Underdwelling question: what happens if the property above has a leak which damages mine?

JennyP

I have a house which is an underdwelling - bit specific to Yorkshire, I think. So it's not a flat but is a house underneath another house. The house above - owned by a landlord - had a cracked drain which leaked into a room of my house. Thankfully the damage was minimal and it just needs a small amount of plastering and redecorating. 
The landlord of the house above is saying she will pay £100 on this occasion - that's what the plasterer has quoted - but only as a goodwill gesture. She says she has no liability for damage caused to my property because of faults in hers, unless I notify her of a problem and she fails to fix it as soon as she's notified.
I find this hard to believe and am not sure how to find out more about this. I could ring my insurers but am worried it will put my premiums up. 
Does anyone know anything about this? I imagine in a flat, if this happened, the upstairs flat would be liable but is an underdwelling a different matter? 

Woolsery

The landlord is correct and it's good that she is offering to contribute without prejudice to her usual position, which is not to be liable for damage which occurs accidentally, without the knowledge of a fault.

Your insurance covers your property.

Keep_pedalling

They would only be held responsible if they had been negligent, which is difficult to prove and something you would need to leave to your insurance company to sort out. The other owner is correct so just thank her for meeting the cost of the rep are and make sure you don’t ever let your insurance lapse.

macman

Not familiar with the legal interpretation of an underdwelling, but I cannot see that its different. Even if her property were next door, if she causes damage to your property then she is potentially liable for it. 
Her defence here might be that she could not have foreseen the crack and so was not negligent, but I can see nothing unique about an underdwelling that removes any possibility of liability.

user1977

macman said:

Her defence here might be that she could not have foreseen the crack and so was not negligent, but I can see nothing unique about an underdwelling that removes any possibility of liability.

Other way round - the OP would have to demonstrate that she was negligent in order to establish liability. Otherwise, the OP takes the risk of gravity happening. This is what insurance is for anyway. I would accept her generous goodwill offer and move on.

Bendy_House

As said above, Jenny.

It's even worth a 'thank you', as it would quite likely cost you more to find a plasterer yourself (the LL probably knows a number of trades who do regular work for her, and who do these cheaply - good chance it would cost you more). And you really don't want to go 'insurance' on this!

Did the lady give you the name of this plasterer? If so, make contact quick and see if they'll do it whilst they are (presumably) also doing the LL's place.

The LL above would only be liable if they were 'negligent'. Eg, they either knew there was an issue and did nothing about it, or if the leak was as a result of their careless actions.

Neither seems to be the case here - it was an unanticipated problem with their drain, which they have now fixed. Ergo, no liability.

You ain't the only one to be surprised at this - it's a regular issue brought up here. But, it is the reasonable outcome, and the third party here has been more than fair.

Seriously, a 'thank you' is in order.

eddddy

macman said:

if she causes damage to your property then she is potentially liable for it. 

Only if the damage was intentional or caused by her negligence - and neither of those seem to apply in this case.

macman

Thank you both for pointing out the error in my post.
The main point i was trying (and obviously failing) to convey was that the mere status of the property as an underdwelling, and the adjacent overdwelling, does not remove the potential liability of the owner for damage caused to the adjoining property.
Still trying to get my head around the difference between an underdwellling and a flying freehold...are there any others I'm unaware of?

eddddy

macman said:

The main point i was trying (and obviously failing) to convey was that the mere status of the property as an underdwelling, and the adjacent overdwelling, does not remove the potential liability of the owner for damage caused to the adjoining property.
Still trying to get my head around the difference between an underdwellling and a flying freehold...are there any others I'm unaware of?

I'm still not really sure what you're referring to by "the potential liability of the owner".

It's a person who would be liable for damage as a result of their negligence - it doesn't matter whether that person owns a property or not. The person could be a freeholder, leaseholder, tenant, lodger, visitor, trespasser or burglar.


The tenure of a property (freehold/leasehold etc) doesn't really have any relevance.
 


Edit to add...

@JennyP - Just an extra thought... It's very unlikely, but when you bought the property, did you sign a 'Deed of Covenant' with your neighbour that might mention anything about water leaks?

The reason I ask... I think I recall coming across a flat lease that said a leaseholder was responsible for any damage caused by a leak from their flat, whether or not they had been negligent.

It's possible there could be a similar clause in a 'Deed of Covenant' - but TBH, I think it's unlikely.

Bendy_House

macman said:

Thank you both for pointing out the error in my post.
The main point i was trying (and obviously failing) to convey was that the mere status of the property as an underdwelling, and the adjacent overdwelling, does not remove the potential liability of the owner for damage caused to the adjoining property.
Still trying to get my head around the difference between an underdwellling and a flying freehold...are there any others I'm unaware of?

Absolutely - it doesn't matter if it's a flat, freehold, semi, terraced, flying-freehold, whatevs.

Negligence is negligence. And if there hasn't been any, then insurance is insurance!

I wonder if the OP's is a flying-freehold?

HAVE I EVER SAID, MAKE SURE YOU ADD LEGAL PROTECTION?

macman

I meant, the owner of the property where the source of the damage originates.
But your phrase 'The tenure of a property (freehold/leasehold etc) doesn't really have any relevance' sums it up much more succinctly.
Is this arrangement possibly similar to a Tyneside lease?