Cancelling an easement

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MacadamB53
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Re: Cancelling an easement

Post by MacadamB53 » Tue Nov 08, 2016 3:07 pm

alpacaman wrote:
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.
I'm referring to an owner burdened with a shared septic tank - same as you (I'm not stupid...)

alpacaman
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Re: Cancelling an easement

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

MacadamB53 wrote:I'm referring to an owner burdened with a shared septic tank - same as you (I'm not stupid...)
Burdened being the operative word, hence my point that anyone in that position could find themselves left with an oversized sewerage treatment plant and the problems that come with that, because it was designed and sized to be shared with a number of other properties and now isn't - and there's seemingly nothing they can do about it.

MacadamB53
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Re: Cancelling an easement

Post by MacadamB53 » Tue Nov 08, 2016 3:28 pm

alpacaman wrote:
MacadamB53 wrote:I'm referring to an owner burdened with a shared septic tank - same as you (I'm not stupid...)
Burdened being the operative word, hence my point that anyone in that position could find themselves left with an oversized sewerage treatment plant and the problems that come with that, because it was designed and sized to be shared with a number of other properties and now isn't - and there's seemingly nothing they can do about it.
what are those problems you refer to (which cannot be easily overcome...)?

edit - just noticed you have referred to the set up as both "sewerage treatment" and "septic tank" - which is it?
Last edited by MacadamB53 on Tue Nov 08, 2016 3:41 pm, edited 1 time in total.

alpacaman
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Re: Cancelling an easement

Post by alpacaman » Tue Nov 08, 2016 3:38 pm

MacadamB53 wrote:
alpacaman wrote:
MacadamB53 wrote:I'm referring to an owner burdened with a shared septic tank - same as you (I'm not stupid...)
Burdened being the operative word, hence my point that anyone in that position could find themselves left with an oversized sewerage treatment plant and the problems that come with that, because it was designed and sized to be shared with a number of other properties and now isn't - and there's seemingly nothing they can do about it.
what are those problems you refer to (which cannot be easily overcome...)?
From http://www.wte-ltd.co.uk/best_sewage_plant.html:

Will your sewage treatment plant be under-loaded? Most sewage treatment plants will only work efficiently down to 50% of their design size. However, minimum plant size is determined by the number of bedrooms you have. A 4 bedroom house requires a minimum 6 person plant, so if there is only 1 or 2 people living there, a 6 person plant is in trouble. If your plant will be under-loaded, buy an adjustable sewage treatment plant that can be turned up and down to suit the number of people using it.

alpacaman
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Re: Cancelling an easement

Post by alpacaman » Wed Nov 09, 2016 7:11 am

MacadamB53 wrote:
alpacaman wrote:
MacadamB53 wrote:I'm referring to an owner burdened with a shared septic tank - same as you (I'm not stupid...)
Burdened being the operative word, hence my point that anyone in that position could find themselves left with an oversized sewerage treatment plant and the problems that come with that, because it was designed and sized to be shared with a number of other properties and now isn't - and there's seemingly nothing they can do about it.
what are those problems you refer to (which cannot be easily overcome...)?

edit - just noticed you have referred to the set up as both "sewerage treatment" and "septic tank" - which is it?
edit - I've referred to it as a sewerage treatment plant everywhere expect when I made the "moral of the story" comment. To confirm it is a sewerage treatment plant. Does that make a difference in law?

MacadamB53
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Re: Cancelling an easement

Post by MacadamB53 » Wed Nov 09, 2016 10:19 am

Does that make a difference in law?
no, just the solutions for the owner

alpacaman
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Re: Cancelling an easement

Post by alpacaman » Wed Nov 09, 2016 12:31 pm

MacadamB53 wrote:
Does that make a difference in law?
no, just the solutions for the owner
OK. Could there be any come back on us if they had to replace the system with a smaller one because we had decided to stop using it and install our own?

So it appears from this thread that we could stop using it and contributing to its costs without needing the agreement of the owner (although I assume we would want to put our intentions in writing to them). Is it right to assume that as the easement would still exist on paper the only way to get this removed from the deeds would be via a formal agreement with them to that effect?

MacadamB53
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Re: Cancelling an easement

Post by MacadamB53 » Wed Nov 09, 2016 1:16 pm

alpacaman wrote:
MacadamB53 wrote:
Does that make a difference in law?
no, just the solutions for the owner
OK. Could there be any come back on us if they had to replace the system with a smaller one because we had decided to stop using it and install our own?

So it appears from this thread that we could stop using it and contributing to its costs without needing the agreement of the owner (although I assume we would want to put our intentions in writing to them). Is it right to assume that as the easement would still exist on paper the only way to get this removed from the deeds would be via a formal agreement with them to that effect?
there can be no come back.

that said, by disconnecting and standing by whilst they then replace the system your property has a right to use with a system it does not the next logical step - for sake of clarity - would be to release the easement and I'd suggest it would be a good idea to offer to pay all costs.

Kind regards, Mac

alpacaman
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Re: Cancelling an easement

Post by alpacaman » Wed Nov 09, 2016 2:12 pm

MacadamB53 wrote:there can be no come back.

that said, by disconnecting and standing by whilst they then replace the system your property has a right to use with a system it does not the next logical step - for sake of clarity - would be to release the easement and I'd suggest it would be a good idea to offer to pay all costs.

Kind regards, Mac
You mean offer to pay the costs of releasing the easement, not of them replacing the system (if that's what they choose to do)?

MacadamB53
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Re: Cancelling an easement

Post by MacadamB53 » Wed Nov 09, 2016 2:25 pm

alpacaman wrote:
MacadamB53 wrote:there can be no come back.

that said, by disconnecting and standing by whilst they then replace the system your property has a right to use with a system it does not the next logical step - for sake of clarity - would be to release the easement and I'd suggest it would be a good idea to offer to pay all costs.

Kind regards, Mac
You mean offer to pay the costs of releasing the easement, not of them replacing the system (if that's what they choose to do)?
yes - that's exactly what I meant

pilman
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Re: Cancelling an easement

Post by pilman » Sun Nov 20, 2016 2:14 pm

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].
Dealing with the reservation clause firstly, the benefit was for the retained land that you now own.
The burden was on the land being sold, which was accepted by the buyer knowing what was involved.

If you decided in the future that you no longer needed access to pipework laid under the burdened land than that is your choice. Not one that can be influenced by the owner of the servient land. The easement is not extinguished by such a decision, although by not taking advantage of the easement you no longer have an obligation to pay maintenance costs because that obligation was set out in section (1) of the positive covenant by the Transferor.

You were not a party to that positive covenant, which does not run with the land as would a restrictive covenant.

In law you may not have been compelled to pay the maintenance charges, although the phrase "no benefit without the burden" would apply if you refused to pay charges but continued to use the facility.

That is not the situation you are considering.

By voluntarily removing your property from the pipework leading to the pipes and equipment under the servient land, there is then no requirement under both contract law, which is what the positive covenant was and the legal presumption that there is no benefit without a corresponding burden when one has to pay a maintenance charge on an easement such as a right of way, or in this case to a shared private sewerage system.

The problem not being mentioned is that of the electricity supply now being provided to the sewerage plant.
That may have been referred to in the Transfer deed when that was to be a burden on the Transferor and a benefit to the Transferee.

That also may be a matter of contract law between the original parties because to provide electricity there was a positive obligation to pay for such a supply. What would happen when the original property remained unoccupied with the electricity turned off is a matter for another day, but you will need to consider what will happen if you no longer want to use the reserved easement.

It could be that there was an implied easement in favour of the transferred land that electricity would be provided in return for receiving a proportion of the cost. That would reflect the drainage easement being reserved because that would a mutually agreement.

In the event that you do decide to install your own treatment plant and you do want to extinguish your easement, then draft a simple deed of extinguishment which will need to be executed by all named owners of your property and the mortgage company if there is one. Send that to the owner of the servient land once it has been signed and witnessed as a deed and then arrange to discuss the electricity supply situation as a separate matter.

Either the right to receive electricity on payment of costs was an easement mentioned in the Transfer, or it became an implied easement recognised by law. It will be separate to your easement of drainage, although it will need to be considered once your final decision about future use of the drainage easement is made.

Have you yet made inquiries of the Environment Agency about discharging a new system into the local area when an existing system already exists. You may want to find out if a new license will be granted before making any decision about not using the current system.

Also have you calculated that one third of a new larger system is more expensive than 100% of a smaller private system, especially when all excavation will occur on the neighbour's land rather than yours?

alpacaman
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Re: Cancelling an easement

Post by alpacaman » Sun Nov 20, 2016 3:13 pm

Thanks for your comprehensive reply. I am pretty sure there will be no reference to the electricity supply anywhere in the documents. My reasoning is two-fold:

1. We purchased from the original developer of the properties (a development of three barn conversations) who lived in our property after it was built. Her daughter and son-in-law lived in the neighbouring property (the one which now owns the STP) until it was sold to the current owners. The only document referring to the transfer of the STP is the one I have referred to.

2. The current owners of the neighbouring property and the STP did not realise that the electricity ran off our supply. Nor did we until I spotted a circuit on our fuse board labelled as such, and tested that turning it off also turned off the supply to the plant.

At the moment, the other two neighbouring properties are contributing a third each of the electricity cost simply because I have made them aware of these facts, not because there is anything in writing. I'm assuming this is what you mean by "implied easement".

I have made no enquiries about having a separate facility as yet, but those are both points I will consider if and when I do.

pilman
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Re: Cancelling an easement

Post by pilman » Sun Nov 20, 2016 4:12 pm

1. Developer converts barns into three dwellings.
2. Developer provides a sewage treatment plant on land to be occupied by one of those dwellings with other houses connected using underground pipes.
3. Developer would have indicated in original transfers how sewage was to be discharged by each house as it was transferred.
4. Developer was responsible for making the plant functional by providing electricity to that plant.
5. Developer decided to occupy one house and provided electricity to the plant from that house circuit.
6. Developer may not have made provision for other houses to pay a contribution for electricity supplied to plant.

Current owner of developer's house now needs to establish if there was an implied easement granted to two other houses that electricity would be provided to the plant.
Can current owner obtain copies of original transfers for other houses?
Alternatively does each register of title include a reference to such an easement?
Would the current owner be prepared to turn off electricity if he established a private treatment plant on his own land.?

When I built 5 houses and needed to connect them to a common waste treatment plant there was a separate electricity supply provided with its own meter, as well as a common road that was transferred to a limited company with a share owned by each house. That was when I walked away with a clear conscience.

Perhaps when you bought the developer's house the fact that there was a common electricity supply for the treatment plant might have been pointed out.
Now you need to fully investigate the legal position regarding the right to have such supply continued even if you decide not to take advantage of the existing plant.

Good luck with that task.

alpacaman
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Re: Cancelling an easement

Post by alpacaman » Sun Nov 20, 2016 4:24 pm

pilman wrote:1. Developer converts barns into three dwellings.
2. Developer provides a sewage treatment plant on land to be occupied by one of those dwellings with other houses connected using underground pipes.
3. Developer would have indicated in original transfers how sewage was to be discharged by each house as it was transferred.
4. Developer was responsible for making the plant functional by providing electricity to that plant.
5. Developer decided to occupy one house and provided electricity to the plant from that house circuit.
6. Developer may not have made provision for other houses to pay a contribution for electricity supplied to plant.

Current owner of developer's house now needs to establish if there was an implied easement granted to two other houses that electricity would be provided to the plant.
Can current owner obtain copies of original transfers for other houses?
Alternatively does each register of title include a reference to such an easement?
Would the current owner be prepared to turn off electricity if he established a private treatment plant on his own land.?

When I built 5 houses and needed to connect them to a common waste treatment plant there was a separate electricity supply provided with its own meter, as well as a common road that was transferred to a limited company with a share owned by each house. That was when I walked away with a clear conscience.

Perhaps when you bought the developer's house the fact that there was a common electricity supply for the treatment plant might have been pointed out.
Now you need to fully investigate the legal position regarding the right to have such supply continued even if you decide not to take advantage of the existing plant.

Good luck with that task.
I think the ultimate answer is that, if we did decide not to use the existing plant we would not simply turn off the electricity supply to it. Most likely we would give the neighbouring properties the choice of continuing to pay for it or connecting the plant to an alternative supply. In either case, we would – I suspect – need to get something drawn up at the same time as the deed of extinguishment.

Unfortunately I don't think our developer was quite as conscientious as you. One neighbour has just (finally) sold their house after the first buyer pulled out due to there being no documentation regarding the use of the STP (they have no drawn something up with the other neighbour but we have not seen it nor been party to it, so I doubt there is anything about electricity in it). The transfer document we have states that it is in substitution of clauses in a previous charges register.

Anyway, I think we have our answer now. It also seems sensible that, should we decide to go down this route, we would need to instruct a solicitor to make sure all the documentation is watertight.

arborlad
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Re: Cancelling an easement

Post by arborlad » Wed Feb 14, 2018 12:29 pm

Best continued here:
alpacaman wrote:Our property shares a sewage treatment plant (STP) with two others. It has a slightly complex history which means that when the land it is situated on was transferred to one of the neighbours (who agreed to arrange maintenance, desludging, etc. on behalf of all three properties, with us and a third neighbour paying a third of the costs), no one realised (until we moved in) that our property still provides the electricity for the pumps. This is properly metered, so simply involves us calculating the electricity consumption and getting similar contributions at the same time as the desludging/maintenance.

This arrangement has been working fine since we moved in four years ago, but the neighbour who organises the maintenance, etc. now wants to take over the electricity supply as well. They have not provided a reason for this, apart from it making things more convenient for them. However, they have recently moved away and rented their property out (and, as far as we know, are in the process of selling it to the tenants).

This will involve them disconnecting our supply and, after finding their electrician wandering round on our property, they have asked if we would object to this. We have said that we see no reason to change an arrangement that 2 out of the 3 properties are quite comfortable with, especially as we have no idea if the circuit supplies just the STP or other external power at our property and we doubt they would be willing to be liable for any unforeseen issues that might arise in the future.

They are clearly not happy with this, and are now threatening to disconnect it anyway, connect the STP up to their house supply, and leave our underground cable live in the ground, saying that as the STP is on their land the ownership and responsibility is theirs. I very much doubt that any electrician would be willing or able to do this, and have told them as much, but it is concerning nonetheless.

As yet, they have been unable to provide any convincing reasons as to why they feel this is necessary. I had assume it might be something to do with their house sale, so have said on multiple occasions that if their solicitor has spotted an issue in terms of deeds, easements, etc. then they should have them write to me, which hasn't happened.

Any advice, oh wise ones? Can they actually change anything without our permission, and are we right to withhold it if we wish?

Thanks in advance.
arborlad

smile...it confuses people

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