Urgent help with neighbour issue pls

[Clitheroekid]

The pipe in question is my waste pipe. All the waste from my property goes into a pipe that enters their property, and joins with their waste pipe then exists onto the street to join the sewer). The properties used to be one house, and are grade II listed.

I’m typing this on my phone in Oman so please excuse any formatting cock-ups!

The first thing to say is that there seems to be absolutely no justification for your neighbour seeking an injunction. As always in such situations we’re only getting a snapshot of the overall scenario but nowadays people have to go through a pre-action protocol before issuing court proceedings.

Although this can be ignored in the case of emergency I can’t see how removing a pipe that’s been there for 19 years could possibly count as an emergency.

Is your neighbour represented by a solicitor? If so, did they make reasonable efforts to resolve the problem before issuing court proceedings? If not, your solicitor should ask for a stay of proceedings - or even apply for the claim to be struck out as an abuse of process.

In order to succeed, your neighbour has to prove trespass. However, even if you have no written evidence of an easement to use their drain there’s lots of circumstantial evidence. For example, as the two properties used to be one there would have been no logical reason for yours to have had a separate drain.

And when your house was split off whoever was the original buyer would have had the benefit of section 62 Law of Property Act 1925, which would basically have given that buyer and subsequent owners (including you) the benefit of any existing easements - in this case the right to use the joint drain.

However, my solicitor is now saying I do not have reasonable prospects of winning the case as I do not have enough evidence.

I have to say I find this rather concerning. Is your solicitor experienced in property litigation? Are they even a solicitor at all? So many clients are fobbed off nowadays with unqualified staff you need to be careful. But from what you’ve said you seem to have a good case, and I’m wondering whether you’ve got stuck with a conveyancing solicitor who doesn’t understand litigation and has lost his nerve.

Check your house contents policy to see if you have legal expenses insurance, and if you have give them a ring.

There is a single deed that supposedly covers this information (the existing deeds refer to this but state nothing else re drainage), but this deed is nowhere to be found. The land registry no longer have it.

Yes, the deed you’re looking for is the one by which your house was sold off. You (or more accurately your solicitor) should check if there’s a copy on the title register of your neighbour - I’d be surprised if there wasn’t. But if there isn’t section 62 comes to your rescue anyway.

From what you’ve posted I’d say it’s virtually certain you have an enforceable easement to use the drainage pipe, and that the application for an injunction is just an attempt to terrify you into submission. But I am surprised that your solicitor appears to be such a wuss, and if you’re not sure he’s up to the job it’d be worth seeking a second opinion.

[Clitheroekid]

I should also have mentioned that you should ask your solicitor if he’s considered the effect of the rule in Wheeldon v Burrows

This rule says:

“...on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements, or in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.”

The combination of this rule and s 62 should be conclusive.

[Rivkah]

This is the email I received from my solicitor today. I am with the solicitor the home insurance has provided but they can't get the home insurance to pay out based on the lack of evidence on my side.

“I acknowledge receipt of the planning documents that you have provided, which you believe shows that there has been no planning application relating to the drainage going back to the 1950’s, and therefore the pipe must have existed since then in its current position.



You also state that the drainage pipe must have been placed there with the permission of the owners of Cavendish House at the time because the pipe can only be accessed through their property.



You also state that you cannot obtain the transfer dated September 2000 from the Land Registry, but believe that the other side might have it within their conveyancing file and have therefore asked if we would include this request in our letter to the other side’s solicitor.



I am of the view that the above information is unlikely to be enough for Counsel to change her opinion on prospects or convince the Court to decide in your favour. Therefore, in order to potentially evidence your claim, you will need to obtain a report from a suitably qualified expert to interpret the title documents you have at present, to thereafter determine the location of the drainage pipe, as Counsel has recommended.



I note you have faced difficulty in obtaining statements from the predecessors in title of your property to cover the 20 year period relating to the pipe to potentially establish a prescriptive right in the absence of an express right. However, even if you could provide such witness evidence, you state that the pipe is more than likely to have been inserted with the permission of the other side, or their predecessor in title. If this is the case, you are unable to establish a prescriptive right as a key aspect of such is that the act itself must have been done without permission.



Based on the above, I consider it unlikely that you would be able to sufficiently establish a prescriptive or express right to have your pipe on the other side’s property.



In relation to our suggestion that you may wish to put forward a without prejudice offer to move the pipe to a different location, you have stated that you believe this to be the responsibility of the other side to ask Thames Water to carry out such actions. I disagree that this is wholly the other side’s liability and you must remember that both parties have a duty to the court to attempt to resolve matters without further action being necessary. If you are therefore able to have the pipe moved, you should make every effort to do so, if this would be a reasonable and cost effective resolution.



I understand that such actions to remove the pipe will require the permission of the other side, as the pipe is located on their property. However, my suggestion is that we put forward the offer to remove the pipe, for the other side to accept and agree to the same, and each party bear their own legal costs, with further details on how this can be achieved to be discussed with the other side amicably. The mere offer will show your willingness to bring matters to a close, although we must first know that it is a possibility and I again request that you confirm whether it is a viable option to have the pipe re-located.



If the without prejudice offer is not something you wish to consider and you cannot provide the evidence requested by Counsel, the result would be going to trial without enjoying reasonable prospects of successfully defending the claim.



I have today had confirmation from the Court that our application has been approved and the matter is to progress as a part 7 claim. Thereby the Part 8 hearing which was listed for 2 April 2019 has been vacated and a costs and case management conference has instead been listed for 24 July 2019.



This extra time should be used for you to obtain all evidence required to support your defence, and to also attempt an amicable resolution.“


So....do I need a new solicitor?!?

[stewamax]

So....do I need a new solicitor?!?

Yes - heed CK's advice. The reply from your present one betrays a worrying lack of experience of property law and especially that of easements.
Those on this thread understand that obtaining expert legal advice doesn't come cheap; but when you win this particular battle (which you should, given the description you have presented here) you will have further persuasive ammunition should you subsequently wish to push the "harassment" button with Mr Plod: "Neighbours then tried to force me to move my drain that had been extant for ages; the court threw their claim out"
Good luck!

[supremetwo]

This is the email I received from my solicitor today. I am with the solicitor the home insurance has provided but they can't get the home insurance to pay out based on the lack of evidence on my side.

How can the home insurance assess this at an early stage of a case?

Have you agreed to pay the solicitor that they provided yourself?

[Infrasonic]

I am with the solicitor the home insurance has provided but they can't get the home insurance to pay out based on the lack of evidence on my side

That may be part of the issue.
Could you get the insurance company to provide you with a list of their approved solicitors that specialise in this area, and then do a bit of research on them to find one that is a bit more proactive.
It's also possible that the lack of solicitor commitment so far may be related to the fact that they will want paying and if the insurance company are on the fence ( they don't want to pay out unless they have to...) the solicitors will minimise rather than maximise their efforts?

Edit: Also read through your insurance policy document and pay attention to the maximum legal cover (£) and any exclusion clauses.

[88V8]

The solicitor is there to save the Home Insurer having to pay out. He is not there for you.
Get your own solicitor and forget the insurance.

V8

[spigot]

Hi Rivkah
You say the pipe has been present for at least 20 years but cannot prove it.
Why do you believe the pipe has been there that long.
20 years if you cannot prove the pipe was authorised is most probably an important time.

[Rivkah]

So my neighbours have been bullying me for over a year. Things are now getting serious as they've applied to court to ask me to move my waste pipe. My solicitor originally said there was no trespass but is now saying I don't have reasonable prospects for success unless I provide evidence on when the pipe was installed

You say Rivkah that your neighbours have been there approximately 19 years and they have been bullying you for over a year. How long have you lived there please? If the bullying did not start shortly after you moved in did you have a reasonable relationship beforehand?
Have you had any communication from a court, their solicitor, or have you only your neighbours word they have applied to a court?

Has there been any problems with the drains to either of your properties for which they could, rightly or wrongly blame you? or any other kind of event that would bring the drains to their attention? Trying to get you to pay for rerouteing your drains which would be very expensive and are almost certainly perfectly legal would be classed as bullying a single mother. Is there any other behaviour that you consider bullying, (excluding what you have from CCTV)?

I've looked through my doorbell footage and have lots of videos of the neighbour peering into my windows, exiting my garden gate, reversing onto my drive, and also taking photos of my house. It makes me feel very unsafe.

When you have your neighbour on video peering into your windows have they rang the doorbell first? have you been at home and seen them? Have they had a legitimate reason for coming onto your property, eg. taken a parcel in for you or just wanting to talk with you? Using your drive for reversing may be a bit cheeky but would not count as bullying or harassment.

Sorry for all the questions Rivkah but as you answer them it will probably help you to decide whether or not you should be contacting the police about your neighbour's behaviour rather than worrying about your communal drain. No doubt others will air their views also.

The house, shop (now my house) and land were sold by a family in 1997-8 to developers who made three houses.
I have lived here since 2015 and have done no work to the house, and neither did my predecessors who were here for 7 years.
The neighbour is unpleasant and was upset when the postman left my post with him (immediately when I moved in). I always apologised and said they didn't have to accept post, but they continued to accept it. The issue got worse when they found out I was pregnant (managed to hide if for 8 months) and they just started bullying me worse.

Their solicitor was communicating with us all last year. I had to manage my legal fees on maternity leave so replied to letters and requests myself. I asked for mediation a few times, and they threatened to call Thames Water to cut the pipe. At the time I was all over the place having just had a premature baby and was very stressed that we would have no water. I've not learned that was just an empty threat as that would be illegal.

The neighbour did not ring the doorbell prior, and has never done anything to help (drop a parcel etc). He was taking photos of my house, and looking in (as the rear of the house is all glass). He reverses onto my drive (which is unnecessary as there is a shared space in the middle) because he wants to execute power and control, and he often stares into my house once he reverses his car, as it's easy to see in. It's very troubling - but I realise I can't do anything about it.

Thanks for your help. I appreciate having someone to talk to about this. My husband couldn't take the stress and he left in November. I did tell the neighbours I was on my own hoping they would have some sympathy but it's just gone to court instead. I haven't had time to enjoy my baby or grieve my marriage.

[Rivkah]

Hi Rivkah
You say the pipe has been present for at least 20 years but cannot prove it.
Why do you believe the pipe has been there that long.
20 years if you cannot prove the pipe was authorised is most probably an important time.

I believe the pipe was either there prior to the developers as my house was a doctor's surgery in the 1970's.
If not, the pipe would have been put in by the developers who owned the entire plot, and sold the house to my neighbours, who have lived there since (1999) and my house was sold just after.

[spigot]

Hi Rivkin

Thanks for your reply. Bearing in mind IANAL.

I believe the pipe was either there prior to the developers as my house was a doctor's surgery in the 1970's. If not, the pipe would have been put in by the developers who owned the entire plot, and sold the house to my neighbours, who have lived there since (1999) and my house was sold just after.

Your Solicitor states in part of a letter to you:

I note you have faced difficulty in obtaining statements from the predecessors in title of your property to cover the 20 year period relating to the pipe to potentially establish a prescriptive right in the absence of an express right. However, even if you could provide such witness evidence, you state that the pipe is more than likely to have been inserted with the permission of the other side, or their predecessor in title. If this is the case, you are unable to establish a prescriptive right as a key aspect of such is that the act itself must have been done without permission.

This seems a strange thing for a Solicitor who is assessing the viability of defending you against what appears to be an unjustified claim.

It is a virtual certainty the drain was installed when the property was converted and if not was pre- existing.
Why should you have to contact the first owner of your house to determine that they had drainage? Would anyone buy a house without bathing and toilet facilities?

To state you cannot claim Prescriptive right if you have an Express right may be true but misleading. In the absence of proof of an express right a prescriptive right would be valid.
To put it another way; It would be unjust to dismiss a qualifying prescriptive right unless an express right can be dis-proven. It seems they want to discourage you hoping you will just pay to have the drain moved at your expense and go away.

As your neighbours are alleging trespass I would reply, I know nothing about this alleged trespass. The drain was certainly present when I purchased my house. Ask them when in their opinion the alleged trespass first started ie. the date of installation or they became aware of the disputed waste pipe.

Their answer would be interesting and hopefully damaging to them.

If they admit the pipe was installed prior to them moving in they have virtually proven your claim to a prescriptive right and begs the question, ‘Why complain after all this time?’

If they claim they have only recently became aware of the pipe and they have lived there 19 years they can hardly claim the pipe’s presence has been injurious to them. This would not nullify their claim if you cannot prove the high probability that the pipe has been present >20 years, but would weaken it.

In the unlikely event they gave you a date post their occupation of their house but not recent, ie. 2 years or more before they first complained again the ‘why now?’ question would be raised.

Given that no mention of the drains to your house in the documents can be found gives some weight to the notion that there is no need to mention them because they already existed.

Assuming there is a manhole on your property does it match your neighbours?
Do both your houses have matching soil pipes?

Hopefully you are charged water rates? If so is there a component of the charge attributed to sewage/waste water. Thames Water may only provide waste water services and freshwater supply provided by a different company. I only get one water bill from Affinity who supply fresh water and they pay Thames for waste services.

Perhaps Thames Water or the company that supplies freshwater can inform you how long they have been charging your address for service.

You mentioned the developer developed 3 houses on the one site. I assume the drains for the third house are completely separate.

As an aside at present if Thames recognises both your and your neighbours houses at present you both are only responsible for any waste pipes leading to the communal drain. (this is mentioned elsewhere). From then on Thames Water is responsible for any problems.
If your neighbour were to be successful in having you removed from ‘their’ drain they would become responsible up to the main sewer. Bet they haven’t thought of that.

It may be worth mentioning your problems to the firm who did the conveyancing when you purchased your house. Do not imply any fault on their part, there probably is none. They would I hope be keen to safeguard their reputation and give you some good honest advice while assuring you there was nothing they missed while conveyancing your purchase, hopefully for free if it does not take too much of their time.
Good luck

[pochisoldi]

Two things:

Firstly:

I want to reinforce ClitheroeKid's post at viewtopic.php?p=207279#p207279 regarding the rule of Wheeldon v Burrows, adding that you need to make it clear to your "legal cover" solicitor that you are claiming the existence of an "implied easement" (based on facts - the existence of the drain - when the one property was split), not an "easement by prescription" (which requires evidence of use over time or statutory declarations).

Second thing (if your "legal cover" solicitor won't budge):

As part of the buying process, your conveyancer would have examined the title deeds, searches etc, raised queries and at a certain point when all questions seem to be answered, would have provided you with a report.

You would have then made a "go/nogo" decision on this report.

Given that you were buying a converted old house, it would seem reasonable for the conveyancer to ensure that any facilities which may have been shared in the past, remain their for your use and your successors in title when you come to sell (for example, connections to gas, water, electricity mains, drainage to the public sewer, shared access to the side/rear/front.)

If they didn't flag up the fact that
a) Your title contained no details of easements over your neighbours land
and
b) Your neighbour's title contains no details of your easement
then I would argue that they have been negligent.

If they had flagged this up, but said "Not a big deal, go ahead anyway", then again, IMHO they were negligent.

Therefore...

Go to the solicitor or conveyancer you used to buy your property, and tell them what's going on regarding the easement for the drain, and put them on notice that in the event that you lose the case, you will be taking negligence action against them.

This should then cause them to step up and provide you with evidence/help, or even take the case on, or failing that contact their professional indemnity insurers, who will want to defend the case on their client's behalf.

Tread warily with this approach though, make it clear that this is a case of "I wouldn't have to be defending myself against this, if you had done your job properly"

PochiSoldi

[midnightcatprowl]

[quote]I appreciate having someone to talk to about this.[/quote

I'm so sorry that you find yourself in this position. I'm even more shocked that you felt you had to hide your pregnancy for as long as possible - I mean what could be more expected than a woman of child bearing age than being pregnant and even more particularly when the woman is married? How lucky I am to live in an area where everyone takes in post and parcels for each other and regards it as just being neighbourly. Also I'm in a row of terraced houses and I know that the sewer pipe runs along underneath all of our gardens with a connection from each house in turn. Recently one house in the middle of the row had a problem. They got a specialist drains company to help them and the worker from that company knocked on the door of each house in the row asking if their drains were working okay and if they had a manhole cover in their back garden and if so could the drains company take a look down it to try to establish what was going on? Obviously everyone who was in said 'yes fine'. I said 'never ever seen a manhole cover in my back garden but you are welcome to look and poke about to see if you can find one'. My neighbour who is at the end of the row said 'yes I've got a manhole cover in the back garden and you are welcome to lift it and take a look'. In the end it turned out that only the one house was having a problem but that meant that the drain company knew where they had to focus their efforts so the problem was quickly resolved.

Clearly this situation is completely out of control and I feel you need help, you need legal help but you also need help of a moral support sort of nature. May I suggest the following:

contact the local Citizen's Advice Bureau as they may be able to give you good advice as well as moral support, their services are free;

contact your local councillor. If you don't know who that is then look on the website of your local authority (or phone your local authority) to find out and then contact your local councillor and ask for their help. Local councillors depend on you to vote for them next time the elections come round. Some are better than others but many genuinely care about the people in the local area and anyway they need to show you they are useful folk and it is their job to support local citizens. After all this is one of the reasons why you pay Council Tax!;

contact the Member of Parliament for your area. You can write or send an email to them but most of them also hold local 'surgeries' where people can just turn up to chat to them about issues they are facing. Sometimes these are held in community halls or church halls or similar, sometimes they are held in supermarkets and similar places. My own MP regularly holds surgeries in local supermarkets where anyone can come in and chat to him about problems they are facing. Your problem does NOT have to be about major national issues such as Brexit or the Budget. Many MPs actually care about their constituents and, even those who don't, are still very aware that come the next election what they've done for local people in the meantime will have a big effect on their likelihood of being re-elected;

do you attend a church or other religious organisation even if just very occasionally? Ministers/Vicars/Imams and the like do have a care for the material as well as the spiritual needs of their congregation. They often have a lot of influence too in a quiet sort of way in the background. No religious affiliation? Are you aware that every Church of England vicar in the country regards themselves as in some way responsible for every single person who lives in their parish regardless of their religious leanings or lack of them? If you are in England, it is the 'Church of England' and even if you've never set foot in the church premises before, and never intend to do so again, the Vicar or Curate of the Parish will almost certainly regard themselves as having a duty of care towards you;

as you have a baby do you have a Health Visitor or a GP? If so then don't hesitate to share the pressures you are under with your Health Visitor or GP. They are not legal experts but they do have influence and they know the best people to contact if an issue is putting great pressure on the mother of a baby. They are busy folk but they have a duty of care towards both you and your child;

there are other ways of not just getting help but of actively fighting back e.g. by sharing your story with the local press or with the phone-ins on local radio stations. Most local newspapers seem to be online these days, some are only online, some still produce paper publications. Whichever it is, the power of a story along the lines of 'mother and baby face losing their home because of....: is considerable;

Maybe to give you the mental strength to get help, you need to be quite clear in your mind that your neighbour is not just bullying you but is actually someone with severe mental or emotional problems? All of us are irritated by neighbours at times but emotionally normal folk just live with it. Personally I hate the British barbecue thing in summer. I'm a veggie so I hate the smell of cooking meat/fish or more often it seems to me the smell of burning meat/fish! I loathe the smell of the stuff people use to get their barbecues lit in the first place, so nasty on a Spring or Summer day. BUT I put up with it, not because I'm afraid to complain but because I like to live at peace with my neighbours and I appreciate that my neighbours in turn put up with my four cats visiting their gardens and looking through their windows as cats do!

Lynn

[melonfool]

Thank you all so much.

I've now spoken to Thames Water and they have said I need to ask the council whether the drain is public or private. I feel I need to chase them about this, surely they should know! But they can't see our property connected on their map. And they have said the council also have the map of connected pipes. So I'm requesting all of this from the council and the listed building file. Hope they all come quickly.

Waiting to hear back from our solicitor to see if the planning permission document is enough for the case.

I've looked through my doorbell footage and have lots of videos of the neighbour peering into my windows, exiting my garden gate, reversing onto my drive, and also taking photos of my house. It makes me feel very unsafe.

Slightly off topic but I had cause to contact my water authority about drains recently and they asked me lots of questions, after a while I said 'I really thought this was stuff you would know?' and they said no, they don't they have not got all the drains mapped so their plan of action is to map every bit that gets reported to them, or needs any attention, as it happens, so they asked me the questions to fill in another small piece of their jig saw.

I guess it makes sense, to try to map all the drains that have never been mapped or documented would be a massive and probably impossible project.

This thread is also of interest to me as my neighbour has a downpipe from their roof that is in my front garden. I have two reasons for wanting it moved: 1) they do no maintenance on it and it's constantly filling up with leaves and then overflows into my garden when it rains, which in turn washes rivers of mud down my drive and 2) I want to build a small extension there in about a year.

Obviously if I ever manage to speak to them about it (they are very elusive) then I will only refer to point 1 and ask them to move it (it could easily just go in their garden but at the front of their house, instead of my garden coming off the side).

I also think you should report your harassment by your neighbour to the police. And drop your neighbour a note saying "I have seen you invading my property on my CCTV. I request that you do not enter my property at all without my prior consent".

Mel

[Clitheroekid]

Having read the lengthy email from your solicitor I have to say that it seems to be completely missing the basic point.

He seems to be focused entirely on trying to establish a prescriptive easement in respect of the drain, when it's a virtual certainty that the right to use the drain was expressly granted by the conveyance of your property when it was split from the main title.

I don't understand how there can be no copy of that conveyance at the Land Registry, as it's the document they used to create your individual title, so they must have had it at the point of registration. Even if for some reason it's been omitted from your own title a copy must surely be lodged with the title for the original property and/or the title for the third house to which you refer.

So has your solicitor looked at those titles with a view to obtaining a copy of the original conveyance, and if not why not?

Even if, through the carelessness of the conveyancers who dealt with it at the time, there was no express grant of a drainage easement there must have been an implied grant, as it appears that the drain is the only means of draining your house.

Have you seen and read the opinion from the barrister to which the solicitor is referring in his email? Does she not mention section 62 / Wheeldon -v- Burrows?

I would also agree with the suggestion that you should dig out the paperwork (if you still have it) from when you bought the house, and see what your solicitor at the time said about the drainage. If the situation is actually as bad as your solicitor seems to be making out then you would probably have a claim against the solicitor who acted for you on your purchase.

Although I'm always wary of passing judgment without having seen the documents involved I can't help suspecting that the solicitor and barrister are deliberately taking a pessimistic view so as to let the LX insurer off the hook. If the situation is as you say it is then the solicitor’s suggestion seems quite barmy, and not at all in your interests.

However, although LXI panel solicitors do have an inherent conflict of interest between their insurer paymasters and their nominal client I'm reluctant to believe that they would deliberately mislead you.

As I said, it's very frustrating to try to assist in the absence of being able to see the documents themselves, but the whole situation seems quite bizarre, and I'm genuinely struggling to work out what possible claim your neighbour can realistically make.

I asked in an earlier post if they're using solicitors, but I assume that they are, and if so it's hard to believe that they would have issued a claim that on the face of it is doomed to fail.

All I can really suggest is that you go back to your solicitor, say you've been doing some internet research (music to any solicitor's ears!) and ask him why section 62 LPA and/or Wheeldon v Burrows doesn't apply.

Finally, now that litigation is under way you should be aware that you are legally entitled to appoint a solicitor of your choice to handle the claim, and that you aren’t bound to accept the firm appointed by the insurers. So if you don’t receive a satisfactory response I’d strongly recommend you obtain a second opinion and, if necessary, transfer the file to an independent firm with no ties to the insurers.

[sg31]

CK, you are a treasure and we are lucky to have you.

[Mike88]

CK, you are a treasure and we are lucky to have you.

Perhaps she should appoint CK.

[Rivkah]

CK, you are a treasure and we are lucky to have you.

Perhaps she should appoint CK.

sounds like the best option!

Looking for a second opinion now. Thank you everyone for your kind works and help. It's been so long since I've experienced any kindness!

[AsleepInYorkshire]

So my neighbours have been bullying me for over a year. Things are now getting serious as they've applied to court to ask me to move my waste pipe. My solicitor originally said there was no trespass but is now saying I don't have reasonable prospects for success unless I provide evidence on when the pipe was installed. I have done a survey, looked through all the deeds and can find nothing. The single deed I need I no longer stored by the land registry. I spoke to a contractor who said my solicitor is wrong and that since both houses are grade 2 listed I do enjoy the right to use the pipe since it was likely installed a long time ago.

I would really appreciate any advice on where I can find a private contractor to let me know how much it would cost to move the pipe, as I don't want to go to court.
And also any advice on where I might find out when this drain was put in.
I'm a single mum desperately trying to keep my home and my neighbours will not let up no what. I know the pipe has been there for at least 20 years but I have no way to prove it. Please help. Thank you

Hi,

I'm sorry to hear that this issue is escalating. It seems to be inapropriate, unreasonable and unproportionate. May I say I am not a solicitor and have no legal training. This is nothing more than my opinion. When you purchased the home you will have paid for searches and conveyancing. As part of those searches a "quesionnaire" will have been completed by those who sold the home to you. On there would have been specific questions relating to any easements and covenants. In particular questions should have been asked about drainage rights over any other properties land. If you obtain a copy of these questions you will find the answer. This is quite important I think. If the question wasn't asked then, in theory, you will have a right to counter claim any costs associated with moving the drain from your conveyancer. The function of searches and conveyancing is to prevent this kind of situation arising.

It is highly likely and very probable that there is an easement which will have been established when your property became independant from the neighbouring property. Also bear in mind that any modification work to the drainage which occured after 1996 will have come under The Party Wall Act of the same year and those carrying out any work will have been required to submit notices to the neighbours detailing the works to be carried out. There is no right to prevent works but a right to have them carried out in such a way that they do not cause damage to neigbouring properties. The Local Authority will have a record of planning applications for your property. If there have been no planning applications for modifcations since the homes were built/separated then it's highly likely there is a right to an easement. If not then your conveyancer is potentially in a difficult place. Works carried out since 1996 will have come under the PWA 1996 and your neighbours will have had a right to prevent works at that time if they did not meet certain requirements.

You are entitled to defend the claim in court. You are also entitled to voice your opinion to the judge that in your opinion the case is being brought as a means to harass you and cause mental and emotional distress. The Harassment Act of 1997 covers this. You may wish to take advice on this and use it in your counter claim, albeit I completely understand you would prefer not to be in court. This may be one of those cases that boils down to "who blinks first". On this basis and this basis alone may I suggest you consider one remedy which may benefit both parties. You may wish to consider an offer to pay for 50% of the works to divert the drain over your land (if this is technically possible). Failing which you do need a robust defence and I would suggest you seek out the conveyancers search questions and answers first and foremost.

AiY

[didds]

If the question wasn't asked then, in theory, you will have a right to counter claim any costs associated with moving the drain from your conveyancer. The function of searches and conveyancing is to prevent this kind of situation arising.

while I am not calling AIY out here, because the advice seems valid, I must say in my direct experience its not that simple.

About fifteen years after we moved to our house, there was a small kerfuffle from the local council over the "right" for our cess pit/septic tank [whichever one it is that drains away anyway!] draining water into a ditch on their (farm) ditch. There was nothing in our paper deeds that we had. So I contacted the conveyancers that had covered our purchase, to see what records they had. They replied that it was their policy to dispose of any records after eight years (or whatever). So they had no records of their work/conveyancing.

So maybe they did slip up. But I/we were in a position of now having to prove a negative - to prove they slipped up when there were no records of what they did aside from the very basic paperwork we had (which certainly didn't note the drainage issue). So in theory one can try and claim costs etc - the reality may be that you'll be whistling for them. [Or they did have the records, realised they'd stuffed up, but weren't letting us know that and were lieing. Which i was also in no position to prove!]


(as it is the same council, albeit another department, found the easement when I asked them myself ... the originating department presumably not being able to do so themselves despite being in the same building!)

didds