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Easement - rights and responsibilities

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Easement - rights and responsibilities

Postby robinmasters » Thu Jul 16, 2015 8:19 pm

Hello

I am a novice here, so please forgive any naive suggestions. :D

I am in the process of buying an old farmhouse (oldest parts are 300-400 years old, most of it is Victorian).
It has a drainage channel (sewer), approximately 30-40 feet long, that connects to 2-3 cesspits in an adjoining field, owned by someone else (actually it belongs to a developer). The field is probably 6-7 acres.
The developer tried and failed to get planning permission approximately 25 years ago, it was opposed by most of the village etc. He may try again as he has not disposed of the land.
The register of title of the property I am buying state, "together with the right as enjoyed for the passage or conveyance of sewage water and soil from the said property hereby coveyed into the cesspools on the land of the vendor on the west or north west side of the land hereby assured until such time as the property hereby assured shall be connected to any main drainage system installed by the Local Authority".
This is dated from 1955 when farmhouse and land were presumably subdivided.
Now to my questions of the law:

1) Are these rights in the title an 'easement' ?
2) Would the developer be able to dispose of the cesspools at his own discretion (for example if he gained PP) ?
3) Who is liable for their repair and upkeep i.e if the sewer blocked or the cesspit collapsed? The land owner has historically taken no active interest in the cesspools. If I would be liable, would access be a given?
4) If I connected the house to a different, modern septic tank system on my own land, would my rights as stated in title persist, giving me a defensive position vis a vis any potential building adjoining my property?
5) What if the developer, given the large developmental value of the land, went ahead and got rid of the tanks, forcing the situation, to free up that area of land? What remedies would be available?

I would appreciate any thoughts on the law in this area. The conveyancing has not really raised these secondary, future issues but it occurs to me that it would be wise to be wary of them. I will be following these up formally but wanted to gather some perspectives.

Many thanks
'robin masters' :roll:
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Re: Easement - rights and responsibilities

Postby Michael » Fri Jul 17, 2015 12:59 am

robinmasters wrote:Hello

I am a novice here, so please forgive any naive suggestions. :D

I am in the process of buying an old farmhouse (oldest parts are 300-400 years old, most of it is Victorian).
It has a drainage channel (sewer), approximately 30-40 feet long, that connects to 2-3 cesspits in an adjoining field, owned by someone else (actually it belongs to a developer). The field is probably 6-7 acres.
The developer tried and failed to get planning permission approximately 25 years ago, it was opposed by most of the village etc. He may try again as he has not disposed of the land.
The register of title of the property I am buying state, "together with the right as enjoyed for the passage or conveyance of sewage water and soil from the said property hereby coveyed into the cesspools on the land of the vendor on the west or north west side of the land hereby assured until such time as the property hereby assured shall be connected to any main drainage system installed by the Local Authority".
This is dated from 1955 when farmhouse and land were presumably subdivided.
Now to my questions of the law:

1) Are these rights in the title an 'easement' ?
2) Would the developer be able to dispose of the cesspools at his own discretion (for example if he gained PP) ?
3) Who is liable for their repair and upkeep i.e if the sewer blocked or the cesspit collapsed? The land owner has historically taken no active interest in the cesspools. If I would be liable, would access be a given?
4) If I connected the house to a different, modern septic tank system on my own land, would my rights as stated in title persist, giving me a defensive position vis a vis any potential building adjoining my property?
5) What if the developer, given the large developmental value of the land, went ahead and got rid of the tanks, forcing the situation, to free up that area of land? What remedies would be available?

I would appreciate any thoughts on the law in this area. The conveyancing has not really raised these secondary, future issues but it occurs to me that it would be wise to be wary of them. I will be following these up formally but wanted to gather some perspectives.

Many thanks
'robin masters' :roll:

1) Are these rights in the title an 'easement' ?
Yes
2) Would the developer be able to dispose of the cesspools at his own discretion (for example if he gained PP) ?
No
3) Who is liable for their repair and upkeep i.e if the sewer blocked or the cesspit collapsed? The land owner has historically taken no active interest in the cesspools. If I would be liable, would access be a given?
All those who benefit from the cesspit would pay if they wished to continue using it. An ancillary right to access and maintain will exist.
4) If I connected the house to a different, modern septic tank system on my own land, would my rights as stated in title persist, giving me a defensive position vis a vis any potential building adjoining my property?

Its hard to prove that someone's intention was never to use the right again but connection to a mains sewer would probably get as close to abandonment as you could get.

5) What if the developer, given the large developmental value of the land, went ahead and got rid of the tanks, forcing the situation, to free up that area of land? What remedies would be available?

Injunction, possible reinstatement or connection to the mains sewer at the developers costs.

The other members on here will tell you if any of my answers are wrong .
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Re: Easement - rights and responsibilities

Postby theycantdothat » Fri Jul 17, 2015 8:50 am

"together with the right as enjoyed for the passage or conveyance of sewage water and soil from the said property hereby coveyed into the cesspools on the land of the vendor on the west or north west side of the land hereby assured until such time as the property hereby assured shall be connected to any main drainage system installed by the Local Authority".

The above does not create a legal easement, but an equitable easement. The distinction is important when it comes to deciding who the right is enforceable against. Your conveyancer needs to check the position to see if the appropriate registration of the easement was made at the relevant time. The reason the easement is equitable is because it does not satisfy the requirements of section 1(2)(a) of the Law of Property Act 1925 in that it is not "an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute" - in layman's terms it is not a legal easement because it is expressed to end when a certain event occurs.

If the easement is enforceable against the developer (and it is a big "if") the answers to your questions are as follows:

1) Are these rights in the title an 'easement' ?

Yes, but only an equitable easement

2) Would the developer be able to dispose of the cesspools at his own discretion (for example if he gained PP) ?

No.

3) Who is liable for their repair and upkeep i.e if the sewer blocked or the cesspit collapsed? The land owner has historically taken no active interest in the cesspools. If I would be liable, would access be a given?

In the absence of any express obligation, no one.

4) If I connected the house to a different, modern septic tank system on my own land, would my rights as stated in title persist, giving me a defensive position vis a vis any potential building adjoining my property?

Probably not. Whilst the right is expressed to continue until there is a connection to main drainage, the installation of a separate system will amount to an abandonment of the easement because it is an act sufficient to indicate an intention never to make use of the easement again.

5) What if the developer, given the large developmental value of the land, went ahead and got rid of the tanks, forcing the situation, to free up that area of land? What remedies would be available?

Injunction and/or damages.

What is needed here is for your conveyancer to investigate whether the easement is enforceable against the developer. If it is not, then clearly you have to decide whether to proceed and, if so, on what basis. If you are buying with a mortgage the decision may effectively be made for you by the lender.
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Postby dls » Thu Jul 23, 2015 4:13 pm

\ XThe short answer is that if you know that you could have a cesspit on the land you are acquiring, then assume the present arrangement will not continue forever. What would be the cost? I suspect that this should not be a fundamental issue.

TCDT's answer is, as usual, better than I could muster.
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Re: Easement - rights and responsibilities

Postby Michael » Tue Sep 15, 2015 12:02 am

TCDT

Could this easement be described as a propriety estoppel.
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Re: Easement - rights and responsibilities

Postby atticus » Tue Sep 15, 2015 6:37 am

No. Nothing stated suggests representation, reliance, acting to detriment etc.

Wikipedia gives a good summary of the principles of proprietary estoppel- https://en.wikipedia.org/wiki/Proprietary_estoppel

After that, read Thorner v Majors.
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Re: Easement - rights and responsibilities

Postby theycantdothat » Tue Sep 15, 2015 8:59 am

Michael wrote:TCDT

Could this easement be described as a propriety estoppel.


No. Not at all applicable. It is an equitable easement. If you are doing a bit of research concentrate on that and not anything else. What you need to know will be found under "easements" rather than anything else.

What you have is the right set out in the register subject to the the rules relating to the enforcement of equitable easemements. Basically the easement is only enforceable against someone who has notice of it. If the developer's land is registered and the right is noted on his title he has notice of it and you are in the clear. Get a copy of his title. If the land is not registered let us know.
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Re: Easement - rights and responsibilities

Postby tph » Tue Sep 15, 2015 8:53 pm

If the developer got planning consent the most likely outcome would be that they would seek to connect your property into the adoptable drainage system which they would construct as part of their development.
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Re: Easement - rights and responsibilities

Postby dls » Tue Sep 15, 2015 9:03 pm

most likely
possibly corrrect but a log way from enough
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