Cancelling an easement

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alpacaman
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Cancelling an easement

Post by alpacaman » Mon Nov 07, 2016 3:09 pm

Hi there. First post so please be gentle.

Our property shares a sewage treatment plant with two others, situated on our neighbour's land. The neighbour tends to make most of the emptying/servicing/repair arrangements and we pay our third in accordance with the covenant/easement in place (although the electricity supply comes off our property which we pro-rata and charge back to the other two).

The problem is that our neighbour has now taken to emptying it more frequently than we and the other neighbour think is necessary, and (according to the people who service it) it's needing more and more repairs to keep it running properly. We are now foreseeing a situation where it is likely to need replacing in the next few years, at considerable cost and the stress that comes with trying to get three groups of people with different opinions and budgets to agree.

My question is therefore whether we can effectively annul the easement by saying that we no longer wanted to use it, and then install a smaller, more efficient (and cheaper) unit our own on our own land, or would this require the agreement of our neighbour(s)?

I'm interested in the legal situation rather than a discussion about why we would want to install our own (I know there are pros and cons and we would of course weigh these up before deciding what to do).

Collaborate
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Re: Cancelling an easement

Post by Collaborate » Mon Nov 07, 2016 10:23 pm

Yes - just go ahead and disconnect your house from the sewage system. Thereafter you shouldn't be responsible for any of the maintenance costs as you're no longer part of the reason why it needs maintaining.

alpacaman
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Re: Cancelling an easement

Post by alpacaman » Tue Nov 08, 2016 3:16 am

The easement states that we must make a contribution of a third of the costs. It doesn't state that this is necessary only if we are using it. If we disconnected ourselves and created our own arrangement, and refused to pay the contribution could the other neighbours still not pursue us for the money as per the terms of the easement? If so, would the fact that we are no longer use it be an adequate defence?

mr sheen
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Re: Cancelling an easement

Post by mr sheen » Tue Nov 08, 2016 7:41 am

You need to post the exact wording of the easement.
I would guess that you need to agree the release of the easement and will need a solicitor. You may have to pay the legal costs of the neighbour as well if they don't want to play ball...and may have to provide a financial incentive.
However the exact wording is key to whether there may be a 'get out of jail free' clause that could be exploited.
Presumably you have had quotes for your own system and have the land for the soak away etc....otherwise you will need an easement on other land for the soak away......all this can be very expensive and outweigh the maintenance costs of an existing system...or mains sewerage costs.

alpacaman
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Re: Cancelling an easement

Post by alpacaman » Tue Nov 08, 2016 8:05 am

mr sheen wrote:You need to post the exact wording of the easement.
I would guess that you need to agree the release of the easement and will need a solicitor. You may have to pay the legal costs of the neighbour as well if they don't want to play ball...and may have to provide a financial incentive.
However the exact wording is key to whether there may be a 'get out of jail free' clause that could be exploited.
Presumably you have had quotes for your own system and have the land for the soak away etc....otherwise you will need an easement on other land for the soak away......all this can be very expensive and outweigh the maintenance costs of an existing system...or mains sewerage costs.
Thanks. I will dig it out and post later. No quotes as yet (as I say, this is an expense we're anticipating) just want to know where we currently stand. But yes we have the land and options for soakaway and plenty of siting options (including directly where the current run of our drains is).

alpacaman
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Re: Cancelling an easement

Post by alpacaman » Tue Nov 08, 2016 8:31 am

OK here's the wording. By way of background, the patch of land on which the treatment plant is located used to belong to our property, even though it was in the neighbour's garden, hence why the electricity still runs off our supply. This land was transferred by our vendor to the neighbour at the same time as us buying the property, so the agreement regarding our use and contribution to costs is part of a separate transfer deed between the vendor and our neighbours, and has replaced an earlier deed. In the following wording, our vendor is the transferor and our neighbours the transferee.

Rights reserved for the benefit of other land
The Transferor Excepts and Reserves for the benefit of the Retained Land and each and every part thereof: a) the right to access to the access to and the free and uninterrupted passage of all soil gas and drainage to and from the Retained Land through the pipes, drains and conducts serving the retained land and situate under or over the Property and either now or during the perpetuity period. b) the right to discharge foul water into the treatment plant upon paying to the Transferees and their successors in total [sic] one third of the annual costs of operating, repairing and renewing the treatment plant and to discharge foul water into the manhole at the point marked X and through the drainage pipe X-Y.

Positive covenants by the Transferor
(1) To pay or cause to be paid to the Transferees a sum equivalent to one third of the annual costs of operating repairing and renewing the sewerage treatment plant and the associated pipes.
(2) To pay or cause to be paid to the Transferees a sum equivalent to one third of the costs of maintaining repairing or renewing the pipe marked X-Y on the attached plan number two.

Positive covenants by the Transferees
(1) To maintain in good working order the sewerage treatment plant and the associated pipes.
(2) To maintain in good working order the pipe marked X-Y on the attached plan on the attached plan number 2 [sic].

In my lay eye, it's not that well written and I know it was done in a rush (we were ready to exchange so we issued an ultimatum to our vendor to sort it or leave everything as it was). A few things immediately strike me:

1. The Transferor is our vendor. Nowhere does in mention that the obligations apply to the successors in title.
2. The deed is between us and our neighbour, even though there is another neighbour who discharges into the same treatment plant.
3. There's no mention of the electricity supply or the associated costs (the neighbours didn't even know this, and I guess our vendor didn't remember to tell her solicitor).

Any comments most welcome.

MacadamB53
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Re: Cancelling an easement

Post by MacadamB53 » Tue Nov 08, 2016 10:05 am

Collaborate wrote:Yes - just go ahead and disconnect your house from the sewage system. Thereafter you shouldn't be responsible for any of the maintenance costs as you're no longer part of the reason why it needs maintaining.
+1 this is the answer - you do not need to release the easement at all.

Kind regards, Mac

alpacaman
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Re: Cancelling an easement

Post by alpacaman » Tue Nov 08, 2016 10:32 am

MacadamB53 wrote:
Collaborate wrote:Yes - just go ahead and disconnect your house from the sewage system. Thereafter you shouldn't be responsible for any of the maintenance costs as you're no longer part of the reason why it needs maintaining.
+1 this is the answer - you do not need to release the easement at all.

Kind regards, Mac
Whilst we could certainly disconnect our house from the system, would that in itself release us from the obligation to pay a third of the maintenance costs, given the wording above?

MacadamB53
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Re: Cancelling an easement

Post by MacadamB53 » Tue Nov 08, 2016 11:53 am

alpacaman wrote:
MacadamB53 wrote:
Collaborate wrote:Yes - just go ahead and disconnect your house from the sewage system. Thereafter you shouldn't be responsible for any of the maintenance costs as you're no longer part of the reason why it needs maintaining.
+1 this is the answer - you do not need to release the easement at all.

Kind regards, Mac
Whilst we could certainly disconnect our house from the system, would that in itself release us from the obligation to pay a third of the maintenance costs, given the wording above?
yes, you keep asking but the answer is always yes.

alpacaman
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Re: Cancelling an easement

Post by alpacaman » Tue Nov 08, 2016 12:10 pm

MacadamB53 wrote:yes, you keep asking but the answer is always yes.
Very sorry. I was asking for further clarification having posted what another commenter had suggested would be information pertinent to the situation. If you're saying that I can do what I like regardless of what the transfer deed says, then that's helpful. Thanks.

MacadamB53
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Re: Cancelling an easement

Post by MacadamB53 » Tue Nov 08, 2016 1:35 pm

alpacaman wrote:
MacadamB53 wrote:yes, you keep asking but the answer is always yes.
Very sorry. I was asking for further clarification having posted what another commenter had suggested would be information pertinent to the situation. If you're saying that I can do what I like regardless of what the transfer deed says, then that's helpful. Thanks.
you can disconnect from the existing set up and this will mean you are not expected to contribute to the remainder's maintenance.

what needs clarifying?

Kind regards, Mac

alpacaman
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Re: Cancelling an easement

Post by alpacaman » Tue Nov 08, 2016 1:52 pm

MacadamB53 wrote:
alpacaman wrote:
MacadamB53 wrote:yes, you keep asking but the answer is always yes.
Very sorry. I was asking for further clarification having posted what another commenter had suggested would be information pertinent to the situation. If you're saying that I can do what I like regardless of what the transfer deed says, then that's helpful. Thanks.
you can disconnect from the existing set up and this will mean you are not expected to contribute to the remainder's maintenance.

what needs clarifying?

Kind regards, Mac
Nothing, thanks. That's very useful info. So the moral of the story is don't have a shared septic tank on your land because the other properties could disconnect themselves from it and you'll be left to foot all the bills...

MacadamB53
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Re: Cancelling an easement

Post by MacadamB53 » Tue Nov 08, 2016 1:57 pm

you'll be left with your own septic tank so why should anyone other than you pay for its upkeep?!?

arborlad
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Re: Cancelling an easement

Post by arborlad » Tue Nov 08, 2016 2:05 pm

MacadamB53 wrote:you'll be left with your own septic tank so why should anyone other than you pay for its upkeep?!?


You've misunderstood, this refers to the existing: 'So the moral of the story is don't have a shared septic tank on your land because the other properties could disconnect themselves from it and you'll be left to foot all the bills...' whilst you're referring to the potential new one.
arborlad

smile...it confuses people

alpacaman
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Re: Cancelling an easement

Post by alpacaman » Tue Nov 08, 2016 2:08 pm

arborlad wrote:
MacadamB53 wrote:you'll be left with your own septic tank so why should anyone other than you pay for its upkeep?!?


You've misunderstood, this refers to the existing: 'So the moral of the story is don't have a shared septic tank on your land because the other properties could disconnect themselves from it and you'll be left to foot all the bills...' whilst you're referring to the potential new one.
That's correct. I was looking at the situation from the point of view of the neighbour on whose land the current shared system is.

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