Andrew Butler has achieved a significant victory in a property damage case which raised important questions about the entitlement of tenants to benefit from their landlord's property insurance.
The facts of Fresca-Judd v Golovina were that the tenant, G, took an 18-month tenancy of a cottage in Wiltshire. Having moved in shortly before Christmas, she returned to London before New Year, leaving the property vacant. While she was away, a pipe burst caused extensive flooding damage. The landlord, F, who was obliged by a term of the lease to effect property insurance, was compensated by her insurers, and the insurers brought a subrogated claim against G. They alleged that (in breach of an express term in the lease) G had switched off the heating before vacating.
Andrew argued that, notwithstanding the absence of any obligation on the part of G to contribute to the insurance premium, the obligation of F to insure the property could only sensibly be interpreted as existing for F and G’s joint benefit. The parties had to be taken to have agreed that F would look to the insurers for compensation, rather than to G; and insurers exercising rights of subrogation could not be in a better position than F.
In a judgment given on Friday 5 February 2016, Holgate J agreed with this contention, also holding (for good measure) that insurers had not proved, on a balance of probabilities, that G had turned off the heating. In particular, they had not successfully excluded the possibility of simple mechanical failure.
The case was widely reported in the National Press and a copy of the judgment can be obtained via Lawtel.
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