Establishing rights to existing drain

buzz11

In general terms how does one go about establishing rights to a drain that has existed for about 20 years?

The easiest way to describe is by way of example;

• A houseowners (Mr Jones) back garden floods every winter but slowly drains into a vacant field next door.
• The vacant field becomes developed as a housing estate and the builder allows Mr Jones to connect a pipe into the housing estates foul sewer system, in order to drain his garden.
• The setup continues to date - about 20 years. The builder is long gone off the scene and the housing estate common areas are in charge of a management company (i.e. the estate is not taken in charge)
• Mr Jones wants to sell his house but is now worried that the drain has not been documented in any way.
  
  What can he do to establish/document rights to the drain?

Dolbhad

buzz11 wrote: »

In general terms how does one go about establishing rights to a drain that has existed for about 20 years?

The easiest way to describe is by way of example;

• A houseowners (Mr Jones) back garden floods every winter but slowly drains into a vacant field next door.
• The vacant field becomes developed as a housing estate and the builder allows Mr Jones to connect a pipe into the housing estates foul sewer system, in order to drain his garden.
• The setup continues to date - about 20 years. The builder is long gone off the scene and the housing estate common areas are in charge of a management company (i.e. the estate is not taken in charge)
• Mr Jones wants to sell his house but is now worried that the drain has not been documented in any way.
  
  What can he do to establish/document rights to the drain?

I am presuming there was no paperwork done first day in this. However if there was, once the. neighbours land was developed, that right of way/wayleave would carry over.

If there is no paperwork, you would hope the management signs a right of way/wayleave document and register it with the land registry (which is the quickest and cheapest way). If they refuse, you can make an application to land registry on the basis of the usage over 20 years to register it but that could take years to finalise.

Best have a solicitor look at the title deeds before putting the place up for sale.

buzz11

Dolbhad wrote: »

If there is no paperwork, you would hope the management signs a right of way/wayleave document and register it with the land registry (which is the quickest and cheapest way). If they refuse, you can make an application to land registry on the basis of the usage over 20 years to register it but that could take years to finalise.

OK so if nothing was documented and nothing contained in the deeds then I presume it would be important to establish proof of use of the drain over the 20 year period ?

-say the full 20 year use can't be proven, whats the minimum length of time required..is it 12 years like adverse possession?

-whats the application to Land Registry called? is it same as adverse possession?

Thanks!

Lenar3556

There is potentially another issue with land drainage connected to a fowl sewer. That generally isn’t allowed by local authorities as the waste water treatment plants become overwhelmed in heavy rain. So there could be a planning issue to be resolved also

To what extent the burden lies between you, the developer & the currently existing managment company is not clear, but if it needed to be resolved the latter parties may have some responsibility given that the work was actually conducted by/for them, if this is the case. Could they say that the homeowner connected to it without consent at the time, and deny all knowledge?

I would be inclined to leave well enough alone unless this were to actually raise its head,

buzz11

Lenar3556 wrote: »

I would be inclined to leave well enough alone unless this were to actually raise its head,

Yes for sure this is likely the best approach, however given the age of the house owner involved, preparing evidence/documentation now and having it if required, is important.

Dolbhad

buzz11 wrote: »

OK so if nothing was documented and nothing contained in the deeds then I presume it would be important to establish proof of use of the drain over the 20 year period ?

-say the full 20 year use can't be proven, whats the minimum length of time required..is it 12 years like adverse possession?

-whats the application to Land Registry called? is it same as adverse possession?

Thanks!

Yes it’s important to sort it out now. I wouldn’t wait until down the line and “see” if it will be an issue. It will be. And this is why.

Before rights of way were like gentlemen agreements. You never really had them in writing and registered with the land registry against the land on which had access to. And went you sold a property it wasn’t an issue.

And then Law was enacted in 2009 that said we need to get these on a formal setting. And so you have to registered your right of way before 30th November 2021 or after that you can only register it by court application and no longer with the land registry. Which will be very very expensive!!


This then caused the bank’s (and Solicitors) to get
strict on ensuring rights of way are registered now. An engineer will pick up on this in a report and a purchaser, esp if they are getting a mortgage, will need the right of way in place. A bank won’t lend on it.

The land registry website has loads of information on this. Process depends on whether you have an agreement in writing, whether it’s an application to land registry or court application.

https://www.prai.ie/registration-of-easements-and-profits-a-prendre-acquired-by-prescription-under-section-49a/


https://www.google.ie/amp/s/amp.irishexaminer.com/breakingnews/farming/youd-never-miss-your-right-of-way-until-you-find-it-gone-796525.html

C3PO

I am not suggesting anything illegal but how would a potential purchaser even know that the pipe exists if it is merely draining rain water from the garden?

Dolbhad

C3PO wrote: »

I am not suggesting anything illegal but how would a potential purchaser even know that the pipe exists if it is merely draining rain water from the garden?

I would think it’s possible an engineer to pick up on it on the report by asking purchaser or their solicitor to follow up on where it ends and ensure rights of way are in place. Also drains testing seems to now been recommended majority of the time by engineers reports so that may shed more light of the situation.

randomrb

C3PO wrote: »

I am not suggesting anything illegal but how would a potential purchaser even know that the pipe exists if it is merely draining rain water from the garden?

It would also probably fall under the requisitions as something that should be disclosed

Dolbhad

randomrb wrote: »

It would also probably fall under the requisitions as something that should be disclosed

That’s true also. Requisitions which have to be given now with contracts have a whole section on services like drains and rights of way/wayleaves.

buzz11

Thanks folks for reply's so far.

How long do you need to prove that the easement existed? Is it 20 years or 12years?

randomrb

buzz11 wrote: »

Thanks folks for reply's so far.

How long do you need to prove that the easement existed? Is it 20 years or 12years?

12 years but it can be very difficult to get them registered. In your case if you can show it was built at the same time as the estate then you will have a definite date which would help.

It will also cost you a fair amount in solicitors and engineers fees and will take a while so be aware of all that. The best bet is to get your solicitor to contact the Management company and try to get them to agree to make it official

ittakestwo

buzz11 wrote: »

Thanks folks for reply's so far.

How long do you need to prove that the easement existed? Is it 20 years or 12years?

Its 20 years for an easment until the end of 2021. You can only make a claim of 12 years under the 2009 act from the end of 2021. 2009 act changed the period from 20 to 12 years but the period can only start in 2009 or after.

Do you have any correspondence of an agreement between you and the developer from 20 years ago?

If you dont you could look up the planning file of the estate to find out his name and track him down. Perhaps he would be to give you a affidavit that you came to this agreement 20 years ago.

If a current owner trys to stop you from using the drain when their predecessor gave permission you could stop them under estoppel as an owner of land can be bound by agreements their predecessors made.