How to 'oblige' a Building Management Group to make a buildings claim?

ThisIsWeird

This is on behalf of a poster who has a thread on the 'DIY' forum, but I suspect this 'House' forum is more suited: https://forums.moneysavingexpert.com/discussion/6500933/leasehold-insurance-for-those-with-lpa-responsibilities#latest

In short, this lady's mum's flat suffered significant water damage from the flat above, causing ceilings to come down, and saturating the floor surfaces (and more). (The OP has LPA for her mum.)

The flat above had just had a new kitchen fitted; that flat's owner called them out, the guy seemingly blamed it on a 'push-valve issue' (I suspect a push-fit plumbing fitting), fixed it, but denied negligence or responsibility - whilst conceding he does have liability insurance.

Ok, here's the thing - the OP approached the building management group - to whom all flats contribute towards the Building's insurance - but they fobbed her off, saying it wasn't their responsibility, but that of the kitchen fitter.

The lady is in limbo, her mum in care, and she's desperate to sell the flat to provide funds for this care.

My take on this is that the Management Co should put in an insurance claim right away (or, just sort it with their own builders if they have them) and the insurance co's assessor/investigator can then pursue the kitchen fitter if they feel they have a case.

Q - how can this lady 'oblige' the ManCo to act and set in progress what is surely a valid Building's claim? Or, in her own words:

So who do we contact to claim against?
Mum's insurance for contents only says - not us.
The owner of the flat above says nothing to do with me
The person who carried out the work says "I've registered but nothing to do with me".
I contacted service managers who Mum pays into buildings insurance and they say "nothing to do with us as the person who did stuff to the flat above is liable".
Who should we claim against?

grumbler

I'm no expert, but generally the owner above doesn't have to be insured. This takes his insurance company out of  equation - it's his business to claim or not to claim if he is, say, sued for the damage.  The same with the fitter - it's up to the owner above to chase or not to chase him.
This leaves us with the lady's insurer, the owner above and the the management company.
Personally, I don't understand why the former is washing their hands, although it's typical for insurance companies to do their best to fob their customers off. IMO, they have to pay and then to chase whoever they want.
Or the lady can sue the owner above directly, that is more complicated.

eddddy

Assuming that...

• The freeholder is responsible for buildings insurance, and

• The Management Company is the freeholder's agent (e.g. it's not a tripartite lease)

• We're talking about the damage to the ceiling (which is part of the building)

Then as I explained in the original thread, there are 2 routes to persue…

• A claim for negligence against the kitchen fitter (because it sounds like he didn't connect some water pipes correctly)

• A claim on the freeholder's buildings insurance policy for "damage caused by escape of water"

(Unless there is important info that the poster didn't mention, it's hard to see how the owner / occupier of the flat upstairs has any liability.)


I'm not sure that the poster has insisted very hard to the Management Company that they make a claim on the Freeholder's buildings insurance policy yet. So perhaps the starting point is to insist a bit harder.

 

gm0

Pursue own flat contents damage claim with own insurer. 

Specifically arranged new policy in the other thread based on the relative visiting once unoccupied.  Should cover.  They have done the right thing. An unoccupied dwelling where this had not been done might well not be covered.
This one with correct policy. And regular visits.  Should be.  But will need to persist.  Have been fobbed off by customer services.  As is sadly typical.

Their contents insurer can in turn pursue upstairs leaseholder (if they wish to based on value of the claim) and that then falls to the 3rd party liability on upstairs contents policy or just on them if they don't have one as some people don't.  They (or their insurer) in turn can sue the kitchen fitter if they have admitted negligence already or it is in practice provable. Spoiler it probably isn't easily provable if disputed. A push fit plumbing part won't have guarantees against consequential losses.  And whether the fitter has mucked up or the cheap part wasn't quite right or the old pipe wasn't - quickly becomes subjective and forensic.

It's not for the original person to do all that

Freeholder has to decide in fixing any damage that matters - outside the flat i.e. to communal areas or to actual building structure.  And take a view if it is worth a claim (on the rebuilding/fire/major events policy with it's likely huge excess).  Many flats buildings premiums rise horribly after relatively small plumbing claims every few years.  And it is a false economy in many cases to put that insurance through the roof when its purpose is completely different.  Road/Train/Plane crash, fire, major flood and rebuilding costs with displacement. That is an economic decision for the freholder to claim or not claim. 

And as this was not an incident caused by pipework outside demised flats infrastructure.  Their lack of interest in the contents to 3rd party liability claim chain - is entirely understandable. 

Only if they have damage to parts they need to deal with does the subject come up

There is no forcing them.  Both because it is not appropriate to the situation.  And because they are not a backstop to the contents policy. 

Where they are liable (not here) but it does happen with shared soil stacks and such like in bigger blocks - they can pay or claim as they choose.  Where the fault is inside a demised flat and it damages common structure then they or their insurer can pursue the leaseholder for redress under 3rd party liability. (Leaseholder/insurer can pursue contractor beyond that if they choose). 

The poor person referred to needs to go back to their contents insurer and push harder.

ThisIsWeird

eddddy said:

Assuming that...

• The freeholder is responsible for buildings insurance, and
• The Management Company is the freeholder's agent (e.g. it's not a tripartite lease)
• We're talking about the damage to the ceiling (which is part of the building) Yes, I understand all these assumptions are correct.
  

Then as I explained in the original thread, there are 2 routes to persue…

• A claim for negligence against the kitchen fitter (because it sounds like he didn't connect some water pipes correctly) Yes, but how on earth can the OP evidence this? And why should SHE have to?
  

• A claim on the freeholder's buildings insurance policy for "damage caused by escape of water" That would appear to be the correct route, but they are seemingly fobbing her off.
  

(Unless there is important info that the poster didn't mention, it's hard to see how the owner / occupier of the flat upstairs has any liability.) I agree - they don't. Unless they 'employed' a bloke down t'pub for cash-in-hand... They don't appear to have done so.

I'm not sure that the poster has insisted very hard to the Management Company that they make a claim on the Freeholder's buildings insurance policy yet. So perhaps the starting point is to insist a bit harder. That seems to be the case - the OP is taking what she is being told at face value, hence me asking how she can force the ManCo to act.

 

Thanks Eddddy. Replies in bold.

eddddy

ThisIsWeird said:

• A claim for negligence against the kitchen fitter (because it sounds like he didn't connect some water pipes correctly) Yes, but how on earth can the OP evidence this? And why should SHE have to?

How does anyone evidence anything?

• How do you evidence that somebody crashed into your car? (And why should you have to?)
• How do you evidence that the book you bought online never arrived? (And why should you have to?)

If the parties can't agree between themselves, it would have to go to court...

• The poster puts forward their evidence to the court (that shows the kitchen fitter was negligent)
• The kitchen fitter puts forward their evidence to the court (that shows that they weren't negligent)

And the court will consider the evidence, and make a decision based on the balance of probabilities (i.e. in this type of case, the court decides who they think is more likely to be telling the truth.)

ThisIsWeird said:


(Unless there is important info that the poster didn't mention, it's hard to see how the owner / occupier of the flat upstairs has any liability.) I agree - they don't. Unless they 'employed' a bloke down t'pub for cash-in-hand... They don't appear to have done so.

As I say, that might be an example of important info that the poster didn't mention. There's probably dozens of other examples.

ThisIsWeird said:

I'm not sure that the poster has insisted very hard to the Management Company that they make a claim on the Freeholder's buildings insurance policy yet. So perhaps the starting point is to insist a bit harder. That seems to be the case - the OP is taking what she is being told at face value, hence me asking how she can force the ManCo to act.

In this country, only courts can force anyone to do something. (In theory, the poster could get a court order instructing the freeholder to make an insurance claim. But at this stage, that would be a super-expensive sledge hammer to crack a walnut.)

As I said in the original thread, if the freeholder (or their management company) can't be persuaded to make an insurance claim, a potential next step is to write to the insurance copmpany...

See: https://www.lease-advice.org/template-document/notice-potential-claim-leasehold-insurer-section-30a-paragraph-7-schedule-landlord-tenant-act-1985/

DullGreyGuy

ThisIsWeird said:

This is on behalf of a poster who has a thread on the 'DIY' forum, but I suspect this 'House' forum is more suited

This is the House Buying section... surely the Insurance section is more appropriate if your question is about claiming on the insurance?

ThisIsWeird said:

• A claim for negligence against the kitchen fitter (because it sounds like he didn't connect some water pipes correctly) Yes, but how on earth can the OP evidence this? And why should SHE have to?
  

• A claim on the freeholder's buildings insurance policy for "damage caused by escape of water" That would appear to be the correct route, but they are seemingly fobbing her off.

Thanks Eddddy. Replies in bold.

Because SHE is making the claim. This is civil law, not criminal, and so its not strictly "innocent until proven guilty" and so if you are going to sue someone and claim they owe you money you are obliged to evidence that they do indeed owe you and how much. Would be the Wild West if you had to disprove it wasn't you as the defendant with no obligation on the claimant... if you walked past a random persons car on your way home today, could you prove you didn't scratch it?


You need to read the lease about the freeholders obligations. It's also worth checking what the building insurances Escape of Water excess is and who pays it. We had a poster on here a week or two ago who'd discovered their EoW excess was something like £25,000 meaning anything below a major leak wouldn't be claimable on the policy anyway.

km1500

she should simply take a legal advice

it may be that the best way is for her to sue the owner of the flat above in the small claims route and the flat owner would in turn pass it onto the insurance company to deal with

however this may will not be the best way hence my comment about getting legal advice

eddddy

km1500 said:

it may be that the best way is for her to sue the owner of the flat above in the small claims route and the flat owner would in turn pass it onto the insurance company to deal with

Sue the owner of the flat upstairs for what?

So far, there is no hint in any of the posts that the owner of the flat upstairs has done anything unreasonable.

grumbler

eddddy said:

km1500 said:

it may be that the best way is for her to sue the owner of the flat above in the small claims route and the flat owner would in turn pass it onto the insurance company to deal with

Sue the owner of the flat upstairs for what?

So far, there is no hint in any of the posts that the owner of the flat upstairs has done anything unreasonable.

Sue for the leak from his flat that caused the damage. As simple as that. That's the only evidence that the claimant needs.

What caused the leak and why - that's his problem, not the neighbour's below.

This can possibly be different if a leak is from another flat higher up and damages several flats below.

eddddy

grumbler said:

Sue for the leak from his flat that caused the damage. As simple as that. That's the only evidence that the claimant needs.

You're inventing laws that don't exist.

Which part of UK law do you imagine supports your statement?


(There's a very slight possibility that the OP's lease said that, but I think that's very unlikely.)