A water leak from an upstairs flat can not only lead to property damage but also raises questions about who is responsible for repairs. Although cases are rarely if ever the same, this is the type of issue that our expert property litigation team are experienced in dealing with. Usually acting for landlords, property investors or letting agents in disputes across the country, our team are well placed to assist you if you find yourself facing this type of issue.
Establishing liability or knowing what to consider or do isn’t always straightforward, and will depend on various factors. This article explores what to consider when faced with such a situation in general terms but get in touch if you would like advice on your particular situation.
Understanding Who Is Responsible for a Water Leak From an Upstairs Flat?
Identifying the party responsible for an upstairs leak involves looking at several factors. Depending on the circumstances, the person liable can vary. Parties must consider the following:
Lease Terms
If the upstairs flat is subject to a lease, the lease usually states which parties are responsible for maintenance and repairs to which parts. Freeholders are only responsible for repairs if there are express obligations in the lease or a limited exception applies. Liability is often divided based on whether the relevant area is communal or private to the individual leaseholder, but not always. For common areas, the freeholder or property management company is usually responsible for keeping these areas in good repair.
Therefore, the location and cause of the leak is important in determining who is responsible to fix the leak and pay for the damage.
Water Leak Cause and Location
The most common position is that the freeholder is responsible for maintenance and repairs to the structure and common areas, whereas each leaseholder is responsible for their own flat. But this is not always the case.
If the damage results from a failure to maintain communal pipes or appliances, the property owner will likely need to pay. However, if it comes from an appliance in the leaseholder’s flat, the individual leaseholder will likely need to arrange and pay for repairs.
If a leaseholder is subletting to a tenant, it might be the tenant who is liable for the repairs and damage.
If the leak is caused by the main pipework, it might be that the water company is liable for the repairs and damage.
In some situations, the damage is accidental or unforeseen, and the parties must consider what reasonable steps they took to prevent or minimise it. For example, if the tenant fails to maintain the temperature of their flat consistently despite the lease requiring them to do so, and this causes a burst pipe, they’re more likely to be found at least partly responsible.
Parties Involved
The primary parties usually involved in a water leak are the property owner and leaseholder or tenant. Often, these parties will also want to bring in their insurer to ensure any damage is covered.
What to Do if the Flat Above Is Leaking
If you notice a leak from the flat above you, it’s essential to act quickly to minimise the damage and protect your position. You should take the following steps:
Detecting the Leak
You should do everything you can to identify the origin of the leak. This could involve pinpointing where the water enters your property and tracing it back to its source. Speak to your upstairs neighbour and assess communal areas to check for any signs of leakage. You might need to instruct an expert or contractor to help.
Notifying Relevant Parties
Inform the freeholder, managing agent and leaseholder about the issue as soon as possible. If you fail to notify them promptly, they could find you partly responsible for further repairs. It’s sensible to send a written notice with any supporting evidence, such as photographs.
Protecting Belongings and Minimising Damage
You’ll need to minimise any damage, so remove any personal items from the affected area. Where appropriate, use a bucket or towels to contain the water. You must take all necessary steps to reduce the leak’s impact, as insurance policies tend only to cover reasonable repairs. You’re unlikely to be compensated if you purposefully or recklessly leave an expensive item directly below the leak.
Assisting with Repairs
Contractors or insurers may require access to your property to fix the leak or assess the damage. You should cooperate with their requests as much as possible, as this usually results in a quicker resolution. If the damage leads to a dispute, it’s also essential to demonstrate you did all you could to help rectify it.
Seeking Professional Help
Even if you haven’t yet identified who is responsible for the repairs, it’s always advisable to instruct a qualified plumber to assess the affected area to help determine the leak’s origin. Parties can agree to divide the cost of this and provide an assurance that they will reimburse the other if they’re eventually found liable. You should also ask the plumber to provide a written report on their findings, as you may need this for insurance claims or potential legal proceedings.
If there’s any indication that the situation might result in a legal dispute, you should speak to a specialist property litigation solicitor as soon as possible. A specialist solicitor can guide you on the relevant law and advise you on the next steps. You might need to get a CPR compliant expert report to support a court claim; doing this before any remedial works are completed will usually be important- after repair evidence will usually have been lost.
Maintaining Records
Throughout investigations, you should keep clear records of all communications and evidence. You may need to present these documents to your insurer, and they may be vital if you become a party to legal proceedings.
Insurance Policies and Claims
Different insurance policies apply to different types of damage, and your obligation to purchase cover depends on whether you’re a freeholder, leaseholder, or tenant.
Buildings and Contents Insurance
In England and Wales, freeholders tend to be responsible for maintaining adequate buildings insurance. These policies typically cover structural damage, fixtures and fittings. As a leaseholder, you should check whether your agreement requires you to obtain buildings insurance.
Contents insurance usually covers personal belongings and usually is the leaseholder or tenant’s responsibility. If you’re renting a property, you should ensure you have sufficient coverage to cover the value of the items you want to protect.
Filing an Insurance Claim
Insurance policies usually specify the deadline for informing them of a potential claim. Either way, you should do so as soon as possible, providing evidence of the damage and any supporting documentation. It’s also sensible to provide them with contact details for the other party and their insurer so they can coordinate claims.
Your insurance company will usually need evidence of your attempts to minimise the damage, so provide an account of the relevant steps you’ve taken together with supporting documents. It’s also helpful to obtain quotes for the repairs so your insurer knows what they need to cover and whether this falls within the scope of the policy.
If you’re responsible for repairs, your insurer may direct you to use one of their approved contractors. However, you should conduct your own research and instruct whichever professional you feel can complete the job best.
Legal Actions and Compensation
Legal action may become necessary if the parties cannot agree on who is liable for repairs. If you’re a freeholder or leaseholder disputing responsibility for a water leak or seeking payment for property damage, you should obtain legal advice immediately.
There are several things you can apply to the court for, including:
- An injunction forcing the other party to take a specific step, like arranging and paying for repairs.
- A claim for damages requiring the liable party to compensate or reimburse you.
A specialist property litigation solicitor can advise you on the appropriate action and should try to help you settle the matter outside of court, wherever possible. They can also guide you on what evidence you should gather while communicating with the court, insurers, and opposing party.
Parties usually need to commence court proceedings as a last resort and only if it makes commercial sense.
Frequently Asked Questions
What to Do if Water Leaks From the Second Floor?
First, try to identify the source of the leak. Then, notify the relevant parties and take steps to protect your property from further damage. Speak to a professional plumber to assess the issue and cooperate to help with repairs. You should also inform your insurer, providing them with supporting evidence.
Does Building Insurance Cover a Leak From the Flat Above?
Buildings insurance usually covers structural damage caused by a water leak, but it’s essential to check your specific policy. The insurance may not cover repairs if the leak comes from a particular source due to negligence or a failure to minimise the damage.
What to Do if Your Upstairs Neighbour Has a Leak?
You should speak to your neighbour first and try to resolve the issue between you. If you cannot agree on the source of the leak or who is responsible, contact the freeholder and seek legal advice if the disagreement persists.
Final Thoughts
Water leaks from neighbouring flats can be stressful, causing damage to your property and personal items. Understanding your rights and responsibilities makes the process less daunting, allowing you to resolve the issue sooner and at a lower cost. Establishing the root of the problem, the relevant parties and the terms of your lease are crucial.
If you’re a freeholder or leaseholder dealing with a leak, our expert solicitors at Helix Law are here to help. We’ll guide you through the appropriate next steps, whether that’s communicating with the other party to resolve matters or commencing court proceedings on your behalf. Contact Helix Law today for more information; we’d love to assist you.