Small claims - riparian rights

MH1927

It's a complicated claim and will probably require multiple experts to provide evidence, that may make it unsuitable for the small claims track. The likelihood of this happening will increase if they involve an insurance company.

Do you have legal assistance through your home insurer? 

peter_the_piper

If your property is lower than the pond and stream then maybe it would be worth trying to look up an old local map to see which route the stream took before the houses were built.

Mickey666

peter_the_piper said:

If your property is lower than the pond and stream then maybe it would be worth trying to look up an old local map to see which route the stream took before the houses were built.

Also, if that really is the case then I imagine it would be difficult to expect the neighbour to do anything to prevent water flowing where it wants to flow.  If water levels rise then isn't that just an 'act of god' and not something that the neighbour can be held responsible for?  When rivers flood and ruin homes, you never hear of the riperian owner being held responsible for all the damage claims do you - it's always down to the home-owner's own insurance.

I agree with the previous comments about this being a potentially complex case that could benefit from specialist legal advice before embarking on a court case . . . especially via a possibly inappropriate small claims route.

MattMattMattUK

Mickey666 said:

peter_the_piper said:

If your property is lower than the pond and stream then maybe it would be worth trying to look up an old local map to see which route the stream took before the houses were built.

Also, if that really is the case then I imagine it would be difficult to expect the neighbour to do anything to prevent water flowing where it wants to flow.  If water levels rise then isn't that just an 'act of god' and not something that the neighbour can be held responsible for?  When rivers flood and ruin homes, you never hear of the riperian owner being held responsible for all the damage claims do you - it's always down to the home-owner's own insurance.

I agree with the previous comments about this being a potentially complex case that could benefit from specialist legal advice before embarking on a court case . . . especially via a possibly inappropriate small claims route.

Not if the neighbour has diverted the watercourse or created a body of water which causes the water table to rise or increases the liklihood of flooding.

HaydenB

My whole argument is that there is an overflow to carry away excess water. This overflow however can not be located anymore as this part of the neighbours garden has overgrown and received nothing in the way of maintenance. So now when there is heavy rain , the now lost overflow doesnt take away the excess water so it takes its easiest course which is our garden.
The important point is surely that there is/was an overflow I assume to stop the water going anywhere other than be diverted below ground. But the landowner has failed to ensure it is maintained. 

Manxman_in_exile

MattMattMattUK said:

Mickey666 said:

peter_the_piper said:

If your property is lower than the pond and stream then maybe it would be worth trying to look up an old local map to see which route the stream took before the houses were built.

Also, if that really is the case then I imagine it would be difficult to expect the neighbour to do anything to prevent water flowing where it wants to flow.  If water levels rise then isn't that just an 'act of god' and not something that the neighbour can be held responsible for?  When rivers flood and ruin homes, you never hear of the riperian owner being held responsible for all the damage claims do you - it's always down to the home-owner's own insurance.

I agree with the previous comments about this being a potentially complex case that could benefit from specialist legal advice before embarking on a court case . . . especially via a possibly inappropriate small claims route.

Not if the neighbour has diverted the watercourse or created a body of water which causes the water table to rise or increases the liklihood of flooding.

Which if I recall correctly was exactly the point at issue in Rylands -v- Fletcher that I referenced earlier.

OP, I would suggest that you literally cannot afford NOT to get professional legal advice on this.  It's likely to be complicated and costly.  If you are going to suffer further damage to your property (and it sounds to me as if you will if your neighbour does not rectify the problem) you need to find out if your neighbour is liable for it and whether you can force him to get it fixed.  You are not going to be able to do that without legal advice and quite possibly suing your neighbour.

As suggested by MH1927 above, have you any legal cover on your house and/or contents insurance?  That might be the place to start as I would have thought your insurers also have an interest in resolving this.

Do you have to hand all the legal paperwork from your purchase of the property in 2015?  Did your solicitor not ask any questions about this or give you any advice regarding this stream?  Or did you do some kind of streamlined purchase because you were buying from your parents?  Did your insurers ask any questions about the stream?  Or were you not aware of the potential problem until it had happened?

HaydenB

Ive just spoken to a solicitor and they have quoted an initial £990 to review the case and write a letter 
I have all the legal paperwork, deeds, searches, etc. It was a proper purchase even though we bought it from our parents. But nothing was ever flagged up with regards the stream and it has never been an issue until 2019.

Manxman_in_exile

MattMattMattUK said:

Mickey666 said:

peter_the_piper said:

If your property is lower than the pond and stream then maybe it would be worth trying to look up an old local map to see which route the stream took before the houses were built.

Also, if that really is the case then I imagine it would be difficult to expect the neighbour to do anything to prevent water flowing where it wants to flow.  If water levels rise then isn't that just an 'act of god' and not something that the neighbour can be held responsible for?  When rivers flood and ruin homes, you never hear of the riperian owner being held responsible for all the damage claims do you - it's always down to the home-owner's own insurance.

I agree with the previous comments about this being a potentially complex case that could benefit from specialist legal advice before embarking on a court case . . . especially via a possibly inappropriate small claims route.

Not if the neighbour has diverted the watercourse or created a body of water which causes the water table to rise or increases the liklihood of flooding.

Just re-reading the thread; there's a stream leading into a pond on neighour A's land; a stream from the pond used to feed a waterwheel on the OP's land; the stream that used to feed the waterwheel has been diverted (at sometime) via overflow from the pond away from the OP's land; the overflow has become blocked (due to neglect?) and is causing flooding to the OP.

On the face of it, that all suggests that the neighbour A is at fault, but without knowing all the facts (and none of us know what the relevant facts even are) it's impossible for anyone here to say.  For example, who diverted the stream and when?  Was it many years ago, or did A do it recently?  Bearing in mind both A and the OP's parents have lived there since 1978, maybe both parties did it and should be jointly responsible for it?  Should the OP's conveyancing solicitor have realised there might be a problem and queried it?  Maybe the OP's parents knew about the flooding problem and should have disclosed it to the OP in 2015?!      Who knows?

If I were in the OP's position I'd be looking for a lawyer who will know the right questions to ask to get this sorted.

Manxman_in_exile

£990 may be the bargain of the century if your solicitor's letter persuades your neighbour to act to prevent further flooding of your property (and perhaps pay damages for the flooding already occurred).

What's it going to cost you if you can't get A to cooperate and more flooding happens on a regular basis?  What will happen to your insurance premiums?  Will you be able to get insurance?  Will you ever be able to sell the property?  [EDIT:  You said in the OP that flood damage to your garage was already irrepairable.  How much more can you sustain?]

Those may be "worst case scenarios", but you can't just ignore them and hope they won't happen.

Did the solicitor you spoke to give any indication of your chances of success?  Presumably you don't have legal advice cover on your insurance?

HaydenB

My house was built 1905 so it would have been diverted before then. There was nowhere else that it could have run (once the houses were built) other than underground.
My parents bought the house in 1978. Mr A bought his house in 2003.
I lived at the property from birth (1978) up until 2006 and then obviously moved back there in 2015. There has never been a problem until 2019.