Constant water leaks from the flat above – what would you do?

by Readers Question

15:10 PM, 9th November 2012
About 6 years ago

Constant water leaks from the flat above – what would you do?

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Constant water leaks from the flat above – what would you do?

I’ve received the email below from a landlord called John Caversham who has a problem with constant water leaks from the flat above his. What would you do if you were John?

I have a problem and would be grateful if you could share your thoughts and put it out to the masses.

I have a ground floor flat in an old converted house with two flats above me. Have owned this property for 13 years and I have lost count of the amount of water leaks I’ve had from the flat directly above into my property. As I am a builder I have previously replaced ceilings at my own cost as the landlord above is so difficult and arrogant, (one of those shoddy landlords who spends the absolute minimum). 

There have been four water leaks from above this year alone.!

Had a call two weeks ago from my tenant to say water was pouring through the kitchen ceiling light fitting. The landlord above said his new tenants had plumbed their washing machine in and it must be that, and that he’d fix it. The problem seemed to go away, but today I received a call again from my tenant to say that water is again pouring through the ceiling, which has also gone black with fungus growing on it, it smells of damp  etc…..

I really want to take some sort of legal action now as enough is enough.

One of the issues is that the landlord who I deal with ‘professes’ to own the property isn’t actually the mortgagee.  The mortgage is in a different name who’s address I don’t have so I don’t really know who  to tackle legally. The landlord was convicted a few years ago of mortgage fraud so I suspect this could be one those dodgy mortgages.

So really I have two questions.

1. Is the mortgagee responsible or is it the responsibility of the person who ‘professes’ to be the landlord’ (A bit like car ownership-the name on the logbook isn’t necessarily the owner)?

2. What legal action if any can I take? I’m sure he will get round to fixing my ceiling just as he previously had done. However, his builders are usually dodgy cash in hand types who do a pretty poor job so I would like to fix it myself and claim all costs back,  plus claim for stress and aggravation. The insurance excess is now so high its not worth claiming.

Any thoughts and pointers gratefully received.

Best regards

John Caversham”



Comments

Mark Alexander

16:18 PM, 9th November 2012
About 6 years ago

Hi John

Who owns the freehold of the building? Presumably you own the leasehold of the flat? The freeholder should have insurance which you can claim on. My understanding is that the way this normally works is that you shouldn't be responsible for the insurance excess, the freeholder should pay that and reclaim it in service charges from all the other freeholders.

Recardo Knights

17:22 PM, 9th November 2012
About 6 years ago

Hi John
Hard to say without all the facts, but as Mark says who owns and insures the building.
I brought a flat and helped my kids to by one in a converted block of 4 flats. the 2 flats downstairs are owner ocupied, and we have the two above. Each flat owns 25% of the freehold and 25% of the lease.
The building insurance is paid for by the 4 flats and the owner occupiers downstairs probable have their own contents insurance.
Any water damage from above would be claimed on the buildings insurance, and any policy increase would be shared by all 4 owners.
If the freehold is owned by a third party their insurance should cover the claim. If too many claims are made for water damage insurance could be refused or the excess could rise to unbelievable amounts.
As a builder myself I would get 2 high quotes for the repairs and confront the ''Landlord above'' with them, as this seems to be a recuring problem, then offer to do the work yourself if he is paying, again depends on who's paying the insurance.
I would also point out to the tenant above what damamage has been caused by his DIY and threathen to sue for damages if any water damage happens again. But that's just me a bit confrontational. My tenant deserves a peaceful life and I would fight on there behalf.
If you know who owns the freehold let them know what is happening,he may have a word with the other ''landlord'' let us know what course of action you took.
Recardo

11:04 AM, 11th November 2012
About 6 years ago

I would try doing the following:

1) Keep a diary of all leaks and related conversations, emails, phone calls, etc, that I had with the 'landlord' and tenant, as potential future evidence.

2) Find out the name and address of the mortgagor via a Land Registry search.

3) Contact the mortgagor with a full account of the leak history, saying that I am now seeking compensation for my time, aggravation and previous repair costs. I would also let them know that I will be seeking compensation for any further costs incurred by future leaks. I would tell them I will be taking out a small claim/putting it in the hands of my legal advisers if they don't pay.

4) Take the legal action threatened if (when) they don't pay.

I would ignore the 'landlord' as, if they are not the true owner, I don't think they would be legally responsible. I would also ignore the tenant, and I don't see why you should be having to deal with insurance companies. Instead the mortgagor of the flat above yours should compensate you, and it should be their responsibility to make an insurance claim or recover costs from their tenant (or their landlord accomplice) - not yours.

I would also try quoting Rylands v Fletcher at them! http://en.wikipedia.org/wiki/Rylands_v_Fletcher

Just my two penny worth. Good luck, be interested to hear how you get on.

Annette Stone

12:11 PM, 11th November 2012
About 6 years ago

As a managing agent with 21 years experience I cannot see why you are bothering with the owner of the flat above yours unless you suspect that the owner of the flat is the freeholder of the building.
Whatever the situation is, if there is a managing agent this is their problem to sort out and if there is no managing agent then it is for the freeholder to deal with this. You can probably find out who the freeholder is by seeing who you pay your building insurance premium and ground rent to and if you cannot find this or get a positive response then do a land registry search on the freehold title and this should provide what you need.

Your lease should contain a clause relating to the peaceful and quiet enjoyment of each flat and the responsibility of the other flats not to cause nuisance and disruption. Either the managing agent or the freeholder has to deal with the immediate issue of the leak and the subsequent repairs and then deal with the ongoing nuisance caused by repeated floods.

Mark - forgive me for correcting you but if an insurance excess is raised above what is considered a normal excess (and I have seen policies which have raised the excess on water damage claims to £5,000 per claim) then there are grounds for claiming this from the owner of the flat which caused the problem, particularly where there are repeated leaks and clear evidence of negligence by residents or lack of attention to pipes, wastes, sealants etc.

Hope this is helpful

Steve Dalloway

13:34 PM, 12th November 2012
About 6 years ago

Hi John,
This is a really bad news story for sure. we hear this a lot too. Should we be namimg and shaming bad landlords now ?

What about a section on the site Mark ?

Mark Alexander

14:36 PM, 12th November 2012
About 6 years ago

Hi John

Absolutely not!

Please see >>> http://www.property118.com/index.php/what-property118-is-not/

Regards

Mark

JohnCaversham

15:41 PM, 12th November 2012
About 6 years ago

Hi all many thanks for your input!

Update....The insurance excess is £1k the damage approx £750..So not worth claiming. As there are only 3 flats in the block we have a 1/3 share each of the freehold...The maintenance is organised on an as and when basis ie no monthly contrib.

Had what turned out to be a 'heated' conversation with the landlord above on Sunday after i couldn't raise him on Saturday ....It makes amusing reading and i will indeed keep a log of all conversations and events but in a nutshell the landlord above is a blatant idiot!

He said.....
1. That he and his had plumber visited on Friday as soon as i had told him there was a leak and that they'd had a look but couldn't see any water leaking in his kitchen so assumed all must be OK and just left it. (His 'plumber' turned out to be his tenant.)
2. Landlord advised that he'd personally taken a look at my ceiling on Saturday (my tenant confirmed the landlord did NOT take a look at my flat on Saterday but his tenant had)
3. There was 'only' a dripping pipe on the washing machine and that i should take it up with his tenant because as far as he was concerned he wasn't responsible...I held my cool and told him i wasn't happy with that at all, but he said that was his position so tough....So i polity but firmly told him i'd go through SCC of need be, he replied-"listen, i don't like it when people threaten me, And in any case he said i don't own the flat and if you think you can take legal action against the owner then go ahead!" ...However my blood was, by this point, rather boiling somewhat and the call didn't end too well as i called him a prize axxxxxe as the call ended...! (i know i should have kept my cool and NOT used that word but we were in the midst of an argument by now and his manner definitely required the use of something expletive!)

I have today got a plumber to take photo's and fix the leak from underneath as it looks like it's nothing more than an underfloor waste fitting issue, then ill get the ceiling fixed all at my expense initially and i'll give him the bill for the lot. I'm assuming he won't pay but in that case the SCC will simply put a second charge on the property?

TBC.....

Mark Alexander

16:42 PM, 12th November 2012
About 6 years ago

Hi John

Clearly you need to check land registry to see who the registered owner is and direct any litigation towards that person as opposed to the ar53h0l3 you've been speaking to.

Best of luck and please let us know how you get on.

Regards

Mark

8:42 AM, 16th November 2012
About 6 years ago

Hi John, read your story with interest. I am a landlord in North London and have had a very similar situation over about 10 years. In my case we were both leaseholders in a two flat building, I was on the ground floor and the person who kept flooding my flat was on the top floor. The leaks happened every couple of years, and were as much about causing me and my tenants hassle as well as the damage. ( I also have a further two similar situations ongoing).

The freeholder did not insure the place (and was completely disinterested as the lease was vague), each of us had our own insurance and the guy above (Mr H) wouldnt claim on his insurance. As I had a block policy I was reluctant to claim on mine and so I generally put up with it.

Eventually I put it into the hands of a lawyer and we sued him and had a CCJ taken out. I was awarded the damages which came to about £4500 and after quite a while and another visit to the court I received a cheque for £2800 (£4500 less fees) which was extremely satisfying as you can imagine!! And no leaks since (this is about 2 years ago).

A few thoughts (and perhaps replicating other advice you have received below)

1.) Keep a diary/video record/copy of any and all expenses incurred going forward

2.) Back date the record with any recollections of previous incidents and try to itemise any expenses incurred so far, even if you dont have the actual bills (but better of course if you do).

3.) As far as I am aware you can only go back 6 years with claims in the CC, so the judge wont be interested in anything that happened prior to this.

4.) You cant claim legal expenses if the claim is under £5k (or thereabouts) which is frustrating

5.) Do search at Land Reg and make sure you have all the correct info. Send a recorded delivery of all of the reports on each incident to date to the registered owner.

6.) Copy in the tenants above (Even if they dont speak English or are unhelpful they will pass onto to the landlord and the cumulative effect helps).

7.) Send a record of all of the problems to date to the mortgage company of the owner of the flat above, the info will be on the same Land Reg info. If there is no Land Reg info then very likely there is no mortgage on the property. Tell them that the integrity of the building is being affected and that you are taking legal advice and are considering taking action against them as the holder of the deeds to the property.

8.) Consider making a claim each time against the house insurance, even if you have to pay the excess. Reason being is that the insurance company will get involved and they will likely hassle the owner. And are you claiming enough? if there is a regular leak from above I would claim for removing the ceiling and investigating the integrity of the joists, and for applying a preventative wood rot treatment plus reboarding ceiling and repainting the entire room (this should be in the region of £1500). The insurance company will appoint a claims adjuster and this person will also be helpful in putting pressure on the owner. Finally the third party and the owner above will start to take action once the insurance goes up.

9.) DONT lose your temper - take action instead - at least consider taking legal advie, lots of lawyers will give you an hour for free. But go into them with some proper records/summary of the situation rather than a long story, and keep it simple, forget about the emotions.

10. Good luck!! Sean

Mark Alexander

8:59 AM, 16th November 2012
About 6 years ago

Great story, great advice Sean. Thanks for sharing.

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