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JGM, Solicitor
Category: Law
Satisfied Customers: 12088
Experience:  30 years as a practising solicitor.
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My question regards ***** ***** We own an end

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Hello. My question regards ***** ***** We own an end terrace property that is said to be "inferior" to a "superior" next door property in respect of drains. My question is whether or not that servitude (on the drains) that bestows peaceful enjoyment / access of the neighbours various water drains to the main sewer:
A. is forever (the properties were set out this way is around 1870);
B. whether or not we have a sole burden to maintain the drains forever, that is repair or replace them as needed etc - after 150 years this is now the case;
C. if the superior property, in the course of its enjoyment, forever, also then has a burden of liability of sharing the cost of replacing the drains or maintaining them or whatever is necessary when that time comes - they claim no liability.
D. If our "inferior" property is liable forever to provide the pipes etc, if there any precedent for these servitudes to expire or be challenged 150 years down the line, after all, the Victorian deeds may not have considered the future in such long periods;
E. If the deeds are silent on servitudes for the drains, which are internal within our house, leading to the outside and eventually the main sewer, how is superiority established other than by the obvious flow of water;
I am a solicitor in Scotland and will help you with this. The current terminology is the property burdened with the servitude is the burdened property and the one with the use of the servitude is the benefited property. A. A servitude lasts forever, yes, unless varied or discharged by agreement or by the Lands Tribunal for Scotland. B. You are required to maintain and repair if the title deeds say so. Typically, the costs of repair would be specified as being on one, the other o jointly between the parties. C. If the benefited property refuses to share the costs of repair then the other party can litigate as necessary to enforce the burdens in the title deed. D. The deeds continue for as long as the infrastructure exists. E. The burden would extend to the pipes and drains used by the benefited property. I would need to see the exact wording of the deed to comment further on this. Happy to discuss further. In the meantime please leave a positive rating so that I am credited for my time.
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Customer: replied 2 years ago.
Hello, thanks for the answer(s).I concur with all that you say.The Title Deeds are in fact silent on this. So the next step is to find out, in the event of deeds being silent, and the benefitted property has acquired servitude by continuous use (>20 Years), who is responsible for the upkeep of the actual drains? As the deeds do not say, my assumption is that the upkeep is 50/50, and there can be no argument about that.Now, since the deeds never specified in writing any burden of drains, the benefited property has acquired those simply by what I in lay terms refer to as "squatters rights" , fair enough. And we agree that drains are not like squatting on land, or becoming entitled to natural light (since those are "free forever" to both parties) but are, rather, physical assets that "wear out" with time. Can a servitude, acquired by continuous peaceable use, be said to become exhausted - for the benefited property only - when the drains wear out - ie spring a leak? After all, a servitude to provide wood from a copse can end when the wood runs out, if it does.If the benefited property has no original deed-right to burden our house, which it does not, surely, the servitude expires when the drains fail? Of course that is just another way of saying that if the burden is to continue, it is in their best interests to share the costs of repair. However, if the servitude can be said to end when the drains fail, that surely is a way of finally ending the burden upon our house, and really, in this day and age, private houses should best have their own drains. If I can say that the drains, shared simply by squatting, after 150 years are worn out, can I "evict" the servitude, or in better terms simply say it has effectively expired.I know that is all convoluted, but my purpose is an honest one, to get the two houses their own separate drain systems. I Increased rainfall in particular now means the original drain is not just "worn out" but it gets overwhelmed in the sort of heavy downpour that is increasingly common, and all of the water from 2 houses pours down one old pipe all the way through our basement. I am not saying water is pouring out, there may be some leaks, but the point is rather to simplify the arrangements in the future for both houses. I could install new drains for our own house and leave the old ones for their house in place in our subbasement and at some point, perhaps in many years, the pipe will eventually burst and flood our basement!, not a great scenario, but then the drain servitude will have been exhausted".I think in essence, the question is: no written burden in deeds, squatters rights of servitude through continuous use, need to repair drains and upgade, is the servitude "exhausted". A final analogy: the benefitted property has as it were squatted on a small island and gained rights, but the small island has washed away if you like, to the extent that it is reasonably forseeable that danger of some sort looms, so the servitude - after a very good 150 years - is running out or has run out.
If the drain wears out so that it is no longer working then the servitude would be suspended. It could revive if the benefited property proprietor repairs it as he would be entitled to do.
Your analogy is right insofar as if one or other of the properties was entirely destroyed the servitude would cease to exist but this does not apply simply to the drainage failing where that can be repaired.
The benefited property has an implied right of access to carry our repairs.
Customer: replied 2 years ago.
Thanks for helping. Just to say that the benefited property is owned by persons who have gone to every length to avoid mention of the drains, and the inevitable liability for the share of any repairs or improvements. None of this is personal, as I am trying to clear up the "loose ends" left by Victorian deeds and previous owners who all ignored the issue. I suppose you have heard it all before! I will request you again.
Thank you.