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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 26070
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Due to mistake by previous owner I currently dont have an easement

Resolved Question:

due to mistake by previous owner I currently dont have an easement attached to deads for my drainage that he had installed across a neighboursing field and into the dike. This is now being done by previous owner, but the landowner wants a clause to terminate if the sell to develop the land. if this is added what is the point of the easement as it offers no real protection. I think this may make it harder to sell house. I think the previous owner may be going this route to avoid paying the land owner compensation for the easement. Is it normal for this type of clause wwithin the easement?
Submitted: 2 years ago.
Category: Property Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. May I ask how long ago the drainage was installed and when you purchased the property please?Was it a term of your contract with the seller that he would provide an easement for drainage?
Customer: replied 2 years ago.

Installed 2008, by prev owner. He had started the easement, but somehow it was not finalised, he also did not get it registered. So when I brought the house December 13 it was not picked up. previous owner is now sorting out the easement, but landowner now making demand that easement has the development clause in it.

Expert:  Joshua replied 2 years ago.
My apologies for the delay in reverting to you. Thank you for the above. From what you say do I understand that your solicitor missed this when you purchased? If so is your solicitor overseeing the matter with the seller you refer to or are you liaising with the seller directly?Lastly I assume from what you say the drainage pipe is a private pipe and is not supplied by the sewage undertaker (water company)?
Customer: replied 2 years ago.

Solicitor missed when buying the house as the previous owner misled on the details of the drainage - eg drainage was in the property. After a problem arose it became evident that the drainage system was not in the property and relied on access tot he field - the farmer refused me access, saying they were unaware of a pipe and if so it should be in my deeds. I got advice from solicitor who was involved when buying the house, and it led to various letters around misrepresentation. However this solicitor made many mistakes including sitting on a reply for 3 months, while telling me they were chasing, and a fixed fee, that kept changing, they also told me that the previous owner was denying everything, when infact he had offered to sort out the deeds and the drainage licence, but would not pay for a new sytem or for it to be to be repaired. I got some money back and parted with the solicitor. I took up the previous owners offer and he sought to get the easement arranged and added to mine and the landowners deeds, based on the one he had started back in 2010. However this is now very retrospective and i gather the landowner is now not agreeing to the original easement drawn up in 2010 (never signed). They want to add the clause in about development, I am trying to establish if this makes a mockery of the easement. And if I need to refuse this clause and once again seek legal advice. Problem is the house has no other alternatives for drainage and the landowner is now able to call the shots as this is now all retrospective.

The system I refer to is a septic tank, that the previous owner had converted into a bio filter system, that pumps semi treated waste into a watercourse. The water course in this instance is via a pipe under the landowners field in the 1 meter from edge area on two sides of the field extending about 150meters in length. To enter the watercourse the system should have also had a licence - this was also not done and the previous owner seems to have made good progress on this part of the issue.

Expert:  Joshua replied 2 years ago.
Thank you for the above. One last question if I may, have you made a full and final settlement with your solicitor or have you left things unresolved in parting company with him?
Customer: replied 2 years ago.

unresolved I would say, the previous owner response set out what they would do and to avoid further legal costs (my tab was already at £1000) and it was unlikely that I would be able to claim legal costs back, I basically looked at the offer on the table, which was to put in place the easement and licence that should have been in place when i purchased the house.

Expert:  Joshua replied 2 years ago.
thank you. As you do not need me to tell you, this is a potentially significant issue and would appear to be a matter of oversight on the part of your solicitor tough from what you say, he claims in part at least misrepresentation on the part of the seller. dealing first with your question. The caveat or condition the neighbouring landowner wishes to place on the proposed right makes it very little value whatsoever. this would appear to make the right operate as a licence which is remarkable on certain conditions rather than a legal easement which remains forever. this is a very different proposal and nowhere near as valuable as a proper easement. It would make the property difficult to sell if a future buyer's solicitor picked up on the issue which he certainly should and may make it difficult to obtain a mortgage. Accordingly, while certainly it is better than nothing, it is not a satisfactory solution. An easement the drainage is a valuable right and I am not remotely surprised that the landowner would not wish to give this away cheaply. he does not have to cross an easement at all. Your suspicion may be correct that the seller is hoping to avoid paying a more expensive premium for an easement or it may simply be that the next door neighbour is unwilling to grant an easement at all. Whatever the reason, the result is not satisfactory from your point of view for the above reasons. As above, the issue is a potentially serious one and in my view, though I appreciate you have had little success with your solicitor to date, in the first instance, you should consider reverting to your solicitor updating him as to what you have managed to achieve advising that you are not satisfied with the same for the above reasons and invite him to resolve the matter on your behalf failing which you will need to consider a complaint to the legal ombudsman. The bot***** *****ne is that your solicitor should not have allowed you to complete without a legal easement in place. Your solicitor could potentially cite misrepresentation on the part of the seller but ultimately, if the were legal easement in place, there would have been a deed of easement with the neighbouring landowner which either should have been already registered against the title or the deed itself made available for registration when you purchase the property. Unless the seller went so far as to forge a fake deed of legal easement, I cannot see how your solicitor could rely on a claim of misrepresentation to avoid liability. The reason I suggest reverting to your solicitor is because if he is negligent, he will be liable firstly to cover the cost of any legal costs for resolving the matter and failing which, and ultimately the neighbouring landowner does not have to grant an easement, he may be liable to pay you compensation I have the installation of a septic tank in another suitable location or failing which, the loss in value to your potential resale value for your property. their cause may well be a counterclaim available against the seller but from your perspective, the buck is likely to rest with your solicitor. There is a danger in going it alone in that you may lose the ability to claim the full costs of the above against your solicitor particularly if the solicitor could demonstrate you prejudiced the position by some action or inaction on your part. you also need to consider limitation periods which are either three years from the date you discovered the negligence or six years from the date of the negligence under breach of contract. from the dates you refer to, you still have plenty of time but these limitation periods can creep up on you quickly. If you miss them, you will not be able to pursue the solicitor any further. if you need to refer the matter to the legal ombudsman, they have power to award up to £50,000 compensation and can do so without charge for their service: http://www.legalombudsman.org.uk/helping-the-public/#making-complaint I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
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