Access to one flat to make repairs to another.

[flatowner]

Large leak from an upstairs sunken bath into downstairs open-plan kitchen. No visible damage. The bath is extensively (and expensively) tiled in with no access to the plumbing. It was installed by a previous owner, so the current owner cannot be blamed, though he has inherited responsibility. The only investigation has been to insert a camera through a light fitting downstairs which revealed nothing except insulation and the underside of a chipboard floor. No-one knows how extensive the damage is, and how long it will take to fix.

The insurance company has accepted the claim under the block policy. They say the cheapest way to tackle it is from below, removing the ceiling and (if necessary) the floor from under the bath, so that's what they are prepared to do. If they are denied access they will walk away. Doubtless their logic is that they insure the whole building and if it was a single house, the insured would have to accept it.

The upstairs flat owner is very happy with this. Hopefully no-one will even need to enter his flat.

The downstairs flat-owner accepts that his lease permits access to his flat to repair damage to another flat, but only if it cannot be done reasonably in any other way. He contends that to render his flat possibly unuseable for an unspecified amount of time, when he has no responsibility for the leak, and no damage, is not remotely reasonable, when the only reason for involving him is cost. The insurer has said they will put him and his wife up in a local hotel (not much use - nothing wrong with his bedroom) or give them £15 a day each for the inconvenience, which isn't even going to cover the cost of eating out if he can't use his kitchen.

The management company / freeholder is stuck in the middle.

Any opinions gratefully received, though it will take something fairly definitive to shift anyone's position. I suppose it comes down to whether the downstairs flat-owner is within his rights to refuse access, and if he is, is the insurer entitled to refuse the claim? If they are, it puts the downstairs flat-owner in a very difficult position. Sticking to his rights means his neighbour has to pay for what should be recoverable from the insurance.

[2222]

Water travels downwards, so it's in the interests of the downstairs flat to get the leak fixed!

Exposing the leak from below should enable it to be fixed and everything made good in a week. The main mess will be when the ceiling is taken down. The kitchen will be usable as soon as the mess is cleaned up. I think that the people downstairs are worrying too much, but maybe someone involved can top up the compensation they receive to say £500?

[flatowner]

Downstairs knows upstairs isn't malicious, and won't use his bath until it's fixed. (He has a separate shower.) Downstairs feels it's not his bath, not his responsibility, he gets no benefit yet he gets to suffer all the inconvenience. It's not really about the money. And if there was no insurance, upstairs would get it fixed from above, even if it meant some mismatched tiles, but is unwilling to do this if he would have to pay for it.

What I was really hoping for was some sort of legal advice. Insofar as I understand the Party Wall Act and the Access to Neighbouring Land Act, there's nothing definitive. It comes down to what is reasonable. I think the man in the street would say it was totally unreasonable to take down someone else's ceiling because of your own badly designed plumbing, but is that the legal position? And if downstairs cannot be forced to allow access, shouldn't the insurer have to pay for the repairs to be done from above even if it is more expensive?

[des8]

I think we need to know the exact wording of that lease, and the exact terminology used by the insurers, and the wording of the policy

What is reasonable is not necessarily what is cheapest
what is reasonable to one person is an imposition to another

[flatowner]

The lease permits (in rather more wordy fashion) the freeholder or a flat-owner to enter an adjoining flat to repair any part of his flat insofar as it cannot reasonably be done any other way, and there is a similar clause saying that a flat-owner must permit such entry. The insurance policy is silent as far as I can see, just the general principle of mitigating the loss. As you say, it comes down to what is reasonable. Unfortunately Google doesn't seem to give me any similar cases. It's normally the downstairs flat-owner wanting upstairs to repair his ceiling.

[2222]

I think the crux of this is: " if there was no insurance, upstairs would get it fixed from above, even if it meant some mismatched tiles, but is unwilling to do this if he would have to pay for it."

So, the question is whether it is reasonable for the upstairs flat to have mismatched tiles? I don't think many people would want that, so it really means re-tiling the entire bathroom, or a large part. That's very expensive, and I don't think it's reasonable.

There ought to be some compensation figure for which the downstairs people would think it worth putting up with the work, and the trick is to get closer to that, rather than having a confrontation about what the lease says.

[des8]

I agree with 2222 that it would be better to come to an agreement over compensation than conflict.

However without the exact wording of the lease and insurance policy I will not comment further.

[flatowner]

You probably aren't going to be surprised that downstairs is me. And I'm thinking I'm just going to have to give in.

The insurance company isn't going to offer any more compensation. So upstairs would have to pay me direct if there is to be any further compensation, and he considers all he should have to pay is the insurance excess. We're not exactly friends, but we all get on OK. Not a conversation I particularly fancy, and I can't see any outcome that is worth a bit of extra cash.

I'm a bit surprised at the view that access from downstairs is reasonable because access from upstairs would mean expensive re-tiling (and that is the crux of the matter). It means expensive re-tiling because the bath has been installed without access to the plumbing. Sort out that basic design fault and the whole problem goes away. But the fact that upstairs, the insurance company and you all think the opposite suggests what seems obvious to me isn't obvious at all.

Thanks for your help, even if it isn't what I wanted to hear.

[des8]

I don't necessarily disagree with you, but without the exact wording of all the documents it is not possible to comment .
Insurance policies are complex legal documents, as are leases, and the untrained often misread them and misunderstand them.
This works to the insurers benefit, as their claims people are also only partially trained, and make incorrect decisions.
Without sight of the full wordings we cannot possibly see if that has occurred on this occasion.
It may not have done, but we will never know.