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  • Leasehold Property

    Battle with Freeholder over escape of water

    I have a Flat in a block of flats and there was an escape of water and an insurance claim was lodged

    The work has been completed but the Managing agent wants me to pay the excess

    A few years I had the same situation in the same flat and the Freeholder paid the excess from service charges

    I have read through the Lease and it says the claimant should pay the excess

    But who is the Claimant? Is it the Landlord who arranges the policy or is it Me who made a claim from the Freeholder's insurance policy?

    I am going around in circles ... !

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    Learn Change and Adapt ?????

    All comments are for casual information purposes only. If you wish to rely on any advice I have given please ensure you obtain independent specialist advice from a third party. No liability is accepted for comments made.

    As I understand it the Landlord has to pay the excess as the policy holder, I don’t know if that’s still the case if your named on the policy as an interested party. Maybe pay the excess to get the claim moving and if the landlord is responsible for the excess deduct it from the service charge. Pay under protest and mention what you will do. 

    I’m no expert.
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    Taken from a blog on property insurance 

    Who pays the excess?

    You all want the easy answer- someone else, but sadly its not that easy.

    Common Approach

    Most building insurances cover water pipes in the common areas and individual flats, and the excess will be picked up by the service charge as its virtually impossible to obtain insurance with no excess especially on perils like water, and so it treated as the insurance cost.

    When it isn’t

    Often the common approach is wrong as the basis for insurance an allocation of the excess depends on the facts and circumstances, the terms of the lease and fault.

    Duty Of care

    Don’t run off with this argument and wave it in the face of the person whose bath overflowed. It is a general principle that an owner or occupier owes a general duty of care to others but it is not unlimited. Ordinary or reasonable activities do not create automatic and complete liability.

    It is matter of philosophy if accidents are never caused or just happen we have to look at whether there was an act or omission that led to the incident and the circumstances behind that as well as whether fault can be proven and that they were negligent in some way.



    Stuff happens

    It is a fact of life that a bath may overflow a pipe will leak or a part fails. While it may be the moral or ethical thing to accept responsibility it is not a legal one.

    You would have to show that the person’s act or omission, their standard of behaviour, fell below what was expected of them before being able to make a claim for negligence and fault.

    Otherwise it falls into the catagory of stuff happens and might sometimes be unfair to you, the innocent party.

    Who Repairs and Insurers What

    When making a claim you have to establish this as there are different scenarios.

    A landlord may insure the building or may be limited to the common parts exterior and structure. While less common these days older buildings are often insured for the common parts only, and lessees can be responsible for the roof foundations and inner/outer walls, even drains that serve everyone.

    When these fail it is automatically assumed that the landlord or owner is at fault however you would have to show, not conclude, that just because it happened, that their was an act or omission or a contractual or lawful failure to maintain or repair.



    Common Parts

    Where the pipes serve the building and damage the common areas and or flats, then the excess should be borne by the landlord and may be recovered through service charge, if the lease allows that.  

    A flat owner may however be asked to bear their excess and would have to show, not just conclude, that the landlord was at fault, as above, in some way, in order to avoid that.

    Flats

    It is commonly found but should not be assumed that the pipes that are in a flat are insured even though the flat owner is responsible for them. It is a matter of fact if the pipe was in repair or not, though proving this might be hard to do. 

    Similarly works being carried out properly and sensibly do lead to unforeseen circumstances and the excess may have to be borne by you. Where they are not, such as someone working on pipes without isolating the supply, it might well be a successful claim against them.


    Tenants Fixtures Washing Machines Dishwashers etc

    It is a common exclusion that these and their pipe work the drain and water supplies are not covered by building polices and in some cases differentiated between those with flexible hoses etc and those entirely plumbed in.  

    A reasonable standard of behaviour would be to check that couplings are tight as they routinely work loose and can result in a claim against you.


    Occupiers and Users

    Similarly if a property is occupied and it is their standard of behaviour that falls short e.g. drunk in charge of a bath, the occupier, flat owner nor landlords may not be required to insure against that, nor indeed have any liability and the claim is against that person. 

    This is particularly true where homes are tenanted as the flat owner is not automatically liable for the tenant’s acts.

    Warnings


    As 
    the excess is small ( or is guite big) 

    the cost of legal action can be entirely out of proportionand

    the assumption that someone else must be liable always and in full is not true

    owners and occupaiers are advised to review their insurance polices and leases and insure against the risks of the actions or omissions of others and themselves

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    thats a very sensible blog.  can you please post the link.

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    I would expect the leaseholder making the claim to be responsible for the excess.

    Where I have flats and we own the freehold we have taken the view to treat claims similar to if the property was a house, that is if the property was a house you would be responsible for the excess, the exception being if the loss resulted from a problem in a neighbouring flat - eg water leak from the flat above, then the management company pays the excess from the service charges - assuming there isn’t a loss in the flat above with the claim excess being paid by that leaseholder - both claims being treated as one for the excess payable.

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    '...the exception being if the loss resulted from a problem in a neighbouring flat - eg water leak from the flat above, then the management company pays the excess from the service charges - assuming there isn’t a loss in the flat above with the claim excess being paid by that leaseholder - both claims being treated as one for the excess payable....'

    I DONT THINK THE XS SHOULD BE PAID BY SC, AND THE ABOVE BLOG PASTED CONFIRMS THIS.  AGREED ONLY ONE CLAIM AND ONLY ONE XS FOR ONE INCIDENT.

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