Drainage easement

AClark2

We recently moved into a new house. We have since discovered that the neighbours septic tank and soak away are in our field.  They have also run a storm drain under our land. 

On our deeds the only mention is a right of easement for both of us to use a drainage pipe in a location that is no where near their tank or soak away. There is no specific mention of a septic tank, soak away or storm drain. No right to discharge into a specified area.

I have checked the local council and there is no recent planning for any septic tank or drainage pipes (I know both of them are new). None of this was declared by the previous owner of our house.

I have tried to contact our solicitor but had no response since Christmas! Due to Covid they have apparently lost the ability to respond to emails! 

Just wondering where we stand? Could we seek compensation from our seller? I don't think we would have brought a house with land that is a soak away for our neighbours (drainage here is poor), the storm drain exits at the side of our land into a gulley below, this is eroding the bank, making the side of the field unstable. We have fenced off the entire section to keep the children away. Also, there is the headache of them digging up our field for repairs of the soak away/tank.

I don't want to upset the neighbours about it but I am concerned we've been sold a pup. Now we know we will have to declare these things to future buyers and I can imagine it would out them off....

Thank you

Davesnave

If the tank and the drain had been there 20 years, the neighbours would have an easement by prescription and there would probably be nothing you could do about it. How do you know they're 'new' and are you able prove that? It would be advisable to be sure of facts before attempting to go after the previous owner.

The storm drain would normally have been visible when you viewed, so assuming it wasn't concealed somehow, you might have asked about it then.

If the installation of the septic tank and soak-away is relatively new, it won't need digging-up for some years, so perhaps things are not quite as gloomy as you're painting them. I'm sure you've noticed it's been a very wet winter and everyone's land is sodden right now.

davidmcn

AClark2 said:

None of this was declared by the previous owner of our house.

What were their answers to the relevant question(s) on the property information form?

AClark2

Our solicitor did not specifically ask 'Is there a soak away or septic tank'. As none of it is on the deeds there weren't any relevant questions ask. We, and our solicitor, weren't aware during purchase. 

However, they replied 'no' to does the land flood. It does. Actually our house has flooded since we've moved in! They said locks work, they don't. Our solicitors said the PIF is completed as good will and there isn't really any comeback on these issues. 

davidmcn

AClark2 said:

Our solicitor did not specifically ask 'Is there a soak away or septic tank'. As none of it is on the deeds there weren't any relevant questions ask. 

No, but there are several questions in section 8 of the PIF about rights over the land and pipes etc.

AClark2

Davesnave said:

If the tank and the drain had been there 20 years, the neighbours would have an easement by prescription and there would probably be nothing you could do about it. How do you know they're 'new' and are you able prove that? It would be advisable to be sure of facts before attempting to go after the previous owner.

The storm drain would normally have been visible when you viewed, so assuming it wasn't concealed somehow, you might have asked about it then.

If the installation of the septic tank and soak-away is relatively new, it won't need digging-up for some years, so perhaps things are not quite as gloomy as you're painting them. I'm sure you've noticed it's been a very wet winter and everyone's land is sodden right now.

The neighbours told us both are new as the previous one failed. This is where my worry that it will fail again comes from.  They went into detail about how and where they had to dig up the land a couple of years ago. Our land previously belong to their family member.

The storm drain isn't visible. It appears out of the side of our field, about a 50cm down and onto footpath. We only noticed it when it was pointed out to us from the footpath.
We viewed the house and land in the summer. Neither of us noticed it or the errosion of the bank then. 

Davesnave

AClark2 said:

Davesnave said:

If the tank and the drain had been there 20 years, the neighbours would have an easement by prescription and there would probably be nothing you could do about it. How do you know they're 'new' and are you able prove that? It would be advisable to be sure of facts before attempting to go after the previous owner.

The storm drain would normally have been visible when you viewed, so assuming it wasn't concealed somehow, you might have asked about it then.

If the installation of the septic tank and soak-away is relatively new, it won't need digging-up for some years, so perhaps things are not quite as gloomy as you're painting them. I'm sure you've noticed it's been a very wet winter and everyone's land is sodden right now.

The neighbours told us both are new as the previous one failed. This is where my worry that it will fail again comes from.  They went into detail about how and where they had to dig up the land a couple of years ago. Our land previously belong to their family member.

So it's reasonable to assume a tank and drain field has been there 20+ years and the neighbour has a prescriptive right to continue with them on the land. Your vendor must have known this, yet did they not disclose the fact on the PIF, as  required.

On the face of it, it seems you could pursue the vendor for non-disclosure of a material fact that reduces the value of the property, but success would depend on a court agreeing with a professional assessment of that reduction. You would have to be sure the amount likely to be awarded was worthwhile. What fraction of the land is affected?

Your situation mirrors mine in that I have a neighbour's drain field on my land which was not disclosed on the PIF. The  circumstances of the sale lead me to think the vendor had no knowledge or had forgotten about this, as it's at the other end of a 5 acre field. I didn't find it until the weather was very wet, and even then it creates only a small amount of inconvenience. It probably doesn't affect the value of my property at all.

The existence of something like this is fairly common in the countryside. Any assessment of a reduction in the utility of the land would have to include the proportion of it affected negatively, which in my case would be very small indeed.

If you think your land is unsuitable for septic tank drainage and you could show this through a professional investigation and report indicating significant pollution, there's a possibility that the Environment Agency might act on your behalf, but that would obviously ruin any relationship with the neighbour and might cause other problems for you.

The good news is that if the drain field was replaced properly, it shouldn't need similar attention for a long time.

greatcrested

How did the sellers reply to questions 8.4, 8.5, 8.7, 8.8 of the PIF (below)?

http://www.suremove.uk.com/downloads/Law Society Property Information Form TA6.pdf

Out of interest, are you on mains drainage?

If yes, why is your neighbour not?

If not, do you have a separate septic tank or SSP, and why do you and neighbour not share one?

AClark2

greatcrested said:

How did the sellers reply to questions 8.4, 8.5, 8.7, 8.8 of the PIF (below)?

If yes, why is your neighbour not?

If not, do you have a separate septic tank or SSP, and why do you and neighbour not share one?

Thank you, really helpful.
They ticked no to all, except the ones specifically referencing drains. These they ticked 'not known'. I find this hard to believe as they were here for 30 years?! Their/our new neighbours was also their relative, whose house had been built in the last twenty years. 
I guess that them saying 'not known'  would get them out of it, as how could I prove otherwise 🤔 

We are all on septic tanks here. I guess we hav separate ones as we are far away (an acre-ish) away from each other. 

greatcrested

AClark2 said:

greatcrested said:

How did the sellers reply to questions 8.4, 8.5, 8.7, 8.8 of the PIF (below)?

If yes, why is your neighbour not?

If not, do you have a separate septic tank or SSP, and why do you and neighbour not share one?

We are all on septic tanks here. I guess we hav separate ones as we are far away (an acre-ish) away from each other. 

You guess!!!?? Do you mean you don't know how /where your sewage is managed? I suggest you find out as a matter of urgency! Far more urgent than concern over the neighbour's septic tank!

AClark2

Davesnave said:

AClark2 said:

Davesnave said:

If the tank and the drain had been there 20 years, the neighbours would have an easement by prescription and there would probably be nothing you could do about it. How do you know they're 'new' and are you able prove that? It would be advisable to be sure of facts before attempting to go after the previous owner.

The storm drain would normally have been visible when you viewed, so assuming it wasn't concealed somehow, you might have asked about it then.

If the installation of the septic tank and soak-away is relatively new, it won't need digging-up for some years, so perhaps things are not quite as gloomy as you're painting them. I'm sure you've noticed it's been a very wet winter and everyone's land is sodden right now.

The neighbours told us both are new as the previous one failed. This is where my worry that it will fail again comes from.  They went into detail about how and where they had to dig up the land a couple of years ago. Our land previously belong to their family member.

So it's reasonable to assume a tank and drain field has been there 20+ years and the neighbour has a prescriptive right to continue with them on the land. Your vendor must have known this, yet did they not disclose the fact on the PIF, as  required.

On the face of it, it seems you could pursue the vendor for non-disclosure of a material fact that reduces the value of the property, but success would depend on a court agreeing with a professional assessment of that reduction. You would have to be sure the amount likely to be awarded was worthwhile. What fraction of the land is affected?

Your situation mirrors mine in that I have a neighbour's drain field on my land which was not disclosed on the PIF. The  circumstances of the sale lead me to think the vendor had no knowledge or had forgotten about this, as it's at the other end of a 5 acre field. I didn't find it until the weather was very wet, and even then it creates only a small amount of inconvenience. It probably doesn't affect the value of my property at all.

The existence of something like this is fairly common in the countryside. Any assessment of a reduction in the utility of the land would have to include the proportion of it affected negatively, which in my case would be very small indeed.

If you think your land is unsuitable for septic tank drainage and you could show this through a professional investigation and report indicating significant pollution, there's a possibility that the Environment Agency might act on your behalf, but that would obviously ruin any relationship with the neighbour and might cause other problems for you.

The good news is that if the drain field was replaced properly, it shouldn't need similar attention for a long time.

Thank you - I have come to realise that all the legal stuff, surveys etc are a necessary waste of money.
We don't have as much land as you; a one acre plot. Which holds at least two/maybe three soak aways. I had plans for this space which now look unlikely,  which negates the purpose of moving here! However, as you say how I could evidence this in monetary terms is impossible. Will have a think I'm it before I act.
Thank you for your response it's really useful.