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Right of way for drainage, help please

including wills and probate
Rivkah
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Right of way for drainage, help please

#257033

Postby Rivkah » October 10th, 2019, 10:18 pm

Hello I previously put a post up here and received much help. I am back here having changed solicitor (as rightly recommended as a result of my last post) but the legal issue still exists.

My neighbours have been harassing me since I moved in 4 years ago. Over the last two years they've changed tactics, from the usual racist remarks and damaging property, to getting their solicitor to threaten court proceedings about my waste pipe which exits my house straight through to their cellar (the houses are attached and used to be one large house). The houses are Grade II listed and in a conservation area.

We've gone in circles and back to square one and I need your advise please. The deeds are unclear and no right of way for drainage is mentioned. So legally we have an issue. The pipe has been there for about 19 years, and the neighbours have lived in their house for 18 of those years.

Thames Water have confirmed they own this pipe once it leaves my house. They said it is not trespassing and and I cannot be forced to move it. But they cannot go further to assist as this is a civil issue.

The pipe can be rerouted for thousands of pounds, which I don't have. I cannot therefore rely on an easement of necessity.

My question is why is the argument that the pipe is not owned by me not good enough? What other proof can I get in case they get another injunction against me to move the pipe.

Any help would be so appreciated.

Thank you



grade II listed house

Avantegarde
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Re: Right of way for drainage, help please

#257641

Postby Avantegarde » October 13th, 2019, 11:13 pm

If the drain under their house really is not yours; is not your responsibility; belongs to a water company; and really is their responsibility, I don't see how your aggressive neighbours can have any legal grounds to sue you for anything at all. If they have a beef it must be with the water company. If they really persist in bothering you and manage to get the issue taken to court you should easily be able to get their case struck out as entirely groundless as well as being vexatious.

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Re: Right of way for drainage, help please

#257718

Postby anon155742 » October 14th, 2019, 11:24 am

Would the onus not be on them to prove that you own the water pipe?

Rivkah
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Re: Right of way for drainage, help please

#258613

Postby Rivkah » October 17th, 2019, 11:00 pm

I would have thought the same but my solicitor seems to say this isn't a good enough response legally. Even if it is a lateral drain owned by the water company, they can still sue me for trespass.
I just don't understand that at all.

AsleepInYorkshire
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Re: Right of way for drainage, help please

#258616

Postby AsleepInYorkshire » October 17th, 2019, 11:16 pm

Rivkah wrote:I would have thought the same but my solicitor seems to say this isn't a good enough response legally. Even if it is a lateral drain owned by the water company, they can still sue me for trespass.
I just don't understand that at all.

Hi Rivkah,

I don't understand neither. In the last thread you raised on this subject there were some very meaningful responses. May I ask if you have been able to find the time to read and digest them? If I recall correctly the 1925 Housing Act is a good place to start. I hasten to add I work in a sector of the construction industry that comes up against this kind of issue on a very regular basis. I'd be shocked to learn that any water company can actually sue anyone for the discharge of sewerage. Statute really doesn't allow that. In fact quite the reverse. Statute demands they grant. May I ask, have you tried to get another solicitor/lawyers opinion?

AiY

PinkDalek
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Re: Right of way for drainage, help please

#258626

Postby PinkDalek » October 18th, 2019, 12:14 am

AsleepInYorkshire wrote:I'd be shocked to learn that any water company can actually sue anyone for the discharge of sewerage.


They aren't the ones doing the threatening.

Rivkah
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Re: Right of way for drainage, help please

#258664

Postby Rivkah » October 18th, 2019, 8:55 am

The last thread was so useful. I managed to get a new solicitor and barrister who changed my defense entirely.

However, despite finding new information (that I don't own the pipe) it hasn't seemed to make a difference. I've asked my local council to supply any information regarding the house split, as it's listed, and also Thames water to date the pipe. I've even asked my mp to help and push the organisation to respond.

I've really run out of options and can't understand why a strong argument like not owning the pipe doesn't shut down the issue. My solicitor has asked the barrister on my case to give his thoughts.

AsleepInYorkshire
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Re: Right of way for drainage, help please

#258836

Postby AsleepInYorkshire » October 18th, 2019, 6:06 pm

PinkDalek wrote:
AsleepInYorkshire wrote:I'd be shocked to learn that any water company can actually sue anyone for the discharge of sewerage.

They aren't the ones doing the threatening.

Good point.
viewtopic.php?f=2&t=16688&start=40

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

Rivkah
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Re: Right of way for drainage, help please

#258861

Postby Rivkah » October 18th, 2019, 7:48 pm

Thank you AiY. I think my solicitor is keen to avoid court due to costs but I feel that any settlement (which I can't afford anyway) will make the harassment continue. I would rather just hope any judgement falls in my favour. Thank you so much

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Re: Right of way for drainage, help please

#258909

Postby wydffa » October 19th, 2019, 8:25 am

Why not offer arbitration, this would strengthen your court case if the other party declined to participate or refused to agree. And you might come to an agreement. I would expect that courts take a dim view of having their time wasted on property disputes.

Rivkah
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Re: Right of way for drainage, help please

#258960

Postby Rivkah » October 19th, 2019, 1:06 pm

wydffa wrote:Why not offer arbitration, this would strengthen your court case if the other party declined to participate or refused to agree. And you might come to an agreement. I would expect that courts take a dim view of having their time wasted on property disputes.


We did try a settlement meeting. It went nowhere. They wasted an entire day and by the end their solicitor and barrister were as frustrated as ours. We walked away with three possible solutions... All being me making compromises.
1. They wanted to explore a macerator option (I already have one macerator. They later realised building regulations wouldn't allow my house to have no gravity led and only macerator). He wanted the pipe to changed from 4inch to 2 mm.

2. We would explore making the pipe look nicer. Although it has no problems he claims it was put in in a rush (19years ago at least) and therefore can fall and explode at any time. It hasn't even had a leak or blockage in all these years.

3. They would consider a fee for me to buy an easement.

After he realised the macerator wasn't an option he put a document together arguing I should get a wet well and pump system. My garden is tiny and on a steep hill.... That's what I'm battling now. We never even got to point 2 and 3. And they claim this suggestion is in the spirit of option 1.

supremetwo
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Re: Right of way for drainage, help please

#258963

Postby supremetwo » October 19th, 2019, 1:25 pm

Rivkah wrote:
wydffa wrote:Why not offer arbitration, this would strengthen your court case if the other party declined to participate or refused to agree. And you might come to an agreement. I would expect that courts take a dim view of having their time wasted on property disputes.


We did try a settlement meeting. It went nowhere. They wasted an entire day and by the end their solicitor and barrister were as frustrated as ours. We walked away with three possible solutions... All being me making compromises.
1. They wanted to explore a macerator option (I already have one macerator. They later realised building regulations wouldn't allow my house to have no gravity led and only macerator). He wanted the pipe to changed from 4inch to 2 mm.

2. We would explore making the pipe look nicer. Although it has no problems he claims it was put in in a rush (19years ago at least) and therefore can fall and explode at any time. It hasn't even had a leak or blockage in all these years.

3. They would consider a fee for me to buy an easement.

After he realised the macerator wasn't an option he put a document together arguing I should get a wet well and pump system. My garden is tiny and on a steep hill.... That's what I'm battling now. We never even got to point 2 and 3. And they claim this suggestion is in the spirit of option 1.


Just say no.

Rivkah
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Re: Right of way for drainage, help please

#258965

Postby Rivkah » October 19th, 2019, 1:51 pm

If I say no we go to court and they can rule against me. I'm putting out reasons why a wet well can decrease my house price and may not be allowed due to the grade II listing.

AsleepInYorkshire
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Re: Right of way for drainage, help please

#258966

Postby AsleepInYorkshire » October 19th, 2019, 2:13 pm

Rivkah wrote:We did try a settlement meeting. It went nowhere. They wasted an entire day and by the end their solicitor and barrister were as frustrated as ours. We walked away with three possible solutions ... All being me making compromises.

Let's just step back from the detail for a moment. I'm deliberately and quite precisely picking up on your comment "all being me making compromises". I think you have to ask yourself what you want to do. Do you want the option of having your day in court? You've clearly said that's not something you feel you can afford. Your alternatives then are ignore him and wait for him to act to stop the flow through the sewer or take you to court. Or alternatively you come to a compromise with him.
Rivkah wrote:1. They wanted to explore a macerator option (I already have one macerator. They later realised building regulations wouldn't allow my house to have no gravity led and only macerator). He wanted the pipe to changed from 4inch to 2 mm.

I'd suggest that this is technically expensive. But it also readily admits that they are prepared to give you access for the pipe. Now if that isn't shooting themselves in the foot I really don't know what is.
Rivkah wrote:2. We would explore making the pipe look nicer. Although it has no problems he claims it was put in in a rush (19years ago at least) and therefore can fall and explode at any time. It hasn't even had a leak or blockage in all these years.

If you ask a structural engineer or surveyor to inspect the pipe they can assess if the pipe is dangerous. Obviously that comes at a cost. You could also accept the cost associated with changing the pipe if they were significantly less than court.
Rivkah wrote:3. They would consider a fee for me to buy an easement.

Which really indicates that he accepts an easement exists in his mind. Why hasn't he taken you to court to get payment of this easement? Because the 1925 Act is clearly a higher risk to his argument than to yours.
Rivkah wrote:After he realised the macerator wasn't an option he put a document together arguing I should get a wet well and pump system. My garden is tiny and on a steep hill.... That's what I'm battling now. We never even got to point 2 and 3. And they claim this suggestion is in the spirit of option 1.

During my career in construction I have been to court three times. I've never lost a case. But I would never recommend it to anyone. However, who can truly know what is in the mind of your neighbour. Is he simply obdurate and unkind or is he suffering with some form of mental health issue? We cannot know. We cannot, therefore, predict his future behaviour. I'd like to suggest he seems to be keen to come to a deal without going to court, indicating a sense of reasoned thought about his position. And if he is a reasoned person, free of mental health issues, it's highly likely he has no real case in law that could be enforced. He too will suffer costs and they too may be something he cannot afford.

I'd like to suggest you have options. However, you too need to consider your own levels of tolerance both emotionally and financially before refusing to "compromise". It may not be about winning or losing. It may be about finding as cheap a way as possible to remove the problem at source.

AiY

Rivkah
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Re: Right of way for drainage, help please

#258978

Postby Rivkah » October 19th, 2019, 3:15 pm

Thank you AiY. I appreciate your reasoned response and will certainly speak to my solicitor about how we can resolve the issue in an affordable way for me.

I will review your comments again and see what alternative remedies I can come think up.

Fingers crossed we can meet each other in the middle.

Avantegarde
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Re: Right of way for drainage, help please

#259186

Postby Avantegarde » October 20th, 2019, 9:30 pm

Rivkah: there must be a chance that your neighbour is in reality trying to blackmail or bully you without any good reason or real prospects of success in the courts. You can call his bluff with a well written letter from your lawyer pointing out the numerous flaws in his case. His own lawyers may then advise him to back off. You don't have to say "see you in court" but as your pipe is not really causing him any inconvenience then at that point he will either have to shut up or incur the costs of going to court. And if he were to lose, he would have to pay your costs too. Have you offered him any cash for an easement? It may be galling to have him trying to "shake you down" but if all it takes is a couple of hundred quid a year then such a sum might be worth paying. Also, does your property insurance cover legal expenses for disputes like this?

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Re: Right of way for drainage, help please

#259222

Postby stewamax » October 21st, 2019, 10:13 am

Rivkah wrote:Thames Water have confirmed they own this pipe once it leaves my house. They said it is not trespassing and and I cannot be forced to move it. But they cannot go further to assist as this is a civil issue.

If you have this confirmation writing, i.e. that it is a lateral drain and not an unadopted private sewer, it is unclear why there is a continuing argument between you and the neighbour.
If they don't like the status quo they or their solicitors can argue with Thames Water who have ££ample funds to argue back.
If the neighbour interferes* with the drain intentionally, they are committing a criminal offence (malicious damage) and it not necessarily a civil issue at all.
If they don't interfere with it, then let them continue to whinge to Thames Water.

Or am I missing something obvious


* domestic sewers don't have the equivalent of stop-cocks, so it it difficult to see how the neighbour could interfere with it (to e.g. block it) without damaging it

sg31
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Re: Right of way for drainage, help please

#259225

Postby sg31 » October 21st, 2019, 10:20 am

A letter from your solicitor to Thames Water to confirm this is their responsibility would be helpful. Once receieved a letter to the other party suggesting they take the matter up with Thames Water should suffice.

Any further problems may require a letter from your solicitor telling them that any further contact about the matter will be considered to be harrassment.

IANAL

Rivkah
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Re: Right of way for drainage, help please

#259345

Postby Rivkah » October 21st, 2019, 8:14 pm

Hi all, thank you for your responses.

This is certainly some type of harassment. They've not liked me since I moved in and used racial slurs. It just got worse when I got pregnant, which I hid from them for 7 months successfully.

My solicitor hasn't gone down the route of harassment and isn't really eager too, and I'm not sure why as I have a police report from when the neighbour was taking photos of the inside of my house and it was caught on my cctv. He was spoken to and told not to do it again. It's about control.

RE the pipe, he made a threat to cut the pipe but won't act on it now that solicitors are involved. He believes my stopcock and clean water come through his house and is putting that off this week but thankfully the solicitors delayed it so they can make sure he puts my water back on.

I think my solicitor writing to Thames Water is an excellent idea. That way it's certain. And in regard to paying for an easement we tried that but he said it was a last resort if I can't move the pipe. I'm happy to pay him but he's eager to have me reroute and the only way I can do that is by breaking building regulations (i.e. Depth of pipe will not be 0.9m under ground).


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