QUESTION
My flat has been damaged by water pouring through my ceilings from the flat above. This happened on 5 separate occasions in the last 6 months and both my kitchen and bathroom are now badly water damaged and in need of redecoration and damp treatment. The water damage even short circuited the bathroom light fitting and it has not worked for 4 months now. On each occasion that water poured into my flat, I informed the tenants straight away – showed them the damage and also emailed their landlord to tell him about the incident. I do not know what the cause of the water damage was but judging from the volume of water that fell on each occasion, I suspect that it may have been a badly connected or faulty washing machine. It was hard to tell because the flat was overcrowded (2 adults and 4 children under the age of 10 in a 1 bed flat) and there could have been some ‘water-play’ going on with the children. As an aside, I had cause to contact the landlord on several occasions because these tenants were a real noise nuisance to the building and were responsible for trashing their flat and the communal hallway, stairs and landing. Happily the tenants have now been evicted from the building and the water damage to my flat has dried out.
I have approached the freeholder of the building to ask for my decorations to be done through the block buildings insurance policy. The freeholder states that they are unwilling to do this and that my solution lies with suing the owner of the flat for the cost of my works. In support of their assertions to me the freeholder states that this is their stance when the works required are due to:
1. An act of repair/maintenance neglect on the part of a flat owner
2. An act of vandalism or malicious damage caused by the tenant of a flat owner
I have spoken to the owner of the flat and he denies that he has any responsibility to pay for my decorations stating that I should instead be claiming the cost from his (former) tenants. His defence is that it wasn't him that damaged my flat but his tenants and in any case, he has very little money and what little money he can scrape together has to be spent on putting his own flat right which his former tenants have trashed ... Who is right?"
ANSWER
First step is to challenge the freeholder. You state that they have taken a “stance” on these issues which may not be fair. You presumably as a leaseholder are contributing through your service charge to the insurance premium, if you are then you have a right to claim on the policy, and insist the claim be presented to the insurers – it should not be up to the freeholder to decide what can be claimed.
It is possible that the freeholder actually has arranged the policy that excludes these risks in which case a claim will not be possible. If this is the case then we would question whether the policy was fit for purpose. It is common for a block of flats policy to exclude damage caused by a person to the flat in which they reside but this does not normally extend to excluding damage in the communal area or in another flat .
If the freeholder does agree to submit a claim we are not sure how much you will get back. You mention this happened a number of times, each occasion would be treated as a separate claim and have the policy excess applied to each claim individually. You cannot submit this as one claim so only one excess applies.
In the absence of any insurance you will have to try and seek redress against the upstairs landlord or tenant. We cannot comment on this from the information you have provided whether you have any chance of success and recommend you seek legal advice. If you have your contents insured it is probable that the policy will have a legal advice line service which may help get some initial advice as to whether this route is viable to you.
Nigel Feast, Managing Director, Deacon
