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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10228
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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Hi there, I have a property that utilises a soakaway thats

Resolved Question:

Hi there,

I have a property that utilises a soakaway that's located in council parkland directly to the front of the property. The properties were built like this prior to the council adopting the land.

The soakaway has now failed, meaning that we need to excavate to repair/replace the soakaway, however the council are now seeking payment for an easement to put a soakaway in their land.

Is this correct? Or is there an inherent easement in place given that there is an existing soakaway in place?

Thanks, Mike
Submitted: 2 years ago.
Category: Law
Expert:  Nicola-mod replied 2 years ago.
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Nicola
Customer: replied 2 years ago.

Thanks for coming back to me. I'm happy to wait for the minute so please keep searching for the right expert.


 


Mike

Expert:  Nicola-mod replied 2 years ago.
Hello Mike,

We will continue to look for a Professional to assist you.

Thank you for your patience,
Nicola
Expert:  Aston Lawyer replied 2 years ago.
Hello and thanks for using Just Answer.

My name is ***** ***** am happy to assist you with your enquiry.

Could you please confirm how long the property has been in existence?

Have you checked your Deeds to see if there is any right for you to use the soakaway and enter the land for the purposes of maintaining/replacing the soakaway?

I look forward to hearing from you.

Kind Regards
AL
Customer: replied 2 years ago.

Many thanks Al,


 


The property was built in 1983 and the deeds do appear to cover the right to maintain/replace the soakaway (see below), I guess my main question is whether the local council have the right to charge an easement fee for granting access for this.


 


Except from the title deeds:


 


The FIRST SCHEDULE above referred to


Rights granted to the Transferee by this Transfer


1. THE right to lateral support from the building on any adjoining part of the estate.


2. THE right to maintain roofs, eaves, gutters and pipes overhanging any adjoining part of the estate.


3. THE free passage and running of water, soil, gas, fuel, and electricity through all conducting media now or at any time hereafter within the Perpetuity Period to be laid or constructed on any other part of the estate (so far as the Transferor has the power to grant the same), together with the right to enter any other part of the estate for the purpose of connecting to, inspecting, cleansing, repairing or renewing the said connecting media the person exercising such rights doing no unnecessary damage and making good any damage thereby caused and paying a due proportion of the cost of maintaining such conducting media intended to be used in common.


4. ...


 


Elsewhere in the deeds it defines the estate as the original site which includes the parkland in question and defines the perpetuity period as 80 years from 1979.


 


Many thanks and regards


 


Mike

Expert:  Aston Lawyer replied 2 years ago.

Hi Mike,

Thanks for your reply.

The extract from your Deeds grants you a right to the passage of "water" on to the adjoining land, which usually means the water supply as opposed to any foul water which may find its way to the soakaway. I note there is also no specific reference to the soakaway.
I would therefore have to say that you have no express right to the passage of any foul water on to the Council's land.

However, not all is lost!

Under law, if there is no express right to do something or to connect to something, a "prescriptive right" is acquired if it can be shown that the property in question has had the use of such a right for 20 years or more. As your property has been in existence since 1983, you have acquired such a right, which means you now have a legal right to carry on using the soakaway, or indeed to a replacement soakaway if the existing one has failed.
There is no need for you to register such a right at the Land Registry, in tat the right automatically comes into being after 20 years of usage.

You therefore certainly do not need to pay the Council any consideration/fee for them to grant you a legal right, as one already exists.
You should le the Council know this.

I hope this assists and answers your question.

Kind Regards
AL
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10228
Experience: Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
Aston Lawyer and 2 other Law Specialists are ready to help you
Customer: replied 2 years ago.

Many thanks Al, that's perfect! I'll do exactly that.


 


Regards


 


Mike


 

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