Recent flooding is not only causing misery to individuals and businesses, it is also causing significant damage to property in terms of both damage to buildings and damage to land itself. As flooding and flooding risk rises to a high water mark on the political agenda, from a practical and legal perspective what can a landowner do in the event that it is affected by flooding?
I'm going under
The first port of call should be to check the terms of any property insurance. Flooding is generally an insured risk and, ideally, loss and damage to the building itself and its contents will be covered in the event of flooding. However, policies will contain exclusions and other terms and conditions, which could reduce insurers' liability. They may also contain warranties or promises that certain things will or will not be done and these require exact compliance or insurers may be able to claim they are off risk.
The policy provisions that relate to making a claim will vary from policy to policy. In some cases the time limits for giving notice of a claim or potential claim are very tight and if they are missed the claim may be rejected. Make sure that you make a careful note of the steps that insurers require you to take once the claim process has been started.
Some insurers provide as a service access to preselected service companies which can be used to make good damage that needs to dealt with urgently in order to avoid future losses. Ensure that you have clear guidance on who is responsible for the cost before the work is undertaken. Some insurers will require that two quotes are obtained for any repair work and for pre-authorisation to be given. If the work is urgently needed, this needs to be explained to insurers and permission obtained to deviate from the standard practice. For less urgent work evidence as to condition and damage should be collected. A business may well have business interruption cover that will respond if there has been physical loss or damage and, again, the terms should be checked carefully to avoid the risk of inadvertent breach of policy terms.
In the landlord and tenant context, it is important for both landlord and tenant to check the terms of their lease. Generally, the person with responsibility for insuring should make the claim in the event of flooding damage. In a multi-let building, it is usually the landlord who insures the property and is obliged to make all insurance claims and apply the insurance moneys to repairs and reinstatement. It may be possible for a tenant to note its interest on the landlord's insurance so that the tenant is kept informed of matters relevant to the policy. A tenant generally is responsible for the repair and reinstatement of its own demise. However, it would be expected that the tenant's liability would not extend to situations where the damage was caused by an insured risk where the landlord has the insurance obligation in respect of the building.
Where there is a letting of the whole building to a sole tenant, the tenant may be responsible for insuring the building, especially if the lease is for a long term and was granted for a premium. It is also possible for a landlord and tenant jointly to insure a building, in which case the party (or parties) suffering loss should make the claim.
Whilst the landlord may have the obligation to insure the building and apply insurance moneys to repair and reinstatement, the tenant should consider separate insurance for its contents and business interruption.
In the event of loss arising from lack of cover or potentially inadequate cover, the party who is not obliged to insure may have a claim for the loss against the party with the obligation to insure.
Am I liable?
A property owner can be liable if certain works on its property channels or increases the flow of water on to neighbouring property. For example, the diversion of a watercourse or the deliberate draining of water on to neighbouring property is likely to give rise to a liability in nuisance.
A property owner should ensure that all drains are kept clear and that any flood defences are adequately maintained. If the property owner is a riparian owner, the beds and banks of the watercourse should be maintained.
It is not uncommon for developers to divert watercourses or culvert streams. Care should be exercised to ensure that such works ensure that the water is sufficiently carried away, potentially even during exceptional rainfall.
A property owner can take measures to defend its property from flooding even if the consequence of this is that the flow of water on to a neighbour's land is greater, so long as the measures are preventative and are not measures to deal with a flood that has already occurred.
Is someone else liable?
In the event that a property is acquired and is then damaged by flooding, is there any recourse against anyone else? The general position would be "buyer beware". However, in the event that the seller has misrepresented the flooding risk, then a potential claim could lie in misrepresentation. A buyer would be wise to raise specific flooding queries with a seller prior to exchange in order to pump out as clear a picture as possible from the seller. If these statements do not hold water, then the seller may well be liable in damages to the buyer or the contract could in certain circumstances be rescinded.
A surveyor instructed to provide a valuation-only survey is unlikely to be regarded as acting negligently for failing to identify flood risk. However, a surveyor performing a full building survey is potentially liable if it would have been reasonable for him to have identified a flooding concern. Similarly a conveyancer could potentially be liable if knowledge of flooding in the local area existed and/or no searches were performed to identify risk or if the client was not informed about the risk.
Flooding has major repercussions not only for private individuals but also for the property and insurance industries and the economy in general. It is not a risk that likely can ever be removed, though steps can be taken to mitigate the risk. It is important for landowners to be aware of their rights, but also their responsibilities, in respect of flood risk management. Further, landlords and tenants should be aware of what their obligations are in respect of repair and reinstatement as well as in respect of insurance. It is preferable to be aware of what could happen if the waters rise before the river is lapping up against the window sill.