Drain pipe & neighbour problem there is no common sense

[mickmarshall]

hi I have a problem my neighbour has an un-passed extension that was built many years ago this extension has a rain water drain that feeds into a hopper on my property (I don't feed into it apart from roof rain water.. this hopper got blocked up with a crisp packet from the shop and flooded the wall damaging my living room. the neighbour wont do anything about it my solicitor is struggling to find out who is responsible for the repair & the damage costs. I've asked the shop just to pay for the excess but they still refuse to.. its been a few years struggling to sort this out..
If you can help It would be great to get your opinions.

Michael Marshall


My solicitor says this:
In terms of the various points you have raised. there is one central point that we can not identify an answer to. Who is responsible for the maintenance of the drainpipe that caused the damage?

At best we suspect it might be shared and we would argue that the collector that caused the damage is your neighbours responsibility as it serves their flat.

The collector is it would appear attached to your property and therefore there is an argument that its maintenance is your responsibility. We can not identify a definitive answer to this point. The drainpipe is not a sewer and thus the principles on sewers are not of direct relevance to this matter.

I am content to write to your neighbour on your behalf setting out the claim once again and suggesting that negotiations with their insurer and your insurer have proved fruitless.. I will remind them that they had previously promised to resolve this issue under their "good neighbour" procedures.

If they are not willing to entertain this claim then it appears that it would be unlikely that your insurers DAS would fund the commencement of court proceedings as there is a significant risk that the court would find that the responsibility for maintaining the drain and collector is shared and thus that you are in part responsible for some of the losses.
Whilst this may result in a 50% recovery, there is also a risk that it may result in no recovery at all. Accordingly the prospects of litigation being successful are less than 51% and your insurers will not allow us to commence proceedings in those circumstances.

 

[freddiemercurystwin]

So if I get the gist of this they drain their rainwater over your boundary.

The repairs have been carried out and claim settle but you want them to pay the excess?

The solicitor doesn't know the answer and does not believe he would win should it go to court and earns £££s from giving you this advice.

And you want us to tell you something a solicitor was unable to establish?

How much was the excess?

Maybe move on with your life?

 

[^woody^]

Just file a claim in the county court for your damages.

They will get served, and will either bottle it and settle, or it goes to a hearing and then present your case.

It will cost you £80 (they pay this if you win), no need for a Solicitor and its all informal

 

[freddiemercurystwin]

Or do that!

 

[mickmarshall]

the excess is £1000 the damages were £6000 as the water had washed away my foundations the front living room and bedrooms had cracks appearing and was unusable while a 6 month investigation took place the workmen would not start the repair work until the excess was paid and I had a long delay building the funds to do that.

engineers report:

There is evidence to suggest that there is historic movement to the property. However recent cracking has appeared to both the internal and external fabric of the structure. You will also be aware that we undertook a preliminary survey of your property on 4 September 2007 and that further signs are movement are evident since that time.
From our local knowledge, it is likely that the formation bearing strata is sand and if the foundations are subjected to escape of water from defective / damaged drainage can result in settlement / subsidence. We understand that there have recently been such drainage problems.

oh and thanks you for replying

 

[UKMICKY]

You will not want to hear this sorry.

Please print off what i wrote and take it to your solicitor and get his opinion.

this hopper got blocked up with a crisp packet from the shop

If you sued the shop they would say prove the crisp packet was from my shop and that a negligent act by me caused the crisp packet to go into the hopper.

At best we suspect it might be shared and we would argue that the collector that caused the damage is your neighbour’s responsibility as it serves their flat.

The hopper is on your land and therefore you own actually own it.

Any right your neighbour may have would come about under common law and specifically the law of easements. Your neighbours if they have a right to drain their water onto your property will have it as an easement right.

As its an easement right you are not responsible for maintaining the hopper on behalf of your neighbour so he can continue to benefit from any easement right.

However your neighbour cannot be forced to maintain your property in order to continue to benefit from any easement right they may have to drain their water over your property. The reason both of the above is as it would be a positive obligation which under common law cannot be enforced. Positive covenants even if one could be implied are not legally enforcable .

Your neighbour however cannot drain water onto your property through the hopper if the hopper is not fit for the purpose and therefore if he wished to continue to drain through it he would need to repair it once he knew it was unfit for the purpose if he wished to continue to benifit from any easement right .

If you also drain through it he would have a right to expect you or anyone else who benefits from the repair to also pay a share.
_________________________________


A crisp packet blowing into the hopper and blocking it is not anyone’s fault apart from the person who discarded the crisp packet. There is no negligence on anyone else and no one else can be forced to pay for a damage that occurs due to it. . Unless one of the parties who drained through it knew it was there and didn’t take action to prevent the flood.

Unfortuanaly though as its your property that was damaged you have no choice but to pay he cost of repair

It the same principle like if a tree was to fall into your garden from your neighbours and flattened your conservatory. Under common law unless you could prove they knew or should have know that the tree was going to fall and cause the damage they cannot be held legally responsible for any damage that occurred and the cost of repair will be yours and your insurers .

So unless you can show they knew or should have known that the crisp packet had got into the hopper and blocked it they are blame free and are not responsible for any damage that occurred.


Best advice move on and forget.

 

[flameport]

the water had washed away my foundations the front living room and bedrooms had cracks appearing

Presumably therefore it had been blocked for months. If you pursue this further, the question as to why the blockage wasn't noticed sooner is likely to be asked. Inevitably this will be down to lack of maintenance etc., and pursuing this will just open up cannisters of worms. Don't go there.

the workmen would not start the repair work until the excess was paid and I had a long delay building the funds to do that

That is standard practice for any insurance claim, and a £1000 excess for subsidence is also a typical amount.
You are fortunate that you had insurance, and it covered the majority of the repair works.

As this has been ongoing since 2007, it's time to forget it. You will never get anything out of it other than huge amounts of hassle and a large bill for legal fees.

 

[mickmarshall]

the extension built by the neighbour had not been passed by building control although application had gone in and been approved building control have no record of work commencing and there for let the application laps there is no completion certificate for this extension to a trade property. the flat above the shop uses the extension as a duping ground for rubbish and for the last 12 months the shop has been aware of the likely hood of the damage happening again. The drainage company who repaired the drain have put it down as a shared drain billing us both. there for my argument is for shared damage costs.
if the extension was not there there would be no need for the Hopper only the extension requires this and that fitting this without a guard made my property vulnerable to damage. allowing the rubbish to accumulate on top of the extension also backs this up.

//www.diynot.com/network/mickmarshall/albums/10181/38431

 

[joe-90]

I can't see a one-off event causing all that damage. It must have been cascading down for months to cause the sort of damage you say it's caused. Why did you leave it? Looks like lack of maintenance to me.

The double whammy is that when you sell you'll have to declare subsidence damage and that will devalue your property. Don't tell us they underpinned it! That will knock 30 - 40 grand off the value.

 

[mickmarshall]

It was when we had major flooding in the uk the trough is not easy to see I didn't know it was there until my friend noticed major staining to my walls days later.. the shop admitted responsibility but changed there mind weeks later I was under the impression they would sort it all out until then when I had to call in my insurance after waiting so long for next door to do something even then they still said they would pay the excess but changed there mind when there own insurance backed out of paying it for them.
Having said that them having implied they would pay for the excess allowed my insurance to investigate the amount of damage to the foundations and to do this was to up scale the claim to a subsidence without penalty to allow monitoring there was no need for underpinning and if you look on your own policy you are all subject to this same situation when it comes to water escape.

 

[joe-90]

You still have to declare it when selling.

 

[flameport]

the extension built by the neighbour had not been passed by building control

So what. Changes nothing.

the flat above the shop uses the extension as a duping ground for rubbish and for the last 12 months the shop has been aware of the likely hood of the damage happening again.

So what. Events years after the damage occurred are of no relevance to anything.

The drainage company who repaired the drain have put it down as a shared drain billing us both. there for my argument is for shared damage costs.

An open hopper is not a drain, and just because some company sends you a bill with 2 names on means absolutely nothing. They won't care who pays it.

if the extension was not there there would be no need for the Hopper only the extension requires this

So what? You could also say that if your house had never been built, it wouldn't have been damaged. If you didn't live there, you wouldn't have to pay. None of these things help because they are not the facts.

and that fitting this without a guard made my property vulnerable to damage. allowing the rubbish to accumulate on top of the extension also backs this up.

Did it? More likely lack of maintenance, and even if not, consider that it could easily have been blocked up by rubbish someone dropped in the street, leaves, moss, a dead rat, or hundreds of other items.
No law of regulation requires fitting 'guards' to hoppers, gutters or other rainwater goods. Even if one was fitted, it could still have blocked.

Clutching at straws and ****ing in the wind are two phrases which apply here.
Don't waste any more time or money on this.

 

[mickmarshall]

Sounds like you got a bigger problem than me mate lol so Ill leave you with it.... will post how it goes later...

did find this

The legal documents may give you as a property owner rights over your neighbour’s property. Sometimes they are not included in the legal documents but have arisen out of long, continuous and unchallenged use (usually 20 years). A right to use, for example, a pipe through a neighbour’s property implies a right to go on that neighbour’s property to undertake repairs, although any damage incurred to that property must be made good.

 

[Nige F]

Just read " Bleak House " by Charles Dickens - then continue with legal wrangles

 

[Deluks]

Remove the hopper, just have a straight pipe running down, then tell them to sort their own drainage out, and that if any future damage is caused, or they continue to drain water onto your property, then you will take legal action.

Some days you are the pigeon, other days you are the statue.