REAL ESTATE DISPUTE RESOLUTION

10 tips for dealing with water ingress affecting commercial and residential properties - a real nuisance!

Water will always find the quickest and easiest route to travel through a building, often with devastating consequences. It does not discriminate between luxury or lower grade commercial or residential buildings. With flooding, damage is easy to see. Where leaks occur over a period of time, mould and/or damp patches may take sometime to appear.

Damage may result from (e.g.) leaking pipes situated within the structure of a building; alternatively, leaking or defective taps or baths caused by the negligence of an upstairs lessee.

10 tips for commercial and residential lessees faced with water ingress problems:

1.    Notify the following:

  • A neighbour if the cause is obvious (e.g. turning off taps, overflowing baths etc);
  • The Landlord/its managing agent. The lease will require ‘prompt’ notification by a lessee, meaning as soon as damage occurs;
  • Insurers. Water ingress is normally covered as an ‘insured risk’ under a Landlord’s building insurance policy – even where a lessee is responsible for the damage. Exert pressure on the Landlord/its agent to confirm that its insurers have been formally notified. The insurers are likely to appoint Loss Adjusters to deal with the claim.
  • Your contents insurers. The Landlord’s policy will generally cover damage to the building (i.e. walls, floors, ceilings and fixtures). It will not cover damage to your belongings (e.g. furniture, IT equipment, clothes). This may be covered by your own policy; so do ensure early notification.

2.    Cause – expert. If not obvious, an expert (e.g. surveyor, leak specialist etc) will be required to establish the cause of a leak.

3.    Insurance – Landlord/contents/trace and detect clauses. Where the cause cannot be found, many policies cover ‘trace and detect’ investigations.

4.    Evidence.  Take frequent photographs of the damage, to be dated and collated.

5.    Responsibility. Once cause is established, the lease is the starting point for determining ultimate responsibility for cost and repairs. In practical terms, this will become an acute issue, where all, or part, of the damage is not covered by an insurance policy.  Additional liabilities may also arise where a Landlord/its managing agent fails to take steps to prevent a nuisance or progress a claim.

6.    Mitigation. You have a duty to take all reasonable steps to reduce your claim.

7.    Service charge recovery. Be aware that claims on the Landlord’s policy may result in increased premiums passed on to lessees through annual service charges.

8.    Principal claims and suing for excess. Insurance is an ‘umbrella’ for meeting the cost of a claim to include remedial works. Ultimate liability for all, or part, of any uninsured losses may be still be pursued by the ‘victim’ of water ingress against the party responsible for the damage. This includes pursuing a claim for any excess under the policy.

9.    Keep evidence of expenditure – estimates, receipts etc.

10.     Chronology: Keep a contemporaneous diary of events.

If you require advice on any aspects relating to water ingress, please contact Keith Pearlman by email at Keith.Pearlman@dmhstallard.com or by phone on 020 7822 1605.

About the authors


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Keith Pearlman

Partner

Dispute Resolution expert specialising in all aspects of property litigation, Corporate and individual Insolvency as well professional negligence.

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