For those of us who enjoy complaining about the weather, last winter did not fail to disappoint. A notable lack of sunshine was coupled with very high levels of rainfall and plenty of storms. Spring started in a similar vein, so I’ve not been surprised to see a spike in claims concerning water ingress in multi-let properties. Starting these claims on the right footing is of utmost importance, whether acting for a landlord or tenant – and whether the issue is caused by rain, main or drain.
Immediate action
In many cases the source of the leak will be obvious. Landlords will usually be liable for leaks from the common parts, just as tenants may be liable for leaks from their properties. If in doubt, all potentially liable parties should be contacted in the first instance to seek a practical solution, although this may not always be easy and problems often arise with flats sublet on assured shorthold tenancies.
Even if the landlord is not responsible for the leak, informing the landlord or its managing agents is still advisable (and often a tenant’s obligation under the lease), to help avoid invalidating the landlord’s insurance. Likewise, a tenant should also inform its contents insurers.
Keeping a thorough record of any damage caused will be important when making or defending a claim for damages. Photos and videos should be kept, ideally with a written note of what happened and when.
If the affected party needs to move into alternative accommodation, costs should be kept proportionate, bearing in mind a claimant’s duty to mitigate its losses.
Diagnosis and repair
If the cause of the leak isn’t clear, finding out who is responsible could be a complex process requiring expert evidence from a surveyor. It is not uncommon for tracing dyes or invasive inspections to be required at this stage. However, a legal analysis may also be needed to assess the extent of the parties’ interests. For example, in many cases the extent of a tenant’s demise in a multi-let building will extend to conduits (such as water pipes) exclusively serving their flat/unit.
The location of a fault may only be accessible from a particular tenant’s flat, but that tenant might not be willing to offer access. If so, the tenant’s lease should be reviewed to check for rights of access for diagnosis and/or repair works. In some cases, other tenants may also be able to rely on such rights. If all else fails, the party seeking access might be able to rely on the Access to Neighbouring Land Act 1992.
Except in cases of real urgency, applying for an order at court to obtain access could take a lot of time. It probably goes without saying that good, neighbourly behaviour can really help to avoid this.
Legal proceedings
If neighbourly relations break down and court action must be taken to make progress with fixing the leak, the claimant will likely seek an order for an injunction granting access to conduct the work. In other cases, the order sought may be for specific performance to force the responsible party to undertake the works itself.
The difficulty here may be with how the scope of the works is to be defined, bearing in mind that the judge will need to be presented with a clear plan to avoid ambiguity or future debate. In such cases, the claimant will typically need to rely on an expert’s report setting out the required steps, unless the solution is clear and obvious.
Damages may also be claimed for monetary losses for which the defendant is responsible. Such claims may fall within the scope of the claimant’s insurance, but even if the claimant is insured, some losses may not be, such as an insurance excess.
When dealing with damages claims in this context, it is particularly important to consider the scope of the potential liability. I have already touched on the claimant’s duty to mitigate its losses. Likewise, if the claimant fails to notify the parties when the leak commences, it may struggle to claim full compensation. Indeed, a loss adjuster may well adopt a similar approach, which underlines the importance for the claimant to act quickly and proportionately.
Damages are compensatory in nature, not penal, so claimants should be realistic about the actual losses they have incurred. A common problem that arises in this context concerns the valuation of “lost amenity”. For example, take a situation where a landlord is responsible for a leak that temporarily puts one bedroom in a three-bedroom flat out of use. In this scenario, the court may value lost amenity by reference to the diminished rental value of the flat. However, this exercise would still likely result in a significant proportion of the rent remaining payable.
Service charges
Finally, in circumstances where the landlord is forced to take action to remedy leaks in a multi-let building, an increased service charge is likely to follow, either to cover the costs incurred directly or perhaps to cover increased insurance premiums.
As ever, tenants should consider whether any sums invoiced are recoverable and reasonable. Landlords may also need to consider any duties to consult the tenants before the works are carried out.
Edward Cooper is a partner in the real estate dispute resolution team at Howard Kennedy LLP
