Who should pay for the damage?

[lorenl]

We have a major leak from the flat above us from their waste pipe attached to the bath. This has resulted in part of our ceiling falling down under the weight of the water. We own our flat but upstairs rent. We have contacted the owner of the flat and they accept liability but they have contacted thier insurance and say they wont pay for damage outside her flat. Her rental agents say we need to claim on our insurance. We think this is wrong? Also the building is a converted house and we share the cost of structural maintenace work e.g fixing the roof. It is also a combined freehold/leasehold e.g we pay her £10 a month and she pays us £10 a month which cancels out so no money changes hands. We think she needs our permission to sub let the flat above out? Which she never asked.

[ladyalex]

I have no ideas about the sub-letting question, but if I were you I'd contact my insurer and ask them for their advice.

[boxtops]

From the days when I worked in insurance:

The upstairs buildings insurance company are quite correct that they can only deal with claims for damage to the top flat, BUT your claim is not on the buildings policy, it's on the public liability section of that policy. You make a PL claim if you can prove that the owner/occupier of the flat was negligent in failing to maintain the bath outflow so the leak arose, causing damage to your property.

What happens now is that you discuss this with your own insurance company and submit the claim to them (as the rental agents suggest) - they then deal with the claim under your own buildings insurance, but they then look to recoup all their outlay from the insurance company of the owner above. It's a straightforward process for one insurance company to claim from another - each deals with their own policyholders then sorts it out behind the scenes.

Regarding the second question - that's a matter between the tenant of the top flat and the owner - it depends on the terms of the tenancy whether she can sub-let, she may have permission of the owners - she doesn't need your permission, who lives in the top flat is nothing to do with you as long as they are paying their ground rent to you.

[themas]

On your second question, do you mean sub-letting - i.e. the tenant letting the flat out to someone else? If you do, boxtops answer is correct.

However, I suspect you don't - rather that you are asking whether the owner of the flat can let it out without your agreement. In that case, it depends on the wording of the leases for both your flat & the one above. They may include a clause prohibiting letting out. If they do, then your agreement should have been sought but as you part own the freehold as well as having a lease, I'm not sure what you can do about it unless the lease contains a specific clause dealing with what happens if any of the terms are breached.