Water on the brain

Our lawyer Fiona McNulty looks at the legal issues of addressing an ongoing leak from a neighbouring flat
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Dealing with leaks in neighbouring flats - cartoon
© Malcolm Willett (www.willett-ink.co.uk)
Question: Could you please advise me on a problem that affects thousands of people who live in flats?

Since July, I have had an ongoing leak from the flat above, whose owner has a share of the freehold. She has repeatedly refused access for a plumber. The leak has now progressed and cost me £2,500 in redecoration.

What is the law regarding leaks, and can I obtain an access order?

Answer: In brief, the position is this. You should first consider the two flat leases.

These will tell you how the building is divided between the flats, which parts are retained by the freeholder (if any) and, importantly, who is responsible for the relevant repairs. If the freeholder is responsible, then they will almost certainly have a right to enter the flat to carry out the repairs (often without notice in the case of emergency).

You should also check whether the damage you have suffered is covered by the buildings insurance (commonly taken out by the freeholder for the block).

If you cannot remedy the problem this way, you might pursue a claim against the flat-owner. It is not dealt with by statute but you would potentially have a claim under common law.

You would seek a mandatory injunction requiring the leak to be fixed and damages for the redecoration. The court can grant an injunction at an early stage (pending trial), if considered appropriate. The court has to consider the facts in each case, so no hard-and-fast rules can be provided for this.

What's your problem?

If you have a question for Fiona McNulty, email legalsolutions@standard.co.uk. We regret that questions cannot be answered individually.

Fiona is a partner in the property team at Thring Townsend Lee & Pembertons Solicitors www.ttuk.com.

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