By Nadeem Hussain, Legal Adviser at LEASE
Water leaks are a common problem in buildings containing flats. The complexity of the relationships in leasehold arrangements means that it is not always easy to establish whose responsibility it is to deal with the problem or cover the costs of the resulting damage. Getting the leak stopped and dealing with the damage can be a lengthy, exhausting experience. There are a few matters that a flat owner should focus on.
Stopping the Leak
First, give priority to stopping the leak. This isn’t always as easy as it sounds. The responsibility on the leaseholder is simply to take all the steps any reasonable person would take to try and stop the leak and prevent or limit further damage. Knock on your neighbour’s door to try and establish the source of the problem and alert the landlord or managing agent. Ideally this should be in writing as this becomes more important the longer it takes to resolve the problems. Inform your insurer if you have a home contents or landlord’s Insurance Policy. Importantly, start making a note of everything that has been damaged or lost.
Getting access to flats to trace leaks can be difficult if properties are unoccupied or tenants or leaseholders are uncooperative. If an occupant is not prepared to grant access legal proceedings may become necessary which can be both time consuming and expensive. If you find yourself in this type of situation put the emphasis on the landlord or managing agent to take a lead in stopping the leak. As an individual leaseholder you will rarely have the legal power to require another leaseholder to let you into their flat if they refuse. The landlord or managing agent will often have the power under the lease to seek access to a flat to determine the source of a problem and to require the leaseholder to fix it. In most cases timely intervention by the landlord or managing agent is often the quickest way of getting the problem resolved. If the landlord or managing agent has been keeping their paperwork updated they should know if the flat is sublet and have the contact details for the occupant and the owner.
Establishing the cause of the leak
Next you need to establish the cause of the leak. This is important as it will help determine who should be responsible for putting things right. In most cases the critical piece of information is identifying where the leak started.
You might have your own opinion about the cause but it is important to have some form of proof. In many cases it will be sufficient to rely on the information given by a builder or plumber called in by the landlord, managing agent or the leaseholder provided it expresses an opinion about the cause of the leak.
There are many cases where the cause of a leak is unclear or disputed. In these situations, a surveyor or other specialist may be required to provide an assessment. Check the building insurance policy to see if it has cover to help trace the cause of a water leak. The report should provide an objective assessment of the cause and what action should be taken to resolve the problem.
Who is responsible?
Most residential leases make the landlord responsible for maintaining the structure, exterior and main pipes used in common by the residents in the building. The repairing obligations relating to the inside of the flat are commonly the responsibility of the leaseholder and extend to the pipes that exclusively service the flat. There is no set format or model for leaseholds so rights and obligations often vary. As a consequence, it is always important for the individual leaseholder to understand what their specific lease says about the repairing obligations.
If the leak arises from an area within the control of the landlord, the potential costs of the work resulting from the leak may be recoverable through the service charge or covered by the buildings insurance policy. Any excess payable will normally be shared by all of the leaseholders through the service charge.
If the leak arises from an area with the control of another leaseholder then it is more likely that the leaseholder will be responsible for the damage caused to your flat. If the building is covered by a comprehensive insurance policy that covers damage between flats the landlord or managing agent might allow a claim in some circumstances.
Where the damage is more extensive and involves areas within the landlord’s responsibility the landlord may take a lead on the work or oversee the work carried out by the flat owner.
What if the landlord won’t carry out the repairs?
The ultimate remedy for a leaseholder who has a landlord who fails to carry out repairs and maintenance is to seek an ‘Order for Specific Performance’ from the County Court obliging the landlord to perform the obligation within a set timeframe. Such actions can be expensive and it is recommended you seek the assistance of a Solicitor to help you with the process. In many cases, the threat of such action is sufficient to motivate the landlord to carry out the works.
The Housing Disrepair Protocol describes the steps the parties should take before taking any legal action. It is intended to encourage the exchange of information at an early stage and to provide a clear framework within which the parties can attempt to achieve an early resolution of the issues. A failure by either side to follow the requirements under the Protocol can result in the Court ordering the party to pay costs.
In situations where a leaseholder is forced to make an application for ‘specific performance’ they may also take the opportunity to ask the court to award damages to cover any consequential loss caused by the failure to carry out the work within a reasonable period of time. The right to damages is not a right outlined in the lease but stems from the breach of contract to cover the loss caused.
What if the person refusing to carry out the repair is another leaseholder?
Most leases don’t create directly enforceable contractual relationships between the leaseholders making it difficult to take action against another flat owner.
To deal with this problem most leases usually have provisions enabling a leaseholder to ask the landlord to enforce covenants broken by other leaseholders. If the leaseholder fails to carry out the repairs the landlord will have the ability to take legal action to force compliance.
The drawback with this type of provision is that the leaseholder seeking the enforcement will have to cover the landlord’s costs of any legal action required to remedy the situation.
Once the leak has been stopped if there is damage to your flat you should ask the neighbour responsible to cover the cost of the repairs. If negotiating with your neighbour does not resolve the problem you could consider mediation as a means of trying to resolve the matters amicably. As a last resort may have no option but to commence a claim in the Small Claims Court for damages. Specialist legal advice should be sought before an action is commenced in court.