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A communal waste pipe that flows down our block of flats (3…

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A communal waste pipe that...
A communal waste pipe that flows down our block of flats (3 levels) recently came loose and the loose section of pipe was in our flat (although boxed away and untouched for 4 years). Apparently recently the pipe became increasingly loose and the the flat below has sustained considerable water and soil damage and the cost of repair is £28,000. The excess on the insurance policy that our Management team have for the building is a whopping £20,000 (because of rising premiums and previous claims unrelated to this matter), which we can obviously not afford to pay. The owner of the downstairs flat have just asked for a cheque for £20,000 or the details of our insurer. We have contents insurance with Saga but we assumed the buildings insurance was covered by the Mgt team, the buildings insurer has agreed to pay the £8,000. Who is liable for the rest (£20k)? We need some advice please.
Submitted: 6 years ago.Category: UK Property Law
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11/29/2011
Solicitor: Joshua, Lawyer replied 6 years ago
Joshua
Joshua, Lawyer
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Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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Was it known that the pipe needed attention or do no one suspect this was the case please?
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Customer reply replied 6 years ago
We were definitely not aware that the pipe needed any attention until the problem was discovered downstairs. One more problem may be that the mgt company are saying it was negligent builders who fitted our bathroom and attached onto the pipe, 4 1/2 years ago, but they have since gone bankrupt.
Solicitor: Joshua, Lawyer replied 6 years ago
  1. Thanks. Is there any truth to the claim regarding the negligent builders?
  2. What are the damages caused in summary? Are they structural damages or damages from flooding to their possessions and decoration and so on?
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Customer reply replied 6 years ago
I'm not sure about the negligent builders claim, the person who investigated the incident (a different builder) is saying that a clasp around the communal waste pipe just needed tightening (screw) and the problem was sorted, no more leaking below. The builders we used on our bathroom job went bust soon after our job we believe, and did fail to complete the shelving unit we contracted them for (incidentally near the void space that the pipe runs down). But the problem had intensified in recent weeks from a long term water leak that has apparently caused wet rot to floors in bathroom downstairs. But also the kitchen as well (bulk of cost). In recent weeks the leak had gone from a mild water leak to "waste" flowing down as well. We don't have access to the pipe from our flat as its boxed in. But there was a kitchen fitted a year ago in downstairs flat and also the reason they found the problem in first place was that they were replacing the bathroom downstairs. This could have caused the further shift as everyone uses the same pipe.
Again, we were not aware of the long term leak from this joint in our domain or the worsening of the situation to waste flowing down. We also feel the £20k excess, which was recently raised as a result of previous claims in the estate, is not representative or fair for us to pay if it does turn out to be our fault. Unfortunately the Mgt company (internally run) are absolving themselves any further to the costs incurred.
Solicitor: Joshua, Lawyer replied 6 years ago
Thanks. The starting point for this is whether the downstairs neighbour has a claim against you or the landlord at all. If this was just an accident - i.e. there was no negligence that they can prove then they have no claim against either of you. It is one of those things that happens. It is for them to prove negligence to assert a claim against either of you and from what you say they will be hard pressed to do so.

If they have no claim against you or the landlord personally then their claim can only be against either their contents insurer in respect of any damage to their contents or fixtures or against the buildings insurer in the event of any structural issues which would like be for the landlord to resolve anyway.

In terms of the excess you can pull the agents up on this and demand that they justify that the excess in all the circumstances is reasonable. If they cannot justify the excess in the circumstances then this can be challenged by the tenants at an LVT who can assess and apportion liability of any excess of any successful claim between the tenants and landlord dependent upon their assessment of the reasonableness of the landlords position
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Customer reply replied 6 years ago
The builder who assessed the damage came to the conclusion it was a negligent builder who hadn't tightened the clasp sufficiently. We weren't present at that time when he re-tightened it. How would we prove it wasn't negligence if that clasp has been identified as the problem? A number of things come to mind including the weather, other people accessing the pipe and disturbing it etc.
The downstairs flat had their insurance people in straight away to asses the damage. But have also directly asked for our insurers details or a cheque for £20k to cover the damage out of the realm of insurers? Am I to assume that they were therefore turned down in their claim or is this the usual procedure?! I would have thought their insurance company would chase us? We don't accept liability for the problem. Is there anything in the law about bankrupt builders? they were a member of a guild, does that help?
Solicitor: Joshua, Lawyer replied 6 years ago
You are right in what you say regarding the clasp. It is for them to prove that it was down to negligence of your builders rather than external factors. The need to prove this on the balance of probability.

If however they can prove this on the balance of probability then you could find that you are liable on the basis that your contract is caused the issue and if this is the case, it would be referred to the buildings insurance policy in the first instance.

I'm not surprised that their insurers have taken the action they have taken. As a starting point the policy would be liable however the insurers would seek to establish negligence on the part of the third party if possible in order to transfer their liabilities are paying out to that third party. The onus is upon them to prove negligence as above and your initial default position should therefore be to deny liability but you should consider preparing defences to counter any possible adverse reports from the inspecting builder
Joshua
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Customer reply replied 6 years ago
Thank you for this. A final couple of points.
I'm a novice when it comes to insurance, would our contents policy ever cover any 3rd party liability? or would it ever cover legal costs for issues such as this?
Was there any comment on bankrupt builder and their liability should work be proven to be negligent?
What do you feel is the balance of probability for such a case? and do you have any suggestions for defence (Surrey area)?
Solicitor: Joshua, Lawyer replied 6 years ago
Contents policies can contain third party liability cover and legal cover. Cover can vary though so check your policy which is often available via your insurers website.

If the builder is bankrupt you may be able to make a claim on their indemnity insurance however it may be difficult to find out whether they had and or the details thereof if you don't already have it.

I think this is a step by step process. First leave it to them to establish liability by way of negligence and at the same time ascertain what insurance cover you have available.

If they establish liability you will need to make a claim against any available insurance and look at challenging the managing agents on the point of the excessive excess possibly in an LVT. Quite a bit to do here but if broken down into components it becomes a little more manageable.
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Customer reply replied 6 years ago
Thanks very much.
Solicitor: Joshua, Lawyer replied 6 years ago
Good luck sorting this out.
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Customer reply replied 6 years ago
Some further information on our situation now available.
We composed a letter to the management committee summarising our position and suggesting that an independent survey be carried out to determine root cause. It looks like they have taken this to their solicitors and we received the following e-mails but as yet no formal letters:
"I should have made clear that I shall not be discussing the matter with you at any time. It is with our solicitors - Guillaumes.
The damaged overhead panel (tiling) will be replaced and paid for by management Company (HWML) following independent survey as this damage arose from necessary access to carry out investigation and repair financed by the Management Company."
and
"As a Company we are taking legal advice on the matter. We have been advised that an independent survey should be organised in fairness to all parties and I understand that our Solicitor will contact you in this regard.
There will be no leak in the soil pipe, as it was repaired some weeks ago.
I shall therefore not be "inspecting the void" which should be left open for the aforementioned professional survey."
From the owner of the flat below:
" Julie, the legal position is complicated but I believe it is as follows:
If the cause of the leak was in a communal part or area then the communal insurance policy should cover the loss. To the extent that there is an excess but the damage was caused by an escape of liquid from the premises above, then the owners of the premises above are liable to pay the excess.
They should normally be insured for any such shortfall but it seems that was not the case so they are personally liable unless they can persuade the other shareholders to contribute to the loss. Everything else is irrelevant."
On inspection last week we also noticed that in the void was a second pipe which looks like a rain water pipe, this also appeared to be leaking and we reported it to the management committee.
Our insurance policy with Saga does not include legal assistance.
We were issued a note to the lease which appears to have been made to include this 20K excess and also the indication that the source of the leak would pay the excess, this was not in the original agreement, they will have held a meeting, no doubt with a low turnout (which is normal).
It just seems totally unfair that the reason for the 20K excess is 2 very large claims last year, so I would have thought the group of 60 owners should bear the brunt of this cost.
Once the independent survey has been carried out (is it truly independent if it has been organised by the management committee?) I guess that we will know more about where we stand.
Does 28K of damage seem a possibility for say 6 months of a soil pipe leaking?
Solicitor: Joshua, Lawyer replied 6 years ago
I am afraid I could not say as I am not a surveyor. I think you will have to wait for the results of the survey.
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Customer reply replied 6 years ago
If the surveyor can attribute all of the damage has been caused by the leak from the soil pipe in the communal void and thereby prove that we are liable for the damage, would we then be able to use this to approach the builders who did our work 4 1/2 years ago and claim of their indemnity insurance?
How would it be best to approach this, via a solicitor?
Solicitor: Joshua, Lawyer replied 6 years ago
You should initially deal with the matter through your insurers but you may wish to put your builders on notice. If you can show negligence on their part through the report you may be able to claim against the builders insurance.

I do not think you need a solicitor at least for now.
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Customer reply replied 6 years ago
Just to be clear I am going to reiterate my circumstances:
a) water damage to flat below ours being attributed to leaking soil pipe situated in a communal void located in our bathroom behind a panel, which has now been removed by investigating plumber.
b) Zurich Building insurance held by management committee on whole of the property (5 blocks) have agreed to pay the claim (28K) minus the 20K excess.
c) we have no separate insurance cover on our 1st floor flat.
d) Due to insurance imposing 20K excess caused by 2 large claims last year (not our block) management committee have given written instructions and notification of the following short term change, entitled "Company regulations june 2011".
e) "As result of claims experience, our insurers have imposed an excess of 20,000 on any future claims related to water damage. This excess will be the responsibility of the leaseholder of the property where the leakage originates."
f) There is no damage to our flat and the leak is above our point of entry into the soil pipe.
g) We have written a 2 page letter to the management committee laying out our position and as a result they have handed over to their (solicitors (also ours as I have 1/60 share in the freehold) who I believe will commission an independent survey report, which was one of our suggestions in the letter.
h) I am thinking of writing to the solicitors to request various pieces of information as yet not given to us, damage report by investigating plumber, insurance loss assessors report (if done), details of the 3 competitive quotes and their breakdowns (if available) we suspect that there is just one quote. Plus proposed scope of work being given to the surveyor.
Your further support and advice welcome.
Alan
Solicitor: Joshua, Lawyer replied 6 years ago
I think until you get the report through you are limited in what you can do other than putting your insurers and the builders on notice in the matter
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Customer reply replied 6 years ago
But the only insurance we have is contents insurance, the building insurance is with the management company.
Do you advise that I get in touch with the management company solicitors at this point or await their first contact?
Its just that we feel that there is information we are not currently party to and we need to understand if this communal void is our domain as they are implying.
Alan
Solicitor: Joshua, Lawyer replied 6 years ago
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