This is a question to the blog clinic fast track from Dan (not his real name) who is a tenant.
Our bath overflowed one evening with the equivalent amount of 3 pints of water, whilst mopping this up water worked its way through the flooring, which is over a neighbours kitchen and his ceiling collapsed.
Upon investigation, it was clear that the flooring had not been sealed and all the mastic was worn out. The neighbour confirmed that this had happened before with 5 of the 6 previous tenants.
After the event the landlord sent in contractors to re seal the mastic and prior to our vacating the property he had builders in quoting for a new bathroom.
He has now stated that we need to pay all the costs to the neighbour, basically all our deposit, as it was our fault. Our challenge has been that is the floor was sealed correctly then this would not have been an issue. Do we have any grounds to fight this?
Answer
The first thing to do is look at your tenancy agreement. If it does not have a proper clause setting out how the deposit money will be used – the landlord will not be able to claim anything. The landlord’s right to make deductions from the deposit depends on authority and permission granted in the tenancy agreement.
If there is a clause authorising deductions (and most professionally drafted tenancy agreements will have one) you then need to look at the wording of the clause and see what it says – does it cover this situation?
I suspect it won’t. Tenants are normally liable for damage which flows from a breach of contract. I have yet to see a contract term which forbids overflowing the bath – and even if it was there I suspect it would be classed as ‘unfair’.
It sounds to me as if the overflow was caused by the normal use of the bath. The damage (and the financial loss) was caused by the defective flooring in the bathroom – which is down to the landlord.
So yes, I think it would be well worth challenging the deduction and asking for it to be referred to adjudication.
Since when does three pints bring down a ceiling?
Cumulative effect of earlier incidents?
Just go to dispute – no way will the Landlord be awarded the full amount
Allowing a bath to overflow isn’t normal use even if accidental. It is usually caused by carelessness or negligence, like allowing an unattended pan to catch fire.
The tenant will be liable for any resulting damage.
I think the issue here is the level of damage the tenant is liable for. If the floor wasn’t sealed and the issue happened before (i.e. the landlord must be aware of it) then the tenant might escape liability for damages to the downstairs flat. Especially since, as mentioned by IO, such a small volume of water will not bring a ceiling down.
My view is that the responsibility for the overflow would be covered by the implied or express term of the duty to ‘act in a tenant like manner’. That being said it sounds unlikely that 3 pints would cause a fall . It seems likely that any previous overflow unless they were very severe, would have dried out and thus 3 current pints could not have caused it even from a cumulative effect.