didds wrote:AsleepInYorkshire wrote: 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
Hi Didds,
Hmmm
I'l try again ...
Easements are created in three ways
1. By "Express Grant". Supported by a Deed of Grant stating the terms of the easement or it may take the form of a clause in a conveyance deed or a transfer deed.
2. "Of Necessity". In other words there is no other way that access or drainage can be taken.
3. "By Prescription". Continued use over 20 years of a right of way or a drainage discharge without the land owners permission creates an easement.
It may be pertinent to quote The 1925 Law of Property Act. In particular clause 62.1.
http://www.legislation.gov.uk/ukpga/Geo5/15-16/20
I would suggest that where there may be doubt as to the existence of an easement then the law tends to favour it's existence.
A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
Easements "run with the land" and cannot be overturned through sale.
I'd suggest very strongly that the existence of the drain purely in it's current location indicates an easement probably exists, if not by "Express Grant" then "Of Necessity" and failing either then "By Prescription". If the courts are asked to intervene by the OP's neighbour they can and should look for an "implied easement" which essentially boils down to their judgement on what the original intention of the land owners was. And I would like to hope that on a good day the courts default position would be that they would want to assume the easement exists and to work back from this testing each easement criterion with information given to them by both parties. In such a scenario the burden of proof seems to lay more with the plaintiff and the defendant may be able to rely robustly upon the 1925 Act.
AiY