Damage caused by negligence of property agent

[axil23]

I am the owner of a Tyneside flat which is designed as a 3 bed flat upstairs and a 2 bed downstairs on a Terraced street. So if you can imagine a normal terraced house but purpose converted to 2 flats decades back. 

To make things easier I will post in a timeline. 

9th of October -  I informed the letting agent who manages the property above mine that their bathroom was leaking into mine. I was promised some action but nothing was done.

9th till the 17th - Sent the agent 3 emails and made 3 phone calls. 

17th - I get a email that the person looking after this has left the company and thats why nothing has been done. Various emails are exchanged over the next couple of days as to what exactly is happening. 

18th - The ceiling in the bathroom falls down and this is informed to the letting agent via email. 

19th - Reminder is sent as nothing has been done. 

20th October - The works to fix the leak are done and I am advised that the Managing agent has informed the LL about the damage and a quote for fixing it has been passed on to him. 

25th October - I contact letting agent to ask for an update and am informed that the LL has asked his Insurance company to deal with this

1st Nov - Email for an update as nothing has been done. 

2nd Nov - Get a email from a Insurance claims consultant that says - 

Quote

 

Please note that this was a water leak as a result of an unforeseen event and it isn't either negligent or malicious. It is very sadly just one of those things that happens from time to time. Hence, the need for buildings insurance.

The normal insurance process from your perspective at this time is to make an insurance claim with YOUR insurer. They will then process the claim and if they deem it appropriate they may look to seek their costs from a third party. 

 

2nd Nov - Request LL details so I can communicate with him direct and come to an amicable resolution. 

6th Nov - Request LL details again and get a email back to say they have asked the LL to get in touch which he hasn't. 

 

I have spoken with my Insurance agent and he says that I will be liable for a Escape of water excess of £400 if I claim on my insurance. Plus he raised doubts about whether its a Insurance claim that I should be making with my company as it was not an act of god as such rather negligence on the LL's and agents part that work wasn't done to resolve the leak in an acceptable time frame. The damage was caused by the leak happening every time they took a bath over the 9 days. Which for a 3 bed you can imagine would be quite a bit. Anyway he didn't say whether it was or wasn't a claim as that's for an insurance company to decide and pursue. 

My Tenant is not a happy bunny that its been a month today since she reported this to me and wasn't able to use her bathroom for days when it happened. She is fishing for rent discount which is another matter and I will probably give her something as she is a very good old tenant of mine and I feel for her. 

 

Since I was made to wait under the impression that the LL would get my damage fixed I haven't done nothing about it. I am in a situation now that if I inform my Insurance company the process before the ceiling is fixed would take 2-3 weeks which is too long for my tenant. I would rather get the work done myself this week for which I have taken 2 quotes of around £500-600. 

Do I have any legal options to pursue this in Small claims court? 

 

 

 

Edited November 8, 2023 by axil23

[axil23]

Just to clarify on two points 

The insurance agent who emailed me is an independent and does not work for LL's insurance company. 

I have requested LL's details from the property agent and not the Insurance company. They are not providing me this. 

 

 

[lolerz]

Hi.

Mind if we just clear a few things up first?

1. You're the leaseholder of the bottom floor flat. You pay a Service Charge (and potentially Ground Rent) for upkeep of the communal areas (stairwells etc) upon demand.

2. The leak came from the demised premises of the upper flat, and was not a communal pipe (i.e shared by both flats)

3. You do not know the details of your landlord (i.e. the freeholder)

4. There is a managing agent for the communal areas of the flats (not the letting agent, someone appointed by the freeholder to manage day to day issues).


From what I can gather with your story, the freeholder (your landlord) is responsible for the repairs to the structure of the building, and if it can be proved that the leak originated within the demised area of the upper flat and that they were negligent in repairing it, it's likely that any costs would then be recharged to the leaseholder of the upper flat (likely the insurance excess that the landlord will pay)

No, this isn't something you need to claim on your insurance for. You shouldn't need to have buildings insurance at all, that's supplied by the freeholder or their managing agent. This cost will likely be within your service charge. Your insurance should only be for contents within your demise. 

Note that under Section 1 (1) of the Landlords and Tenants Act 1985 you have a right to know the name and address of your landlord (in this case, the freeholder). If you do not know this, send a letter BY POST (1st class with certificate of posting) to the managing agent. They have 21 days to comply.

You can, at the very least, get the name of your landlord on Land Registry. It'll likely hold a copy of your lease and this can be obtained for £3.00. If the lease is registered between yourself and a business you'll likely find that the registered address for your landlord will be address of the managing agents (not always but common).

[honeybee13]

Flagging this for @unclebulgaria67 in case he can add anything.

HB

[axil23]

Thank you for your reply. In regards to the Insurance question we both have separate insurance polices. Thats just the way it works with Tyneside flats. 

1. You're the leaseholder of the bottom floor flat. You pay a Service Charge (and potentially Ground Rent) for upkeep of the communal areas (stairwells etc) upon demand.

Its a Tyneside flat so does not have communal areas or any annual service charges.. Here is a great explanation of the leases on these type of properties. Its basically a terraced house thats been converted into 2 flats decades back. 

2. The leak came from the demised premises of the upper flat, and was not a communal pipe (i.e shared by both flats)

Yeah. It came from the bath which is above my bathroom. There are no pipes from my flat there. 

3. You do not know the details of your landlord (i.e. the freeholder)

No. I have requested these a few times from agent via email but they refuse to give it to me. 

4. There is a managing agent for the communal areas of the flats (not the letting agent, someone appointed by the freeholder to manage day to day issues).

As per above no communal areas. Two seperate entrances to two different flats from the main road. 

 

Edited November 8, 2023 by axil23

[honeybee13]

As lolerz says, you can easily find out the owner of the building frpm the Land Registry.

HB

[lolerz]

Hi Axil.

Thank you for clarifying this!

My points still stand, the letting agent of the flat above you has until 23rd November to supply the name and adress of the leaseholder of the flat above you (as he is your freeholder in that situation). It might be best to kindly remind them that in refusing to supply this information they are in breach of Landlord and Tenants Act 1985 and liable to a £2500 fine should they default.

Again, Land Registry will give you a name of the freeholder on your lease, which would be the leaseholder of the first floor flat. It'll also have the address they were registered to at the time of the lease being produced but I wouldn't be surprised for that to be a solicitors or managing agent.

You would ideally need a copy of your lease because it should say who is responsible for what. It's quite common in these situations for the owner of the flats to be responsible for different things. I.E You'd be responsible for the roof as the freeholder of the top floor flat (leaseholder of ground floor flat) and they'd be responsible for foundations. It is also common that the structure is a joint responsibility between both of you.

Also note that should it only be the plasterboard that has fallen (and nothing actually structural like beams etc) it would be the leaseholder (i.e you) who is responsible for repairs because it is within their demise. The leaseholder usually owns everything after the structure (this includes plasterboard etc). You would then go through the normal PAPLOC (of which the site team here would be of great assistance) and MoneyClaim through the county court due to the monetary loss if you can prove the negligence of the leaseholder of the flat above, as the leak happened within their demise.

 

[axil23]

In terms of proving negligence,  I have email proof of the various times emails sent to the managing agent asking them to get the work done. I also have a email from them to say that the person looking after this has left the company hence why the delay in getting fixed. This email was sent to me 8 days after my original email. 

Being a company someone leaving them shouldn't excuse them of the liability? If they had the work done within a few days the ceiling wouldn't have fallen. 

Other then that I can't prove what the actual issue was as they never told me. But there are no pipes above that area that supply water to my flat and it was only happening when they were using the bath. 

Do I MoneyClaim against the agent or LL? 

 

Edited November 8, 2023 by axil23

[lolerz]

You would sue the landlord who in turn would sue the letting agent (should they wish to). A landlord is liable for everything the letting agency does on their behalf.

I would not be so quick to litigate though. Did you get a copy of your lease? What are the particulars of the damage, structural damage to the property or just damage to the plasterboard etc? Who is responsible for the damage?

Remember you need to issue a letter of claim before you can submit a claim through MCOL. Not doing so would severely reduce your chances of winning any case. This would give them at least 14 days to come to a solution with you before any claim is issued.

Also remember you can't claim for money you haven't spent, lost or are owed! If you wish to make a claim, you need to get the ceiling fixed yourself first!
 

[axil23]

I will take a look at the lease when in office tomorrow.  In regards to the address of the LL what if the one on land registry is an old one, he could have moved house or it could be an old business one? 

Just thinking if I send him letter of claim and then MCOL documents to wrong address then what would happen? Is the claim void? 

Anyway to verify it? 

Also can I claim for compensation/rent relief that I will negotiate with my tenant for the inconvenience? 

[lolerz]

Just focus on getting the address and the facts straight for now and we'll cross anything litigation wise when we come to it.

Need to make sure everything is water tight first (and give themtime to solve things amicably) before it goes legal

[axil23]

Ok thanks. 

How would I know that the address I find on the land registry is an up to date one though? The property last exchanged hands 20 years ago according to right move. 

Shall I wait till the 21 days is up and remind the agent of their duties? 

Edited November 8, 2023 by axil23

[lolerz]

The likelihood is that it won't be which is why you've requested it from their letting agent

[lolerz]

Also note that Section 48 of the Landlord and Tenant Act 1987 would require your landlord to supply you with an address that notices can be served upon them.

This does not need to be their home address, it could very well be the address of the letting agent should they wish. Might be able to use that to serve PAPLOC and a claim form should it go that far.

 

[unclebulgaria67]

In this situation, if the repair is £600 it appears logical to get the work done at your expense, as you have a tenant to look after.

Then you look into the issues with the property, in regard responsibilities, so you understand what actions you can take now and in the future.

These leak issues are a recurring nightmare with flats and in most cases the flat owner below is left with costs to pay which they never recover. Whilst I agree that upstairs flat owner took too long to fix leak issue, it is the time and expense in trying to seek recovery. As advised, you have rights to obtain information, so you can try to pursue.

[axil23]

I know what you mean but this is now the 3rd time that its happened and every time he/she doesn't do anything to help. £600 is a months worth of rent to me so worth the effort that it will take to hopefully get it back. Plus hopefully they won't let it go on for almost 2 weeks the next time. 

There have been situations where my flat is on top which did some damage to the flat below. I get someone out within 24hrs and repair all damage that it caused as its the right thing to do. 

I really appreciate everyones help on here. You guys are fantastic. Will take a look at the lease and post here shortly. 

[lolerz]

While looking at the lease, get someone out to fix the ceiling for your tenant!

[axil23]

Done that. Its getting fixed today. Got 2 quotes and went with the cheapest option. Would have got another quote but no one else was willing to do the job so quickly. 

[axil23]

Looked at the lease and it basically states that all repairs above the beams are his issue. But it also states that in case of any disputes it is to be decided by an independent third party – an arbitrator appointed by either the Presidents of the Law Society, the Royal Institution of Chartered Surveyors, or the Institute of Chartered Accountants. 

[lolerz]

Sounds about right. You can still go after him through the civil courts should you wish to do so.

Any luck with the letting agents?

[axil23]

Nothing. I sent her a email quoting Landlord and Tenants Act 1985. No reply from them. I have managed to find the LL's details via companies house and my lease. I am sure the companies house ones must be up to date. 

Work was finished today and I was thinking of sending a letter before action tomorrow. So on this letter do I need to go into details about who was informed about leak on what date or make it a simple letter with what damage was caused + what they owe? 

Edited November 9, 2023 by axil23

[lolerz]

It is FAR too soon to be thinking about a letter before action!

You don't even know the address you're going to send it to!

You need to give the letting agents the 21 days for them to supply the landlords details!

 

[axil23]

What happens if they don't? Its clear the LL has given them direct orders not to give my address as she acknowledged my last two emails before today and said she has asked the LL to contact me direct. 

The LL's address on companies house should be the right one? I was thinking of sending letter now and giving them 14 days to answer and in the meanwhile after around 12 days the agents time should be up for supplying the address. If they supply a different one then I can send letter again and if they give the same one as companies house I haven't lost any time.  

[lolerz]

If the letting agent refuses to give details you would make a formal complaint to the council who could then fine the letting agent up to £2500 for failure to disclose details.

If the LL is a company then it is reasonable to assume that the registered address on companies house is correct (and the one you really should use to start legal proceedings) but your case at the minute is so weak that sending an LBA at this stage would only harm you.

This whole idea of "losing time" is quite frankly a load of old tosh because going the legal route is going to the better part of a year should the landlord defend before it even sees a judge!

Legal proceedings should always be a last resort and it would pay you dividends to just hold fire for a little bit, get the story straight and calm your head a little. I'm sure there are other means of settling this.

For one, you should submit the invoice you receive for the repair work to the letting agent of the other property and request to be reimbursed, give them 30 days to do this. I wouldn't be surprised if this gets processed and paid by the letting agent as they're aware of the damage and you get your money back in a few weeks and not a year! You've had the work done and you're requesting to be reimbursed your costs as per the agreement before that the other landlord would handle it. Give them time to pay first before even thinking about an LBA!

Imagine if someone took you to court for a bill you've never seen before? That's exactly what you're proposing here.
 

[axil23]

Ok understood. You are right I should be calm about this. I will forward the invoice to the agent and ask them to settle it and wait the 28 days. In the meanwhile lets see what happens with the LL details from them. Will keep you posted. 

 

Thank you once again for your guidance.