We have endured Storm Henk so far in 2024, will it be Storm Olga or Storm Vincent next? With what seems like daily reports of bad weather, it is all too common that storms are causing damage to residential and business premises.

Often, properties suffer from a leak following a bad storm. Dealing with the consequences can be a major headache for property owners. We set out several steps that you can take and points to clarify with a solicitor when dealing with water damage at your property.

Check your property is appropriately insured.

You should check that your property is insured against storm damage. Often policies refer to an 'escape of water.' Ideally, this is done before any water damage occurs. The 'escape of water' may be set out as a 'peril' that is covered by your policy.

If the property is unoccupied, you should check the 'endorsements' on your policy document for any stipulations about cover for unoccupied properties. Often insurance policies allow properties to be unoccupied for a fixed number of days whilst retaining full insurance cover. If the property is unoccupied longer than this limit, then it may result in reduced or no applicable cover.

Check where the water is entering your property from.

It is essential to investigate the source of the leak. You may need to arrange for emergency repairs to make the property habitable, e.g., if you are a landlord with repairing obligations under a Lease. Emergency repairs may prevent further damage to your property or to surrounding properties. If you choose to make an insurance claim, some providers may require you to use their preferred contractor for repairs. You should check this with the insurance provider before carrying out any repairs. Again, reference to the wording of your policy is essential.

Keep a record of expenditure on repairs.

It is helpful to keep a record of expenditure on repairs. Keeping a record is useful as you may require to (i) submit a claim to the insurance provider or (ii) make a claim against a neighbouring property owner (e.g., if water has escaped from their property into your property).

Consider if you should notify a property factor if you live in a block or development.

If you own property in a block of flats or development, you may have a factoring company that you ought to report the leak to so as to enable them to instruct appropriate works. There may also be a block/development insurance policy in place. It would be beneficial to check if 'escape of water' is covered and liaise with the factoring company accordingly.

Consider if you need to consult a solicitor to check your legal title in order to identify liability for repairs costs.

You may require to consult with a solicitor if it appears that the leak is entering your property from another property. Your solicitor can check your legal title to the property to see if there are any stipulations setting out who is responsible for parts of the property or if there is a shared liability for repairs. Shared liability may apply where the source of the leak is coming from a common or mutual area. In the absence of provision in your title, the Tenements (Scotland) Act 2004 prescribes the regime for liability for repair and maintenance in blocks of flats.

A solicitor can advise you on appropriate steps that you may need to take to deal with the legal issues arising from any damage caused by the leak or access rights to undertake repairs.

A solicitor may recommend that a surveyor inspect the property to identify the source of the leak. If the surveyor is instructed by the solicitor on your behalf, then legal privilege can apply to the surveyor's investigations and subsequent report. Understanding the source of the leak will determine what the best course of action is from a legal perspective in terms of the rights and obligations you have.

We suggest you get in touch with your usual Brodies' contact if you require further information or assistance in relation to property damage claims.


Naomi Davies

Senior Solicitor