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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I am executor of my late mothers estate which has gone through

Resolved Question:

I am executor of my late mothers estate which has gone through Probate. Last August I put my late mothers ground floor flat up for sale I had 1 or 2 interested parties. The flat above leaked water into my flat damaging kitchen Ceiling & Walls also Lounge Ceiling & Walls, I had to take property off market. The flats are privately owed but are run & maintained by a Managing Agent we pay £90 month service charge in this is insurance to cover accident like this. The Agents made a claim with the insurers to carry out repair and decoration which is going to cost £1,900 this has just been agreed, but I have been told that I must pay £500 excess I cant understand why I must pay this as none of this was my fault the person who owns the flat above has not paid out a penny the agents are going to bill her for their time. Is this right that I have to pay also can I make a claim against her or her insurance company. Marilyn
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask the cause of the leak please? Has it been identified?

Customer:

Kitchen waste pipe from apartment above. alsomain stop tap seepind

Joshua :

thank you. Do you have any evidence that suggests that the owner was aware of the problems that led to the leak prior to the leak occurring?

Customer:

Kitchen wastepipe. main stop tap seeping water thro packing gland I have a report made for the insurance stating this. The managing agent requested Maintenance co to come in access damage. I have report . They tried

Customer:

to enter flat above to see where leak was coming from but were sent away told to come back following week (he was going out) they came back following Monday and went up there were new pipes under sink and leak into my flat had stopped the plumber said in report "I think there has been a leak in there and they have had their own plumber in and fixed it hence leaving a week to dry out before allowing entry" Floor cupboards where spotless not something you would usually find. At back of units there was no dust at all as though they had been recently wiped

Joshua :

Thanks. By the time entry was gained, from what you say the leak had been stopped and damage already done?

Customer:

Yes 28/1/14 Report was made. Plaster board was removed in the area of ceiling and water could been seen coming down from the above kitchen waste pipe this was soaking ceiling box and causing paper to peel from walls water stains over ceiling kitchen and lounge this is when they went upstairs to the flat above but were not allowed in and told to come back which they did 3/2/14 The leak was first found in November but they couldn't determine where it was coming from

Joshua :

Thanks. So to be clear on thwowe timeline, the leak first occured in Novemeber. 1 - damage occured to your ceiling for what period? 2 - leak was fixed you believe when 3 - no further damage occured after what date?

Customer:

Looking at my dates it was December not November sorry they thought at first it was facia bricks outside these were pointed between Christmas & new year obviously the leak continued and on 28/1/14 they came out again this was when they tried to gain access. So the leak stop sometime between 28th Jan and 3rd Deb

Customer:

Feb 3 Seems to have stopped

Customer:

Sorry ! leak seems to have stopped between 28th Jan & 3rd Feb Its took this long for the insurance to get sorted

Joshua :

Thanks. From what you say here the position is that if the the leak and consequent damage was caused by negligence of the upstairs owner - namely failure to maintain his pipes then you may have a claim against the owner of the upstairs flat

Joshua :

On the basis you can show negligence on the part of the leaseholder you have the basis of a claim claim for the costs of the repair of the damage caused.

Joshua :

if the leak was an accident and there was no failure to maintain pipes or other negligence on the part of the lease holder, then no claim can be made against the lease holder personally and it would be a question of making a claim against either or both of your contents insurer and buildings insurer in respect of repairs required to internal decorative repairs to the flat which are your responsibility under the lease as executor.

Joshua :

if you find you cannot make a claim against the upstairs owner because you cannot establish negligence, they would fall to you to pay from your mother's estate any excess on the insurance claim you chose to make.

Joshua :

in terms of evidence relating to negligence, even if the original leak was not the fault of the upstairs owner, delay in repair can turn what otherwise may be an accident into negligence and accordingly, if you do not have evidence of failure to maintain pipes on the part of the upstairs owner, if you can demonstrate delay on his part in attending to repairs following notification by you or the managing agent of the league, then this can be sufficient to establish a claim for negligence against him in particular for any further damage caused after the report of damage

Joshua :

if necessary, you will find that you have a right of access to the upstairs owners flat for the purposes of inspection and repair and can seek access to his flat for the purposes of inspection is necessary to establish the position as above. If you require access and they refuse, you cna apply for an order from the court for access by using using form N244

Joshua :

if you can establish a basis that the landlord has been negligent, you can consider a claim in the County court for the costs of the repair. The simplest way to issue proceedings is by using www.moneyclaim.gov.uk

Customer:

ok so how do I go about that do I write myself I'm not having to pay for the repairs the insurance is paying for that its the £500 excess that their saying 'Ive got to pay so how can I claim that from her ! So what is the best way for me to make a claim against her, write her a letter! What you have told me I already knew. I am not sure you understand what I am asking

Joshua :

Just to be clear - you are asking why you should pay a £500 excess on the insurance claim and is there any way you can avoid payment in particular hold the upstaris tenant responsible. Is that correct please?

Customer:

Yes I feel she should be held responsible not me so are you saying I should go thro small claims court & is this expensive is it worth doing for £500

Joshua :

I quite understand your feelings on the matter and they are entirely common in this situation. The subtlety which is relevant is that in law, it is not enough simply to show that a leak originated from a person's property in order to hold them responsible for the leak. A person Can only be held responsible if you can establish negligence on their part, in this case in respect of the cause of the leak. And it follows that you can only make a claim against them if they can be shown to have been negligent.

Joshua :

accordingly, you would need to be able to demonstrate either that they failed to maintain their pipes knowing that there was a risk of a leak, or that they unreasonably delayed in attending to repair of the leak having been notified of it

Joshua :

if you can demonstrate either of these things, then you have a basis to claim they are responsible legally for the damage caused to your mother's flat and could pursue a claim for the cost of repairs against that flat owner rather than making a claim against the insurance policy

Joshua :

if you find however that you cannot establish negligence which can unfortunately sometimes be the case with regards XXXXX XXXXX then there is no claim in law against the flat owner and it would be a matter of either paying for the repairs yourself or alternatively making a claim against the insurance policy with any excess falling to you.

Joshua :

if you consider that you have evidence of negligence as we have discussed above, then you can make a claim either for the access or for the entire cost of the repairs. the Small Claims Court is cost-effective and does not expose you to any legal costs for the other party with a you are successful or not. The cost of issuing proceedings in the Small Claims Court for £500 is £35 with a further £55 if the matter proceeds to a full hearing. These costs are recoverable if you are successful

Joshua :

Is there anything above I can clarify for you?

Customer:

I could do that I suppose claim against her instead of insurance but then that's more months wasted(as I've had to remove it from sale 4 month ago plus expense I think ill just have to cut my losses and pay it. No I think

Joshua :

there is nothing preventing you making a claim against the insurance policy and then subsequently or at the same time making a claim against the upstairs neighbour for the excess you pay to the insurer.

Joshua :

you are not prevented in making a claim against the upstairs owner because you make a claim against the insurance. If you can establish a claim for negligence against the upstairs owner, you have a potential period of up to 6 years in which to make a claim

Customer:

No, thank you for your help

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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