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Category: Property Law
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Experience:  Barrister at Self Employed Barrister
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The flat below me is telling me I am liable to pay for

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The flat below me is telling me I am liable to pay for damages to their bedroom ceiling due to an unforeseen escape of water in my kitchen
I want to find out if I am liable
what happened? Do you know?
Customer: replied 2 years ago.
Yes - basically there was some water going down the back of my kitchen worktop as the mastic sealant was failing - and the floorboards had gaps in them so it was possible for water to trickle down.I insisted we get a surveyor to assess the cause of the damp in their flat as no one that has investigated the situation in the past has been able to give a conclusive answer of what the cause of the damp is, I paid half of surveyors fees and owner of flat below paid the other half of the fees.The owner of Flat 8 rents the flat out below mine on the flat owners behalf, the owner of Flat 8 is also the Chair/Chief Director of the freehold management company that all the flat owners are a part of.Builders/plumbers employed by the owner of Flat 8 to investigate leaks in my flat have never been able to identify leak or damp in my flat or find a cause. They have advised in the past that i have my sink sealed to kitchen worktop and stapled to cupboard to avoid movement and splashes going behind sink - which I have had done - but have not said this is what was causing the problem - in fact they have said I would have to be spilling an awful lot of water every day to impact on the ceiling below.I have attached surveyors report.I have paid for a new kitchen worktop in my flat and the floorboards to be replaced and sealed - I don't have any more money and have struggled to pay my last mortgage payment. They want me to pay for them taking ceiling down, reinstating ceiling and decoration and are threatening to take me to a small claims court. The owner has not tried to claim on insurance and the freehold management company are staying we can't claim as it is my maintenance issue and therefore I am liable. However, when i have spoken to insurers they say they doubt I am liable as it was unforeseen - i.e. I didn't know what was happening and I have not been negligent.I keep receiving emails saying that I have accepted I am liable as I have had works done, and that the surveyor was employed to determine liability - when I have been very clear that the surveyor is employed to identify the cause, not determine liability.The latest is that I haven't had vinyl put down - so they are probably going to say that I haven't had recommended works done, however, the workmen advised that I didn't need vinyl flooring to stop water ingress.I have attached the surveyors report which states recommended works, a timeline of events and costs and an invoice for the works I have had done which describes the works.James is the owner of flat 8 and the landlord of Flat 2 belowEd is the owner of Flat 2El refers to me.I hope the above makes some sense.Advice would be great.
The key is that they need proof that you are responsible for the damage - from what you have written they have no such proof. They would normally look to resolve this matter with reference to insurance although they are don't need to do this - the court would need proof from them (they need to prove their case) that you are liable - if they can't then they can't win. Happy to discuss. Please rate positive
Customer: replied 2 years ago.
HiThanksHow could it be proved I was responsible for the damage?What would make me responsible? And am I responsible? Does the surveyors report point at me being responsible? And am I now liable for being negligent as I haven't had vinyl flooring put down but have had new floorboards and sealant between this in area of concern? The lease does not say anything about flooring - other than should be carpeted for sound proofing purposes
They would need the surveyor to say it is your responsibility. From what you have written this is not the case. I would not consider that your decision not to have vinyl flooring makes you negligent - that is not the cause. I hope that this helps - please rate positive
Customer: replied 2 years ago.
Did you look at what was written in the surveyors report? Can you please check the wording corresponds with me not being responsible?
I have not been able to open that document and have relied on what you have written
Customer: replied 2 years ago.
oh ok - i have copied and pasted the part that relates to my flat and the recommendationsif you could confirm that the below doesn't imply I am responsible that would be greatthis is my last question!thanks3.2 – First Floor Apartment
Upon inspection of the first floor property, it was noted that a kitchen area was located directly above the bedroom. To the rear left corner of this kitchen (in line with the rear left corner of the bedroom below) there was noted to be a boiler.
Slightly right of this, there is noted to be a washing machine. This appeared to share the same waste and supply as the sink. The washing machine was not in use during the inspection and the pipework behind it could not be inspected. Connections into the back of the washing machine should be checked.It was noted that the flooring within the first floor apartment was exposed floorboards and light could be seen where the ceiling to the apartment below had been removed.Upon inspection of the worktop, it was noted that the mastic to the junction of the worktop and wall / window board was in poor condition and showing potential signs of failure in some locations.The rear wall of this room was restricted in some places by the position of the washing machine and base units of the kitchen.
Within the cupboard of the kitchen (under the sink) the rear wall could be observed where this cupboard back stopped. Staining was evident to an area of the wall indicating a source above. This staining could also be seen when one looked at the wall underneath the base unit.When the kitchen tap was run, it did not appear that there was any leaking to the copper pipes or to the PVC waste pipe leading from the sink. However, when water was poured onto the worktop behind the tap, it was able to track through the mastic and onto the floor below. The mastic seal has failed. Water was then be able to track between the floor boards and into the property below.
The mastic elsewhere within the kitchen appeared to be of similar age so there are likely to be similar issues elsewhere.
Serious consideration should also be given to the installation of a vinyl floor finish or other to the first floor kitchen in order to seal the floor boards and prevent accidental water spillages from immediately affecting the ceiling of the ground floor apartment. This could limit the damage if future leaks occur.4.0 Conclusion & RecommendationsFrom my inspection the main source of water is the result of the failed mastic joint to the rear of the worktop.
The poor condition of the mastic work to the kitchen worktop, together with the unsealed nature of the kitchen floor has allowed water that overspills the sink or spills on the worktop to pass unhindered onto the floor of the kitchen. In turn, this water is then able to pass between the floorboards and onto the ceiling of the ground floor apartment.As such, the following recommendations are made:1. Rake out and reapply mastic to the entire perimeter of the kitchen worktop where it junctions with the wall and window cill2. Renew the mastic work to the perimeter of the sink within the recess of the worktop3. Pull out the washing machine and confirm that feed and drain pipe to / from the washing machine are firmly fixed and water tight4. Install vinyl flooring to the kitchen area or similar (subject to terms of your lease) ensuring that the solution seals the floor boards.
In regards ***** ***** ground floor apartment, it is recommended that the ceiling is not reinstated until the pressure test has been undertaken on the boiler as the engineer may wish access to view the pipework5.0 Limitations
This report is for the use of you and your professional advisors only. We cannot accept or permit its use by a third party unless expressly authorised by us in writing.
I am sorry but from the cut and paste of his report he does hold you liable for the damage. He puts it down to the water being poured onto the worktop and basically falling through the gaps. Please rate positive
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Customer: replied 2 years ago.
ok thanks
Customer: replied 2 years ago.
why does that mean I am liable if I didn't know it was happening?
Because 1. the damage comes from your property and 2. you should have been aware - I still think that this is a job for insurance
Customer: replied 2 years ago.
Why should I have been aware? If none of the workmen sent round could identify the problem - how could I of been aware of it?
Customer: replied 2 years ago.
Also - am I open to liability if I don't put vinyl flooring down now that the kitchen worktop and sealant has been replaced and the floorboards sealed?
No but if you caused the damage the you will be liable