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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10089
Experience:  30 years as a practising solicitor.
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Our groundfloor flat has been damaged bt water leaking from

Customer Question

Our groundfloor flat has been damaged bt water leaking from the flat above. Who's responsibility is it to get this fixed?
Submitted: 8 months ago.
Category: Scots Law
Expert:  JGM replied 8 months ago.
It is the upstairs owners' responsibility to fix the source of the problem once the problem is apparent. However, the damage is not necessarily their responsibility unless they are found negligent in some way for the source of the problem. The law is summarised in a previous case as follows:In Kennedy v Glenbelle Ltd , Lord President Hope made clear (page 99) that liability for negligence and nuisance are both species of delictual liability. His Lordship observed:
“According to the law of Scotland liability in reparation for damages arises either ex contractu or ex delicto . There is no other basis on which a liability in reparation for damages can arise, according to our law. A claim of damages for nuisance is a delictual claim, as it does not depend for its existence on any contract. It arises where there is an invasion of the pursuer's interest in land to an extent which exceeds what is reasonably tolerable. The plus quam tolerabilile test is peculiar to the liability in damages for nuisance. Where that test is satisfied and culpa is established, the requirements for delictual liability are fulfilled. Liability in damages for negligence, on the other hand, depends on a failure to take reasonable care where there is a foreseeable risk of injury. That is another species of delictual liability, the basis for which also depends upon culpa .”

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