Deed of easement drainage

agykha

Hi,

We are in the process of buying a property in Hampshire. All is well apart from the fact that it has no right of access to the tank it uses. The current owner's solicitor isn't particularly helpful and has been sitting on this for 3 months without giving any information on what he is doing to sort the issue.
The problem is that they can't figure out who the tank belongs to/managed by. The owner pays her bills to southern water but they have said that "the pipework/pumping station  doesn't appear to be adopted by southern water. This basically means it's a private matter. We have no mapped sewer pipes in this area". The neighbours seem to know nothing either. I'm not sure how this is possible but this is the situation.

Can anyone advise on who we could contact to find out who the sewers/tank managed by?
Any advice is much appreciated. 
Thank you!

princeofpounds

What makes you think that the pipes and tank aren't owned and managed by the property owner themselves? Certainly if no-one else drains into it there would be a very strong argument for that.

If you've tried the water company, tried the locals and in checked to see if the land is registered and, if so, tried the landowner*, there isn't much more you can do. (*don't rush to do this, for reasons I note below!).

There is a drainage charge on water bills that properties with private drainage do not pay, so try to get hold of one and see if they are being charged or not. If they are, the plot will thicken - personally I would try the water company direct rather than take the vendor's word at that stage. But most likely they do not pay it which would demonstrate it is a private system.

Then comes the question of whether an easement exists or not. Easements can be established in a number of ways. The most obvious is a granted easement, which is where the right is written into 'your' title deeds or those of the neighbouring property. I'm assuming that does not apply.

Then there is easement by prescription, which basically means a right acquired through long-term use (20 years) without permission or opposition from the landowner. This is a very common situation, especially with older properties. There is one special issue here however for underground pipes - you cannot establish an easement in secret. So there would have to be visible signs of a tank and/or a pipe on the land. This is probably the most relevant to your situation.

There are a couple of more ways to establish an easement - by implication or by necessity - but these typically relate to the history of ownership and transactions of neighbouring parcels of land and are a bit more esoteric. They probably aren't relevant to you, but you can't completely count it out based on the limited information provided.

The thing is, it's really for the vendor to prove to you that the property doesn't have a problem around easement for drainage. If they claim to you that they have an easement by prescription and can provide some evidence for that - ideally records or historic photos/maps or even a statement of truth - then that may be enough to proceed. In that case, you would probably want them to provide an indemnity policy so that if they were wrong you have some financial protection putting the situation right. This is why contacting the other landowner is tricky, as it will be a condition of the policy that you do not do so.

If the property does have the right to drain and owns the tank then you also have ancillary rights to maintain and replace that tank in future.

Finally - please be aware that new regulations were brought in for septic tanks a few years back, and they now need to be of a certain standard (mini sewage treatment plants in fact) for a property to be sold. I can't remember all the details but from memory it's specified by the environment agency - do make sure you look into this given the property may well own the tank.

If all this is a mess, the simplest think might be for the vendor to install a new sewage treatment plant on their own land, if possible.

Section62

agykha said:

The owner pays her bills to southern water but they have said that "the pipework/pumping station  doesn't appear to be adopted by southern water.

Is she paying a bill for sewerage services, or 'clean water' only?  If the former, she should ask SW why they are charging her for a service their records show she isn't getting.  If the latter, it tends to confirm the drainage is private.

agykha said:

Can anyone advise on who we could contact to find out who the sewers/tank managed by?
Any advice is much appreciated.

The next step I'd take is to find out if the Environment Agency have a record of a discharge consent - if they do, the information should include details of the person responsible for the discharge.

If not, it is possible the 'tank' is for storage only (aka a 'cesspool'), in which case it would need emtpying regularly and someone ought to know more about it.  If not, it is possible it is an unconsented discharge - in which case I would rapidly and completely lose interest in buying the property, unless the vendor (+ neighbours) are willing to get the situation regularised.

agykha

Thank you both very much. I'll make a couple of calls tomorrow see if we can get any further.
However, the vendor just emailed saying "if your solicitor insists on this getting this document, it could open up a can of worms" which makes me think that we need to get away from this one. 

canaldumidi

agykha said:

Thank you both very much. I'll make a couple of calls tomorrow see if we can get any further.
However, the vendor just emailed saying "if your solicitor insists on this getting this document, it could open up a can of worms" which makes me think that we need to get away from this one. 

In other words the seller knows only too well that the tank (septic tank? cess pit? something else?) is either non compliant with regulations (so will need replacing (at a cost between £3K - £10K?), and/or belongs to another party who may not be aware but could become aware at any time and start charging or denying access, and/or there are some other category of worm within the can.

Either insist on answers, walk away, or put £10K aside now to cover any future costs after you buy.

Have you had the tank surveyed (just as most people have houses surveyed)? eg

https://www.ukdpsolutions.co.uk/septic-tanks/surveys

(other companies are available)

agykha

So it seems that Chichester district council was responsible for drainage till the property was transferred to a housing association in the 90s. They also said that under 2011 legislation, the drainage system should have been adopted by Southern Water. So back to SW I guess. 

canaldumidi

agykha said:

So it seems that Chichester district council was responsible for drainage till the property was transferred to a housing association in the 90s. They also said that under 2011 legislation, the drainage system should have been adopted by Southern Water. So back to SW I guess. 

If it's on mains drainage and serves more than 1 property, then yes usually the 2011 leglislation would make the Water Co responsible.

I recently helped a friend who manages a private road to force Thames Water to adopt the drains. It took arond 9 months of argument.

But you mentioned a 'tank'. I'm not sure (indeed I'm very dubious) that the leglislation applies to adoption of private septic tanks however many properties are served. But you've not yet really clarified this tank.

What kind of tank? Is it on the property's land? On neighbouring HA land? How many properties does it serve?

I suspect Southern Water will know little (and care less?) about a private 'tank'.

Your options really are

* force the sellers to reveal or investigate the physical arrangement and legal responsibilities

* undertake your own survey to at least establish the physical arrangement, condition of repair, and compliance

* report potential non-compliance to the Environment Agency who might, subject to their resorces and level of concern, investigate and force compliance

* walk away

This may also help:

https://www.gov.uk/guidance/disputes-regarding-connection-to-the-public-sewer

Section62

canaldumidi said:

agykha said:

So it seems that Chichester district council was responsible for drainage till the property was transferred to a housing association in the 90s. They also said that under 2011 legislation, the drainage system should have been adopted by Southern Water. So back to SW I guess. 

But you mentioned a 'tank'. I'm not sure (indeed I'm very dubious) that the leglislation applies to adoption of private septic tanks however many properties are served. But you've not yet really clarified this tank.

Yes, it was a prerequisite of the 2011 adoption that the private drain/sewer "communicates with a public sewer".

Pipes which go to a 'tank' - be that a cesspool or private treatment plant - would not normally commuicate witha public sewer, and so remain private, unless the local sewerage undertaker adopted them on an individual basis.

It was fairly common when council houses were built in rural areas without mains drainage for them to be provided with a shared mini-treatment facility.  These usually remained the responsibility of the council's housing department when the sewerage functions of local authorities were transferred to the water boards/authorities, as they were deemed to be private rather than public.

Unless Southern Water have adopted whatever is there by agreement, my guess is the HA is now responsible.