Water/drainage over neighbour's land

G_M

I previously briefly hijacked a similar thread with this (here) but am re-posting in a new one for further legal feedback.

Previous posts replicated here, with an update/query in my next post down....

I share a (septic) tank with my neighbour. The tank is in his garden. For 15 years he's sent me the invoice for emptying it annually and I give him a cheque for half.

The old deeds show only that I have a right to 'water supply and drainage' to/from a farm half a mile away (the water now comes, again via my neighbour's garden, from the mains in the road).

Doubtless if I sell, the buyer's legal team, or mortgage lender, will insist this arrangement is not enough and I'll have to put indemnity insurance in place or lose my buyers.

Having decided to see if I could formalise the existing arrangement, I seem to have 3 options:

1) live here another 5 years, and claim the right by prescription after 20 years unrestricted and unchallanged use, and register it against my neighbour's Title

2) Get a Deed of Trust drawn up between self and neighbour which would protect/obligate current/future owners of both properties. Was quoted 'about £1000' for this, to cover two sets of solicitors.

3) Make a statement of truth or statutory declaration for the 15 years and offer that to any future purchaser + an indemnity insurance to cover the missing 5 years.

I now believe option one could be done immediately since I could ask the previous owner, who lived here with the same arrangement for well over 5 years, to also make a 'Statement of Truth' to submit to the Land Registry in support of an Easement claim by Prescription.

G_M

Having seen two solicitors, both have recommended option 2 (a Deed) as the 'best' solution. One suggested "around £1000 for two sets of solicitors", the other quoted £250 + disbursements (2 times £40 LR fee) with my neighbour choosing whether to use a solicitor or simple sign the document mine draws up.

The 2nd solicitor also suggested that Easements claimed by Prescription were closely scrutinised by the LR, and often rejected, whereas a Deed would be registered relatively as a formality.

He also suggested the water access was not a concern since it was now mains, so the water company had a duty to maintain supply. However surely the pipe from the road to my house is my responsibility, and should there be a leak I, or my successors, would need permission to dig up my neighbour's garden?

Are the solicitors just recommending the most lucrative option for themslves?

What are the legal pros/cons of each option - or is any action actually required to ease things in the future?

ps:
1) My neighbour is in principal happy to formalise the current arrangement once I decide what to do.
2) neither property has a mortgage currently

sonastin

Re the water supply - I would suggest checking with the water company where your responsbility begins. If the supply is in the road, they usually maintain the responsibility for the "branch" between the main supply pipe and your property boundary so you only have responsibility for digging up your own property and not the public footpath. They may have negotiated the necessary easements when they made the connections across the neighbours land.

As for the rest of it, I am not sure which is the best legal option but sorting it for the future is definitely a good idea.

observations_from_a_hill

Sorry - what I'm going to suggest is likely to be terribly expensive.

For the water supply, as sonastin suggests, check with the water co. for the exact end of the mains. If any part of your private pipework runs through your neighbour's property, get a deed of grant from the neighbour for rights of passage of water and also for rights of entry on his land if necessary to repair/replace the pipes. You need a specific grant for this, because you can only gain prescriptive rights which you have actually enjoyed - if you have never had cause to enter the neighbour's property to repair any private water supply pipes, then you will never have obtained those rights through long use of them.

The septic tank is even worse. If it is physically practicable, it is far better (although very expensive) to install your own tank within your own property and under your own control. It looks pretty clear that you and the previous owner can prove to the satisfaction of the Land Regy. that your property has a right to discharge foul water in your neighbour's tank. Land Regy. deals only with rights over land - there can be no responsibility imposed on the owner of neighbouring land to arrange for the tank to be emptied. Your rights are only to discharge - and if the neighbouring property were to be left unoccupied for the next 20 years, you have not accrued (because the situation has never arisen) any rights whatsoever to enter the neighbour's property to empty the tank.

You could get a deed to cover the situation, but your neighbour would have to grant you both rights of drainage and rights of entry at any time to empty/repair/replace the septic tank. This should be OK. I don't know how your neighbour would feel about giving you carte blanche.

I have a septic tank too - water rates are really cheap!

This is my longest post yet, hope it makes some sense.

G_M

Thanks observations - yes, makes sense!

Water company tells me their responsibility ends at the Stopcock in the road by my neighbour's gate. Thereafter, across his land, they are not concerned/interested/responsible. So it's between him and me.

My own tank would be a) impractical [due in part to lie of the land] b) hugely expensive.

Thanks for making the point about my (and previous owner) never having actually accessed the neighbour's land to maintain either the water pipe or tank, and therefore never having created a prescriptive right of access. Interesting point.

So I could claim prescriptive right to USE the pipes/tank, but not to maintain?

Re maintenance: again due to lie of land, if the tank needed emptying/fixing, it's his garden, and then his property's ground floor, that would be flooded well before my property was affected, but as you say if he moved and the property was vacant for years........

Having said all that, relations at present are good, he's amenable in principal to formalising things, so it seems the way to go is a Deed of Grant.

observations_from_a_hill

Yes, long user only gives you prescriptive rights to the actual "acts of trespass" you have performed, so you would not have acquired any rights to maintain and repair the pipework.

Since you & your neighbour both seem very sensible, get a deed of grant drawn up to cover everything, including his responsibility for arranging the emptying and your responsibility to pay half the cost. You might also want to mention something about sharing the cost of replacing the present tank should it prove necessary.

G_M

Grant
In consideration of the covenants....the Grantor... hereby grants... the grantee and his successors....
1) the right in favour of the grantees land of free and uninterrupted passage and running water in and through the pipes and channels that are now laid upon or under the granteor's land

2) the rght to drain water and soil... through the pipe into the septic tank the approximate position of which is indicated .... on the Plan

Grantees covenants
The Grantee hereby covenants.. on behalf of himself and his successors in title to contribute one half of the cost of:
a) maintaining repairing and renewing the water pipes and channels that are used in common by the grantor's property and the grantees property
b) emptying maintaining repairing and renewing the septic tank and the pipes leading to it situated on the grantors land the aprox position.....on the Plan

Draft from solicitor.

There's a 2nd covenant, identical, binding the grantor in the same way as grantee.

Does this cover right of access for the purposes of maintenance?

observations_from_a_hill

In reply to your PM, that's simply appalling unless you failed to make your requirements clear to the solicitor. Without rights to enter neighbour's land & excavate as necessary, you are totally stuffed if either:
(a) the pipe from the mains bursts outside your curtilage
(b) your drainage system becomes blocked before its connection with your neighbour's system.

Neither of these would affect your neighbour in the slightest, so he's not going to do anything. Obviously your current neighbour is completely normal & no doubt would be happy to agree to you doing whatever is necessary. Your neighbour's generosity arises from your personal relationship, & cannot be guaranteed to continue if either property changes hand.

Show this to your solicitor if you like - if the random weirdo from the internet forum can understand what's needed, then surely he should!

G_M

Updated draft covenant received from solicitor (below). Section 2.3 is new.

it’s now a two page, 4 section document.
1) Definitions
2) Grant
In consideration of the covenants....the Grantor... hereby grants... the grantee and his successors....

2.1) the right in favour of the grantees land of free and uninterrupted passage and running of water in and through the pipes and channels that are now laid upon or under the grantor's land

2.2) the right to drainwater and soil... through the pipe into the septic tank the approximate position of which is indicated .... on the Plan

2.3
The right for the Grantee to enter onto such part of the Grantor’s Land as shall be reasonably necessary for the purpose of a) inspecting maintaining and repairing the pipes channels and septic tank that are now laid upon through or under the Grantor’s Land and b) emptying the Septic Tank in the case that it becomes blocked or overflows and is in the reasonable opinion of the Grantee considered to be an emergency SUBJECT to making good any damage that the Grantor might cause

3) Grantees covenants
The Grantee hereby covenants.. on behalf of himself and his successors in title to contribute one half of the cost of:
a) maintaining repairing and renewing the water pipes and channels that are used in common by the grantor's property and the grantees property
b) emptying maintaining repairing and renewing the septic tank and the pipes leading to it situated on the grantors land the aprox position.....on the Plan
4) Grantor’s covenants
(Mirror of 3 above)


edit: further amendment to 2.3

observations_from_a_hill

That's better. For completeness, I'd add "and emptying the said septic tank" immediately before SUBJECT TO in cl.2.3.

G_M

Many thanks to all.

Covenant signed sealed and delivered (well, registered at Land Registry!).

I'm happy. Neighbour happy. Solicitor even got LR fees halved by registering against both properties simultaneously.

Cheers!