Liability for damage to uninsured flat

[rudolfov]

In winter, our kitchen was damaged by water from pipe burst from the flat above. Our flat was not insured; we made a claim to the insurance company of the owner of the other flat. We thought the owner and her tenants were responsible for our damage - they went abroad for 3 weeks without switching the water off or leaving the heating on, and the owner promised to check on the pipes after we had warned her that they were probably frozen and might burst, but when they really burst the next day, it turned out she didn't even have the keys from the flat. However, the adjustor appointed by the insurer ruled out that the owner is not liable because she was not negligent - the pipes burst due to extreme weather not because they would have been in bad condition. He said we might sue the tenants, but their liability is arguable as the tenant agreement doesn't state that the tenants should take any precautions.

Is it true? Is there anyone liable, and if so, who?

Many thanks for reply.

[redcrx]

do you not have any building insurance at all on your flat? Its usually a requirement as part of lease.

[bookbinder]

Consult a solicitor.

[themas]

I don't understand this. You appear to live in a block of flats. It is almost invariably the case that such blocks have one buildings insurance policy covering all of the flats. I can't believe that your flat does not have a buildings insurance policy covering it. Assuming it does, any claim for damage to the structure of the kitchen (walls, ceiling etc.), & to fixtures & fittings should be made on the buildings policy.

If you have been trying to claim on the owner's contents policy then I think you have been mistaken, other than for any damage to your contents - such as food etc. I have not come across the argument that there is no liability because the owner was not negligent, but it presumably arises from something in the wording of the owner's policy. [Incidentally, it is a bit odd for the owner to have a contents policy unless the flat was let furnished.] Have you found out whether the tenants have a contents policy? If they do, your claim for contents should be against that.

[flip_flop]

"I have not come across the argument that there is no liability because the owner was not negligent"

Really Themas? Would you be happy to pay somebody if you weren't legally liable?

I certainly wouldn't.

The claim against the flat above is framed in Negligence. For there to be negligence there has to be fault. If the pipes were fine and it was not resonably forseeable that they would freeze and burst, then I fail to see how the flat above can be held liable for the damage to the flat below.

[themas]

flipflop

If you were living in a flat & had water damage from one above which occurred because there was a leak from a joint in a pipe buried in the floor (which may have been put there when the block was built years ago) who would you expect to pay for the damage?

There would be no negligence on the part of the owner/tenant of the flat above because they would not know anything about the possibility of a leak developing; the builder/plumber who put the pipe in will be long gone & untraceable, & in any case it may very well be that the damage was caused by gradual deterioration of materials which was something not known about at all when the pipe was put in. In other words, no-one has been negligent. Will you be happy to accept there is no-one you can claim against?

In reality this is the sort of thing that an insurance policy is for - payment in this sort of situation does not have to depend on negligence of the policy holder.

[gb1959]

My daughter has recently moved into a flat and she HAD to show proof of insurance to the agent, which included liability insurance in case of water damage to the floor below and fire damage to adjacent flats. When she enquired at Swinton she was told all Tenant Insurance policies covered liability as it is the OCCUPIER of the property that is liable, not the LANDLORD. the LANDLORD only legally requires Insurance cover if he has the property mortgaged and that covers total loss and rebuild of property after fire damage but not usually 3rd party liabilities.

[flip_flop]

themas

I would expect my insurance company to pay. If I didn't have insurance (as in this case) then I would expect to have to pay it myself.

Contrary to popular belief, there is not always somebody else to blame.

If the flatowner above is not legally liable for the damage to the flat below, then they do not have to pay. It really is that simple.

[themas]

flip-flop

If your insurer paid they would then proceed to claim against the buildings insurer or the insurer of the flat above (whichever was appropriate).

I never said there is always someone else to blame - just that claiming on an insurance policy does not always have to imply negligence.

[flip_flop]

This claim would be against the public liability section of the insurance of either the flat owner's above insurance company or the insurance company of the building owner.

Public liability policies cover the legal liability of somebody who is found to be legally liable for damage to third party property.

If that person is not legally liable, then the claim against thme will fail.

Likewise, if there had been insurance in place for the flat below and the insurance company paid for the damage and then exercised their subrogation rights against the insurers of the flat upstairs or the insurers of the building owners, it would be incumbent on them to prove that they were legally liable.

If they could not prove they were legally liable, their subrogated claim would fail.

[mearsj]

My flat is insured by the same company as the flat above as it is a "block" insurance. That company is saying I will have to claim on my policy with them and presumably pay the excess! The same thing happened a few months ago and I had to pay two hundred pounds excess for damage caused by the flat above! Surely, that cannot be right?