The existing judicial practice in cases of flooding of apartments is multifaceted . After all, there may be several reasons for such an incident. We omit our own negligence within the framework of this material.
The majority of floods are caused by the actions of neighbors. But flooding is also caused by low-quality equipment purchased to make life easier at home. Then the legislation on consumer protection comes into force.
When neighbors upstairs flood , the case usually ends up in court. And here it is necessary to competently approach the formation of the evidence base. The causes of the incident and its culprit are officially confirmed. The amount of damage is determined separately.
Who compensates for damage from flooding: the position of the Supreme Court
General payment rules are given in Chapter 59 of the Civil Code (Civil Code of the Russian Federation). In accordance with Art. 1054 damage caused to property is subject to compensation in full. This provision corresponds to Article 15, which states that losses caused are compensated in full.
When flooding occurred due to the fault of the management company or due to the use of low-quality household appliances, the provisions of the law on the protection of consumer rights are applied.
Article 14 enshrines the principle of full property liability of the seller, the manufacturer of the goods. In addition, when demands are not satisfied voluntarily, penalties are also imposed.
In disputes over flooding of an apartment, one cannot do without the norms of housing legislation. So, according to paragraph 4 of Art. 30 of the Housing Code of the Russian Federation, the owner of the property is obliged to maintain it in proper condition and to prevent mismanagement of it.
At the same time, residents must comply with the rules for using residential premises and common property in an apartment building.
The management company has its own obligations. In Art. 161 of the RF Housing Code deals with the maintenance and repair of common property. Accordingly, liability is provided for ignoring duties.
Supreme Court ruling in case No. 2-842/2018 on flooding
A flood in an apartment can be caused not only by a forgotten open tap, but also by household appliances, which are found in abundance in modern homes. And if a product is found to be defective, problems may arise not only for the owner of the apartment, but also for his neighbors.
A trivial situation. The hose on the washing machine or dishwasher installed in the kitchen bursts. Then damage is caused to several apartments at once.
It can be extremely difficult to immediately identify who is involved in such a situation. The manufacturer and seller are involved in the conflict.
The following precedent may be indicative. The case reached the Supreme Court, which understood the situation and sent the case for a new trial.
The essence of the dispute
The owner of the apartment installed a water filter, which was purchased at a specialized store, but turned out to be defective. There was a flood, which damaged not only the buyer’s home, but also several apartments below.
The seller admitted his guilt and paid the citizen material damages on a voluntary basis. However, the neighbors each filed a lawsuit on their own regarding the flooding of the apartment .
The buyer of the filter (the first victim) became the defendant. Based on court decisions to flood the apartment, he must pay his neighbors over 700 thousand rubles.
The next stage was a recourse claim against the organization for compensation of costs. Since the seller's liability was insured, he insisted on using an insurer as a third party. The first and appellate instances refused to satisfy the stated demands. Then a cassation appeal followed.
What the Supreme Court said
Determination No. 5-КГ19-193 dated December 3, 2019 contains several arguments that served as the basis for canceling previously made decisions. Thus, the courts wrongfully rejected the expert’s opinion about defects in the filter design. In fact, this was precisely the reason for the flooding of the lower apartments.
And also the previous authorities incorrectly considered that the seller was an improper defendant, since his liability was insured.
Separately, the Supreme Court of the Russian Federation drew attention to the fact that documents regarding the event were not presented to the insurer. Since the actual cause of the flooding has not been established, the case was sent for a new trial.
How to identify the culprit
In the classic case, a flood report is drawn up with the participation of an employee of the management company, the owner or tenant of the apartment where the flood occurred. The document describes the damage and indicates the culprit - the owner of the premises from which there was a leak.
But it happens that it is not immediately possible to establish it, as in the framework of the case under consideration. Often, when renovating an apartment, residents make changes to communications without permission. Then a forensic examination is required to determine its condition and determine the causes of flooding.
In this case, there was a specialist’s conclusion that the filter failed due to insufficient wall thickness and the absence of stiffeners. Accordingly, this is a manufacturing defect that served as a breakthrough.
Why is expertise important?
She has several main tasks. The first is to determine the actual causes of the incident that contributed to the damage caused by flooding of premises.
And for the conclusions to be reliable, it is necessary to outline a specific range of questions for the expert. After all, it determines the amount of real damage. Often, the conclusion also indicates the actual cost of restoration repairs.
If the flooding is due to poor-quality equipment, the expert points to the presence of a manufacturing defect. In this case, a link is provided to the regulatory documents from which the deviation was made.
Algorithm of actions
When filing a pre-trial claim you must:
- Contact the management company to draw up an apartment occupancy certificate.
- Conduct a damage assessment.
- Conduct a construction and technical examination (if the culprit has not been reliably identified).
- Prepare a claim.
- Send it to the culprit.
If within 20 days or another period established in the claim, funds are not transferred to the victim’s account, then it is necessary to defend your rights in court.
Drawing up an act
The main document that proves the cause-and-effect relationship between the damage caused and the actions of the neighbor is the flood report. It is drawn up by an engineer of the management company, HOA or a commission consisting of the head of the house and 2 witnesses.
The report is drawn up within 12 hours from the moment of flooding and contains the following information:
- date and place of execution of the document;
- name of the act;
- address of the affected apartment;
- composition of the commission;
- description of the damage;
- causes of flooding;
- signatures of the parties.
Sample act
Conducting an assessment
The next step is to determine the amount of damage. This is necessary to establish exactly how much the culprit must compensate.
This is an important step and should not be neglected. If the victim sets the amount of compensation on his own, it may be too small and will not cover his repair costs, or too large and the culprit will refuse to pay it.
In addition, if you need to go to court, an assessment is a mandatory step. Therefore, it is better to do it right away. The costs of the assessment must also be included in the amount of damage and included in the claim in order for the culprit to reimburse them.
When conducting an assessment you must:
- Choose a company that is licensed to carry out flood damage assessment work.
- Check whether the expert is a member of the SRO.
- Enter into a contract.
- Pay the cost of the service.
- Notify the culprit of the assessment in person or by telegram.
- Provide the apartment for inspection by an expert.
- Receive an assessment report.
The culprit may be present during the assessment, but this is not required. His opinion does not affect the result of the damage assessment.
Preparing a claim
The following documents must be prepared:
- passport;
- title document for the apartment (sale and purchase agreement, exchange, donation, privatization);
- extract from the Unified State Register of Real Estate;
- evaluation report;
- flood report;
- receipt of payment for the services of the appraiser.
The claim must be made in writing in 1 copy. It does not need to be certified by a notary.
Cases about the bay of the apartment
When an apartment has been flooded, judicial practice shows that there may be several defendants in disputes over property damage. If there is a breakthrough in communications in the apartment to the shut-off valve, the management company is responsible.
The flood was caused by the negligent attitude of the neighbors, they are the ones who bear responsibility. It also happens that the cause of flooding of housing from below is poor-quality plumbing. Then the injured owner files a claim for damages against its manufacturer or seller.
Here is a description of several court cases heard by the courts. Situations similar to those described are found everywhere.
Determining the Proper Defendant
When an apartment is flooded due to a break in internal networks, a dilemma arises as to who to sue: the upstairs neighbor or the management company. The Supreme Court voiced its opinion on this matter in its ruling dated January 10, 2017 in case No. 58-KG16-27.
He considered a citizen’s cassation appeal regarding a claim for recovery of material damage caused by flooding of the premises. Which arose due to a break in the riser.
The first instance supported the requirements in full. At the appeal stage, the defendant raised objections to the claim. In her opinion, the responsibility for maintaining utility networks in proper condition lies with the management company.
The Supreme Court of the Russian Federation indicated that during the previous consideration of the case, the courts did not check whether the problematic riser belonged to the common property of the apartment building. And also the true cause of the flood was not established. As a result, the dispute was sent for a new trial to the appellate court.
How to calculate damage
The plaintiff filed a claim against the guilty party for damages caused by the flooding of the apartment. The defendant admitted the fact of causing damage, but did not agree with the declared amount. His representative insisted that the affected housing had not been modernly renovated before the flood.
The court of first instance did take into account the fact of wear and tear. However, the Moscow City Court did not agree with this point of view.
In the appeal ruling dated January 20, 2017 in case No. 33-0038, he noted that the condition of the premises should not be taken into account. If it is necessary to use new finishing materials to restore it, their cost is included in the actual damage.
Flooding of an apartment due to illegal redevelopment
It also happens that water from the apartment located above appears as a result of illegal redevelopment (bathrooms are combined, their area is increased). Then the injured party, in addition to compensation for damage, also demands that the neighboring apartment be restored to its original condition.
However, from the appeal ruling of the Moscow City Court dated December 14, 2016 in case No. 33-48629, it follows that it is necessary to act differently. Provided that the redevelopment by the owner of the property has been legalized, the question of canceling the permit should be raised.
And only then we can talk about returning the housing to its original state. Local authorities have the right to file such a claim.
Sanctions from the management company
The house management organization is obliged to provide quality services to ensure the normal functioning of the house. Its relationships with tenants are subject to consumer protection legislation.
If the apartment is flooded due to the fault of the management company, then it is liable in the form of a fine for refusing to satisfy the consumer’s demands on a voluntary basis. This is illustrated by the appeal ruling of the Chelyabinsk Regional Court dated June 14, 2017 in case No. 11-7432/2017.
They left unchanged the decision of the court of first instance, according to which, in addition to damages, the defendant was charged the fine required by law. At the same time, the costs of examination and representative services were awarded.
The apartment was flooded by neighbors: how to recover damages from the culprit? Step-by-step instructions for owners
Owning real estate is not only a joy, but also certain difficulties, one of which is disputes with neighbors about compensation for damage due to the bay. Unfortunately, residential flooding often occurs at night or when the owner of the affected apartment is not at home: this circumstance significantly increases the amount of damage. The cause of the flood may be the negligence of neighbors who forgot to turn off the tap, as well as improperly installed pipes and plumbing that were not repaired in time. In gulf disputes, it is important to pinpoint the culprit of the gulf. Even if there is only one apartment above you, this does not mean that its owners are to blame for the incident. This article will discuss the procedure for initial actions in the event of a flood (regardless of who is the culprit), as well as the procedure for compensation for damage caused if it is determined that the culprit is a neighbor.
- Have you been flooded?
Call us at 8 (495) 223-48-91 or leave a request on the website, we will contact you as soon as possible and advise you in detail on the procedure for recording the fact of the flood and the damage caused!
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Step-by-step instructions “What to do if your property is flooded, and how to recover damages from a neighbor who flooded your apartment?”
We recommend that you adhere to the following procedure when a room floods in order to minimize the damage caused, as well as to recover compensation from the neighbor who caused the flood.
Step 1: Take immediate action to reduce the damage and your safety
First of all, it is necessary to de-energize the room where flooding occurs as quickly as possible. Lower the heater levers in the distributor box on your landing or directly in the apartment. Take all possible measures to preserve property (cover laminate flooring, furniture, appliances with film, place containers in the leak area, etc.). Next, you need to find out from the neighbors above where the leak started and whether they called the emergency service. If the cause of the leak is a faulty washing machine, an open tap, etc., then a neighbor can stop the flood by turning off the water.
If the neighbors are not at home or they are not the culprits, then call the management company employees, who must shut off the water supply throughout the house riser. If you cannot reach the Criminal Code, contact the Unified Dispatch Service (UDS), or in extreme cases, call 112.
By implementing these actions, you can reduce the consequences of the flood and save property. We also recommend taking photographs of the aftermath of the bay.
Step 2. Report the flood to the organization that manages the house and get a report drawn up
This organization (MC, TSN, HOA, Housing cooperative) is obliged to draw up an inspection report of the premises, which indicates the causes of the leak and the amount of damage caused. If you are flooded by your neighbors, then your neighbors’ premises should also be inspected. In some cases, if your neighbor does not open the apartment or is absent for a long time, it is necessary to contact the police for an autopsy.
When is the bay act drawn up?
You can find information on the Internet that this act must be drawn up by the Criminal Code within 12 hours from the date of contacting the emergency dispatch service. Moreover, this period is based on the norm of clause 152 of the Decree of the Russian Federation of May 6, 2011 No. 354. However, this norm regulates only cases of damage to the consumer’s property by the management organization itself. If the flood occurred due to the owners of another premises or other persons, this rule does not apply. At the same time, in Moscow there is Appendix 2 to the order of the City Order Department of the Moscow Government No. 55-48/1 and the Housing and Communal Services and Improvement Department of the Moscow Government No. 5-37/1 dated March 12, 2001), establishing the general procedure actions in case of such accidents (the period for drawing up a report in accordance with this document is 3 days).
The apartment flood report is an important document that records the fact of flooding, describes the damage to the apartment and indicates the person at fault (if he can be identified during inspection of the premises).
The form of the act is arbitrary, drawn up and signed by commission. The date of drawing up the act and the stamp of the management organization are affixed. The report must contain information: about the owners, tenants of the flooded residential premises and the apartment in which the leak occurred, about representatives of the management organization, facts of flooding and damage to property, places and volumes of flooding of the apartment and damage to property. For example, the extent of damage to the ceiling and walls is expressed in square meters; for damaged property, the degree of damage is indicated with a description of the identifying features of things. The act is signed by an employee of the Criminal Code, the owner of the flooded apartment and the culprit.
Get a detailed description of all damage from an employee of the management organization. If the management organization refuses to draw up an act, send it a notice of flooding by telegram indicating the date of inspection and contact the housing inspectorate with a complaint (attach a copy of the telegram). If the management organization does not show up for the inspection, arrange it yourself.
Inspection report of the premises drawn up by the Criminal Code in connection with flooding
What to do if the management company refuses to draw up an apartment flooding certificate?
- notify the organization managing your home about the fact of flooding (by sending a telegram with return receipt requested to the legal address)
- take a photo of the flooding and damage
- draw up a deed with the signatures of your neighbors. At the end of the document, indicate that the management organization refused to send its representative and draw up an act, although it was duly notified.
- contact an independent specialist to assess property damage and determine the cause of the leak (the culprit)
Errors in the Bay Acts
1
Errors in the personal data of the victim and the culprit
2
Incomplete description of the damage caused (incomplete list of damaged property)
3
Lack of signature of the culprit (or indication of the culprit’s refusal to sign the act)
4
Lack of signatures of commission members and the seal of the management company
5
Invalid date of flooding of the premises
These errors in the acts can lead to unpleasant consequences for the injured person. For example, a court may refuse to satisfy a claim to recover the cost of carpets, furniture, appliances, or other property located in an apartment, since this property was not indicated in the apartment filling act drawn up by the management company. Don't make these mistakes. Before signing the act, carefully study it, demand changes and additions to the act, or better yet, show the documents proposed for signing to an experienced lawyer.
In most cases, two acts on the flooding of the apartment are drawn up. The first act is drawn up on the day of the flood (as they say, “hot on the heels”), and the second act 10-12 days later, when additional consequences of flooding may appear. This allows you to more objectively assess the amount of damage and identify any damage that may not have been detected immediately. To draw up an additional act of filling, you must also contact the Criminal Code (hand over the application for drawing up an additional act against signature or send by telegram/mail).
Step 3. Order a damage assessment from an independent appraiser
If the guilty party refuses to satisfy your demands, voluntarily take measures to determine the amount of damage and document it. To do this, contact an independent appraiser to conclude an agreement to assess the damage and agree with the appraiser on a day to inspect the apartment. It is advisable to carry out an inspection of the premises by a specialist no earlier than 3-5 days after the flood, so that the consequences of the flood manifest themselves as fully as possible.
The appraiser must invite the culprit and the organization managing the house in advance to inspect the premises (no later than 3 working days before the inspection date by sending a telegram). The telegram can be sent through the Russian Post office or through. At the post office, you must say that you need a telegram with a receipt confirmation and a paper copy (if you send through the website, you need to select the appropriate items). If the parties to the dispute do not appear for the inspection, this will not become an obstacle to the procedure, and there is no need to reschedule the inspection (with proper notice).
The appraiser must be a member of the relevant SRO and have a qualification certificate in the relevant field. Based on the results of the inspection, the appraiser will prepare a report on the amount of damage caused as a result of flooding of the apartment (other premises).
If the inspection report does not identify the culprit of the leak, we also recommend ordering a construction and technical examination, in which a specialist will determine the cause of the leak.
Be extremely careful when choosing an appraiser or expert. Check out reviews of his work and his portfolio. When studying a portfolio, ask to provide not only appraisal reports (expert opinions), but also court decisions in cases in which the plaintiff’s claims were based on these reports (compare the figures in the pre-trial report and the results of the forensic examination, how different they were, whether the appraiser was invited to court hearing and how the court assessed his testimony). Listen to how a specialist describes to you the process of conducting an inspection and compensation for damage (compare his description with these instructions to understand how experienced a specialist he is). The expert's opinion (assessment report) is important evidence in the Gulf dispute. Also, keep in mind that the court may subpoena the expert to testify. The expert’s (specialist’s) answers to the court’s questions will also be important in the case; on their basis, the court will also evaluate the specialist’s competence and the correctness of the calculations. A good specialist will be able to defend his research and conclusions in court. Often, the testimony of an experienced specialist helps to avoid a long and expensive forensic examination.
The culprit of the flooding of an apartment (other premises) can also be identified during the trial on the basis of a forensic examination. In this case, the lawsuit names all potential culprits of the bay as defendants. However, due to the fact that a forensic examination is a rather expensive undertaking, and the costs of paying for it may also be borne by the plaintiff, we recommend ordering a specialist’s opinion before filing a claim in court (in this case, when challenging this conclusion, the defendant may apply for an examination, costs in this case, in most cases the defendant will also pay).
Save the agreement with the expert organization (appraiser) and documents confirming payment for their services. Based on these documents, you will be able to recover the costs incurred in court from the culprit of the flood. Also keep documents confirming the sending of notification of the inspection date to the culprit and interested parties. These documents will allow you to “protect” the pre-trial assessment report and, in some cases, avoid a lengthy forensic examination. In addition, in judicial practice there are cases of refusal to satisfy claims in this category of cases due to the fact that the alleged culprit of the incident was not notified by telegram about the inspection of the apartment for the purpose of drawing up an estimate (for example, the decision of the magistrate of site No. 394 of the Academic District dated 24.08. 2012 in case No. 2–187/394-2012).
Step 4. Set the full name of the apartment owner (the culprit of the flood)
After you establish which apartment the leak occurred in, you need to clarify the owner’s details (full name, address). If you do not know the owner of the apartment, then information about him can be obtained from the territorial body of Rosreestr (MFC) by submitting a request for information from the Unified State Register of Real Estate. The extract from the Unified State Register will contain only the full name of the owner. According to practice, in such cases, the claim indicates the address of the apartment in which the leak occurred as the defendant’s address, and additionally submits a request for evidence, that is, on the basis of a judicial request, the defendant’s place of residence can be established.
Step 5. Check with the culprit whether his liability is insured
If his liability is insured, ask for a copy of the insurance policy. This information will allow you to reduce the time required to recover damages. As a rule, the culprit will be happy to provide this document to avoid litigation.
Step 6. Send a claim to the culprit (the insurance company) demanding compensation for the amount of damage
Send the claim with your requirements and a copy of the assessment report to the culprit in a valuable letter with a list of the attachments (or hand it over to the owner of the apartment - the culprit for signature). The general claim period is 30 days from the date of receipt of the claim.
Despite the fact that the claim procedure for such disputes is not mandatory, its compliance will allow, firstly, in some cases, to settle a dispute with a neighbor peacefully, and secondly, to avoid leaving the claim without progress (despite the illegality of the court’s actions in this case, to prove the illegality of such a court ruling, you need to spend a lot of time appealing it, much more time than sending a claim).
If the liability of the culprit is insured, and the amount of claims is less than 500 thousand rubles, then if the insurance company refuses compensation, you must first contact the Financial Ombudsman to resolve the dispute. If you disagree with his decision, you can go to court.
Step 7. If the claim is not fulfilled, file a claim for damages in court
If the dispute is not resolved out of court, file the claim in court.
If the cost of the claim does not exceed 50,000 rubles, then the statement of claim is submitted to the magistrate; if it exceeds, then to the district court. As a general rule, a statement of claim is filed in court at the location of the defendant.
When filing a claim for compensation for damage due to flooding of real estate, you must pay a fee, the amount of which depends on the value of the claim.
The length of time for consideration of a case in court depends on many factors: the workload of the court that is considering the case, whether a forensic examination will be carried out at the initiative of the court or another party, in which instance the consideration of the case will be completed.
When filing a claim for damages against a neighbor in court, you can additionally recover from the culprit the following:
- all legal costs (paid assessment costs, lawyer fees, state fees, postal and telegraph costs)
- losses in connection with the rental of other housing (the practice of collecting these expenses is not common, but nevertheless it exists; in order to recover such expenses, the flood must be significant, that is, such that normal living in a flooded apartment is impossible, and rental expenses are documented )
Step 8. Receive and present a writ of execution for collection
After the court decision has entered into legal force, it is necessary to obtain a writ of execution to enforce the court decision (if the defendant does not voluntarily comply with the court decision). The claimant has the right to present a writ of execution to the bank where the defendant has an account, or to the bailiff service (as a rule, writs of execution to collect money from individuals are presented to Sberbank, since many citizens have an account opened there and have a bank card). You can find out information about open accounts by sending a request to the tax authority and attaching a certified copy of the writ of execution. The deadline for execution of a court decision depends on the availability of funds and other property of the debtor and the activity of the claimant.
Important! Before drawing up an inspection report and an assessment report, as well as during the trial, it is not recommended to carry out repair work on the premises, as well as throw away things damaged during the flood and indicated in the assessment report, since a forensic examination may be carried out (at the initiative of the defendant or court).
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