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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8975
Experience:  I have been practising for 30 years.
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We bought our property 9 years ago. It is pre 1800 and we understand

Resolved Question:

We bought our property 9 years ago. It is pre 1800 and we understand that it had been divided from the adjoining property ( a shop) some time in the previous 20 years. Work is now being carried out by our neighbours to divide this property into a self contained flat above the shop. Despite having had a full building survey at time of purchase we have only just become aware that the sewerage and waste water from the "new flat" runs down our kitchen wall behind wooden panelling. Is this situation legal or would we be within our rights to block off their drainage through our kitchen? We have been unable to establish any dialogue with them.
Submitted: 11 months ago.
Category: Law
Expert:  F E Smith replied 11 months ago.
Is this in the United States or the United Kingdom?. You have posted in UK law.
Customer: replied 11 months ago.
UK
Expert:  F E Smith replied 11 months ago.
Thanks.It seems likely that the two properties were once in common ownership and if that’s the case, there is no need for the owner to have created an easement over the bottom property to have the services pass through the building below until such time as the property is separated into different ownerships.At that stage, he should have created an easement to allow those services to pass through the downstairs property and for him to receive them upstairs into the flat. That has not been done.However, depending on when these services were put in, if it was over 20 years ago he can claim a prescriptive right for them to stay in place. If there is no alternative such as routing the pipes outside either because of the structure of the building or because of planning issues (these pipes very often run inside the property) because the two properties were once in common ownership he could actually apply to court for an easement of necessity even if they had been in place for less than 20 years.The routing of these pipes would not normally be picked up on even a full structural survey unless there had been an issue with them that was reasonably visible.If you block off the pipes you would face all sorts of claims for any consequential damage and it’s not an action that you should really think about undertaking. Subject to what I have said above, the correct course of action would be to apply to court for an injunction to get the pipes removed and for the owner of the upstairs flat to pay for that cost and reinstatement of any damage. You can only do that of course subject to the timing and necessity issues I mentioned earlier.Can I clarify anything for you?Please do not forget to rate the service positive.Best wishesFES
F E Smith, Advocate
Category: Law
Satisfied Customers: 8975
Experience: I have been practising for 30 years.
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