Purchasing House with water and soak away in farmers fields

arborlad
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Re: Purchasing House with water and soak away in farmers fie

Post by arborlad » Tue Feb 13, 2018 2:35 pm

Has your solicitor not mentioned the Law of Property Act:

http://www.legislation.gov.uk/ukpga/Vic ... 41/enacted



(1)A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
arborlad

smile...it confuses people

Flashy
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Re: Purchasing House with water and soak away in farmers fie

Post by Flashy » Tue Feb 13, 2018 3:18 pm

MacadamB53 wrote:Hi Flashy,

are all pertinent properties registered?

kind regards, Mac
Hi Mac,

The property we are buying, and the surrounding farmers land where the pipes, spring, and soak away are, all have title documents on the Land Registry, if that's what 'registered' means. Sorry for my ignorance.
Has your solicitor not mentioned the Law of Property Act:

http://www.legislation.gov.uk/ukpga/Vic ... 41/enacted

(1)A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
Hi Arborlad,
Solicitor has not mentioned this. I've read that paragraph 10 times but not sure I understand the legal terms used, so forgive my next comments. The water and soak away, as far as we know at the current time, do not have an easement (being checked), and I'm not sure how they define "rights" or "advantages" in this case.

It does seem hard to believe, if correct, that 100 years of unobstructed usage is not relevant. As I've said, there appears no issue with the local farmer, but my solicitor is concerned about us buying.

jonahinoz
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Re: Purchasing House with water and soak away in farmers fie

Post by jonahinoz » Tue Feb 13, 2018 7:09 pm

Hi,

Would the farmers sell you the strip of land over your easement? Life might be much easier if you had full control of your own facilities.

Many yonks ago, I bought seven acres of Welsh mountain, with the right to draw water from the farm next door. My land had originally been part of the farm. Having bought the land, I went to see about how I should access the water. The owner of the farm (a Townee) told me that the right to draw water was personal to the person they had sold the land to, and subsequent owners had no rights.

Having seen that there domestic water supply was pumped out of a ditch, and required somebody in the house to switch the pump on and off, I didn't pursue the matter. The owner of the farm was later confined to Broadmoor for Attempted Murder (stabbing his father-in- law).

John W

Flashy
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Re: Purchasing House with water and soak away in farmers fie

Post by Flashy » Tue Feb 13, 2018 7:27 pm

Hi John,

I'm hoping we don't have that experience!

I agree that would be easier, but I don't think we can afford to purchase the land with the water and the soak away (two different fields). My impression also is that farmers in the area don't give up land very easily at all.

Potentially we'd have to buy the field with the water pipe in as well, so that would be 3 large fields, which I don't think for a moment he would sell due to the proximity to farm.

ukmicky
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Re: Purchasing House with water and soak away in farmers fie

Post by ukmicky » Wed Feb 14, 2018 12:22 am

arborlad wrote:Has your solicitor not mentioned the Law of Property Act:

http://www.legislation.gov.uk/ukpga/Vic ... 41/enacted



(1)A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.



The wording does not convey that which did not previously legally exist as a right. ?
Advice given is not legally qualified and you are advised to gain a professional opinion

Collaborate
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Re: Purchasing House with water and soak away in farmers fie

Post by Collaborate » Wed Feb 14, 2018 7:01 am

You should be addressing all of these questions to your solicitor. If they can't answer them, either get another solicitor who can, or walk away from the purchase.

Flashy
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Re: Purchasing House with water and soak away in farmers fie

Post by Flashy » Wed Feb 14, 2018 8:47 am

Hi ukmicky:

How would one define if it existed as a right?

Hi Collabortate:

The solicitor is taking the approach that he would like an easement, as one would expect. We don't think the farmer would accept this and it would change the tone of the harmoneous relationship by asking for one, even though we may have to. We are looking at this as a last resort.

I've talked to several people who live in the area, including an experienced individual in Environmental Health who deals with water supplies in a large part of Wales. Their oppinion is that a large majority of supplies are as we describe - from a neighbouring farmers field without official agreement. So what I am coming across appears not to be as uncommon as I may have initially thought, compared to living in more urban settings, even if it is something we'd like to solve.

So from my inexperienced point of view, I see one way of dealing with this without having to try to get anyone to agree anything, is either to prove that there was an agreement historically (we're looking at this), or whether presciptive rights could be applied, should there be issues. Hence my question.

MacadamB53
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Re: Purchasing House with water and soak away in farmers fie

Post by MacadamB53 » Wed Feb 14, 2018 2:02 pm

Hi Flashy,

you seem to be asking:

by asking for permission to maintain/repair some pipework on my neighbour’s land has my property acquired a prescriptive right to use the pipework?

two things...

firstly, by asking for permission this weakens the suggestion that your predecessor thought he owned a right to maintain/repair the pipework

however, that said, the second point to consider is - why else does the pipework exist, if not for the benefit of your property? whether the pipework has actually been put to use may not be significant.

kind regards, Mac

Flashy
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Re: Purchasing House with water and soak away in farmers fie

Post by Flashy » Wed Feb 14, 2018 5:03 pm

Hi Mac,

What I'm saying is would the fact that previous owners have asked for permission to maintain/repair hinder a prospective application for prescriptive rights to use water supply (and associated pipework).

In other words I'm not saying I think asking gives give prescriptive rights, but wondering if it contradicts it.

You have a good point there I think regarding the purpose of the pipes. We can show that they were placed there for long term usage of the water and soak away when the building was initially built, and with full knowlegde of the land owner.

I guess it comes down to what, if any, agreement there was when this was done.

ukmicky
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Re: Purchasing House with water and soak away in farmers fie

Post by ukmicky » Thu Feb 15, 2018 2:28 am

Flashy wrote:Hi ukmicky:

How would one define if it existed as a right?
A license or privilege but read on.


The Law and property Act 1881, was re-enacted as section 62 of the LPA 1925 and it says

''A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all … ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land ''

To explain it I've got to go into detail because it does what is says but what is says and does is misunderstood because it does not cover every conveyance of land.

For it to operate there needs to be a diversity of occupation before the conveyance. Its purpose originally was so when landowners sold off portions of their land to there tenants back in the days their tenants would continued to enjoy any right they previously had that was capable of existing as an easement over the whole of the former title unless a contrary intention was expressed in the conveyance. It does not create a right that did not already exist . The important word is appertaining which under section 62 of the LPA means a right that previously existed before the conveyance like an easement and was originally inserted into the LPA so easements that were extinguished due to land coming into common ownership, unity of possession could still survive if the land was split again and sold to a tenant and the right was not removed from the conveyance. From there It evolved slightly to allow a right such as a license or a right reputed to appertain such as privilege to survive on conveyance and to become an easement unless a contrary intention was expressed in the conveyance.

For example a tenant may lease a cottage tucked away in the corner of a farmers field and as he is living on what is the farmers land he is allowed to drain into a soak away on the farmers land and draw water from the farmers land. The right to do them things will be classed as a license or simply a privilege if not granted through a license. If the farmer then decided to sell the cottage to the tenant but not the land the soak away or water source was on and failed to place an entry onto the conveyance informing the tenant that he no longer had a right to use the soak away or water source on conveyance section 62 would turn the licence right the tenant had before the conveyance into an easement.

So for it to have a bearing on your case your land would need to have once been part of a larger title which included your neighbour land that the water supply and soak away are on and at the time that the title was split creating two separate parcels of land the person who bought your title was already using the soak away and water source and on conveyance of the land there was no contrary intention expressed in the conveyance. it has no effect on unrelated titles..

Your only chance if the farmer will not simply grant you an easement is trying to claim a prescriptive right . That requires 20 years of use but you will need to prove 20 years of use. However there is still a possible issue with gaing a prescriptive easement even if you could show 30 years of use. You may need to show the owner of the land the soak away and water source is on acquiesced to use its for 20 years . Because the soakaway and water source are under ground and proving the farmer knew they were there and being used for the previous 20 years and had therefore acquiesced to his lands use could be harder than showing your land has been using his land for 20 years.
Advice given is not legally qualified and you are advised to gain a professional opinion

Flashy
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Re: Purchasing House with water and soak away in farmers fie

Post by Flashy » Thu Feb 15, 2018 8:37 am

Thanks ukmicky, that's most helpful.

In this case, the land was sold for the purpose of building the school and at the same time the Landowner agreed to let them use the water and soak away and lay pipes.

Regarding prescriptive rights, we can easily prove nearly 20 years of use, but possibly 40, with everyones full knowledge.

My concern was if previous occupants have given notice to farmer when they are going to access field to check the pipes/supply etc, if that hinders any possible future prescriptive rights (if it was necessary). I would argue giving notice is a sign of politeness regarding access to the field, but does not indicate they needed permission to use the water or soak away.

But I'd appreciate your and others views on this point.

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