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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10262
Experience:  I have been practising for 30 years.
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We have a semi detached cottage in Surrey which had a joint

Customer Question

We have a semi detached cottage in Surrey which had a joint soak away with the ajoined neighbour (sited in their garden). We built an extension and told the neighbour we would like to separate the soaks ways, but they said they would rather not. They neighbours then built an extension and asked if we could separate the soaks ways but as we had finished all our works we didn't want to dig up our garden and patio again, so said no.
They then dug a new soak away in another area. We have since discover after seeing surface water on the dividing line and internal cracks in our plaster near the boundary, that the soak away they put in was only suficient for their property (not ours). The council confirmed they signed it off as sufficient for the one dwelling. The soak away went in approximately 2 years ago. Legally where do we stand on this? Can we insist they put a bigger soak away? As there was no problem with the soakaway, are they legally responsible to provide a soak away for us if they move the original? We didn't get any legal document regarding this on purchase of our house.
Submitted: 1 year ago.
Category: Law
Expert:  Nicola-mod replied 1 year ago.
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!
Customer: replied 1 year ago.
I will wait if you can get me an answer tomorrow morning, thanks
Expert:  Nicola-mod replied 1 year ago.
We will continue to look for a Professional to assist you.
Thank you for your patience,
Expert:  F E Smith replied 1 year ago.

I will try to help you with this.

What happened to the original soak away?

Why has the problem take 2 years to manifest itself?

If there is no mention of the soak away in the deeds, how are you aware of it? As much background detail as possible is really useful. Thank you

Customer: replied 1 year ago.
We can see from the joint downpipe that it must be a joint soak away. There are no mains drains in our area.
The original was dug up by the neighbour as it was in his garden and he needed to move it top build his new extension and patio.
We have tried to discuss this over the last year with the neighbour but they have done nothing to change it.
I will send you a copy of a letter we are about to give the neighbours so you can see more detail.
Customer: replied 1 year ago.
please find letter to neighbour attached.
Expert:  F E Smith replied 1 year ago.

Thank you.

I’m not certain what you mean when you talk about separating the soakaways (which was refused), before your extension was built. At that stage, you were at liberty to simply put your own soak away in regardless. Why did you not just do that?

So is the situation now that you always enjoyed the use of the soak away in the neighbours garden which the neighbour has now got rid of to build his extension, and he has put a soak away in which is connected to your drains but simply not adequate?

Customer: replied 1 year ago.
We didn't put our own soakaway in as the neighbour didn't want to change anything.
yes the situation is as you say. how do we stand legally?
Expert:  F E Smith replied 1 year ago.

Just one other question. I appreciate the neighbour didn’t want to change anything but it would simply have been a case of disconnecting putting your own in. The neighbour wouldn’t have had anything to do with that. And therefore wondering why you didn’t just do that when you asked the question because what you would have had to do then is the same as you are having to do now apart from the fact that you are going to have to do disturb some of the work you already have in place.

Customer: replied 1 year ago.
We have a jointly owned soak away. The neighbours demolished it when doing their extension, and replaced it with one of an inadequate size, only providing one large enough for a single dwelling. The local council informed me it was our neighbours responsibly to provide a soak away for both properties if he chose to remove the existing, even if the soak away was in his garden as it was jointly owned.
Expert:  F E Smith replied 1 year ago.

I appreciate what you’re saying.

I’m putting my judges hat on.

What I’m asking is why, when you’re asked to separate the soak away, you simply didn’t put your own in before you did the work.

All you would have needed to do would be to disconnect from the neighbours and put it into your own. You seem to have asked to do that (which you didn’t need to do) but then not done it. If this was in court, the judge would want to know why.

Meanwhile, the legal situation is that you have an easement did discharge water into the neighbours soak away. If the soak away used to be large enough and now it is not large enough, then he has been negligent in putting in a smaller one.

If as a result of that negligence you suffer nuisance or inconvenience or loss, then you are entitled to compensation in respect of that which in this case would probably include the cost of a new soak away either on your own property (if you are agreeable) or other drainage or making him install a larger one.

At this stage, a solicitors letter explaining the above would be the first step because it seems unlikely that the neighbour is going to simply install a larger soak away without the threat of some legal action and even then, he may decide that he wants to go to court to defend this for some reason.

Can I clarify anything for you?

Please rate the service positive. It’s how we get paid.

The thread remains open.

Best wishes.