Private water / septic tank easements invalid, indemnity policy any good?

[anna p]

Hi, we're in middle of trying to buy a property in Wales which had easements for private water (by bore hole) and for the septic tank, but unfortunately both these easements are invalid due to the bore hole not providing water after purchase, and water is obtained from the river nearby instead, which is located in a different direction tothe agreed bore hold position, and the septic tank being placed in a different place as well after purchase! Has anyone had something similar happen to them and if so how did they get round it if they did? We're being advised to use indemnity policy for at least the septic tank, and expect the same solution will be suggested for the water supply as well. However, as both services are on the same landowner's land who originally sold the property 40 years ago, and who must know that the services were installed differently to that originally agreed at the time of the purchase of the property from the landowner, are indemnity policies really an option long term?

 

[charliegolf]

Is he alive (or his heirs in title)? Ask him for a written indemnity attached to a plan showing exactly where the services are.

 

[anna p]

Hi, the landowner inherited last year from the original sellers of the property (his parents) but he actually signed the plan used in the conveyance showing the planned/agreed positions of both supplies. the difficulty we think is that the vendors, who also inherited from their parents last year, may be reluctant to approach the landlowner in case he asks for a premium to update the easements on the deeds before the sale. obviously we don't want to be landed with this cost either!

 

[Footsoldier888]

Hi,

I am struggling a bit here to understand it fully but with the bore hole are you saying you have an easement for a piped supply but the bore hole is not working?

I have just looked at another bore hole easement and that one said the beneificiary had to maintain the bore hole.

If the bore hole is working but you are being denied supply then you can take court action for that.

 

[^woody^]

easements for private water (by bore hole) and for the septic tank, but unfortunately both these easements are invalid due to the bore hole not providing water after purchase, and water is obtained from the river nearby instead, which is located in a different direction tothe agreed bore hold position, and the septic tank being placed in a different place as well after purchase

I can't understand any of that.

 

[OwainDIYer]

What will any indemnity insurance policy actually pay out for?

Regardless of the legal position there is a real practical risk that you will end up with an uninhabitable, unmortgageable and uninsurable house with no working water or sewerage system.

Unless the vendors can reach an agreement with the neighbour and obtain proper easements and location plans for the services (at their cost) that are satisfactory to your solicitor you shouldn't buy from them, and neither will anyone else.

 

[noseall]

I can't understand any of that.

Its easy Woods.
The bore hole has run dry.
The river has moved in relation to the bore hole.
Some crafty beggar shifted the septic tank in the night.
The water maid fetches water from the river sloshing about in two buckets slung over a shoulder yolk.

 

[Nige F]

What if the septic tank is upstream of the river abstraction point ?

 

[anna p]

easements for private water (by bore hole) and for the septic tank, but unfortunately both these easements are invalid due to the bore hole not providing water after purchase, and water is obtained from the river nearby instead, which is located in a different direction tothe agreed bore hold position, and the septic tank being placed in a different place as well after purchase

I can't understand any of that.

Hi Woody, Basically, when the property was bought from the landowner, itwas a ruin. As not enough land was sold with the property, it was agreed between vendor and buyer at that time, 40 years ago, that the cesspit and water supply would be on the vendor (landowner's) land with planned/agreed positions for both. AFTER the property was bought, work was started to renovate and install the essential services, water and drainage. However, the two bore holes that were tried at the position originally agreed, did not produce water. So we believe a gentleman's agreement was come to to take water from the river instead (still on the same landowner's land). Now the property is being sold after death of the parents and the original landlowner who sold them the property has also since died and his son is now the landowner. Who knows if he will be amenable and not greedy wanting a premium (from the vendors) for updating the easements?

Thank you OwainDIYer, that's what we believe but when you're being advised by your own solicitor to get easements.....

 

[clifford1]

I don't understand why it should be your problem. Just tell the seller you will only proceed when he has obtained suitable easements for the services.

 

[anna p]

I don't understand why it should be your problem. Just tell the seller you will only proceed when he has obtained suitable easements for the services.

Thanks Clifford1 - its a no-brainer, but we had to look into indemnities to see if they were feasible long term, as its taken us two years to find this house.

 

[Footsoldier888]

It could be that the easement already exists then if water was being taken from the river for over 20 years.

To legalise it you need to get 'witness of truth' statements from those involved. It isn't difficult so long as you have sufficient evidence.

I appreciate most people have died now but there may be other witnesses.

 

[^woody^]

Oh dear that sounds a little complex.

I wonder any indemnity policy would be applicable, as those policies tend to cover an event of a statutory body taking action against some or other statutory permission. But what you seem to have is a private contract issue (use of land) - albeit to extract water or dispose of waste water which has statutory implications.

I can't be 100% sure, but there may be implied rights aquired based on the initial agreement and the amount of time that has gone since the initial sale. This really is a job for a knowledgeable solicitor, and probably not a run-of-the-mill conveyance solicitor.

 

[^woody^]

I can't understand any of that.

Its easy Woods.
The bore hole has run dry.
The river has moved in relation to the bore hole.
Some crafty beggar shifted the septic tank in the night.
The water maid fetches water from the river sloshing about in two buckets slung over a shoulder yolk.

You paint a picture of country life scullduggery and quaint innocence. We don't get that in the 'hood.

 

[OwainDIYer]

Easements for the existing services are not on their own good enough. What happens if you can no longer abstract from the river or the cesspit/septic tank fails environmental protection regulations and has to be renewed? You need an irrevocable right to erect and maintain new equipment, pipelines or boreholes to maintain availability of water and drainage and a prohibition on the neighbour doing anything to interrupt the services (such as building on the land).

You need to be clear whether you have a septic tank or a cesspit as they are completely different and there can be significant penalties for illegally discharging effluent. You may also need an abstraction licence. You should also request a copy of a water quality report from an analytical chemist.

Just because an arrangement has worked informally between neighbours for 40 years does not mean it will continue to work in the future especially if an 'incomer' is one of the parties. Your solicitor does not sound particularly enthusiastic about safeguarding your interests and my inclination would be to drop both the solicitor and the property.