Q&A - Claiming for Repairs 

ANSWER

I will deal with some general legal points first, before answering your specific question.

Although this will depend on the specific facts of the case, which are not clear from the enquiry, it seems that you may have a claim against the Housing Association tenant in private nuisance. An occupier of land (A) owes a general duty of care to a neighbouring occupier (B) in relation to a hazard occurring on A's land, whether the hazard is natural or man-made. The standard of the duty required is that the occupier should do what it is reasonable to expect of him in his individual circumstances.

So, it will be important to determine whether the Housing Association tenant might reasonably have been expected to prevent the leak from occurring (e.g. by keeping the appliances in the flat in a reasonable state of repair and condition).

It is established case law that it is only the occupier of land who causes nuisance who is liable for that nuisance. If the occupier is a tenant, only the tenant, and not the landlord, is liable. This is subject to the exception that, where the landlord has expressly or impliedly authorised the actions causing the nuisance, the landlord can be liable as well as the tenant. It is not enough for the landlord to be aware of the nuisance and then to take no steps to prevent it. The landlord must either participate directly in the commission of the nuisance or have authorised it by letting the property.

It may be that you could also require your own landlord (e.g. the freeholder or intermediate leaseholder) to take action against the Housing Association, under the terms of its lease (I am assuming here that the Housing Association is not your immediate landlord), by relying on a provision in your own lease which entitles you to require your landlord to enforce the covenants entered into by other leaseholders in the building (which could include, for example, a covenant not to cause, permit or suffer a nuisance or annoyance to other leaseholders or occupiers in the building). Without sight of your lease it is difficult for me to comment further.

As to whether you should incur the cost first, this is more of a practical question than a legal question. You will need to demonstrate that you have suffered loss as a consequence of the tenant’s actions, and the damages you will be able to recover should put you in the position you would have been in had the damage not occurred. It may be easier to demonstrate the quantum of loss once the repairs have been undertaken, by reference to specific invoices, but you should be careful to ensure that the costs you incur are not excessive (for example, by obtaining quotations from two or three different contractors). You will not be able to recover more than is necessary to put your apartment back in the state it was in prior to the leak.  It may be that the damage will get worse if you do not take remedial action now, in which case (given your duty to mitigate your losses) you should carry out the necessary repairs at the earliest opportunity. Again, that is simply speculation on my part, as I am not familiar with the facts of the case.

In summary, you do not have to carry out the repairs before you issue a claim, but it may be a good idea if prompt remedial action is necessary to prevent further damage from occurring. If you do carry out the repair works before issuing a claim, you should be careful to ensure that the costs you incur are reasonable. If you do not carry out the repairs first, you will need evidence of the anticipated costs (e.g. quotations from contractors, proof of the cost of items of furniture which need to be replaced etc.).

Roger Hardwick, Head of Residential Leasehold - Enfranchisement at Brethertons