Water damage to flat - vacant premises above

[Bemyenemy]

Hi, hoping someone might be able to shed light on a problem I'm dealing with.

I live in a ground floor cottage flat (Scotland) under an empty property which has sat vacant for approx a decade. Recently the cold weather caused damage to pipes in the attic with a resultant flood of water going through the flat above into my own property, causing substantial damage.

I've been able to trace the former (now deceased) occupant's son who seems on board with getting the situation resolved, though he is currently located overseas.

I'm curious as to whether he could reasonably be considered to be responsible for repaying my redecoration, plumber etc costs in full, or due to the leak coming from a shared attic space (albeit one I didn't have access to until the Fire Service broke the upstairs' flat door in), is it 50/50 liability? I feel the fact the flat was left vacant for so long (noone has even entered the flat in over a decade) contributed to the pipes freezing due to the lack of heating etc in the flat directly below the attic. But I'd just like to get some impartial perspective on the situation prior to discussing with him in more detail.

Thanks

[Clitheroekid]

Because the property is in Scotland you need advice from a Scottish lawyer, and so far as I know there are none on the site.

However, the first think you would do in England would be to read the relevant parts of the lease (English flats are almost always leasehold). The respective repair responsibilities of the landlord and tenant would be clearly set out in the lease.

If your flat is leasehold, or if it's subject to the provisions of some form of title document detailing such obligations, then the same advice would apply.

But from a common sense point of view would it not be a lot simpler (and certainly a lot cheaper) simply to claim on your property insurance?

[Kantwebefriends]

I used to own a Scottish top flat; one day rainwater started entering my flat and trickling down. My solicitor checked the deeds and found that everyone in the tenement had to pay a share of the roof repair bill - except me!

He pointed out that it would take forever to get the others to agree to stump up if I were exempt and suggested I boast to them that I was prepared to waive my exemption just to ensure that we got the repairs done quickly before the problem got worse. This worked just as he had hoped.

So: deeds and legal advice!

[kiloran]

Sorry for going so far off-topic, but I'm amused that the thread was started by Bemyenemy and replied to by Kantwebefriends

--kiloran

[monabri]

Similar tale..

viewtopic.php?p=401928#p401928

Definitely not our fault but we ended up having to claim on OUR insurance..and it stays on the claims record for 5 years.

[Dod101]

I doubt very much that there is any liability on the property owner and think that the OP ought to claim on his/her own insurance and take it from there. Obviously a chat with the owner would be helpful to prevent further damage and ascertain what he intends to do to prevent a similar situation occurring again. This is after all very early in the winter.

Dod

[chas49]

CK has already noted that Scottish law is quite different from English & Welsh law in this area. From a very cursory Google search, it appears that leasehold (or its equivalent) ownership is *very* uncommon in Scotland, and most properties are owned freehold (or feuhold).

It's probably not going to help the OP if we give opinion/advice based on English law

[keith]

Not sure whether it applies in Scotland

Do the freeholders have any building insurance

Keith

[genou]

Not sure whether it applies in Scotland

Do the freeholders have any building insurance

Keith

As already said, it's a certainty that bemyenemy is the freeholder of his flat, and his upstairs neighbour is the freeholder of his, and each is responsible for his own buildings and contents insurance. Insurance is the line of least resistance. Showing negligence by the other flat owner is going to be too hard.

[mc2fool]

Not sure whether it applies in Scotland

Do the freeholders have any building insurance

Keith

As already said, it's a certainty that bemyenemy is the freeholder of his flat, and his upstairs neighbour is the freeholder of his, and each is responsible for his own buildings and contents insurance.

I'm puzzled as to how this actually works in Scotland. Does each freeholder have to insure the whole building? How does the maintenance and insurance of common areas and structures work? Walls, roofs, foundations, drains, stairwells, etc, etc?

[genou]

Not sure whether it applies in Scotland

Do the freeholders have any building insurance

Keith

As already said, it's a certainty that bemyenemy is the freeholder of his flat, and his upstairs neighbour is the freeholder of his, and each is responsible for his own buildings and contents insurance.

I'm puzzled as to how this actually works in Scotland. Does each freeholder have to insure the whole building? How does the maintenance and insurance of common areas and structures work? Walls, roofs, foundations, drains, stairwells, etc, etc?

For substantial shared buildings ( think classic tenement flats ) there is normally a factor who arranges for shared buildings insurance and would arrange for common repairs. The factor is appointed by and answerable to the owners. The powers and duties of the factor would originally have been in the contracts under which the individual flats were sold, and those terms will bind subsequent purchasers. I'm not sure what we have here.

Stuff can vary - maybe the roof is communally owned, maybe not. I've owned a top flat in an Edinburgh tenement where the roof above was mine, with an obligation on all the other flats below to share costs of maintenance and repair. Obviously there are risks there as to how easy it is to recover costs from other owners. Commonality / factors are usually a more attractive alternative. I claim no special expertise here.

[Dod101]

Not sure whether it applies in Scotland

Do the freeholders have any building insurance

Keith

As already said, it's a certainty that bemyenemy is the freeholder of his flat, and his upstairs neighbour is the freeholder of his, and each is responsible for his own buildings and contents insurance.

I'm puzzled as to how this actually works in Scotland. Does each freeholder have to insure the whole building? How does the maintenance and insurance of common areas and structures work? Walls, roofs, foundations, drains, stairwells, etc, etc?

It varies in Scotland and that is an area for investigation but I doubt that the op will get very. far in trying to prove negligence on the part of the other owner. I have been in the same position myself. Many years ago the upper owner had to show that he was not negligent but no more. I would suggest as I think I have already said, that the OP should claim on his own insurance.

Dod

[mc2fool]

I'm puzzled as to how this actually works in Scotland. Does each freeholder have to insure the whole building? How does the maintenance and insurance of common areas and structures work? Walls, roofs, foundations, drains, stairwells, etc, etc?

For substantial shared buildings ( think classic tenement flats ) there is normally a factor who arranges for shared buildings insurance and would arrange for common repairs. The factor is appointed by and answerable to the owners. The powers and duties of the factor would originally have been in the contracts under which the individual flats were sold, and those terms will bind subsequent purchasers. I'm not sure what we have here.

Ok, thanks, that clears things up a little for me (it's actually quite similar to the collectively enfranchised block of flats I live in in London. We're all leaseholders but also members of a company that owns the freehold and is the management company for the block that takes care of communal matters, including building insurance).

It varies in Scotland and that is an area for investigation but I doubt that the op will get very. far in trying to prove negligence on the part of the other owner. I have been in the same position myself. Many years ago the upper owner had to show that he was not negligent but no more. I would suggest as I think I have already said, that the OP should claim on his own insurance.

My question was of general interest rather than specific to this case, however I note that the OP said that the leak was from pipes in the shared attic space and came through the flat above, not from it per se, so wouldn't that make it more a matter for the shared building insurance?

[Dod101]

I'm puzzled as to how this actually works in Scotland. Does each freeholder have to insure the whole building? How does the maintenance and insurance of common areas and structures work? Walls, roofs, foundations, drains, stairwells, etc, etc?

For substantial shared buildings ( think classic tenement flats ) there is normally a factor who arranges for shared buildings insurance and would arrange for common repairs. The factor is appointed by and answerable to the owners. The powers and duties of the factor would originally have been in the contracts under which the individual flats were sold, and those terms will bind subsequent purchasers. I'm not sure what we have here.

Ok, thanks, that clears things up a little for me (it's actually quite similar to the collectively enfranchised block of flats I live in in London. We're all leaseholders but also members of a company that owns the freehold and is the management company for the block that takes care of communal matters, including building insurance).

It varies in Scotland and that is an area for investigation but I doubt that the op will get very. far in trying to prove negligence on the part of the other owner. I have been in the same position myself. Many years ago the upper owner had to show that he was not negligent but no more. I would suggest as I think I have already said, that the OP should claim on his own insurance.

My question was of general interest rather than specific to this case, however I note that the OP said that the leak was from pipes in the shared attic space and came through the flat above, not from it per se, so wouldn't that make it more a matter for the shared building insurance?

If there were any which I doubt. This does not sound like a classic Scottish tenement situation and in any case not all have a shared building insurance, at least in my experience. Often each tenant/owner is responsible for his proportion of the common parts and rely on their own insurance to cover that. Usually there are no leaseholders as in the English system. In this case, the attic is apparently shared and that would appear to make it even less likely that there can be any claim against the other owner.

Dod