks.

 

8-)